In re: C.N. & A.N. , 266 N.C. App. 463 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1031
Filed: 6 August 2019
New Hanover County, Nos. 16 JT 174-75
IN THE MATTER OF: C.N., A.N.
Appeal by respondent-mother from order entered 3 July 2018 by Judge J.H.
Corpening II in New Hanover County District Court. Heard in the Court of Appeals
27 June 2019.
No brief filed for petitioner-appellee New Hanover County Department of Social
Services.
Mary McCullers Reece for respondent-appellant mother.
Womble Bond Dickenson (US) LLP, by Jessica Gorczynski, for guardian ad
litem.
TYSON, Judge.
Respondent-mother appeals from an order terminating her parental rights to
her minor daughters, C.N. (“Carrie”) and A.N. (“Anne”). See N.C. R. App. P. 42(b)
(pseudonyms are used to protect the identity of the juveniles). The order also
terminates the parental rights of the legal father of A.N. and putative father of C.N.
and the unknown father of C.N. No father is a party to this appeal. We reverse the
trial court’s order as it relates to Respondent-mother.
I. Background
IN RE: C.N., A.N.
Opinion of the Court
On or about 28 June 2016, EMS and law enforcement responded to a 911 call
regarding a child who had suffered chemical burns. Carrie was treated for corneal
abrasions and chemical burns on her tongue in the New Hanover Regional Medical
Center Emergency Department and was kept overnight for observation.
Respondent-mother reported Carrie had pulled up on a table and spilled an
open bottle of Mr. Clean liquid detergent onto herself. EMS and law enforcement
who responded to the 911 call reported that conditions inside the home were dirty
and in poor shape. Needles were found inside the home. Respondent-mother
admitted to using marijuana within the previous week and had reported past
incidents of domestic violence. Concerns were also expressed about Respondent-
mother’s mental health.
Prior to the this incident, the New Hanover County Department of Social
Services (“DSS”) had received a report in May 2016 that Anne was found wandering
alone behind a Roses retail store off of Carolina Beach Road. DSS obtained nonsecure
custody of eleven-month-old Carrie and two-year-old Anne and filed a juvenile
petition alleging they were neglected juveniles. Nonsecure custody with DSS was
continued and the juveniles were placed with Respondent-mother’s sister.
Respondent-mother stipulated at the adjudication hearing to the allegations in
the juvenile petition that Carrie and Anne were neglected, as they did not receive
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proper care, supervision or discipline and lived in an environment injurious to their
welfare.
The trial court adjudicated Carrie and Anne to be neglected juveniles based
upon Respondent-mother’s stipulation. The trial court determined their best
interests were served for legal custody and placement authority to remain with DSS
and to continue their placement in the Respondent-mother’s sister’s home.
The trial court also adopted the recommendations of DSS and the guardian ad
litem (“GAL”) for Respondent-mother’s case plan and ordered Respondent-mother to:
(1) obtain and maintain stable income; (2) obtain and maintain stable housing; (3)
complete a mental health assessment; (4) comply with all recommendations; (5) sign
releases for DSS and GAL; (6) submit to random drug screens; (7) successfully
complete substance abuse treatment; and (8) successfully complete parenting classes.
Respondent-mother was scheduled for weekly supervised visitation.
A permanency planning hearing was held on 3 May 2017, after which the trial
court entered its order on 23 June 2017. DSS asserted Respondent-mother was “not
actively participating in her treatment plan,” had not obtained stable housing, and
had not shown up for the majority of the requested drug screens. Respondent-mother
responded that she had completed her comprehensive clinical assessment (“CCA”)
and parenting classes, but had difficulties with a cell phone. The trial court changed
the primary permanent plan for Carrie and Anne from reunification to legal
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guardianship with Respondent-mother’s sister with a concurrent plan of
reunification.
Another permanency planning hearing was held on 26 September 2017, after
which the trial court entered an order on 13 November 2017, followed by an amended
permanency planning order on 16 January 2018. The trial court found that the
juveniles were “currently placed in foster care after their kinship placement with
[their] maternal aunt [was] disrupted[,]” and that “Respondent-[m]other is not
actively participating in her treatment plan[,]” “has not consistently engaged in
services[,]” and “does not show up for the majority of the requested drug screens.”
The order reflects Respondent-mother had submitted proof of employment, secured
housing, and asserted that transportation was an issue and requested bus passes.
The trial court ordered DSS to provide bus passes to Respondent-mother and
ordered a home study on Respondent-mother’s home. The court changed the primary
permanent plan for Carrie and Anne to adoption with a concurrent plan for
reunification.
On 8 February 2018, DSS filed a petition to terminate Respondent-mother’s
and the putative fathers’ parental rights to Carrie and Anne. DSS alleged the
following grounds for termination of Respondent-mother’s parental rights: neglect
and willful failure to make reasonable progress. See N.C. Gen. Stat. § 7B-1111(a)(1)-
(2) (Supp. 2018). The petition was heard on 23 and 26 April 2018.
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Opinion of the Court
The trial court found grounds of neglect and willful failure to make reasonable
progress existed to terminate Respondent-mother’s parental rights. The trial court
concluded Carrie and Anne’s best interests required termination of Respondent-
mother’s parental rights in an order entered 3 July 2018. See N.C. Gen. Stat. § 7B-
1110(a) (2017). The fathers are not parties to this appeal. The trial court’s order is
final concerning termination of the fathers’ parental rights. Respondent-mother
timely appealed. DSS filed no response or brief to Respondent-mother’s appeal.
II. Jurisdiction
Jurisdiction lies in this Court from a final order of the district court entered 3
July 2018 pursuant to N.C. Gen. Stat. § 7B-1001(a)(6) (2017).
III. Issues
Respondent-mother argues the trial court erred by finding and concluding the
grounds of neglect and willful failure to make reasonable progress existed to
terminate her parental rights.
IV. Standard of Review
“This Court reviews a trial court’s conclusion that grounds exist to terminate
parental rights to determine whether clear, cogent, and convincing evidence exists to
support the court’s findings of fact, and whether the findings of fact support the
court’s conclusions of law.” In re A.B., 239 N.C. App. 157, 160, 768 S.E.2d 573, 575
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(2015). “We review conclusions of law de novo.” In re B.S.O., 234 N.C. App. 706, 708,
760 S.E.2d 59, 62 (2014).
V. Analysis
A. Neglect
A neglected juvenile is one whose parent does not “provide proper care,
supervision, or discipline . . . or who has been abandoned; or who is not provided
necessary medical care; or who is not provided necessary remedial care; or who lives
in an environment injurious to the juvenile’s welfare[.]” N.C. Gen. Stat. § 7B-101 (15)
(Supp. 2018).
A parent has neglected a juvenile if the court finds the juvenile to be neglected
within the meaning of N.C. Gen. Stat. § 7B-101. N.C. Gen. Stat. § 7B-1111(a)(1). “A
finding of neglect sufficient to terminate parental rights must be based on evidence
showing neglect at the time of the termination proceeding.” In re Young, 346 N.C.
244, 248, 485 S.E.2d 612, 615 (1997) (citation omitted).
Respondent-mother argues the trial court erred by finding and concluding that
the ground of neglect under N.C. Gen. Stat. § 7B-1111(a)(1) existed to terminate her
parental rights to Carrie and Anne. Where, as here, the juvenile has been removed
from the parent’s custody, “[t]he trial court must also consider any evidence of
changed conditions in light of the evidence of prior neglect and the probability of a
repetition of neglect.” In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984)
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(citation omitted) (emphasis supplied). See also In re M.J.S.M., __N.C. App. __, __,
810 S.E.2d 370, 373 (2018) (“where there is no evidence of neglect at the time of the
termination proceeding . . . parental rights may nonetheless be terminated if there is
a showing of a past adjudication of neglect and the trial court finds by clear and
convincing evidence a probability of repetition of neglect if the juvenile were returned
to [his or] her parents.” (citation omitted)).
With respect to Respondent-mother, the trial court made the following findings
of fact:
3. . . . Both children have been in the legal custody of [DSS]
since June 28, 2016, were residing in a kinship placement
with a maternal aunt and have currently been residing
with licensed foster parents since being placed in an out of
home placement.
....
10. That [Carrie] and [Anne] were adjudicated neglected
Juveniles within the meaning of G.S. 7B-101(15) at a
hearing held on August 24, 2016 where Respondent-
Parents stipulated to the allegations in the petition.
Respondent-Mother was ordered to comply with her Case
Plan; obtain and maintain stable income and housing;
submit to a substance abuse assessment and to comply
with all recommendations; complete a mental health
assessment and comply with all recommendations;
successfully complete parenting classes; and participate in
random drug screens. . . .
11. That from June 2016 through February 2018
Respondent-Mother demonstrated a pattern of instability
in housing and income. She has lived with several different
boyfriends within New Hanover and Bladen County and
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earns income by cleaning houses and selling things on
eBay. For the past year, Respondent-Mother has primarily
resided with a boyfriend in Carolina Beach. She is
financially dependent on her boyfriend for transportation,
income and housing. Respondent-Mother has been
inconsistent with her communication with [DSS], has not
provided a current, working telephone number, has not
provided an email address, does not return phone calls, has
missed appointments and was not engaged when she did
attend. [DSS] has provided her with bus passes and offered
individual transportation. Respondent-Mother completed
her substance abuse assessment but not the recommended
treatment consisting of intensive out-patient, community
support, 12 step program, individual therapy, skill set,
SAIOP, after care and relapse prevention. Respondent-
Mother started to participate in her treatment plan then
elected to detox at home in August 2016. She disengaged
with services, moved from her service area, and then
sporadically re-engaged with services in early 2018. She
accessed mental health treatment in August 2017 and out-
patient therapy was recommended to help her cope with
her depressive order, ADHD, alcohol and Opioid use.
Respondent-Mother self-reports that she “has so much
going on”, that she has depression and runs from or ignores
her problems, copes with it by sleeping for days and not
eating. She stopped attending classes at Coastal Horizons
because she “thought they were a joke” and would have
enrolled in substance abuse treatment if she thought it was
important. Respondent-Mother completed her parenting
classes and participated in 13 out of 38 drug screen
requests with mixed negative and positive results for
benzodiazepines and amphetamines. During a home visit,
Respondent-Mother was unable to account for her missing
medication and thought she may have taken extra.
Respondent-Mother had multiple phone issues during the
underlying matter. Her boyfriend pays for her phone and
has taken it from her when she texted someone else.
Respondent-Mother and her boyfriend have broken up a
few times over the past year when she texts other people.
To date, Respondent-Mother has not been consistent with
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Opinion of the Court
any treatment, is not compliant with her case plan and re-
engaged in some services at lunch time on the first day of
this hearing.
....
15. . . . . Respondent-Mother was late to visits in November
2017 and December 2017 and did not notify anyone when
she did not attend visits in August 2017, September 2017,
January 2018, and March 2018. When visits with
Respondent-Mother occurred, she would bring snacks and
gifts for the children and interact appropriately with the
children.
Based upon these findings, the trial court concluded that Respondent-mother
had “neglected the children, that the neglect is ongoing, and that there is a probability
of repetition of neglect.”
“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.” In re S.J.T.H., __
N.C. App. __, __, 811 S.E.2d 723, 725 (2018) (citations omitted). DSS must overcome
this presumption of parental fitness and meet and carry its burden of proof by clear,
cogent and convincing evidence to show grounds exist to terminate parental rights.
Id.
A parent’s failure to make reasonable progress in completing a case plan may
indicate a likelihood of future neglect. In re D.M.W., 173 N.C. App. 679, 688-89, 619
S.E.2d 910, 917 (2005), rev’d per curiam per the dissent, 360 N.C. 583, 635 S.E.2d 50
(2006). Failure to make progress must be viewed by the actions and attempts of
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Opinion of the Court
parents within their abilities and means, considering their resources or lack thereof
and the priority for their securing their basic necessities of life. See N.C. Gen. Stat. §
7B-1111(a)(2) (“No parental rights, however, shall be terminated for the sole reason
that the parents are unable to care for the juvenile on account of their poverty.”).
Here, the juveniles were removed from Respondent-mother’s care after the
youngest child spilled Mr. Clean onto herself and Respondent-mother called for
medical assistance. No evidence shows and the trial court made no findings
indicating such actions were likely to be repeated. As progress on her case plan, to
become a better parent, and to reduce or remove the likelihood of future neglect,
Respondent-mother had completed parenting class, completed a CCA, had re-engaged
in treatment, was employed, had recently submitted to drug testing and had obtained
stable housing and transportation. The social worker testified Respondent-mother’s
recent drug test results were inconclusive and DSS was awaiting new results at the
time of the hearing.
The evidence presented and the trial court’s findings are insufficient to support
the conclusion that “neglect is ongoing, and there is a probability of repetition of
neglect.” We reverse the conclusion that Respondent-mother’s neglect is ongoing and
the probability exists of her future neglect of her daughters. See In re Ballard, 311
N.C. at 715, 319 S.E.2d at 232.
B. Failure to Make Reasonable Progress
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Opinion of the Court
Respondent-mother argues the trial court erred in concluding grounds for
termination of her parental rights existed “[b]ecause [she had] made reasonable
efforts and progress in addressing the conditions that led to her children’s removal.”
The trial court may terminate parental rights if “[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. Gen. Stat. § 7B-1111(a)(2).
“Willfulness is established when the respondent had the ability to show
reasonable progress, but was unwilling to make the effort.” In re McMillon, 143 N.C.
App. 402, 410, 546 S.E.2d 169, 175, disc. review denied, 354 N.C. 218, 554 S.E.2d 341
(2001). “A finding of willfulness does not require a showing of fault by the parent.”
In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996) (citation
omitted).
The undisputed evidence shows Respondent-mother completed a CCA in
January 2017. The CCA recommended substance abuse treatment and individual
therapy sessions to address her mental health. Respondent-mother sought mental
health services beginning in August 2017. Evidence was presented that from then
until February 2018, Respondent-mother presented to and attended nine sessions for
therapy and five appointments for medication management. She missed 10
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scheduled sessions during the same time frame. Following a break from therapy after
one session in February 2018, Respondent-mother attended one additional therapy
session at the end of March 2018. The trial court found Respondent-mother had
ceased attending sessions because “she ‘thought they were a joke’ and [she] would
have enrolled in substance abuse treatment if she thought it was important.”
While evidence tending to show missed therapy sessions may support the trial
court’s finding that her attendance at treatment was inconsistent, a parent’s
inconsistent attendance at therapy sessions does not alone show a lack of reasonable
progress, particularly when a parent is working or seeking to comply with other
provisions of her plan to meet her and her children’s needs. “While extremely limited
progress is not reasonable progress, certainly perfection is not required to reach the
reasonable standard.” In re S.D., 243 N.C. App. 65, 73, 776 S.E.2d 862, 867 (2015)
(citations and quotations omitted).
Respondent-mother argues the trial court’s findings are misleading and do not
reflect evidence of her progress and situation at the time of the hearing. Respondent-
mother points to undisputed evidence of her activities and accomplishments to show
reasonable progress in her case plan: (1) she re-enrolled in substance abuse
treatment; (2) she continued therapy; (3) she was taking medications to address her
mental health issues; (4) she had fully completed a parenting class; (5) she had
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improved her housing; (6) she was employed; (7) she had improved transportation;
and (8) she had maintained better contact with DSS.
Respondent-mother also specifically challenges the portion of finding of fact
number eleven, which states she “has not provided an email address.” Testimony at
the termination hearing tended to show DSS did not have a valid telephone number
for Respondent-mother, and had recently resorted to email to communicate with
Respondent-mother when they were unable to reach her by telephone. Evidence
shows Respondent-mother had, in fact, provided an email address to DSS to remain
in contact with her social worker as directed by her case plan.
When the evidence and the trial court’s findings are viewed against the
parental presumption favorable to Respondent-mother, DSS has failed to meet its
burden to prove she had failed to make reasonable progress to support the conclusion
to terminate her parental rights on this ground.
Respondent-mother’s efforts and the facts before us sharply contrast to those
where this Court has held that “[e]xtremely limited progress is not reasonable
progress.” See In re Nolen, 117 N.C. App. at 700, 453 S.E.2d at 224-25; see also In re
Bishop, 92 N.C. App. 662, 670, 375 S.E.2d 676, 681 (1989) (upholding termination of
parental rights where, “although respondent has made some progress in the areas of
job and parenting skills, such progress has been extremely limited”).
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DSS recognized Respondent-mother had engaged with service providers and
that her substance abuse recommendations were intertwined with her mental health
treatment. While Respondent-mother had completed her substance abuse
assessment, the social worker opined Respondent-mother’s progress was minimal
and she was not participating “with any real consistency that you could make some
change.”
Other areas of progress in Respondent-mother’s case plan, such as stable
housing and transportation were partly attributable to Respondent-mother’s
relationship with a new boyfriend, upon whom she was financially dependent.
Respondent-mother’s case plan does not and cannot require that she alone be
responsible for providing her housing and transportation. Evidence in the record also
shows Respondent-mother was employed at the time of the hearing. Respondent-
mother also engaged in appropriate visits with her daughters.
N.C. Gen Stat. § 7B-904 provides that a court may order a parent to “[t]ake
appropriate steps to remedy conditions in the home that led to or contributed to the
juvenile’s adjudication or to the court’s decision to remove custody of the juvenile from
the parent.” N.C. Gen. Stat. § 7B-904(d1)(3) (2017). In the case of In re W.V., 204
N.C. App. 290, 297, 693 S.E.2d 383, 388-89 (2010), this Court vacated the trial court’s
order requiring the respondent to obtain housing or employment where those
requirements were unrelated to the causes of the conditions in the home which
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contributed to the juvenile’s adjudication or the court’s decision to remove the juvenile
from the home. Id. Nothing in the record suggests or supports the finding that the
Respondent-mother’s dependence on her present boyfriend for housing,
transportation, and for providing her a cell phone bears any relation to the causes of
the conditions of the removal of Carrie and Anne from their mother’s home. See id.
The trial court found Respondent-mother had not been consistent in her
treatment, was not fully compliant with her case plan, and had only recently re-
engaged in some services. These findings do not support the trial court’s conclusion
that Respondent-mother had not made reasonable progress in her case plan to
address the reasons that led to the removal of her children, or that her failure to make
reasonable progress was willful to support termination of her parental rights to both
of her daughters. See In re O.C., 171 N.C. App. 457, 464-65, 615 S.E.2d 391, 396 (2005)
(trial court must determine by clear, cogent and convincing evidence that a child has
been willfully left by the parent in foster care or placement outside the home for over
twelve months, and, further, that as of the time of the hearing, as demonstrated by
clear, cogent and convincing evidence, the parent has not made reasonable progress
under the circumstances to correct the conditions which led to the removal of the
child.) and In re McMillon, 143 N.C. App. 402, 410, 546 S.E.2d 169, 175 (2001)
(“Willfulness is established when the respondent had the ability to show reasonable
progress, but was unwilling to make the effort.” (citation omitted)).
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VI. Conclusion
The public policy of North Carolina, as is statutorily expressed by the General
Assembly, mandates every court-ordered plan to include a concurrent goal of
reunification of children with their parent(s). N.C. Gen. Stat. § 7B-906.2 (2017). This
policy necessarily requires that DSS’s relationships and dealings with the parent(s)
must continue as cooperative, rather than adversarial, until termination of the
parent’s rights by the court and through exhaustion of appeals. Id. The trial court’s
adjudication of the evidence and findings of fact fail to support the conclusions that
grounds existed under N.C. Gen. Stat. § 7B-1111(a)(1) or (a)(2) to terminate
Respondent-mother’s parental rights. We reverse the trial court’s termination of
Respondent-mother’s parental rights to Carrie and Anne. It is so ordered.
REVERSED.
Judges DILLON and BERGER concur.
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