In re K.H. ( 2020 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 255A19
Filed 20 November 2020
IN THE MATTER OF: K.H.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 28
March 2019 by Judge Christy E. Wilhelm in District Court, Cabarrus County. Heard
in the Supreme Court on 2 September 2020.
Austin “Dutch” Entwistle III for petitioner-appellee Cabarrus County
Department of Social Services.
Daniel E. Peterson for appellee Guardian ad Litem.
Anné C. Wright for respondent-appellant mother.
HUDSON, Justice.
In 2017 a sixteen-year-old mother and her nine-month-old baby were taken
into custody by the Cabarrus County Department of Social Services (DSS) and placed
in the same foster home. After six months together, the child was moved to a different
foster home apart from her mother. Less than eight months later, DSS filed a motion
to terminate respondent-mother’s parental rights to her child. Here, we conclude that
a parent and child must be living apart from each other for more than twelve months
prior to the filing of a motion to terminate parental rights in order for grounds for
termination to exist under N.C.G.S. § 7B-1111(a)(2). Furthermore, the factual
findings the trial court made here were insufficient to support the termination of the
IN RE K.H.
Opinion of the Court
mother’s parental rights under either N.C.G.S. § 7B-1111(a)(3) or (6). Accordingly, we
reverse the trial court’s order terminating respondent-mother’s parental rights.
I. Factual and Procedural History
In March of 2017, respondent was only sixteen years old and had a nine-month-
old daughter named Kaitlyn.1 At the time, DSS received a report that respondent’s
father punched her in the face. It was also reported to DSS that respondent abused
drugs, left Kaitlyn in the care of strangers, and had attempted to poison her family.
On 5 April 2017, DSS filed a petition alleging that Kaitlyn was a neglected and
dependent juvenile. That same day, DSS was granted nonsecure custody of both
respondent and Kaitlyn.
Initially, respondent and Kaitlyn were placed in separate foster homes. Kaitlyn
was adjudicated to be a neglected and dependent juvenile by an order filed on 8 June
2017 and the trial court determined that the primary permanent plan for Kaitlyn
would be reunification with a secondary plan of guardianship.
The next day, 9 June 2017, respondent and Kaitlyn were placed in the same
foster home. They remained together until 19 December 2017 when Kaitlyn was
moved to a placement apart from respondent after respondent was caught with
cigarettes and marijuana stems were found in a shoebox under her bed. Over the
course of the next several months, respondent’s progress was turbulent, respondent
1 A pseudonym is used to protect the identity of the juvenile child and for ease of
reading.
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Opinion of the Court
was moved between multiple placements, and ultimately the primary permanent
plan for Kaitlyn was changed to adoption with a secondary plan of reunification.
On 8 August 2018, DSS filed a motion to terminate the parental rights of
Kaitlyn’s parents (TPR motion) alleging that termination was appropriate under
N.C.G.S. § 7B-1111(a)(1)–(3), (6), and (7). A hearing on the motion was held on 25
February 2019 and 27 February 2019. On 28 March 2019, the trial court entered an
order terminating respondent’s parental rights pursuant to N.C.G.S. § 7B-1111(a)(2),
(3), and (6) (TPR order). Respondent filed a notice of appeal on 10 April 2019.
II. Standard of Review
Proceedings to terminate parental rights consist of an adjudicatory stage and
a dispositional stage. N.C.G.S. §§ 7B-1109, -1110 (2019). At the adjudicatory stage,
the petitioner bears the burden “of proving by ‘clear, cogent, and convincing evidence’
that one or more grounds for termination exist under section 7B-1111(a) of the North
Carolina General Statutes.” In re Z.A.M., 374 N.C. 88, 94 (2020) (citing N.C.G.S. §
7B-1109(f) (2019)). “We review a trial court’s adjudication under N.C.G.S. § 7B-1109
‘to determine whether the findings are supported by clear, cogent and convincing
evidence and the findings support the conclusions of law.’ The trial court’s conclusions
of law are reviewable de novo on appeal.” Id. (citation omitted).
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Opinion of the Court
III. Analysis
A. N.C.G.S. § 7B-1111(a)(2)
In the TPR order, the trial court found that grounds for termination existed
under N.C.G.S. § 7B-1111(a)(2), which provides as follows:
The parent has willfully left the juvenile 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 juvenile.
N.C.G.S. § 7B-1111(a)(2) (2019).
As the Court has previously explained, “[t]ermination under this ground
requires the trial court to perform a two-step analysis where it must determine by
clear, cogent, and convincing evidence whether (1) a child has been willfully left by
the parent in foster care or placement outside the home for over twelve months, and
(2) the parent has not made reasonable progress under the circumstances to correct
the conditions which led to the removal of the child.” In re Z.A.M., 374 N.C. at 95–96
(citing In re O.C., 171 N.C. App. 457, 464–65, disc. review denied, 360 N.C. 64 (2005)).
Under the first step, “the twelve-month period begins when a child is left in foster
care or placement outside the home pursuant to a court order, and ends when the
motion or petition for termination of parental rights is filed.” In re J.G.B., 177 N.C.
App. 375, 383 (2006). “Where the twelve-month threshold does not expire before the
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Opinion of the Court
motion or petition is filed, a termination on the basis of N.C.G.S. § 7B-1111(a)(2)
cannot be sustained.” Id.
The time period a juvenile is left in foster care or placement outside the home
is distinct from the time period a trial court considers in evaluating whether the
parent has made reasonable progress in correcting the conditions that led to the
juvenile’s removal. In re J.S., 374 N.C. 811, 815 (2020) (“[A]n adjudication
under N.C.G.S. § 7B-1111(a)(2) requires that a child be left in foster care or
placement outside the home pursuant to a court order for more than a year at the
time the petition to terminate parental rights is filed. This is in contrast to the nature
and extent of the parent’s reasonable progress, which is evaluated for the duration
leading up to the hearing on the motion or petition to terminate parental rights.”
(cleaned up) (emphasis in original)). In the TPR order, the trial court found that “[t]he
juvenile has been in care for approximately 13 months” and considered respondent’s
conduct up until the date of the termination hearing in February 2019. It is unclear
which thirteen months the trial court considered when calculating how long Kaitlyn
had been in foster care and whether the trial court considered the months between
the filing of the TPR motion and the termination hearing. The trial court’s
consideration of respondent’s conduct up until the termination hearing was relevant
to its consideration of respondent’s reasonable progress but should not have been
considered in its calculation of how long Kaitlyn had been left in foster care or
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Opinion of the Court
placement outside the home. We are unable to determine from the TPR order how the
trial court calculated the relevant time period.2
The issue we are asked to consider is how long Kaitlyn was “left in foster care
or placement outside the home” and thus whether the statutory twelve-month period
elapsed.3 Importantly, this case presents a rare circumstance in which respondent
was also a minor in DSS custody. If the relevant time period began when Kaitlyn was
put into nonsecure custody on 5 April 2017 and ran continuously until 8 August 2018
when DSS filed the TPR motion, more than twelve months had elapsed, and we would
then analyze whether the trial court’s findings of fact were supported by clear, cogent,
and convincing evidence that respondent “willfully” left Kaitlyn in the placement for
that period of time. See N.C.G.S. §§ 7B-1109(f), -1111(a)(2). However, if the relevant
time period was suspended during the time Kaitlyn and respondent lived together in
the foster home from 9 June 2017 to 19 December 2017, Kaitlyn had only been “left
in foster care or placement outside the home” for approximately ten months in total,4
2 Although the TPR order does not specify which time period it utilized for this part of
the analysis, DSS argued in its brief to this Court that the trial court “properly considered
evidence ranging from 5 April 2017, when the trial court placed Kaitlyn in [DSS]’s custody,
until 25 February 2019 when the trial court held a hearing on [DSS]’s motion to terminate.”
As explained, this time period cannot satisfy the statutory requirement because almost half
of it elapsed after the TPR motion was filed.
3 The parties do not dispute that Kaitlyn was placed in foster care “pursuant to a court
order.” In re J.G.B., 177 N.C. App. 375, 383 (2006); see also In re A.C.F., 176 N.C. App. 520,
525–26 (2006) (“[W]e conclude the statute refers only to circumstances where a court has
entered a court order requiring that a child be in foster care or other placement outside the
home.”). Kaitlyn was placed under a nonsecure custody order on 5 April 2017.
4 Kaitlyn and respondent were separated from 5 April 2017 through 9 June 2017 and
then again from 19 December 2017 until 8 August 2018.
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Opinion of the Court
and a termination of respondent’s parental rights under subsection (a)(2) could not
be sustained. In re J.G.B., 177 N.C. App. at 383.
The General Assembly’s stated purpose with respect to the termination of
parental rights is “to provide judicial procedures for terminating the legal
relationship between a juvenile and the juvenile’s biological or legal parents when
the parents have demonstrated that they will not provide the degree of care which
promotes the healthy and orderly physical and emotional well-being of the juvenile.”
N.C.G.S. § 7B-1100(1) (2019).
Our appellate courts have previously explained that the purpose of the twelve-
month requirement under N.C.G.S. § 7B-1111(a)(2) is to “provide[ ] parents with at
least twelve months’ notice to correct the conditions which led to the removal of their
children before being made to respond to a pleading seeking the termination of his or
her parental rights.” In re A.C.F., 176 N.C. App. at 527. This requirement “gives full
support to the State’s interests in preserving the family, while keeping in place a
legislatively-established time frame for moving to termination if a child’s return home
proves untenable.” Id. (citing N.C.G.S. § 7B-1100 (2003)).
We apply the law with this purpose in mind. The statute requires that the
parent have “willfully left the juvenile in foster care or placement outside the home for
more than 12 months.” N.C.G.S. § 7B-1111(a)(2) (emphasis added). Typically, when
a child is placed in foster care he or she is removed from the parents’ home and placed
elsewhere. See N.C.G.S. § 131D-10.2(9) (2019) (“ ‘Foster care’ means the continuing
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Opinion of the Court
provision of the essentials of daily living on a 24-hour basis for dependent, neglected,
abused, abandoned, destitute, orphaned, undisciplined or delinquent children or
other children who, due to similar problems of behavior or family conditions, are
living apart from their parents, relatives, or guardians in a family foster home or
residential child-care facility.” (emphasis added)). Thus, the plain meaning of the
term “foster care” presumes that the child has been physically separated and is living
apart from his or her parents. Likewise, the phrase “placement outside the home”
connotes a separation of the parent and child where the child lives in a home apart
from the parent.
In the case of a minor parent, interpreting “foster care or placement outside
the home” to require a physical separation of the parent and juvenile fulfills the
legislature’s purpose of requiring that “more than 12 months” pass between the time
a juvenile is left in foster care and the time a motion or petition for termination may
be filed. As we explained above, this time period “provides parents with at least
twelve months’ notice to correct the conditions which led to the removal of their
children[.]” In re A.C.F., 176 N.C. App. at 527. It is unlikely that a parent—
particularly a minor parent—would be on notice that his or her child has been
“removed” from the home or that a court might find that he or she “willfully left” the
child in foster care during the period of time when the parent and child were living
in the same foster home. Requiring that the minor parent and juvenile live separately
for at least twelve months prior to the filing of a motion or petition for termination
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Opinion of the Court
provides the notice the legislature intended to the parent that he or she must correct
the conditions that led to the child’s removal.
Here, Kaitlyn and respondent were placed in the same foster home on 9 June
2017. We conclude that as of that date Kaitlyn was not in a living situation upon
which the legislature intended to base the termination of respondent’s parental rights
under N.C.G.S. § 7B-1111(a)(2). To the contrary, reading the statute as a whole and
affording the words their plain meaning, we conclude that grounds for termination
exist under subsection (a)(2) only when the juvenile has actually lived apart from the
parent for more than twelve months. Therefore, we conclude that the months that
Kaitlyn and respondent lived together in the same foster home from 9 June 2017 to
19 December 2017 cannot count towards the requisite twelve-month separation under
N.C.G.S. § 7B-1111(a)(2). When DSS filed the TPR motion on 8 August 2018, Kaitlyn
had only been “left in foster care or placement outside the home” for approximately
ten months. Because the statutorily required twelve months had not accrued,
termination on the basis of this ground cannot be sustained. See In re J.G.B., 177
N.C. App. at 383 (“Where the twelve-month threshold does not expire before the
motion or petition is filed, a termination on the basis of N.C.G.S. § 7B–1111(a)(2)
cannot be sustained.”). Accordingly, we reverse the trial court on this issue.
B. N.C.G.S. § 7B-1111(a)(3)
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Opinion of the Court
The trial court also found that grounds for termination of respondent’s
parental rights existed under N.C.G.S. § 7B-1111(a)(3), which provides as follows:
The juvenile has 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, and the
parent has for a continuous period of six months
immediately preceding the filing of the petition or motion
willfully failed to pay a reasonable portion of the cost of
care for the juvenile although physically and financially
able to do so.
N.C.G.S. § 7B-1111(a)(3).
The motion to terminate respondent’s parental rights was filed on 8 August
2018. Therefore, the relevant six-month period of time during which the trial court
must determine whether respondent was able to pay a reasonable portion of the cost
of Kaitlyn’s care but failed to do so was from 8 February 2018 to 8 August 2018.
In the TPR order, the trial court made factual findings that respondent
“worked at Shoe Show as well as Cook Out in 2018 and has not paid any monies
towards the cost of care for the juvenile”; that “at various points in time, [respondent]
was employed, although that employment was part-time”; that “[respondent] is
physically and financially able to pay a reasonable portion of the child’s care, and
thus has the ability to pay an amount greater than zero”; that “[respondent] has [not]
made a significant contribution towards the cost of care”; and that “[t]he total cost of
care for [Kaitlyn] through June 2018 is $14,170.35.”
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Opinion of the Court
However, none of these findings—nor any others related to this ground for
termination—address the specific, relevant six-month time period from 8 February
2018 to 8 August 2018. Therefore, we conclude that the trial court’s findings of fact
are insufficient to support its conclusion of law that there were grounds to terminate
respondent’s parental rights under N.C.G.S. § 7B-1111(a)(3), which specifically
requires that “the parent has for a continuous period of six months immediately
preceding the filing of the petition or motion willfully failed to pay a reasonable portion
of the cost of care for the juvenile although physically and financially able to do so.”
N.C.G.S. § 7B-1111(a)(3) (emphasis added). Accordingly, we reverse the trial court on
this issue.
C. N.C.G.S. § 7B-1111(a)(6)
Lastly, the trial court found that grounds for termination of respondent’s
parental rights existed under N.C.G.S. § 7B-1111(a)(6), which provides as follows:
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 the
incapability will continue for the foreseeable future.
Incapability under this subdivision may be the result of
substance abuse, intellectual disability, 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.G.S. § 1111(a)(6). The trial court failed to make any finding in the TPR order that
addressed whether respondent had an appropriate alternative child care
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Opinion of the Court
arrangement. Therefore, there are insufficient findings of fact to support the trial
court’s conclusion of law that there were grounds to terminate respondent’s parental
rights under N.C.G.S. § 7B-1111(a)(6). Accordingly, we reverse the trial court on this
issue.
IV. Conclusion
We conclude that Kaitlyn was not “left in foster care or placement outside the
home for more than 12 months” and therefore that termination of respondent’s
parental rights under N.C.G.S. § 7B-1111(a)(2) cannot be sustained. Furthermore,
the trial court made insufficient findings of fact to support its conclusions of law that
grounds to terminate respondent’s parental rights existed under N.C.G.S. § 7B-
1111(a)(3) and (6). Accordingly, we reverse the order terminating respondent’s
parental rights.5
REVERSED.
5 We note that in an adjudicatory hearing on the termination of parental rights all
findings of fact must be based on “clear, cogent, and convincing evidence.” N.C.G.S. § 7B-
1109(f) (2019). We do not find such evidence in the record here that could support findings of
fact necessary to conclude that respondent-mother’s parental rights could be terminated
under N.C.G.S. § 7B-1111(a)(2), (3), and (6). Thus, we conclude that the proper disposition is
to reverse rather than remand.
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Justice ERVIN, concurring, in part, and dissenting, in part.
I agree with the Court’s determinations that the trial court erred by concluding
that grounds exist to support the termination of respondent-mother’s parental rights
in Kaitlyn for failure to make reasonable progress toward correcting the conditions
that led to Kaitlyn’s removal from her home pursuant to N.C.G.S. § 7B-1111(a)(2),
failure to pay a reasonable portion of the cost of Kaitlyn’s care following her removal
from the home pursuant to N.C.G.S. § 7B-1111(a)(3), and incapability pursuant to
N.C.G.S. § 7B-1111(a)(6). I also agree that the trial court’s decision that respondent-
mother’s parental rights in Kaitlyn were subject to termination pursuant to N.C.G.S.
§ 7B-1111(a)(2) should be reversed given the absence of any evidence tending to show
that respondent-mother “willfully left the juvenile in foster care or placement outside
the home for more than [twelve] months.” I am, however, unable to join those
portions of the Court’s opinion reversing, rather than remanding, the trial court’s
decision that respondent-mother’s parental rights in Kaitlyn were subject to
termination pursuant to N.C.G.S. § 7B-1111(a)(3) and N.C.G.S. § 7B-1111(a)(6). As
a result, I concur in the Court’s decision, in part, and dissent from that decision, in
part.
As the Court notes, the trial court erred by determining that respondent-
mother’s parental rights in Kaitlyn were subject to termination pursuant to N.C.G.S.
§ 7B-1111(a)(3) given its failure to make sufficient findings of fact to establish that
respondent-mother failed to pay a reasonable portion of the cost of the care that
IN RE K.H.
ERVIN, J., concurring, in part, and dissenting, in part
Kaitlyn received following her removal from the home during the six month period
immediately preceding the filing of the DSS termination motion and pursuant to
N.C.G.S. § 7B-1111(a)(6) given the trial court’s failure to make sufficient findings of
fact to establish that respondent-mother lacked an alternative plan of care for
Kaitlyn. Having made that set of determinations, however, I believe that the Court
should next address the issue of what remedy should be provided in order to rectify
the trial court’s errors. The Court has not, however, engaged in the sort of evidentiary
analysis that I believe to be appropriate and has, instead, simply reversed the trial
court’s determination with respect to the grounds for termination set out in N.C.G.S.
§ 7B-1111(a)(3) and N.C.G.S. § 7B-1111(a)(6) without further analysis.
As a general proposition, a reversal represents a proper remedy on appeal in
the event that the record evidence is “too scant” to support the trial court’s decision,
State v. Greene, 255 N.C. App. 780, 783, 806 S.E.2d 343, 345 (2017), while a remand
is appropriate in the event that, even if the trial court’s required findings of fact are
defective, the record contains sufficient evidence to permit the trial court to have
reached the result that it deemed appropriate in the event that proper findings had
been made. See, e.g., In re N.B., 200 N.C. App. 773, 779, 688 S.E.2d 713, 717 (2009)
(remanding a termination of parental rights case to the trial court for further findings
of fact on the grounds that “[t]he trial court . . . [did] not make any findings of fact
which directly address[ed] whether [the respondent] lacked an appropriate
alternative childcare arrangement”); Watts v. Borg Warner Auto., Inc., 171 N.C. App.
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IN RE K.H.
ERVIN, J., concurring, in part, and dissenting, in part
1, 5, 613 S.E.2d 715, 719 (remanding a worker’s compensation order which lacked
necessary findings to the Industrial Commission for further proceedings given that
“[s]pecific findings on crucial issues are necessary if the reviewing court is to ascertain
whether the findings of fact are supported by competent evidence and whether the
findings support the conclusion of law”), aff’d, 360 N.C. 169, 622 S.E.2d 492 (2005);
Lawton v. County of Durham, 85 N.C. App. 589, 592, 355 S.E.2d 158, 160 (1987)
(stating that, “[w]here the findings are insufficient to enable the court to determine
the rights of the parties, the case must be remanded . . . for proper findings of fact”);
Barnes v. O’Berry Center, 55 N.C. App. 244, 247, 284 S.E.2d 716, 718 (1981) (vacating
and remanding a worker’s compensation order “for more definitive findings and
conclusions based on the evidence in the present record”).1 Thus, in identifying the
proper remedy for the trial court’s erroneous decision to find that respondent-
mother’s parental rights in Kaitlyn were subject to termination pursuant to N.C.G.S.
§ 7B-1111(a)(3) and N.C.G.S. § 7B-1111(a)(6), the ultimate issue that we must resolve
is whether the record contained sufficient evidence to support the result that the trial
court originally reached in the event that proper findings had been made.
1 A trial court is, of course, entitled, in the exercise of its discretion, to receive and
consider additional evidence upon remand, see In re S.M.L., 846 S.E.2d 790, 802 (N.C. Ct.
App. 2020) (stating that, “[o]n remand, . . . the trial court may,” “in its discretion,” “hold an
additional hearing and consider additional evidence regarding the allegation of neglect”),
unless the appellate courts either explicitly mandate or prohibit the taking of such an action,
see Robbins v. Robbins, 240 N.C. App. 386, 407–08, 770 S.E.2d 723, 735 (2015) (stating that
“[o]n remand the trial court shall, if requested by either party, consider additional evidence
and arguments” regarding the marital distribution scheme).
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IN RE K.H.
ERVIN, J., concurring, in part, and dissenting, in part
After a careful examination of the record, I am persuaded that the complete
reversal of the trial court’s order required by the Court’s decision is unwarranted
given that “the trial court may be able to make more specific findings,” Cty. of Durham
ex rel. Wilson v. Burnette, 262 N.C. App. 17, 32, 821 S.E.2d 840, 852 (2018) (citing
Clark v. Gragg, 171 N.C. App. 120, 126, 614 S.E.2d 356, 360 (2005)), aff’d, 372 N.C.
64, 824 S.E.2d 397 (2019), that support a determination that respondent-mother’s
parental rights in Kaitlyn were subject to termination pursuant to N.C.G.S. § 7B-
1111(a)(3) and N.C.G.S. § 7B-1111(a)(6). More specifically, the record developed
before the trial court indicates that respondent-mother failed to make any
contribution toward the cost of the care that Kaitlyn received between 8 February
2018 and 8 August 2018, which is the relevant six-month period preceding the filing
of the termination petition for purposes of determining whether respondent-mother’s
parental rights in Kaitlyn are subject to termination pursuant to N.C.G.S. § 7B-
1111(a)(3). In addition, the record contains evidence tending to show that, at some
point between “late 2017” and 8 August 2018, respondent-mother was employed at a
shoe store, that she did not work there for “long at all,” and that she was terminated
from that employment “due to her attendance.” Finally, the record reflects that
respondent-mother did not suffer from any physical or other health-related
limitations that precluded her from earning sufficient income to allow her to make a
payment in excess of zero toward the cost of Kaitlyn’s care. See, e.g., In re J.M., 373
N.C. 352, 359, 838 S.E.2d 173, 178 (2020) (affirming the trial court’s conclusion that
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IN RE K.H.
ERVIN, J., concurring, in part, and dissenting, in part
the respondent had failed to pay a reasonable portion of the cost of her children’s care
while they were in DSS custody based upon a determination that the respondent “was
working at a . . . restaurant at the beginning of the six-month period but quit the job
of her own accord”); In re Tate, 67 N.C. App. 89, 95, 312 S.E.2d 535, 539–40 (1984)
(affirming the trial court’s conclusion that the respondent failed to pay a reasonable
portion of the cost of foster care for the child based upon determinations that, while
the respondent was “an able-bodied woman capable of working,” she had quit
multiple jobs during the child’s placement in foster care, with at least one of these
resignations having stemmed from the respondent’s lack of enthusiasm for working
on weekends); In re Bradley, 57 N.C. App. 475, 478–79, 291 S.E.2d 800, 802 (1982)
(affirming the trial court’s determination that the respondent, a prisoner, had failed
to pay a reasonable portion of the cost of care for the child given that the respondent
had been terminated from a work-release program “for having returned therefrom in
a highly intoxicated condition” and holding that, where “the parent had an
opportunity to provide for some portion of the cost of care of the child, and forfeits
that opportunity by his or her own misconduct, such parent will not be heard to assert
that he or she has no ability or means to contribute to the child’s care and is therefore
excused from contributing any amount”).
Assuming, without in any way deciding, that the record is insufficient to
establish precisely when respondent-mother left the shoe store’s employment, I
believe that the trial court could have reasonably concluded that, except for
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IN RE K.H.
ERVIN, J., concurring, in part, and dissenting, in part
respondent-mother’s failure to pay proper attention to her work-related
responsibilities, she would have been employed and able to make a contribution in an
amount in excess of zero toward the cost of the care that Kaitlyn received. As a result,
I believe that the record contains sufficient evidence to have permitted the trial court
to have reasonably determined, in the event that it chose to do so and made the
necessary factual findings, that respondent-mother’s parental rights in Kaitlyn were
subject to termination pursuant to N.C.G.S. § 7B-1111(a)(3).
Similarly, I believe that the record contains sufficient evidence to permit a
reasonable trial judge to determine that respondent-mother lacked an appropriate
child care arrangement for Kaitlyn for purposes of N.C.G.S. § 78-1111(a)(6).2
Although respondent-mother argues that record contains evidence tending to show
2 Respondent-mother did not contend on appeal that the record lacked sufficient
evidence, if believed, to establish that she was “incapable of providing for the proper care and
supervision of the juvenile, such that the juvenile is a dependent juvenile” as defined in
N.C.G.S. § 7B-101, and that “there is a reasonable probability that the incapability will
continue for the foreseeable future.” N.C.G.S. § 7B-1111(a)(6). Any such contention would
have been unpersuasive given the presence of evidence tending to show that respondent-
mother had consistently struggled with serious behavioral issues, including running away,
acting disrespectfully toward authority figures, continuously abusing impairing substances,
setting fire to a book, and engaging in sexually inappropriate conduct, that resulted in the
disruption of numerous placements and Kaitlyn’s removal from respondent-mother’s care.
According to DSS social worker Tara Williams, there had been no change throughout the
duration of the proceedings before the trial court relating to respondent-mother’s drug use,
“sexualized behavior,” propensity to run away, failure to cooperate with her case plan,
“[a]gressiveness toward adults,” or lack of significant effort to regain custody of Kaitlyn. In
spite of the fact that respondent-mother had been doing well in the placement in which she
resided at the time of the termination hearing, the trial court expressed skepticism that this
“[twelve]-week period is sufficient to indicate . . . that there has been a substantial change in
behavior and there is not a likelihood of future continued behavior to remove the dependency
of the child.” As a result, the record contains ample evidence tending to show respondent-
mother’s incapability for purposes of N.C.G.S. § 7B-1111(a)(6).
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IN RE K.H.
ERVIN, J., concurring, in part, and dissenting, in part
that respondent-mother’s foster mother and her husband were willing to have Kaitlyn
placed with them, that they had space for Kaitlyn in addition to respondent-mother,
and that the foster mother’s husband had the time to care for Kaitlyn, I am not
convinced the presence of this evidence in the record precludes the trial court from
finding that respondent-mother lacked an adequate alternative child care
arrangement.
As an initial matter, the record suggests that the foster mother’s husband
smoked cigarettes, a factor that a reasonable trial court might deem disqualifying
given the child’s relatively young age and the potential health risks associated with
second-hand smoke. More fundamentally, given respondent-mother’s history of
failing to successfully remain in any one placement for a significant period of time
and the relative novelty of her placement at the time of the termination hearing, a
reasonable trial judge could have serious doubts about the likelihood that respondent-
mother’s placement with the child in that household would be successful over the long
haul. At an absolute minimum, I believe that the record discloses the existence of a
genuine issue of fact concerning whether respondent-mother did, in fact, have an
adequate alternative child care arrangement sufficient to preclude termination of her
parental rights in Kaitlyn pursuant to N.C.G.S. § 7B-1111(a)(6). See, e.g., In re
N.N.B., 843 S.E.2d 474, 447 (N.C. Ct. App. 2020) (concluding that, while the
respondent’s sister “may well be an ‘appropriate’ placement for a child who does not
require” a particularly high level of care, the sister “[was] not an ‘appropriate’
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IN RE K.H.
ERVIN, J., concurring, in part, and dissenting, in part
placement for [the child] because of his psychiatric needs”). As a result, given that
the record contains sufficient evidence that, if believed and set out in proper findings
of fact, would support a determination that respondent-mother’s parental rights in
Kaitlyn were subject to termination pursuant to N.C.G.S. § 7B-1111(a)(3) and
N.C.G.S. § 7B-1111(a)(6), I would reverse the trial court’s termination order and
remand this case to the District Court, Cabarrus County, for the entry of a new order
containing proper findings of fact and conclusions of law concerning the issue of
whether respondent-mother’s parental rights in Kaitlyn were subject to termination
pursuant to N.C.G.S. § 7B-1111(a)(3) and N.C.G.S. § 7B-1111(a)(6) and respectfully
dissent from the Court’s decision to simply reverse the trial court’s order with respect
to these two grounds for termination.
Justice DAVIS concurs in this concurring and dissenting opinion.
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Justice NEWBY dissenting.
I agree with Justice Ervin that, because the trial court failed to make all the
necessary factual findings under N.C.G.S. § 7B-1111(a)(6) (2019), the appropriate
disposition is to remand for additional findings, not to simply reverse and
permanently undo the termination order. But my disagreement with the majority
goes deeper. The trial court appropriately found that grounds exist to terminate
respondent-mother’s parental rights under N.C.G.S. §§ 7B-1111(a)(2) and (a)(3), and
it did not omit any necessary factual findings for those grounds. Its order should be
affirmed. The majority, by a combination of misguided statutory interpretation and
selective review of the facts, reverses the trial court on these well-supported
determinations. I respectfully dissent.
First, the majority errs by reversing the trial court’s conclusion that grounds
existed to terminate respondent-mother’s parental rights under N.C.G.S.
§ 7B-1111(a)(2). That provision states that a court may terminate a respondent’s
parental rights if it finds that “[t]he parent has willfully left the juvenile 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 juvenile.” N.C.G.S.
§ 7B-1111(a)(2). The majority holds that because respondent-mother (who was a
minor) and the child, “Kaitlyn,” were placed in the same home for foster care for
several months, that period of time cannot count towards the required twelve or more
IN RE K.H.
Newby, J., dissenting
months under the statutory provision. The majority thus interprets the phrase “in
foster care or placement outside the home” in subsection 7B-1111(a)(2) to not include
time when the minor parent and child are under the same roof, even if during that
time the child is neither under the parent’s care nor in the parent’s home.
That interpretation evades a natural understanding of the statutory provision.
Subsection 7B-1111(a)(2) applies when the parent willfully leaves the child in foster
care or some other placement outside of the home for over twelve months. Id. The
majority, quoting In re A.C.F., 176 N.C. App. 520, 527, 626 S.E.2d 729, 734 (2006),
notes that the purpose behind this requirement is to “provide[ ] parents with at least
twelve months’ notice to correct the conditions which led to the removal of their
children before being made to respond to a pleading seeking the termination of his or
her parental rights.” The provision thus helps ensure that for a period of time the
child does not reside in the home in which they would typically reside if the parent
had full custody and supervision—it gives the parent a chance to get things in order
in that home so that perhaps the child could eventually return. Thus, a plain
understanding of this provision dictates that it applies when the child is not under
the parent’s care and not living in the parent’s home.
The facts of this case make the analysis under subsection (a)(2) somewhat
tricky. Respondent-mother is a minor. For her and Kaitlyn, home was respondent-
mother’s adoptive parents’ home, until they were each removed and placed in foster
care. Kaitlyn was placed in foster care from 5 April 2017 at least until the termination
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IN RE K.H.
Newby, J., dissenting
motion was filed on 8 August 2018. For part of that time, from 9 June 2017 to 19
December 2017, respondent-mother and Kaitlyn were both placed in the same foster
home, and then at Church of God Children’s Home. After that, respondent-mother
was sent elsewhere because of recurring serious behavioral issues. Even during that
six-month stretch, though, Kaitlyn was outside of respondent-mother’s custody, and
no evidence shows that respondent-mother had the responsibility for caring for
Kaitlyn during that time. Similarly, neither was Kaitlyn in “respondent-mother’s
home.” She was in the home of a foster family, and then in Church of God Children’s
Home. Indeed, respondent-mother herself was removed from her home and placed in
foster care, so Kaitlyn was not in respondent-mother’s home (with respondent-
mother’s adoptive parents) for as long as both of them were in foster care. Therefore,
the evidence shows that from around April 2017 until the filing of the termination
motion in August 2018—a period of about sixteen straight months—Kaitlyn resided
“in foster care or placement outside [respondent-mother’s] home.”
Moreover, the majority’s contrary holding will create perverse incentives. If the
time when both minor parent and child are in the same foster care placement cannot
count towards the time in which the child is outside the parent’s home, DSS may be
unnecessarily encouraged to put minor parents and their children in separate
placements. Thus, the trial court’s determination that grounds exist to terminate
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IN RE K.H.
Newby, J., dissenting
respondent-mother’s parental rights to Kaitlyn under N.C.G.S. § 7B-1111(a)(2)
should be affirmed.1
Affirming the trial court’s conclusion under subsection (a)(2) would be
sufficient to uphold the order terminating respondent-mother’s parental rights.
Nevertheless, I also disagree with the majority’s decision to reverse the trial court’s
determination that grounds exist to terminate respondent-mother’s parental rights
under subsection (a)(3).
Subsection 7B-1111(a)(3) provides that the court may terminate a parent’s
parental rights when
[t]he juvenile has 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, and the
parent has for a continuous period of six months
immediately preceding the filing of the petition or motion
willfully failed to pay a reasonable portion of the cost of
care for the juvenile although physically and financially
able to do so.
N.C.G.S. § 7B-1111(a)(3). The majority holds that because, in its view, the trial court
order was not sufficiently specific in its findings regarding respondent-mother’s
earnings and contributions during the six-month period immediately preceding the
1 Because the majority holds that Kaitlyn was not out of the home for over twelve
months, it does not consider whether respondent-mother “willfully” left Kaitlyn in such
placement or care, or whether reasonable progress has been made to correct the conditions
leading to the child’s removal. See N.C.G.S. § 7B-1111(a)(2). But the record and the trial
court’s findings abound with evidence that respondent-mother has had recurring issues
abusing drugs, engaging in sexually inappropriate behavior, running away, and failing to
provide appropriate discipline and nutrition to Kaitlyn, and that any progress on these issues
has been limited.
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IN RE K.H.
Newby, J., dissenting
filing of the termination motion, that court’s findings do not support a conclusion that
grounds exist under N.C.G.S. § 7B-1111(a)(3) to terminate respondent-mother’s
parental rights.
I disagree. As the majority notes, the relevant six-month period stretches from
8 February 2018 to 8 August 2018. The trial court specifically found that respondent-
mother “worked at Shoe Show as well as Cook Out in 2018 and has not paid any
monies towards the cost of care for the juvenile.” By broadly referencing the year
“2018,” the trial court recognized and included all of the appropriate six-month
period. Arguably, it also included the month of January 2018, which was outside the
relevant six months. But that hardly invalidates the fact that its findings apply to
the relevant six months as well. The trial court also found that respondent-mother
“is physically and financially able to pay a reasonable portion of the child’s care, and
thus has the ability to pay an amount greater than zero” but that she “has [not] made
a significant contribution towards the cost of care.” Again, though the trial court did
not specifically say that respondent-mother made no payments during the applicable
six-month period, its finding that respondent-mother had not contributed
substantially whatsoever would include the relevant period.
Overall, the trial court’s findings may not go as far as precisely naming the
relevant six-month period, but they do encompass that period. The findings are thus
sufficient to support the trial court’s conclusion that, during the relevant six-month
period leading up to the filing of the termination motion, respondent-mother “willfully
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IN RE K.H.
Newby, J., dissenting
failed to pay a reasonable portion of the cost of care for the juvenile although
physically and financially able to do so.” N.C.G.S. § 7B-1111(a)(3). The trial court’s
conclusion that grounds existed to terminate respondent-mother’s parental rights
under that provision should be affirmed.2
Thus, the trial court appropriately found that grounds exist to terminate
respondent-mother’s parental rights under both N.C.G.S. § 7B-1111(a)(2) and
N.C.G.S. § 7B-1111(a)(3). The trial court order should be affirmed on either or both
of those bases.
I respectfully dissent.
2 Alternatively, if, as the majority holds, the trial court’s findings regarding subsection
(a)(3) were somehow technically deficient, I agree with Justice Ervin that the appropriate
disposition would be to remand, not to reverse.
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