An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA15-430

                               Filed: 15 September 2015

Warren County, No. 12 JT 61

IN THE MATTER OF: K.E.T.


       Appeal by respondent-mother from order entered 27 January 2015 by Judge

Randolph Baskerville in Warren County District Court.             Heard in the Court of

Appeals 24 August 2015.


       No brief filed for petitioner-appellee Warren County Department of Social
       Services.

       Alston & Bird LLP, by Stephen H. Schilling and Heather Adams, for Guardian
       ad Litem.

       Miller & Audino, LLP, by Jay Anthony Audino, for respondent-appellant
       mother.


       McCULLOUGH, Judge.


       Respondent-mother (“respondent”) appeals from an order terminating her

parental rights to her son K.E.T. (“Kyle”). For the following reasons, we reverse and

remand the case for further findings of fact.

       On 27 December 2012, the Warren County Department of Social Services

(“WCDSS”) took nonsecure custody of newborn Kyle and filed a juvenile petition
                                     IN RE: K.E.T.

                                   Opinion of the Court



alleging he was a neglected and dependent juvenile. WCDSS alleged that respondent

was unable to provide for Kyle’s care or supervision due to her mental health issues.

Respondent’s recovery coach had arranged for respondent and Kyle to live with Kyle’s

maternal grandmother upon their release from the hospital; however, respondent

took Kyle to live in her house where there was no heat, formula, or diapers. The

petition further alleged that respondent refused help from family members and that

she lacked an appropriate alternative child care arrangement.

         The trial court conducted an adjudication hearing on 24 September 2013. By

order filed 14 November 2013, the trial court adjudicated Kyle a dependent juvenile

based upon “all parties stipulat[ing] and agree[ing], including [respondent’s] Rule 17

substitutive Guardian ad litem, Mr. Robert T. May, that the minor child is a

dependent child[.]” In a separate disposition order, the trial court concluded it was

in the best interest of Kyle that he remain in the custody of WCDSS.

         On 22 July 2014, WCDSS filed a motion in the cause to terminate respondent’s

parental rights based on Kyle’s status as a dependent juvenile.        A termination

hearing was held on 25 November 2014. By order filed 27 January 2015, the trial

court terminated respondent’s parental rights on the ground that respondent was

incapable of providing for the proper care and supervision of Kyle such that he was a

dependent juvenile. Respondent filed timely notice of appeal from the trial court’s

order.



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                                     IN RE: K.E.T.

                                   Opinion of the Court



                              I.     Standard of Review

      On appeal from an order terminating parental rights, this Court reviews the

order for “whether the findings of fact are supported by clear, cogent and convincing

evidence and whether these findings, in turn, support the conclusions of law.” In re

Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6 (citations and quotation marks

omitted), disc. review denied sub nom., In re D.S., 358 N.C. 543, 599 S.E.2d 42 (2004).

The trial court’s findings of fact which an appellant does not specifically dispute on

appeal “are deemed to be supported by sufficient evidence and are binding on appeal.”

In re M.D., 200 N.C. App. 35, 43, 682 S.E.2d 780, 785 (2009). However, “[t]he trial

court’s conclusions of law are fully reviewable de novo by the appellate court.” In re

S.N., 194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008) (quotation marks omitted),

aff’d per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).

                      II.    Motion in the Cause to Terminate

      Respondent contends the trial court lacked jurisdiction to hear the motion to

terminate her parental rights because the motion did not contain a statement of facts

sufficient to warrant a determination that one or more of the grounds for terminating

parental rights existed.

      A petition for termination of 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)



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                                       IN RE: K.E.T.

                                    Opinion of the Court



(2013). “ ‘While there is no requirement that the factual allegations in a petition for

termination of parental rights be exhaustive or extensive, they must put a party on

notice as to what acts, omissions, or conditions are at issue.’ ” In re C.W. & J.W., 182

N.C. App. 214, 228, 641 S.E.2d 725, 735 (2007) (quoting In re Hardesty, 150 N.C. App.

380, 384, 563 S.E.2d 79, 82 (2002)).

      Respondent specifically asserts the motion does not allege she lacked an

appropriate alternative child care arrangement and, therefore, did not put her on

notice as to what acts or omissions are at issue. However, this Court has held that

such a deficiency is not a jurisdictional issue, but instead constitutes a claim for relief

under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. In re Quevedo,

106 N.C. App. 574, 578, 419 S.E.2d 158, 159 (1992). Respondent did not move for a

dismissal under Rule 12(b)(6) in the trial court and “a Rule 12(b)(6) motion may not

be made for the first time on appeal.” In re H.L.A.D., 184 N.C. App. 381, 392, 646

S.E.2d 425, 434 (2007), aff’d per curiam, 362 N.C. 170, 655 S.E.2d 712 (2008) (citation

omitted). Because respondent failed to preserve this issue for appellate review, we

do not address it.

                            III.   Grounds for Termination

      Respondent contends the trial court’s findings of fact and conclusions of law

are insufficient to terminate her rights. We agree.




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                                      IN RE: K.E.T.

                                    Opinion of the Court



       The trial court may only terminate a parent’s parental rights if the petitioner

proves at least one ground pursuant to N.C. Gen. Stat. § 7B-1111 by clear, cogent,

and convincing evidence, and the trial court enters sufficient findings of fact to

support a conclusion of law that at least one of the grounds alleged by the petitioner

exists. N.C. Gen. Stat. § 7B-1109(e) and (f) (2013); In re C.W. & J.W., 182 N.C. App.

at 218, 641 S.E.2d at 729.

       Here, the court terminated respondent’s parental rights based upon Kyle being

a dependent juvenile. See N.C. Gen. Stat. § 7B-1111(a)(6) (2013). Our General

Statutes provide that a trial court may terminate parental rights if it concludes:

              That the parent is incapable of providing for the proper
              care and supervision of the juvenile, such that the juvenile
              is a dependent juvenile within the meaning of G.S. 7B-101,
              and that there is a reasonable probability that such
              incapability will continue for the foreseeable future.
              Incapability under this subdivision may be the result of
              substance abuse, mental retardation, mental illness,
              organic brain syndrome, or any other cause or condition
              that renders the parent unable or unavailable to parent the
              juvenile and the parent lacks an appropriate alternative
              child care arrangement.

N.C. Gen. Stat. § 7B-1111(a)(6). A dependent juvenile is defined as one who is “in

need of assistance or placement because (i) the juvenile has no parent, guardian, or

custodian responsible for the juvenile’s care or supervision or (ii) the juvenile’s parent,

guardian, or custodian is unable to provide for the juvenile’s care or supervision and

lacks an appropriate alternative child care arrangement.” N.C. Gen. Stat. § 7B-101(9)



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                                    IN RE: K.E.T.

                                 Opinion of the Court



(2013). As applied to respondent, such an adjudication requires findings of fact that

“address both (1) the parent’s ability to provide care or supervision, and (2) the

availability to the parent of alternative child care arrangements.” In re P.M., 169

N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005) (reversing adjudication where the

“trial court never addressed the second prong of the dependency definition”).

       We agree with respondent that the trial court did not find nor conclude that

she lacked an appropriate alternative child care arrangement. None of the trial

court’s adjudicatory findings of fact address the second prong.     Without such a

finding, we cannot uphold the trial court’s order terminating respondent’s parental

rights. Accordingly, we must reverse the order terminating respondent’s parental

rights and remand for further findings with respect to whether respondent has an

appropriate alternative child care arrangement. See In re B.M., 183 N.C. App. 84,

90, 643 S.E.2d 644, 648 (2007). The trial court may receive additional evidence on

remand, within its sound discretion. In re T.M.H., 186 N.C. App. 451, 456, 652 S.E.2d

1, 3 (2007).

       REVERSED AND REMANDED.

       Judges BRYANT and INMAN concur.

       Report per Rule 30(e).




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