IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-486
Filed: 5 December 2017
Cabarrus County, Nos. 15 JT 4-5
IN THE MATTER OF: J.S.K. and J.E.K.
Appeal by respondent-mother from order entered 17 February 2017 by Judge
William G. Hamby, Jr. in Cabarrus County District Court. Heard in the Court of
Appeals 16 November 2017.
Hartsell & Williams, P.A., by Brittany M. Love and H. Jay White, for petitioner-
appellee Cabarrus County Department of Human Services.
Michelle S. Spak for guardian ad litem.
Julie C. Boyer for respondent-appellant mother.
BERGER, Judge.
Respondent-mother appeals from the trial court’s order terminating her
parental rights to her minor children, J.S.K. and J.E.K. Respondent-mother argues
the trial court erred in denying her motion to dismiss because the motion to terminate
her parental rights did not allege sufficient facts. For the following reasons, we
reverse.
Factual & Procedural Background
The Cabarrus County Department of Human Services (“CCDHS”) filed
juvenile petitions on January 16, 2015 alleging that the children were neglected due
IN RE: J.S.K. & J.E.K.
Opinion of the Court
to Respondent-mother’s history of untreated mental health and substance abuse
issues, domestic violence, and improper care.
CCDHS took the children into nonsecure custody, and a hearing was held on
the petitions on June 11, 2015. The trial court’s August 26, 2015 order adjudicated
the children neglected as alleged in the petitions. The trial court set the permanent
plan as reunification and granted Respondent-mother one hour of supervised
visitation a week.
The trial court changed the permanent plan to adoption after a review hearing
on November 12, 2015. The trial court found that Respondent-mother’s progress in
correcting the conditions which led to the children’s removal was “insufficient for the
court to be assured that the juveniles could safely return to her care.” The trial court
ceased reunification efforts with Respondent-mother in a permanency planning order
entered January 4, 2016.
On May 20, 2016, CCDHS filed a motion in the cause to terminate Respondent-
mother’s parental rights to both children. The motion alleged that the minor children
were neglected and dependent juveniles; that Respondent-mother had willfully left
the children in care or placement outside her custody for twelve months without
showing reasonable progress in correcting the conditions which led to their
placement; and that Respondent-mother willfully failed to pay a reasonable cost of
care. See N.C. Gen. Stat. § 7B-1111(a)(1)-(3) (2015).
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At the start of the termination hearing on November 10, 2016, Respondent-
mother moved to dismiss the motion to terminate her parental rights, arguing that
the motion merely recited the statutory grounds without alleging any specific facts.
In an order entered February 17, 2017, the trial court terminated Respondent-
mother’s parental rights to both children based on all alleged grounds. Respondent-
mother timely appealed, and argues the trial court erred in denying her motion to
dismiss because the motion to terminate her parental rights did not state facts
sufficient to warrant a determination that one or more grounds for termination of
parental rights existed. We agree.
Standard of Review
“On appeal from a motion to dismiss under Rule 12(b)(6), this Court reviews
de novo whether, as a matter of law, the allegations of the complaint . . . are sufficient
to state a claim upon which relief may be granted.” Christmas v. Cabarrus Cty., 192
N.C. App. 227, 231, 664 S.E.2d 649, 652 (2008) (citation, internal quotation marks,
and brackets omitted), disc. review denied, 363 N.C. 372, 678 S.E.2d 234 (2009). “We
consider the allegations in the complaint true, construe the complaint liberally, and
only reverse the trial court’s denial of a motion to dismiss if plaintiff is entitled to no
relief under any set of facts which could be proven in support of the claim.” Green v.
Kearney, 203 N.C. App. 260, 266-67, 690 S.E.2d 755, 761 (2010) (citation omitted).
Analysis
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Initially, we address the well-settled rule that denial of a motion to dismiss is
not reviewable on appeal when there is a final judgment on the merits. See Concrete
Service Corp. v. Investors Group, Inc., 79 N.C. App. 678, 682-83, 340 S.E.2d 755, 758-
59, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986). However, this Court has
deviated from that rule in termination proceedings. See In re Hardesty, 150 N.C.
App. 380, 384, 563 S.E.2d 79, 82 (2002); see also In re Quevedo, 106 N.C. App. 574,
578, 419 S.E.2d 158, 159, appeal dismissed, 332 N.C. 483, 424 S.E.2d 397 (1992).
CCDHS argues that Respondent-mother’s appeal must be dismissed because
she seeks review of the trial court’s denial of her Rule 12(b)(6) motion having only
given notice of appeal from the final order terminating her parental rights. However,
Respondent-mother’s motion to dismiss pursuant to Rule 12(b)(6) was not a written
motion made at a pretrial hearing from which a separate order was entered. Rather,
it was an oral motion made at the beginning of the hearing on the motion to terminate
her parental rights. Thus, the final termination order is the only written order in the
record on appeal referencing the denial of Respondent-mother’s motion to dismiss. In
finding of fact number eight, the trial court found that it denied her motion because
CCDHS filed a motion in the cause to terminate Respondent-mother’s parental
rights, and not a petition for termination of parental rights, and therefore
Respondent-mother “had notice from the underlying Abuse, Neglect, and Dependency
file as to the specific allegations and grounds for termination.” Given that there is no
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other order from which Respondent-mother could appeal the denial of her motion to
dismiss, we address Respondent-mother’s argument.
A petition or motion to terminate parental rights must allege “[f]acts that are
sufficient to warrant a determination that one or more of the grounds for terminating
parental rights [listed in N.C.G.S. § 7B–1111(a)] exist.” N.C. Gen. Stat. § 7B-1104(6)
(2015). While the facts alleged need not be “exhaustive or extensive,” they must be
sufficient to “put a party on notice as to what acts, omissions or conditions are at
issue.” Hardesty, 150 N.C. App. at 384, 563 S.E.2d at 82. A petition which sets forth
only a “bare recitation . . . of the alleged statutory grounds for termination” does not
meet this standard. Quevedo, 106 N.C. App. at 579, 419 S.E.2d at 160 (emphasis
omitted) (construing predecessor statute, N.C. Gen. Stat. § 7A-289.25(6)). N.C. Gen.
Stat. § 7B-1104 makes no distinction between the facts required to be alleged in a
petition or motion to terminate parental rights. In other words, the mere fact that a
motion in the cause to terminate parental rights has been filed, as opposed to a
petition to terminate parental rights, does not relieve the moving party of the
necessity to follow N.C. Gen. Stat. § 7B-1104(6).
In Hardesty, the respondent challenged the sufficiency of the petition to
terminate her parental rights by a Rule 12(b)(6) motion to dismiss for failure to state
a claim, which the trial court denied. Hardesty, 150 N.C. App. at 383, 563 S.E.2d. at
82. On appeal, this Court reversed the trial court’s termination order holding that
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the petition, which “merely used words similar to those in the statute setting out
grounds for termination, alleged illegitimacy, and alleged that [the juvenile] had
spent his entire life in foster care[,]” was insufficient to put the party on notice as to
what acts, omissions, or conditions were at issue, and the motion to dismiss should
have been granted. Id. at 384, 563 S.E.2d at 82 (citation omitted).
In Quevedo, the respondent made a pretrial motion for judgment on the
pleadings pursuant to Rule 12(c), which the trial court denied. Quevedo, 106 N.C.
App. at 578, 419 S.E.2d at 159. On appeal, this Court treated the respondent’s motion
as a Rule 12(b)(6) motion to dismiss for failure to state a claim because the basis of
the motion was that the petition failed to state sufficient facts as required by the
statute. Id. This Court held that “petitioners’ bare recitation . . . of the alleged
statutory grounds for termination does not comply with the [statutory] requirement
[ ] that the petition state facts which are sufficient to warrant a determination that
grounds exist to warrant termination.” Id. at 579, 419 S.E.2d at 160 (citation and
internal quotation marks omitted). However, the Quevedo Court upheld the denial
of the motion because the petition incorporated an attached custody order which
stated sufficient facts to warrant such a determination. Id.
Here, the motion to terminate parental rights alleged that Respondent-mother:
a. Has caused the juveniles to be neglected, as defined
in N.C. Gen. Stat. §[]7B-101(15) as set out in N.C. Gen.
Stat. §7B-1111(a)(1) in that each is in need of assistance of
placement, because her known parent is unwilling and
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unable to provide for her care or supervision and lacks an
appropriate alternative to childcare arrangement. The
juveniles do not have a parent, guardian, or custodian that
will accept responsibility for the juveniles’ care or
supervision and the juveniles’ parent, guardian, or
custodian is unwilling and unable to provide for the
juveniles’ care or supervision and lacks an appropriate
alternative child care arrangement.
b. Has willfully left the juveniles in foster care or
placement outside the home for more than 12 months
without showing to the satisfaction of the court that
reasonable progress under the circumstances has been
made in correcting those conditions which led to the
removal of the juveniles on January 16, 2015, N.C. Gen.
Stat. §7B-1111(a)(2);
c. Has willfully failed to pay a reasonable portion of the
costs of care for the juveniles, although physically and
financially able to do so, for a continuous period of six
months next preceding the filing of this Motion while the
juveniles have been placed in the custody of a county
department of social services, a licensed child-placing
agency, a child-caring institution, or a foster home, N.C.
Gen. Stat. §7B-1111(a)(3);
d. Has caused the juveniles to be dependent as defined
in N.C. Gen. Stat. §[]7B-101 (9) as set out in N.C. Gen. Stat.
§7B-1111(a)(1) in that the parent is incapable of providing
the proper care and supervision of the juveniles and there
is reasonable probability that such incapability will
continue for the unforeseeable future, N.C. Gen. Stat. §7B-
1111(a)(6).
Because these allegations are bare recitations of the alleged statutory grounds
for termination listed in N.C. Gen. Stat. § 7B-1111, the motion to terminate
Respondent-mother’s parental rights failed to comply with N.C. Gen. Stat. § 7B-
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1104(6) and was insufficient to put Respondent-mother on notice as to what acts,
omissions, or conditions were at issue. See Hardesty, 150 N.C. App. at 384, 563 S.E.2d
at 82. Unlike in Quevedo, the motion to terminate parental rights in this case did not
incorporate any prior orders and the attached custody order did not contain any
additional facts sufficient to warrant a determination that grounds existed to
terminate Respondent-mother’s parental rights. Therefore, the trial court erred in
denying Respondent-mother’s motion to dismiss. Accordingly, we reverse the trial
court’s order terminating Respondent-mother’s parental rights.
REVERSED.
Judges ELMORE and ARROWOOD concur.
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