              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
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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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