In re J.E.M.

BEASLEY, Judge,

dissenting.

After a careful review of the record, I believe that the trial court failed to meet the statutory requirement in N.C. Gen. Stat. § 7B-1109(e). Accordingly, I would reverse the orders of the trial court and remand the case for a new hearing.

In the one issue raised on appeal, Respondent specifically argues that “the trial court erred when it found grounds to terminate parental rights when those grounds were not supported by clear, cogent and convincing evidence.” The majority opinion is correct that Respondent does not contest that termination of parental rights was in the best interest of the child. However, Respondent does contest the inadequacy of the trial court’s findings of fact for the trial court to ultimately determine whether termination of parental rights is in the child’s best interest. Respondent specifically argues that “there was no evidence before the court about [Respondent’s] current conditions” to support a finding of neglect or that Respondent failed to pay child support. Assuming arguendo that such evidence was presented, the trial court did not make sufficient findings of fact.

Our juvenile code mandates that “ [t]he burden is on the petitioner to prove the allegations of the termination petition by clear, cogent, and convincing evidence.” In re R.B.B., 187 N.C. App. 639, 643, 654 S.E.2d 514, 518 (2007) (citing N.C. Gen. Stat. § 7B-1109(f)). Our juvenile code, in turn, also places a duty on the trial court as the adjudicator of the evidence. It mandates that “[t]he court shall take evidence, find the facts, and shall adjudicate the existence or nonexistence of any of the circumstances set forth in G.S. 7B-1111 which *366authorize the termination of parental rights of the respondent.” N.C. Gen. Stat. § 7B-1109(e) (2011). Thus, this Court has held that a trial court must make an independent determination of whether grounds authorizing termination of parental rights existed at the time of the hearing. See In re A.M., 192 N.C. App. 538, 541-542, 665 S.E.2d 534, 536 (2008) (“The key to a valid termination of parental rights on neglect grounds where a prior adjudication of neglect is considered is that the court must make an independent determination of whether neglect authorizing the termination of parental rights existed at the time of the hearing.”) (internal quotation marks omitted); see also In re N.B., 195 N.C. App. 113, 117-18, 670 S.E.2d 923, 926 (2009) (extending the analysis in A.M. to other grounds for termination). As part of this duty, the trial court must hear oral testimony presented by the petitioner and may not rely solely on written reports, prior court orders, and the attorneys’ oral arguments in rendering its decision. In re A.M., 192 N.C. App. at 542, 665 S.E.2d at 536. Our review in termination of parental rights cases is “whether the court’s findings of fact are based upon clear, cogent and convincing evidence and whether the findings support the conclusions of law.” In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000) (internal quotations and citation omitted).

In the instant case, DSS’s only evidence consisted of a social worker who was “sworn to the facts set out in the Petition.”1 The social worker’s statement was nearly identical to her verification of the motion to terminate parental rights, which she had already completed on 15 August 2011, and it bore little resemblance to oral testimony proffered by the petitioner. Therefore, I would conclude that the social worker’s verification was not sufficient to discharge the trial court’s duty to make an independent determination of the facts before it.

Additionally, this Court has held that as part of the trial court’s duty to make an independent determination, “the trial court may not simply recite allegations from the petition as its findings of fact.” In re S.C.R., - N.C. App. — , -, 718 S.E.2d 709, 712 (2011). “[T]he trial court must, through ‘processes of logical reasoning,’ based on the evidentiary facts before it, ‘find the ultimate facts essential to support the conclusions of law. In re O.W., 164 N.C. App. 699, 702, 596 *367S.E.2d 851, 853 (2004). (quoting In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003)). The findings “must be the ‘specific ultimate facts ... sufficient for the appellate court to determine that the judgment is adequately supported by competent evidence.’ ” In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002) (internal quotations and citation omitted).

Here, the trial court’s ultimate findings of fact are contained in Finding of Fact Number 8, subparts a through f. The findings purport to demonstrate that (1) the juvenile was neglected because Respondent failed to complete various aspects of the family services case plan with DSS and (2) Respondent was physically and financially able to make some child support payments but failed to do so. As expected, several of the findings are verbatim recitations of the allegations contained in DSS’s motion to terminate Respondent’s parental rights. Even more problematic are Findings of Fact Numbers 8(a), 8(c), and 8(f) contain factual findings which do not appear in DSS’s termination motion. Given that DSS failed to present any oral testimony, it would appear that these new findings of fact were based solely on documentary evidence, which runs afoul of A.M., or were based on dispositional testimony presented by Respondent. Although Respondent presented three witnesses at the hearing, including himself, all of his evidence was presented during the dispositional stage of the proceedings. We have held that the trial court need not conduct a separate hearing for adjudication and disposition, so long as it applies to the appropriate standard of proof at each stage. In re White, 81 N.C. App. 82, 85, 344 S.E.2d 36, 38 (1986). However, here it is clear that none of the parties presented any evidence at adjudication beyond the allegations contained in the petition and that Respondent’s evidence was offered solely for the dispositional stage of the proceedings. Given the different standards of proof applicable to the two stages, as well as DSS’s decision to rest solely on the allegations contained in its termination motion, any evidence offered by Respondent could not be used by the trial court in rendering its decision that DSS established grounds for termination by clear, cogent, and convincing evidence.

Furthermore, this Court has held that our juvenile code does not authorize default type orders terminating parental rights or summary dispositions. In re J.N.S., 165 N.C. App. 536, 539, 598 S.E.2d 649, 650-51 (2004); In re Tyner, 106 N.C. App. 480, 483-84, 417 S.E.2d 260, 261-62 (1992). In In re J.N.S., we reasoned that

*368Chapter 7B of the North Carolina General Statutes contains absolutely no provision allowing for the use of a summary judgment motion in a juvenile proceeding. In fact, the provisions of Chapter 7B' implicitly prohibit such use by imposing on the trial court the duty to hear the evidence and make findings of fact on the allegations contained in the juvenile petition. . . . This duty is incompatible with the law on summary judgment, which rests on the non-existence of genuine issues of fact prior to a hearing on the merits.... Summary judgment on the existence of grounds for termination of parental rights listed in N.C. Gen. Stat. § 7B-1111 is therefore contrary to the procedural mandate set forth in our juvenile code.

J.N.S., 165 N.C. App. at 539, 598 S.E.2d at 650-51 (internal citations omitted).

Although Respondent did not contest DSS’s case-in-chief, the instant case was not, strictly speaking, a default or summary proceeding. Nevertheless, I find the analysis in J.N.S. and Tyner instructive. Therefore, I would find that Respondent’s decision not to contest DSS’s case does not obviate the trial court’s duty to conduct a hearing, hear oral testimony, and make an independent determination of the facts at issue. Nor does it obviate DSS’s duty to meet its burden of proving the existence of grounds for termination by clear, cogent, and convincing evidence. Therefore, I would conclude that the trial court failed to meet the statutory requirement that it “take evidence, find the facts, and shall adjudicate the existence or nonexistence of [grounds for termination].” N.C. Gen. Stat. § 7B-1109(e).

. Even more problematic is the fact that the social worker’s statement does not appear on the face of the transcript. Rather, the transcript contains the following parenthetical notation: “(WHEREUPON: Ms. Andrea Bradshaw was duly sworn to the facts set out in the Petition.)”