              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-1009

                                 Filed: 6 March 2018

Cabarrus County, No. 17-JA-47

IN THE MATTER OF: S.J.T.H., Minor Child.




      Appeal by respondent from order entered 28 June 2017 by Judge Christy E.

Wilhelm in District Court, Cabarrus County. Heard in the Court of Appeals 21

February 2018.


      Hartsell & Williams, PA, by H. Jay White and Austin “Dutch” Entwistle III, for
      petitioner-appellee Cabarrus County Department of Social Services.

      Jeffrey L. Miller, for respondent-appellant.

      Michael N. Tousey, for guardian ad litem.


      STROUD, Judge.


      Respondent appeals an adjudication and disposition order placing his son in

the custody of the Cabarrus County Department of Human Services and ordering him

to comply with certain conditions to gain custody.       DSS presented no evidence

regarding respondent beyond that supporting paternity, and the trial court made no

substantive findings of fact about respondent other than those relevant to paternity.

The trial court’s findings and conclusions regarding the adjudication of neglect by the
                                         IN RE: S.J.T.H.

                                        Opinion of the Court



mother are not challenged on appeal. We affirm the adjudication of neglect, all

portions of the order regarding the mother, and the adjudication of paternity, but we

reverse the provisions of the order directing respondent to comply with the order’s

conditions and remand for entry of an order in compliance with respondent’s

constitutional and statutory rights as the minor child’s father.

                                           I.      Background

       In February of 2017, Sam1 was born. Sam’s mother identified Abel as his

father and gave Sam Abel’s last name.               Because of mother’s prior history with

Cabarrus County Department of Human Services (“CCDHS”) for her older child and

her ongoing drug abuse, Sam could not be released to her custody. Abel initially said

he would care for Sam but failed to show up when it was time for Sam’s discharge

from the hospital.       Sam was placed with a family friend.                 In March of 2017,

respondent contacted CCDHS; he reported that he may be Sam’s father, and offered

to care for him. In April of 2017, CCDHS filed a petition which identified both Abel

and respondent as possible fathers, and alleged Sam was a neglected and dependent

juvenile based upon mother’s prior history with CCDHS and drug abuse; Sam was

placed in non-secure custody.          In May of 2017, a paternity test confirmed that

respondent is Sam’s father.          In June of 2017, the trial court adjudicated Sam’s



       1  We will use pseudonyms for the child as well as the man Sam’s mother initially identified as
his father in order to protect the identity of the minor child.


                                                -2-
                                           IN RE: S.J.T.H.

                                          Opinion of the Court



paternity, adjudicated him as neglected based upon mother’s drug abuse and other

issues, and granted custody to CCDHS. CCDHS presented no evidence regarding

respondent other than basic identification information and evidence to establish

paternity.2 The order -- incorrectly titled as a consent order -- ordered respondent to

comply with the same eleven mandates as mother, including completing a substance

abuse assessment, undergoing random drug testing, participating in parenting

classes, and verifying that he had sufficient income. The order essentially makes no

distinction between mother and respondent although all of the evidence addressed

mother’s issues, including her drug abuse, criminal history, and prior CCDHS

involvement, with nothing presented about respondent, who had only been discovered

as Sam’s father in the prior month. Respondent appeals.

                                        II.      Adjudication Order

        Respondent does not challenge the trial court’s adjudication of paternity nor

the adjudication of Sam as a neglected juvenile due to his mother’s actions and thus

we will not address those portions of the order and, they will remain in force. But

respondent challenges the remainder of the order to the extent that it addresses him,

particularly as to the trial court’s determination that Sam should not be released to




        2The reports by CCDHS provided to the district court addressed mother’s circumstances at
length but did not address respondent’s circumstances or ability to care for the child at all. Despite the
absence of any information about respondent, CCDHS recommended exactly the same plan and
requirements for respondent as it did for mother. No additional information regarding respondent
was presented in testimony at the hearing.

                                                  -3-
                                      IN RE: S.J.T.H.

                                   Opinion of the Court



his custody and the conditions placed on respondent. All of respondent’s challenges

would require us to analyze whether the evidence supports the trial court’s findings

of fact and conclusions of law regarding respondent. See generally In re McCabe, 157

N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003) (“When an appellant asserts that an

adjudication order of the trial court is unsupported by the evidence, this Court

examines the evidence to determine whether there exists clear, cogent and convincing

evidence to support the findings.”)

      As respondent points out, there was a total lack of evidence regarding him at

the adjudication hearing other than the evidence to establish paternity. Here, there

is nothing for this Court to analyze as the record and order are devoid of evidence and

findings of fact regarding respondent beyond establishing paternity. There was no

evidence about respondent’s ability to parent, his home life, his ability to provide for

Sam, or any other evidence a trial court must consider before finding a parent unfit

or determining custody. While CCDHS urges this Court to ignore respondent’s rights

as a father and instead consider Sam’s best interests, even a determination of his best

interests would require evidence about respondent.

                   A natural parent may lose his constitutionally
             protected right to the control of his children in one of two
             ways: (1) by a finding of unfitness of the natural parent, or
             (2) where the natural parent’s conduct is inconsistent with
             his or her constitutionally protected status. While this
             analysis is often applied in civil custody cases under
             Chapter 50 of the North Carolina General Statutes, it also
             applies to custody awards arising out of juvenile petitions


                                           -4-
                                   IN RE: S.J.T.H.

                                  Opinion of the Court



             filed under Chapter 7B.

In re D.M., 211 N.C. App. 382, 385, 712 S.E.2d 355, 357 (2011) (citations, quotation

marks, and brackets omitted). Our courts cannot presume a parent to be unfit or to

have acted inconsistently with his constitutional rights as a parent without clear,

cogent, and convincing evidence to demonstrate why the parent cannot care for his

child. See id.; see also McCabe, 157 N.C. App. at 679, 580 S.E.2d at 73. In D.M., the

minor child was only adjudicated as dependent and

             DSS’s juvenile petition alleging dependency was based
             solely on the actions of Dana’s mother and not respondent-
             father. Here, the trial court specifically found that neither
             parent is unfit to parent, and thus it could not award
             permanent custody to the maternal grandmother in the
             absence of findings of fact and conclusions of law that
             respondent-father had acted inconsistently with his
             constitutional rights as a parent. Because the trial court
             failed to make any findings of fact or conclusions of law as
             to whether respondent-father had acted inconsistently
             with his parental rights, it erred in awarding permanent
             custody to Dana’s maternal grandmother. Accordingly, we
             reverse the 20 July 2010 order awarding custody of Dana
             to her maternal grandmother.

Id. (citations, quotation marks, and brackets omitted).

      In summary, the trial court’s adjudication of neglect and adjudication of

respondent as father of Sam remain undisturbed. Mother did not appeal and all

provisions of the order addressing mother remain in effect. We reverse the order to

the extent that it mandates any action by respondent and grants custody to CCDHS.

We remand this case for the trial court to enter a new order addressing respondent’s


                                         -5-
                                  IN RE: S.J.T.H.

                                 Opinion of the Court



rights and granting him custody unless DSS presents clear, cogent, and convincing

evidence which would support another disposition. Upon request by any party, the

trial court shall receive additional evidence on remand.   Because we are reversing

and remanding the order in its entirety as to respondent, other than the adjudication

of paternity, we need not address respondent’s other issues on appeal.

                                    III.     Conclusion

      Because there was no evidence presented regarding respondent other than

establishment of paternity and the trial court made no substantive findings of fact

regarding him beyond paternity, we reverse the order to the extent that it requires

any actions by respondent and grants custody to CCDHS. We affirm the adjudication

of neglect and of paternity.

      AFFIRMED in part; REVERSED in part; REMANDED.

      Judges DAVIS and ARROWOOD concur.




                                           -6-
