In re: A.B., C.B., J.B. ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1040
Filed: 18 April 2017
Cabarrus County, Nos. 13 JT 121–24
IN THE MATTER OF: A.B., C.B., J.B., A.B.
Appeal by respondent mother from order entered 5 July 2016 by Judge Christy
E. Wilhelm in Cabarrus County District Court. Heard in the Court of Appeals 3 April
2017.
Stephen A. Moore and H. Jay White for petitioner-appellee Cabarrus County
Department of Human Services.
Mark L. Hayes for respondent-appellant.
Brandon J. Huffman for guardian ad litem.
BRYANT, Judge.
Where the trial court’s findings and conclusions do not adequately account for
respondent-mother’s circumstances at the time of the termination hearing, as
required to support a termination of her parental rights under N.C.G.S. § 7B-
1111(a)(1) or (2), we vacate and remand.
On 22 October 2013, the Cabarrus County Department of Human Services
(“CCDHS”) obtained non-secure custody of the respondent-mother’s1 minor children
1 Respondent-father is not a party to this appeal.
IN RE: A.B., C.B., J.B., A.B.
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A.B. (born October 2001), C.B. (born August 2006), J.B. (born March 2010), and A.B.
(born November 2012) (collectively, “the children”). CCDHS filed petitions2 alleging
that they were neglected “due to ongoing substance abuse and domestic violence” by
respondent-mother and respondent-father (collectively, “respondents”), which
“place[d] their four young children at risk of harm” and created an environment
injurious to their welfare. The petition described CCDHS’s unsuccessful efforts to
provide treatment services to respondents and implement a safety resource plan after
substantiating reports of neglect and physical abuse, which reports included
respondent-father’s inappropriate physical discipline of respondents’ two oldest
daughters, who were then six and eleven years of age. The initial child protective
services report was received on 25 February 2013.
The trial court held a hearing on CCDHS’s petitions on 13 March 2014 and
adjudicated the children to be neglected and dependent juveniles. It maintained the
children in CCDHS custody and directed that they remain in their current
placements. In its disposition, the court identified “substance abuse, improper
supervision, injurious environment and domestic violence involving the parents” as
the “issues which led to [the children’s] placement” outside the home. It found that
2 We note that the record on appeal contains only the petition and non-secure custody order
filed with regard to the youngest child, A.B, in case number 13 JA 124, but includes the summonses
issued and returned in all four cases.
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“[t]he following community-level services [were] needed to strengthen the home
situation and to remediate or remedy the issues which led to placement:
a. Psychological Evaluation
b. Drug/Alcohol Screens
c. Mental Health Treatment
d. Medication Management
e. Parenting Education
f. Suitable [H]ousing[.]”
The trial court imposed separate case plans for each respondent to address
these concerns. Respondent-mother was ordered to obtain a new substance abuse
evaluation through Genesis and follow any recommendations; submit to random drug
screens as requested by CCDHS; comply with the recommendations of her parenting
capacity evaluation by Dr. Susan Hurt; complete a court-approved parenting course
and demonstrate skills learned in the course during visitation; comply with her
visitation plan; attend the children’s medical, dental, and school appointments;
maintain bi-weekly contact with her CCDHS social worker, reporting any changes in
address, employment, or other significant events; sign releases allowing CCDHS to
obtain information from service providers; “maintain her own suitable housing,
including utilities, appropriate for the placement of all the children” for at least six
months; and maintain employment allowing her to provide financially for her
children for a continuous four- to six-month period. The court established
reunification as the permanent plan.
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The trial court ceased reunification efforts as to respondent-father in June
2015 and instituted concurrent permanent plans of reunification with respondent-
mother only and adoption. At a subsequent review hearing on 13 August 2015, the
court relieved CCDHS of further reunification efforts as to respondent-mother and
changed the permanent plan to adoption with a secondary plan of legal guardianship.
CCDHS filed a motion to terminate respondents’ parental rights on 28 October
2015. After hearing evidence on 12 and 31 May 2016, the trial court concluded that
respondent-mother’s parental rights were subject to termination for (1) neglect, and
(2) willful failure to make reasonable progress to correct the conditions that led to the
children’s removal from the home over three years earlier. N.C. Gen. Stat. § 7B-
1111(a)(1)–(2) (2015). The court further determined that terminating respondent-
mother’s parental rights was in the best interests of the children. Respondent-mother
filed timely notice of appeal from the termination order.
______________________________________________________
On appeal, respondent-mother claims the trial court’s findings of fact do not
support its adjudication of grounds to terminate her parental rights under either N.C.
Gen. Stat. § 7B-1111(a)(1) or (2). She contends the court found no facts tending to
show that, at the time of the May 2016 termination hearing, she had failed to resolve
the issues of substance abuse and domestic violence which led to the children’s
removal from her home and adjudication as neglected juveniles. As those issues were
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the only factors cited by CCDHS at the time of the initial removal and adjudication,
respondent-mother argues that the court could not find a likelihood of a repetition of
neglect if the children were returned to her care, see N.C.G.S. § 7B-1111(a)(1), or that
she willfully failed to make reasonable progress to correct the conditions leading to
the children’s placement in foster care, see id. § 7B-1111(a)(2). For the following
reasons, we agree.
We review an adjudication under N.C. Gen. Stat. § 7B-1111(a)(1) or (a)(2) to
determine (1) whether the court’s findings of fact are supported by clear, cogent, and
convincing evidence, and (2) whether its findings in turn support its conclusions of
law. In re Shepard, 162 N.C. App. 215, 221–22, 591 S.E.2d 1, 6 (2004) (citing In re
Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984)). Uncontested findings are
deemed to be supported by the evidence for purposes of our review. See In re H.S.F.,
182 N.C. App. 739, 742, 645 S.E.2d 383, 384 (2007). “[E]rroneous findings
unnecessary to the determination do not constitute reversible error” where an
adjudication is supported by sufficient additional findings grounded in competent
evidence. In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006) (citation
omitted). The adjudication of any single ground under N.C. Gen. Stat. § 7B-1111(a)
will support an order terminating parental rights. In re P.L.P., 173 N.C. App. 1, 8,
618 S.E.2d 241, 246 (2005) (citation omitted).
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The trial court found grounds to terminate respondent-mother’s parental
rights for neglecting the children under N.C. Gen. Stat. § 7B-1111(a)(1). Where a
child has been in a placement outside the home for a significant period of time, an
adjudication under N.C.G.S. § 7B-1111(a)(1) may be supported by “evidence of prior
neglect and [of] the probability of a repetition of neglect” if the child were returned to
the parent’s care. In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). “The
trial court must . . . consider any evidence of changed conditions” since the prior
adjudication of neglect and “make an independent determination of whether neglect
authorizing termination of the respondent’s parental rights existed at the time of the
termination hearing.” Id. at 715–16, 319 S.E.2d at 232–33 (emphasis added); accord
In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997) (“Termination of parental
rights for neglect may not be based solely on past conditions which no longer exist.”
(citation omitted)). As our Supreme Court has emphasized, “[t]he determinative
factors must be the best interests of the child and the fitness of the parent to care for
the child at the time of the termination proceeding.” Ballard, 311 N.C. at 715, 319
S.E.2d at 232.
The trial court also adjudicated grounds to terminate respondent-mother’s
parental rights under N.C.G.S. § 7B-1111(a)(2), which allows termination where
“[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
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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). A
finding that the parent acted “willfully” under N.C.G.S. § 7B-1111(a)(2) “does not
require a finding of fault by the parent.” In re B.S.D.S., 163 N.C. App. 540, 545, 594
S.E.2d 89, 93 (2004) (citation omitted). “Willfulness may be found where a parent
has made some attempt to regain custody of the child but has failed to exhibit
‘reasonable progress or a positive response toward the diligent efforts of DSS.’ ” Id.
(quoting In re Oghenekevebe, 123 N.C. App. 434, 440, 473 S.E.2d 393, 398 (1996)).
Moreover, though “[a] parent’s failure to fully satisfy all elements of the case plan
goals is not the equivalent of a lack of ‘reasonable progress,’ ” In re J.S.L., 177 N.C.
App. 151, 163, 628 S.E.2d 387, 394 (2006) (citation omitted), a parent’s “prolonged
inability to improve her situation, despite some efforts in that direction, will support”
an adjudication under N.C.G.S. § 7B-1111(a)(2). In re B.S.D.S., 163 N.C. App. at 546,
594 S.E.2d at 93.
As with an adjudication of neglect under N.C.G.S. § 7B-1111(a)(1), “the nature
and extent of the parent’s reasonable progress” must be “evaluated for the duration
leading up to the hearing on the motion or petition to terminate parental rights.” In
re A.C.F., 176 N.C. App. 520, 528, 626 S.E.2d 729, 735 (2006) (second emphasis added)
(citing In re O.C. & O.B., 171 N.C. App. 457, 466–67, 615 S.E.2d 391, 396 (2005)).
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I. Preliminary Issue
Initially, we must address respondent-mother’s argument that the trial court
failed to enter affirmative findings of fact with regard to her conduct during the
course of this case. Respondent-mother contends that the court’s findings simply
state what the court itself found at prior hearings. However, we read the court’s
findings as summarizing respondent-mother’s progress—or lack thereof—at various
points in these proceedings. Finding of Fact No. 23 is representative of the order’s
format:
23. At the Review Hearing on May 8, 2014, [respondent-
mother was] present in the courtroom and represented by
counsel. . . . The mother’s progress was as follows:
a. Mother continues to reside at 224 Evans St.
Concord, NC. This is the same home that the
children resided in prior to coming into CCDHS
custody.
b. Mother has not provided any information as to
relative placement for her children during this
reporting period.
c. Mother has not provided CCDHS with verification
of income.
(Emphasis added).
The trial court did not find merely that certain findings of fact were made at
the prior hearings in this cause. Rather, as shown in Finding of Fact No. 23, the court
made specific findings with regard to respondent-mother’s progress as of the date of
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each prior hearing.3 As respondent-mother does not contest the evidentiary support
for these findings, they are binding on appeal. In re H.S.F., 182 N.C. App. at 742, 645
S.E.2d at 384 (citation omitted). Moreover, the fact that the court may have copied
findings from its prior orders is “irrelevant,” absent a claim that the findings are not
supported by the evidence presented at the termination hearing. In re J.W., ___ N.C.
App. ___, ___, 772 S.E.2d 249, 253 (2015) (“The purpose of trial court orders is to do
justice, not foster creative writing.”).
II. Insufficient Findings of Fact
Respondent-mother claims that the findings of fact in the termination order
are insufficient to support an adjudication under either N.C.G.S. § 7B-1111(a)(1) or
(2). Specifically, she points to an absence of findings with regard to either the “fitness
of [respondent-mother] to care for the child[ren],” or “the nature and extent of
[respondent-mother’s] reasonable progress” “at the time of the termination
proceeding.” See Ballard, 311 N.C. at 715, 319 S.E.2d at 232 (“The determinative
3 It is also true that the termination order refers to many of the trial court’s prior findings in
the cause. Finding of Fact No. 23, for example, states that “[a]t the Review hearing on May 8, 2014, .
. . [t]he Court found that while the mother and father made progress . . ., the progress made is
insufficient for the court to be assured that the juveniles could safely return to either mother or father’s
care.” (Emphasis added). This type of procedural history is not necessarily out of place in an order
terminating parental rights, particularly where a case has been pending for almost three years at the
time of the termination hearing. However, we do not rely on the trial court’s account of its own earlier
findings when assessing the reasonableness of respondent-mother’s progress under N.C.G.S. § 7B-
1111(a)(2). Cf. generally In re O.W., 164 N.C. App. 699, 703, 596 S.E.2d 851, 854 (2004) (explaining
that a recitation of what a witness testified “is not even really a finding of fact”); cf. also In re T.M.,
180 N.C. App. at 547, 638 S.E.2d at 240–41 (allowing appellate court to disregard erroneous findings
unnecessary to the trial court’s adjudication).
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factors must be the best interests of the child and the fitness of the parent to care for
the child at the time of the termination proceeding.”); A.C.F., 176 N.C. App. at 528,
626 S.E.2d at 735 (noting that a parent’s reasonable progress “is evaluated for the
duration leading up to the hearing on the motion or petition to terminate parental
rights” (citation omitted)). We agree. Although the termination hearing was held
more than three months after the 11 February 2016 review hearing, the court made
no findings regarding respondent-mother’s conduct or circumstances at any time
subsequent to the 11 February 2016 hearing date.
We recognize that the trial court’s ultimate findings with regard to the grounds
for termination purport to describe present conditions:
46. The Court finds that the following grounds for
termination exist to terminate the parental rights of
mother and father pursuant to NC Gen Stat. §7B-1111(1)
[sic]; that mother and father neglected the juveniles . . . and
that there is a likelihood that such neglect would continue
in the future; pursuant to NC Gen Stat. §7B-1111(a)(2),
mother and father willfully left the juveniles in foster care
for more than twelve months without showing to the
satisfaction of the Court that reasonable progress under
the circumstances have [sic] been made in correcting those
conditions which led to the removal of the juveniles from
the custody and care of the parents . . . .
(Emphasis added). However, such ultimate findings must arise “by processes of
logical reasoning from the evidentiary facts” found by the court. In re Anderson, 151
N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002) (citation omitted); see also In re D.M.O.,
___ N.C. App. ___, ___, 794 S.E.2d 858, 861 (2016) (“[A] trial court must make
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adequate evidentiary findings to support its ultimate finding of willful intent.”
(citation omitted)). Here, the evidentiary facts found and recited by the court are
inadequate to support these ultimate facts.
Our review of the transcript reveals that CCDHS social worker Cynthia
Bowers and respondent-mother presented testimony that would support additional
findings up to the time of the termination hearing. We further believe “there are
material conflicts in the evidence relating to the issue of respondent-mother’s
willfulness” and the reasonableness of her progress “that were not resolved by the
trial court’s order.” In re D.M.O., ___ N.C. App. at ___, 794 S.E.2d at 865–66 (vacating
and remanding where the trial court’s findings were “inadequate or fail[ed] to resolve
conflicts in the evidence material to a conclusion that respondent-mother abandoned”
the juvenile). Similarly, we believe the evidence would support different inferences
and conclusions regarding the likelihood of a repetition of neglect based on evidence
regarding respondent-mother’s circumstances at the time of the hearing. “Given the
findings of fact, however, we would be speculating as to the trial court’s rationale”
were we to affirm its adjudication under either N.C.G.S. § 7B-1111(a)(1) or (2). In re
F.G.J., 200 N.C. App. 681, 694, 684 S.E.2d 745, 754 (2009).
The evidence and the trial court’s findings show that, following the initial
adjudication of neglect and dependency in March 2014, respondent-mother engaged
in an extended period of positive drug screens and general non-compliance with the
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court-ordered requirements for reunification. By the time of the May 2016
termination hearing, however, the nature and extent of respondent-mother’s progress
was improved.
As CCDHS conceded at the hearing, respondent-mother had an unbroken
series of negative drug screens between June 2015 and March 2016, after completing
her third substance abuse evaluation and third round of treatment. In July 2015,
she attended and completed the six individual therapy sessions recommended by
Genesis as part of her most recent substance abuse re-evaluation. Respondent-
mother had separated from respondent-father in December 2014 and obtained a
domestic violence protective order against him in June 2015, which remained in place
at the time of the termination hearing. After obtaining her commercial driver’s
license, respondent-mother had obtained full-time employment as an interstate truck
driver and was current on her child support payments.
In addition, with regard to respondent-mother’s court-ordered parenting
classes, the trial court found as follows:
Mother completed parenting classes with Mar-Lee Cook,
NC Certified Parent Educator, on June 5, 2014, and, as
previously reported by Ms. Cook in her case summary, it is
her experience with [respondent-mother and respondent-
father] that, “nothing I say or present will change their
parenting styles or the dysfunctional dynamics in the
family.”
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Despite this negative report from Ms. Cook, which predates respondent-mother’s
separation from respondent-father, we find no evidence that CCDHS or the trial court
ever prescribed additional parenting classes for respondent-mother after June 2014.
Nor do the court’s prior orders suggest that respondent-mother failed to demonstrate
appropriate parenting techniques during her visitations, as originally ordered by the
trial court.
To the contrary, the permanency planning orders show that respondent-
mother consistently attended visitation throughout these proceedings and was found
to interact with the children in an appropriate—and sometimes praiseworthy—
manner. These orders include findings that respondent-mother “brings interactive
fun activities for all her children to engage in, such as how to sew, doing nails,
decorating shoes, board games, etc.,” and that she “does a wonderful job of
acknowledging and spending equal amounts of time with the children.” After CCDHS
permitted the eldest daughter, A.B., who was nearly fifteen years old at the time of
the hearing, to opt out of visitations based on her belief that respondent-mother was
overly critical of her, the court subsequently reiterated its finding that “[v]isits with
the three younger children and [respondent-mother] go well and she is appropriate
with the children.”
The parties offered conflicting testimony with regard to respondent-mother’s
willingness or ability to notify CCDHS in advance of her availability for random drug
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screens. Ms. Bowers testified that CCDHS had been unable to perform any
subsequent random screens, because respondent-mother failed to notify the
department of her availability based on her work schedule, other than during her
scheduled visitations. Respondent-mother explained that, as a truck driver, she did
not receive her work schedule in advance and had “no way” to know whether or when
she would be in Cabarrus County during the work week. She provided CCDHS with
the phone number of her fleet manager to verify this information.
While respondent-mother acknowledged that her current residence lacked
water and electricity, she testified that she had the means to have these utilities
turned on, but had chosen not to do so while her employment required her to stay out
of town. We also note Ms. Bowers’s testimony that respondent-mother’s residence
would “meet minimal standards” for the children, even without utilities, once a
background check was performed on her aunt and any other adult residents in the
downstairs dwelling.4 Respondent-mother admitted having failed to provide CCDHS
with the necessary personal information about her aunt but claimed her aunt had
refused to authorize the disclosure.
We hold the trial court’s findings and conclusions do not adequately account
for respondent-mother’s circumstances at the time of the termination hearing, as
required to support a termination of her parental rights under N.C.G.S. 7B-1111(a)(1)
4 Respondent-mother testified that her aunt’s husband and daughter also lived downstairs.
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or (2). As discussed above, the parties’ evidence supports competing findings on
material issues of fact, which in turn would support competing inferences with regard
to the existence of grounds for termination. Accordingly, “we vacate the trial court’s
order and remand for further findings of fact and conclusions of law regarding N.C.
Gen. Stat. § 7B-1111(a)[(1)–(2)]. The trial court may hear and receive additional
evidence.” In re D.M.O., ___ N.C. App. at ___, 794 S.E.2d at 866; see also In re F.G.J.,
200 N.C. App. at 695, 684 S.E.2d at 755.
VACATED AND REMANDED.
Judges DAVIS and TYSON concur.
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