In re: H.B. ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-453
No. COA21-760
Filed 16 August 2022
Robeson County, No. 19 JT 173
IN THE MATTER OF: H.B.
Appeal by respondent-mother from order entered 19 August 2021 by Judge
Vanessa E. Burton in Robeson County District Court. Heard in the Court of Appeals
10 May 2022.
J. Edward Yeager, Jr., for the petitioner-appellee Robeson County Department
of Social Services.
Benjamin J. Kull for the respondent-appellant mother.
North Carolina Administrative Office of the Courts, by Matthew D. Wunsche,
for the Guardian ad Litem.
ARROWOOD, Judge.
¶1 Respondent-mother (“mother”) appeals from the trial court’s order terminating
her parental rights with respect to the minor child, “H.B.”1 For the following reasons,
we affirm the trial court.
1 Initials are used throughout to protect the identity of the minor child.
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I. Background
¶2 H.B. was born on 13 March 2015. On the same day, the Robeson County
Department of Social Services (“DSS”) received a Child Protective Services report
(“CPS report”) “alleging neglect due to substance abuse.” On 30 April 2015, “a
staffing decision was made for services not recommended and the case was closed.”
Two other CPS reports followed throughout the years regarding mother’s care for
H.B., both of which were swiftly closed via staffing decisions.
¶3 On 1 May 2019, DSS received a CPS report “alleging substance abuse” when
mother gave birth to H.B.’s younger brother, “A.L.,”2 who was born premature at 27
weeks and whose “meconium tested positive for cocaine and marijuana.” DSS also
learned that A.L. was transferred “from Scotland Memorial Hospital to North East
Hospital in Concord, North Carolina”; that mother did not have her own residence,
but lived with her grandmother; that mother “did not have any supplies for” A.L.;
that mother had not visited A.L. while he was hospitalized; that, according to mother,
“a home assessment could not be completed at her residence because other people
living in the residence had issues”; that H.B.’s father was deceased; and that H.B.
lived with her paternal grandmother (“Ms. Bullard”). Mother admitted to DSS that
“she smoked marijuana, but denied cocaine use.” However, mother then admitted to
2 See footnote 1, supra.
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using “cocaine once ‘due to [A.L.’s father] beating and knocking on her[.]’ ” Mother
agreed to complete a substance abuse assessment.
¶4 On 14 May 2019, an employee with “Premier Behavioral” informed DSS that
mother “was receiving services through Premier” and “would be attending substance
abuse classes”; however, mother “had not completed a substance abuse assessment
at this time due to not having active Medicaid in Robeson County.”
¶5 On 16 May 2019, DSS made a home visit at Ms. Bullard’s home. There, DSS
observed H.B.’s paternal great-grandmother, who was also present, “yell for [H.B.] to
come from behind the home to meet with [DSS,]” as well as “several children in the
yard cussing, playing with cross bows, and throwing bricks.”
¶6 On 23 May 2019, DSS “attempted to transport [mother] to the child and family
team meeting, but [mother] did not make herself available.” “While in [mother]’s
neighborhood,” the DSS social worker assigned to mother’s case “saw [mother]
walking down a trail and called out to her multiple times, but [mother] ignored
worker’s attempts and got out of worker’s sight.”
¶7 On 6 June 2019, DSS made another home visit to Ms. Bullard’s home. “Ms.
Bullard had to yell for [H.B.] outside the residence in order to locate her so [H.B.]
could come in the home to visit with [DSS].” DSS learned that H.B. had lived with
Ms. Bullard “for much of her life[,]” and that mother “gives Ms. Bullard a little money
and sometimes buys [H.B.] some clothes, but not on a consistent basis.”
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¶8 On the same day, mother informed DSS that she had last used cocaine the
previous week. Mother was living “in a mobile home with no electricity” at the time.
Mother also admitted “to being diagnosed with bi-polar disorder and is not currently
receiving services for her mental health.”
¶9 On 8 June 2019, DSS had “a discussion” with Ms. Bullard regarding her
“supervision of her grandchildren.” Specifically, the DSS social worker assigned to
mother’s case informed Ms. Bullard that she had “observed the children playing in
the road[,]” that there was no adult supervising the children, and that the social
worker had once “had to completely stop her car to avoid hitting a small female child,”
whom she later learned was H.B. herself. On 10 June 2019, DSS learned that mother
had “only attended two classes . . . at Premier Behavioral and that [she] was not
compliant.”
¶ 10 DSS filed a juvenile petition on 11 June 2019, alleging that H.B. was neglected,
due to her living “in an environment injurious to [her] welfare[,]” and dependent, due
to her need of “assistance or placement because [she] has no parent, guardian, or
custodian responsible for [her] care or supervision.” The trial court returned an order
for nonsecure custody for H.B., as well as A.L., on the same day, scheduling a hearing
for continued nonsecure custody for the following day. The trial court rendered orders
for the continued placement of H.B. and A.L. in the nonsecure custody of DSS on
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12 June 2019 and then again on 26 June 2019, both of which were filed on
15 August 2019.
¶ 11 On 24 July 2019, mother entered into a “Family Services Agreement[,]” in
which she “agreed to address housing, employment, parenting, to complete a Mental
Health assessment, and a Substance Abuse assessment.”
¶ 12 The matters came on for adjudication and disposition on 12 September 2019.
On adjudication, after making findings of fact consistent with the above facts, the
trial court concluded that H.B. and A.L. were neglected pursuant to N.C. Gen. Stat.
§ 7B-101(15) and ordered for both children to remain in the legal custody of DSS
pending disposition. On disposition, the trial court found that both H.B. and A.L. had
been placed in a licensed foster home. The trial court also found that mother had not
made herself available to DSS to develop “a Family Services Case Plan” and that DSS
had been unable to contact mother since 20 August 2019. The trial court then stated
it relied on and accepted into evidence DSS’s “Court Report” and “Family
Reunification Assessment,” “the North Carolina Permanency Planning Review &
Family Services Agreement,” and the Guardian ad Litem’s “Court Report[.]”
¶ 13 The trial court concluded that it was “in the best interest of the children that
their custody remain[ ] with [DSS]” and that DSS “continue to work on efforts of
reunification in this matter.” Accordingly, the trial court ordered for the legal and
physical custody of H.B. and A.L. to remain with DSS, for DSS to continue to work
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on reunification efforts, and for DSS to “develop a plan” with Ms. Bullard. Both orders
on adjudication and disposition were filed on 23 October 2019.
¶ 14 On 25 March 2020, the trial court filed a review hearing order, ordering for
H.B. and A.L. to remain in the custody of DSS. Following a hearing held on
14 May 2020, the trial court entered a permanency planning order, providing for the
continued custody of H.B. and A.L. with DSS, and setting the primary plan for
reunification with a concurrent plan for adoption. The trial court also noted that
there was an open investigation at the time involving Ms. Bullard, “due to another
child in her care testing positive for cocaine.” Pending the results from this
investigation, H.B. was to be placed back into Ms. Bullard’s home.
¶ 15 Following a 10 June 2020 hearing, the trial court entered another permanency
planning order on 1 July 2020, in which it found that H.B. had been adjudicated
neglected in 2019, that mother had failed to make herself available to DSS, follow
through on her Family Services Case Plan, or visit H.B. and A.L. consistently, that
DSS was investigating Ms. Bullard, and that the child in Ms. Bullard’s care who had
tested positive for cocaine no longer resided with her. Then the trial court ordered,
among other things, that H.B. remain in DSS’s custody, that H.B. be placed back into
Ms. Bullard’s home, that mother’s visitation with her children be “reduced to once a
month” with a 48-hour notice requirement, and that DSS pursue termination of
mother’s parental rights with respect to A.L.
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¶ 16 H.B. was once again removed from Ms. Bullard’s home on 8 July 2020, where
she was found “outside unsupervised with a black eye, and was also dirty.” “A CPS
referral was called on Ms. Bullard and Scotland County DSS substantiated injurious
environment on Ms. Bullard.” On 11 March 2021, mother’s parental rights with
respect to A.L. were officially terminated.
¶ 17 DSS filed a petition for termination of parental rights with respect to H.B. on
5 April 2021. DSS alleged, in pertinent part, the following:
3. The child, [H.B.,] is currently residing in a licensed
foster home, under the supervision, direction and
custody of [DSS].
4. The child, [H.B.], is currently in the custody of [DSS],
pursuant to a Non-Secure Custody Order entered on
June 11, 2019.
5. That on [September 12, 2019],3 the Court adjudicated
the child, [H.B.,] as a neglected juvenile in accordance
with N.C.G.S. 7B-101 (15).
....
11. The parental rights of the Respondent mother . . . is
[sic] subject to termination by the Court pursuant to
N.C.G.S[.] 7B-111 in that:
a. The mother has willfully left the minor child in
placement outside of the home for more than
twelve (12) months without showing to the
satisfaction of the court that reasonable progress
3 As illustrated in paragraph 22 of this opinion, DSS’s petition was amended during the
termination hearing because it had erroneously listed “September 18, 2019” as the date of
the adjudication hearing.
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under the circumstances has been made in
correcting the conditions that led to the child’s
removal in that the mother failed to comply with
her family services case plan; and
b. The mother has neglected the child within the
meaning of N.C.G.S[.] 7B-101, pursuant to the
prior adjudication of neglect in the underlying
juvenile court file; and
c. The mother has willfully failed to pay a reasonable
portion of the costs of the child’s care for a
continuous period of six months immediately
preceding the filing of the petition, although
physically and financially able to do so.
....
13. The Respondent Mother . . . is subject to termination
of her parental rights pursuant to N.C.G.S. 7B-1111.
....
15. Termination of Respondent’s parental rights is in the
best interest and welfare of the minor child.
¶ 18 DSS included as exhibits H.B.’s birth certificate, the permanency planning
order filed 1 July 2020, an affidavit of status as to H.B., and an additional, extensive
affidavit detailing DSS’s dealings with mother since H.B.’s birth. The second
affidavit, particularly, consisted of a 14-page, 156-paragraph, detailed timeline of
events beginning on 13 March 2015, when DSS made its first contact with mother,
through 11 March 2021, when, among other things, the trial court ordered for H.B.’s
primary plan to be shifted to adoption with a concurrent plan of reunification. This
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timeline captures, in addition to the forementioned facts, mother’s repeated failure
to present herself to visitations conducted at DSS and DSS’s multiple, failed attempts
to reach mother either in-person or over the phone.
¶ 19 The matter came on for termination hearing on 28 July 2021, following a pre-
trial order entered 1 July 2021. The trial court heard testimony from DSS foster care
social worker Lataysha Carmichael (“Ms. Carmichael”) during the adjudication
phase, and then from adoption social worker Chandra McKoy (“Ms. McKoy”) and
Guardian ad Litem District Administrator Amy Hall (“Ms. Hall”) during disposition.
¶ 20 Ms. Carmichael testified that DSS “initially got involved with [H.B.]” due to a
“referral” following A.L.’s diagnosis as “substance affected” at birth, and that H.B.
had been “in care since June of 2019.” Ms. Carmichael testified that mother had not
“done anything to complete a plan that would reunite the family” nor “paid any
reasonable portion of the costs associated with the care for the child in the period of
the six months prior to filing this petition[.]”
¶ 21 Ms. Carmichael stated that, between June 2019 and March 2021, mother
never provided DSS proof of having submitted herself to a substance abuse
assessment, of having acquired suitable housing of her own, or of being employed.
Ms. Carmichael also stated that mother had made “a verbal communication to [her]
that she was attending Positive Progress” for mental health and parenting services;
however, when Ms. Carmichael spoke with “Positive Progress,” she learned that it
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“had no record of [mother].” Ms. Carmichael stated that mother had not consistently
presented herself to visitations at DSS.
¶ 22 Following Ms. Carmichael’s testimony, counsel for DSS moved to amend its
petition to reflect that the date of the adjudication hearing was 12 September 2019,
and not 18 September 2019, as was originally provided in the petition. The trial court
granted DSS’s motion without objection.
¶ 23 The trial court made its oral rendition on adjudication, stating, in pertinent
part:
The Court further finds that this matter came before the
Court on a petition for neglect; that the minor was found
and adjudicated a neglected juvenile on
September 12, 2019, as a result of improper care and
substance abuse issues as determined by the Court on said
date; that the minor has been in custody of [DSS].
The Court further finds that the mother had a care plan,
failed to complete the care plan, failed to make any
payments for the costs of the care of the minor child, failed
to make any efforts to improve her status so that the child
could be removed from the custody of [DSS].
....
Court further finds that this juvenile has been in at least
on three occasions in the care of at least two separate
parties: July 8, 2020, until now in the care of [foster
parents] Arthur and Jessie Kelly; June 10, 2020, until
July 7, 2020, the care of [Ms.] Bullard; and June the 11th,
2019, through June 9, 2020, in the care again of Arthur and
Jessie Kelly.
The Court has taken judicial notice of the file, reviewed the
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exhibits admitted today, A, B, C and D, adopts the efforts
made by [DSS] not to proceed in a motion for termination
of parental rights.
Specifically, DSS’s Exhibits A, B, C, and D were the same four exhibits DSS had
included in its petition for termination of parental rights: H.B.’s birth certificate, the
permanency planning order filed 1 July 2020, an affidavit of status as to H.B., and
the 14-page affidavit.
¶ 24 The trial court continued:
Further finding that the juvenile has been outside of the
mother’s home for more than 12 months without any
showing of any reasonable efforts of the mother to change
those circumstances, again, based upon the inaction of the
mother, that the juvenile was a neglected child.
Court finds that there is sufficient evidence to proceed and
find that it’s in the best interest and welfare of the minor
child that the parental rights be terminated and we
proceed to disposition at this point.
¶ 25 At disposition, Ms. McKoy testified that she had been assigned to mother’s case
in March 2021, “once . . . the focus was shifted to adoption[.]” Ms. McKoy stated that
mother had “initiated services at several providers[,]” but “hasn’t followed through.”
According to Ms. McKoy, mother “was supposed to be getting a job at Waffle House,”
which “f[e]ll through[,]” and was “currently living with her boyfriend.” Ms. McKoy
testified that H.B. was doing “very well” in her “prospective adoptive placement.”
¶ 26 Lastly, Ms. Hall asked the trial court to find that grounds existed by which to
terminate mother’s parental rights, that said grounds were “proven by clear, cogent[,]
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and convincing evidence,” that termination of mother’s parental rights was in the
best interest of H.B., that H.B. should remain in the “legal physical custody” of DSS,
that visitation should be terminated, and that DSS should “continue with the plan of
adoption . . . .”
¶ 27 The trial court made its oral rendition on disposition, stating, in pertinent part:
That the mother was assigned a case plan requiring her to
work several services, that she failed to do so and complete
any service;
That the mother did not follow through with providers and
that mother specifically admits that the most recent
providers . . . indicated they couldn’t work with her
because she had failed to continue previously with their
services when she signed up.
The Court finds that there is not a significant relationship
with the child and parent because the parent has not cared
for the child, has failed to visit consistently with the child
during the time that the child was in the care and legal
custody of [DSS].
The Court finds that the child has a bond and a
relationship with the prospective adoptive parents, has
been living with them for essentially two years;
That the mother . . . has previously been before [DSS] on
an additional . . . petition for termination of parental rights
which was granted; that the minor child [A.L.] resides in
the home that . . . [H.B.] currently lives in and so they are
biological siblings living together.
....
The Court further finds that the period of time that [H.B.]
has been separated from her mother and unknown father,
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based upon the past neglect and the likelihood of repetition
of that neglect, based upon the history of the mother and
her care or lack of care for her children, as well as the fact
that the mother was willing to allow her child to remain in
the custody of [DSS] without working her plan or making
any progress, reasonable progress, to correct her situation
so that the child could be returned back to her;
The Court finds that today there has not been any change
in the circumstances except for the mother continues with
the pattern at the last minute during a hearing suggesting
that there is an alternative but her history of failing to
follow through, the Court finds that any efforts at this point
would not be in the best interest of the minor child [H.B.].
The Court finds that the lack of progress by [mother] was
willful and that she had the ability at a minimum to
participate in the counseling services set up by [DSS] and
to work her plan but she failed to do so, and it was by her
own inaction that the child remained in the custody of
[DSS].
As a result, the Court finds that it is in the best interest of
the minor child [H.B.] that the petition for the termination
of parental rights be granted; that the legal and physical
custody of [H.B.] will remain with [DSS] continuing with
the plan of adoption; terminate any visitation with the
biological mother . . . .
¶ 28 The trial court entered a signed, written order on 19 August 2021. The trial
court made the following findings of fact with respect to H.B. and mother:
Based on the evidence presented by the parties, as well as
review of the Court record, the Court makes the following
findings, based on clear, cogent and convincing evidence:
1. The name of the juvenile is [H.B.], as evidenced by the
child’s Birth Certificate attached to the filed Petition,
which is to be made part of this paragraph as if fully
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set forth herein.
2. The child, [H.B.], currently resides in a licensed foster
home, under the supervision, direction and custody of
[DSS].
3. . . . . [Mother] was served with a copy of the Petition
to Terminate Parental Rights on April 8, 2021.
[Mother] had notice of this proceeding today.
....
5. That a Juvenile Petition and Non-Secure Custody
Order were filed regarding the minor child, on
June 11, 2019.
6. On September 12, 2019, the Court adjudicated the
child, [H.B.], as a neglected juvenile pursuant to
N.C.G.S. 7B-101 (15).
7. That the Court takes judicial notice of the underlying
Juvenile File 19JA173 and [DSS]’s efforts to work
with the Respondent mother . . . .
8. The mother . . . has willfully left the child 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.
There is a high likelihood that the neglect would
continue.
10.4 The mother . . . has neglected the juvenile in that the
juvenile lives in an environment injurious to the
juveniles’ [sic] welfare.
11. The mother . . . failed to pay a reasonable portion of
4 The trial court’s order skips number 9 in its list of findings of fact.
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the costs of the children’s [sic] care for a continuous
period of six months immediately preceding the filing
of the petition, although physically and financially
able to do so.
12. The parental rights with respect to another child of
the parent have been terminated involuntarily by a
court of competent jurisdiction and the parent lacks
the ability or willingness to establish a safe home.
....
14. As such, and based on clear, cogent and convincing
evidence, grounds exist to terminate the parental
rights of the Respondent mother . . . .
15. The Court relies on and accepts into evidence the
Timeline, marked DSS Exhibit ‘__” [sic], in making
these findings and finds the said report to both [sic]
credible and reliable.
(Emphasis added.)
¶ 29 DSS’s “Timeline” noted in paragraph 15 of the trial court’s findings consisted
of a two-page, 18-paragraph timeline of events beginning 1 March 2021, when
mother’s case was assigned to Ms. McKoy, through 19 July 2021, nine days before the
termination of parental rights hearing. This timeline illustrated, among other things,
the following: that mother had completed a mental health assessment in
January 2021, but, as of 2 March 2021, had failed to present herself to a follow-up
appointment “to begin services”; that mother had repeatedly failed to present herself
for scheduled visits in April 2021; that during a “PPR meeting” held on 3 June 2021,
for which mother was absent, the “[t]eam recommended to continue with plan of
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adoption, continue to monitor placement and continue to pursue” termination of
parental rights; that on 9 June 2021 mother had reported being “clean for 8 days”;
that mother failed to show up on 15 June 2021 for a substance and mental health
assessment; that mother had failed to show up for family visits on 7 and 19 July 2021;
and that on 19 July 2021 mother informed Ms. McKoy over the phone that she had
yet to secure employment.
¶ 30 The trial court concluded that grounds existed to terminate mother’s parental
rights pursuant to N.C. Gen. Stat. § 7B-1111, stating:
a. The juvenile has been placed in the custody of [DSS] for
a continuous period of six months next preceding the
filing of the Petition, and
b. The Respondent mother . . . has willfully left the child in
the legal and physical custody of [DSS] from
June 11, 2019 until the present, for over 12 months
without making reasonable progress to correct the
conditions that led to the removal of the child; and
c. The Respondent mother . . . has neglected the juvenile
in that the juvenile live[s] in an environment injurious
to the juveniles’ [sic] welfare; and
d. The Respondent mother . . . has willfully failed to pay a
reasonable portion of the costs of the child’s care for a
continuous period of six months immediately preceding
the filing of the petition, although physically and
financially able to do so; and
e. The parental rights of the parnet [sic] with respect to
another child of the parent have been terminated
involuntarily by a court of competent jurisdiction and
the parent lacks the ability or willingness to establish a
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safe home . . . .
(Emphasis added.)
¶ 31 On disposition, the trial court made the following findings of fact by clear,
cogent, and convincing evidence:
1. That grounds for termination of parental rights exist
under N.C.G.S. 7B-1111, et seq. and it is in the best
interest of the minor child that the parental rights of
the child’s mother . . . should be terminated.
....
3. The minor child has been in the care of [DSS] since
June 11, 2019.
4. At the time the child . . . came into care, [she was] four
years old. Today, the child . . . is six years old.
5. The minor child, [H.B.], is currently residing in a
licensed foster home of Arthur and Jessie Kelly and
said placement is appropriate. The child . . . is doing
well in the home of Arthur and Jessie Kelly and the
child is thriving in their home. The child . . . is very
well bonded to Arthur and Jessie Kelly and she calls
them “mama and daddy”.
6. The permanent plan for this child is adoption.
7. Based on the foregoing, the likelihood of adoption is
extremely high.
8. That there is no bond between the minor child and the
Respondent mother . . . .
9. That Termination of Parental Rights of the
Respondent mother . . . and the Respondent unknown
father will help achieve the permanent plan for the
minor child . . . .
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10. The Court relies on and accepts into evidence the GAL
Report, marked Exhibit “A”, in making these findings
and finds the said report to be both credible and
reliable.
¶ 32 The trial court ordered for the termination of mother’s parental rights and all
visitation with respect to H.B. Mother filed notice of appeal on 15 September 2021.
II. Discussion
¶ 33 On appeal, mother argues that: the trial court erred by allowing “a mid-
hearing motion to amend the termination petition to add a claim under N.C. Gen.
Stat. § 7B-1111(a)(9)”; the trial court erred by making “no substantive findings of fact
to support any of the termination grounds”; and the trial court abused its discretion
“by basing its best interest determination on an unsupported finding of fact regarding
the parent-child bond.” We first address whether the trial court’s findings of fact
were sufficient to support its conclusions of law.
A. Adjudication
¶ 34 “We review a trial court’s adjudication to determine whether the findings are
supported by clear, cogent and convincing evidence and the findings support the
conclusions of law.” In re J.S., 377 N.C. 73, 2021-NCSC-28, ¶ 16 (citation and
quotation marks omitted). “Findings of fact not challenged by respondent are deemed
supported by competent evidence and are binding on appeal.” Id. (citation and
quotation marks omitted). “The trial court’s findings of fact that are supported by
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clear, cogent, and convincing evidence are deemed conclusive even when some
evidence supports contrary findings.” In re D.D.M., 2022-NCSC-34, ¶ 9 (citation
omitted).
¶ 35 “In termination of parental rights proceedings, the trial court’s finding of any
one of the . . . enumerated grounds is sufficient to support a termination.” In re
N.T.U., 234 N.C. App. 722, 733, 760 S.E.2d 49, 57 (2014) (citation and quotation
marks omitted) (emphasis added). “Thus, on appeal, if we determine that any one of
the statutory grounds enumerated in § 7B-1111(a) is supported by findings of fact
based on competent evidence, we need not address the remaining grounds.” Id.
(citation omitted). Accordingly, we limit our review to N.C. Gen. Stat. § 7B-1111(a)(2)
(“subsection (a)(2)”).
¶ 36 Under subsection (a)(2), a trial court “may terminate the parental rights upon
a finding” 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. Gen. Stat. § 7B-1111(a)(2) (2021).
¶ 37 “[A] trial court may take judicial notice of findings of fact made in prior
orders . . . because where a judge sits without a jury, the trial court is presumed to
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have disregarded any incompetent evidence and relied upon the competent evidence.”
In re A.C., 2021-NCSC-91, ¶ 17 (citation omitted). “On the other hand, however, the
trial court may not rely solely on prior court orders and reports and must, instead,
receive some oral testimony at the hearing and make an independent determination
regarding the evidence presented.” Id. (citation and quotation marks omitted).
¶ 38 Mother does not dispute any of the trial court’s findings of fact—including,
namely, the finding that H.B. spent more than twelve months outside of mother’s
home and care. Although the trial court’s findings are bare-boned and disordered,
the trial court clearly identifies the grounds upon which to terminate mother’s
parental rights pursuant to subsection (a)(2): that mother “has willfully left [H.B.] 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 [H.B.].”
¶ 39 The trial court also makes a purported conclusion of law, which is better
characterized as a finding of fact, in paragraph 3, subsection b, that reads: “The
Respondent mother . . . has willfully left the child in the legal and physical custody of
[DSS] from June 11, 2019 until the present, for over 12 months without making
reasonable progress to correct the conditions that led to the removal of the child[.]”
(Emphasis added.) See Dunevant v. Dunevant, 142 N.C. App. 169, 173, 542 S.E.2d
242, 245 (2001) (“Findings of fact are statements of what happened in space and
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time. . . . [A] pronouncement by the trial court which does not require the
employment of legal principles will be treated as a finding of fact, regardless of how
it is denominated in the court’s order.” (citations and quotation marks omitted)).
¶ 40 The trial court took judicial notice “of the underlying Juvenile File 19JA173
and [DSS]’s efforts to work with Respondent mother,” “relie[d] and accept[ed] into
evidence the Timeline” submitted by DSS, and heard testimony from DSS social
worker Ms. Carmichael, foster care social worker Ms. McKoy, and Guardian ad Litem
District Administrator Ms. Hall. See In re A.C., ¶ 18 (“Although the trial court did
take judicial notice of the record in the underlying neglect and dependency proceeding
and incorporated ‘that file and any findings of fact therefrom within the [adjudication]
order,’ it did not rely solely upon these materials in determining that respondent-
mother’s parental rights in Arty were subject to termination. Instead, the trial court
also received oral testimony during the termination hearing . . . .” (alteration in
original)).
¶ 41 As we observed above, the “underlying Juvenile File 19JA173, by its very
nature, provides a thorough illustration of DSS’s dealings with mother from H.B.’s
birth, culminating in the permanency planning order on 12 May 2021, by which the
trial court allowed DSS to “focus its efforts on the plan of adoption” for H.B. DSS’s
“Timeline” depicted DSS’s dealings from March through mid-July 2019, detailing
mother’s repeated failure to follow through on her appointments and scheduled visits,
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all the while H.B. continued to live outside of mother’s care. Witness testimony at
the termination hearing corroborated the evidence provided by “the underlying
Juvenile File” and DSS’s “Timeline[.]”
¶ 42 All of this evidence taken together showed exactly what the trial court found,
and more: that mother had willfully left [H.B.,]” who was six years old by the time of
the termination hearing, “in the legal and physical custody of [DSS] from
June 11, 2019 until the present[ ] for over 12 months”; that H.B. had already spent
most of her life living outside of mother’s care, either in the precarious home of Ms.
Bullard or in foster placement, by the time DSS became involved with the family;
that H.B.’s living arrangements had been “injurious” to her welfare; that mother had
“willfully failed to pay a reasonable portion of the costs of the child’s care for a
continuous period of six months immediately preceding the filing of the petition”; that
H.B. had been adjudicated neglected; that mother’s “parental rights with respect to
another child[,]” A.L., “ha[d] been terminated involuntarily”; that mother “lacks the
ability or willingness to establish a safe home”; that mother had repeatedly failed to
follow through on her case plan; that DSS had repeatedly attempted to make contact
with mother; and that mother had not made any progress toward bringing H.B. back
into her care.
¶ 43 Though the trial court’s findings of fact are unartfully drafted, this is not a
close case. Furthermore, the fact that the trial court’s oral rendition and written
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order do not precisely mirror each other is of no moment. See Oltmanns v. Oltmanns,
241 N.C. App. 326, 330, 773 S.E.2d 347, 351 (2015) (“Although the written entry of
judgment is the controlling event for purposes of appellate review, rendition is not
irrelevant. . . . . A trial court has an affirmative duty to enter a written order
reflecting any judgment which has been orally rendered; failure to enter a written
order deprives the parties of the ability to have appellate review.” (citation omitted)).
The order sufficiently, albeit minimally, supports the trial court’s conclusion that
mother’s parental rights with respect to H.B. should be terminated pursuant to
subsection (a)(2).
B. Disposition
¶ 44 “The [trial] court’s assessment of a juvenile’s best interest at the dispositional
stage is reviewed only for abuse of discretion.” In re C.S., 380 N.C. 709, 2022-NCSC-
33, ¶ 13 (citation and quotation marks omitted) (alteration in original). “[A]buse of
discretion results where the court’s ruling is manifestly unsupported by reason or is
so arbitrary that it could not have been the result of a reasoned decision.” Id. (citation
and quotation marks omitted) (alteration in original).
¶ 45 Per N.C. Gen. Stat. § 7B-1110,
[a]fter an adjudication that one or more grounds for
terminating a parent’s rights exist, the court shall
determine whether terminating the parent’s rights is in the
juvenile’s best interest. The court may consider any
evidence, including hearsay evidence as defined in G.S. 8C-
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1, Rule 801, that the court finds to be relevant, reliable, and
necessary to determine the best interests of the juvenile.
In each case, the court shall consider the following criteria
and make written findings regarding the following that are
relevant:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid in
the accomplishment of the permanent plan for the
juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile and
the proposed adoptive parent, guardian, custodian, or
other permanent placement.
(6) Any relevant consideration.
N.C. Gen. Stat. § 7B-1110(a) (2021).
¶ 46 “Although the statute requires the trial court to consider each of the statutory
factors, the trial court is only required to make written findings regarding those
factors that are relevant.” In re C.S., ¶ 19 (citation omitted). “A factor is relevant if
there is conflicting evidence concerning that factor.” Id. (citation omitted). “If
supported by the evidence received during the termination hearing or not specifically
challenged on appeal, the trial court’s dispositional findings are binding on appeal.”
Id. (citation omitted)
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¶ 47 Mother argues the trial court abused its discretion because it “found that ‘there
is no bond between’ ” H.B. and herself. Specifically, mother states that the trial court
“based its ultimate best interest determination on the flawed belief that there was
‘no bond’ of any kind between [mother] and [H.B.]” and that, “[b]y basing such a
critical determination on such a clearly flawed belief, the [trial] court necessarily
abused its discretion.” Because mother only challenges the trial court’s finding of a
lack of bond, all other findings are binding. See id.
¶ 48 First, as is apparent from N.C. Gen. Stat. § 7B-1110, mother’s argument that
the finding of the presence of a parental bond is a dispositive factor on disposition is
unsupported by law. See In re A.H.F.S., 375 N.C. 503, 514, 850 S.E.2d 308, 317-18
(2020) (“[A]lthough the trial court found that Charley was strongly bonded to
respondents, this Court has recognized that the bond between parent and child is just
one of the factors to be considered under N.C.G.S. § 7B-1110(a), and the trial court is
permitted to give greater weight to other factors.” (citation and quotation marks
omitted)).
¶ 49 Indeed, the Guardian ad Litem’s court report (“GAL report”) stated: “Even
though [H.B.] has been in foster care for over two years, she still has a bond with her
mother. She loves and misses her.” The GAL report also provided that H.B. was
doing very well in her foster placement, that she was bonded to her foster parents,
that likelihood for adoption was excellent, that she was living with her sibling A.L.
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in the same foster placement, that A.L. also had a plan for adoption, that mother’s
parental rights as to A.L. had been terminated by the same trial court on
11 March 2021, and that mother had “signed a case plan on 7/24/19 agreeing to
address substance use, mental health, parenting, housing and employment[,]” on
which she had “failed to make any progress” for about two years. Accordingly, the
GAL report recommended that the trial court find that it was in H.B.’s best interests
to terminate mother’s parental rights.
¶ 50 The trial court’s written findings of fact stated that there was no bond between
H.B. and mother. The trial court provided more context to this finding during its oral
rendition, stating: “The Court finds that there is not a significant relationship with
the child and parent because the parent has not cared for the child, has failed to visit
consistently with the child during the time that the child was in the care and legal
custody of [DSS].” Not only is this reasoning supported by the record, the GAL report,
and other evidence, but it is also not inconsistent with how our appellate courts have
accepted a finding of a lack of bond between respondent-parent and child. See, e.g.,
In re K.A.M.A., 379 N.C. 424, 2021-NCSC-152, ¶ 16 (“Due to respondent’s failure to
visit, Kenneth had no bond with respondent.”); In re C.J.C., 374 N.C. 42, 47, 839
S.E.2d 742, 746 (2020) (“[T]he Respondent/father has been minimally involved even
prior to the filing of this Petition. Therefore, he essentially has no bond at all with
the child.”).
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¶ 51 The record shows that the trial court sufficiently considered and made findings
of fact, bolstered by the GAL report, regarding the multiple, required factors set out
by N.C. Gen. Stat. § 7B-1110, namely: H.B.’s age, her high likelihood of adoption, her
lack of bond with mother, that termination of mother’s parental rights should aid in
the accomplishment of H.B.’s adoption, and the good relationship between H.B. and
her prospective adoptive parents. See N.C. Gen. Stat. § 7B-1110(a). Accordingly, we
hold the trial court did not abuse its discretion.5
III. Conclusion
¶ 52 For the foregoing reasons, we affirm the trial court’s termination of mother’s
parental rights.
AFFIRMED.
Judge INMAN concurs.
Judge WOOD dissents by separate opinion.
5 Mother’s additional contention, that the trial court erred by allowing DSS to amend its
petition mid-hearing, is of no moment. The amendment at issue did not deprive mother of
notice of possible ground for termination, but rather allowed the petition to correct a minor
error and reflect the evidence. See In re B.L.H., 190 N.C. App. 142, 147, 660 S.E.2d 255, 258,
(“[W]here a respondent lacks notice of a possible ground for termination, it is error for the
trial court to conclude such a ground exists.” (citations omitted)), aff’d, 362 N.C. 674, 669
S.E.2d 320 (2008). Furthermore, mother did not object to DSS’s motion. Accordingly, we find
that this was not reversible error.
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WOOD, J., dissenting
No. COA21-760 – In re: H.B.
WOOD, Judge, dissenting.
¶ 53 The trial court failed to make the necessary, substantive findings of fact to
support its conclusions of law that grounds existed under N.C. Gen. Stat. § 7B-1111
to terminate Mother’s parental rights to H.B. The order of the trial court should be
vacated and remanded for the trial court to make further findings of fact to support
its conclusions of law that grounds existed to terminate Mother’s parental rights. I
respectfully dissent.
I. Factual and Procedural Background
¶ 54 On August 19, 2021, the trial court entered an order terminating Mother’s
parental rights to H.B. In the adjudication, the trial court made 14 findings of fact:
1. The name of the juvenile is . . . [H.B.], as evidenced by
the child’s Birth Certificate attached to the filed Petition,
which is to be made part of this paragraph as if fully set
forth herein.
2. The child, . . . [H.B.], currently resides in a licensed
foster home, under the supervision, direction and custody
of the Robeson County Department of Social Services.
3. The mother of the child is . . . [Mother]. . . . [Mother] was
served with a copy of the Petition to Terminate Parental
Rights on April 8, 2021. . . . [Mother] had notice of this
proceeding today.
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4. That there is no father listed on the child’s birth
certificate. That an unknown father was served by process
of publication.
5. That a Juvenile Petition and Non-Secure Custody Order
were filed regarding the minor child, on June 11, 2019.
6. On September 12, 2019, the Court adjudicated the child,
. . . [H.B.], as a neglected juvenile pursuant to N.C.G.S. 7B-
101 (15).
7. That the Court takes judicial notice of the underlying
Juvenile File 19JA173 and the Department’s efforts to
work with the Respondent mother[] . . . the Respondent
Unknown father of the child, . . . [A.L.].
8. The mother, . . . [Mother] has willfully left the child 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. There is a high likelihood that the
neglect would continue.
10. [sic] The mother, . . . [Mother] has neglected the
juvenile in that the juvenile lives in an environment
injurious to the juveniles’ welfare.
11. The mother, . . . [Mother, failed to pay a reasonable
portion of the costs of the children’s care for a continuous
period of six months immediately preceding the filing of the
petition, although physically and financially able to do so.
12. The parental rights with respect to another child of the
parent have been terminated involuntarily by a court of
competent jurisdiction and the parent lacks the ability or
willingness to establish a safe home.
13. That the unknown father, has willfully left the child in
foster care for more than twelve months without showing
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to the satisfaction of the Court that reasonable progress
under the circumstances has been made in correcting the
conditions that led to the child’s removal; has failed to file
an affidavit of paternity in a central registry maintained
by the Department of Health and Humans Services;
legitimated the juvenile pursuant to provisions of G.S. 49-
10, G.S. 49-12.1, or filed a petition for this specific purpose;
legitimated the juvenile by marriage to the mother of the
juvenile; has not provided substantial financial support or
consistent care with respect to the juvenile and mother; has
not established paternity through G.S. 49-14, 110-132,
130A-101, 130A-118, or other judicial proceeding.
14. As such, and based on clear, cogent and convincing
evidence, grounds exist to terminate the parental rights of
the Respondent mother[] . . . and the Respondent unknown
father.
15. The Court relies on and accepts into evidence the
Timeline, marked DSS Exhibit ‘__”, [sic] in making these
findings and finds the said report to [sic] both credible and
reliable.
¶ 55 Additionally, the trial court made 10 findings of fact in the dispositional
portion of its order. One of these findings, finding of fact number 8, stated, “[t]hat
there is no bond between the minor child and the Respondent mother.” The trial
court then terminated Mother’s parental rights to H.B. Mother filed a timely notice
of appeal.
II. Standard of Review
¶ 56 A proceeding to terminate parental rights consists of two stages, an
adjudicatory stage followed by a dispositional stage. In re A.A.M., 379 N.C. 167, 2021-
NCSC-129, ¶ 14; Bolick v. Brizendine (In re D.R.B.), 182 N.C. App. 733, 735, 643
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WOOD, J., dissenting
S.E.2d 77, 79 (2007). At the adjudicatory stage, the petitioner must show by “clear,
cogent, and convincing evidence” “any ground for termination alleged under N.C.G.S.
§ 7B-1111(a)” exists. In re A.A.M., at ¶ 14 (citing N.C. Gen. Stat. § 7B-1109(e)-(f)
(2019)). During this stage, “the trial court must ‘take evidence, find the facts, and . .
. adjudicate the existence or nonexistence of any of the circumstances set forth in
[N.C.G.S. §] 7B-1111 which authorize the termination of parental rights of the
respondent.’ ” In re B.O.A., 372 N.C. 372, 379-80, 831 S.E.2d 305, 310 (2019) (quoting
N.C. Gen. Stat. § 7B-1109(e)). If a petitioner successfully shows the existence of any
of the enumerated grounds under N.C. Gen. Stat. § 7B-1111, the trial court then
proceeds to the dispositional stage. In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d
1, 5 (2004). At the dispositional stage, the trial court must determine “whether it is
in the best interests of the child to terminate the parental rights.” In re Young, 346
N.C. 244, 247, 485 S.E.2d 612, 615 (1997) (citation omitted); see In re N.C.E., 379 N.C.
283, 2021-NCSC-141, ¶ 12.
¶ 57 On appeal, our appellate courts must determine whether the trial court’s
findings of fact are supported by “clear and convincing evidence,” In re W.K., 376 N.C.
269, 277, 852 S.E.2d 83, 89-90 (2020), and “whether those findings support the trial
court’s conclusions of law.” In re B.O.A., 372 N.C. at 379, 831 S.E.2d at 310 (citing In
re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982)); see In re Shepard, 162 N.C.
App. at 221, 591 S.E.2d at 6. “The issue of whether a trial court’s findings of fact
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WOOD, J., dissenting
support its conclusions of law is reviewed de novo.” In re J.S., 374 N.C. 811, 814, 845
S.E.2d 66, 71 (2020). We review the trial court’s determination at the dispositional
stage as to the child’s best interest for abuse of discretion. In re N.C.E., 379 N.C. 283,
2021-NCSC-141 ¶ 13. “Under this standard, we defer to the trial court’s decision
unless it is manifestly unsupported by reason or one so arbitrary that it could not
have been the result of a reasoned decision.” Id. (internal quotation marks omitted)
(quoting In re J.J.B., 374 N.C. 787, 791, 845 S.E.2d 1, 4 (2020)).
III. Discussion
A. Substantive Findings of Fact
¶ 58 Mother asserts the trial court made no substantive finding of fact to support
its ultimate conclusions of law that four separate grounds exited under N.C. Gen.
Stat. § 7B-1111 to terminate her parental rights to H.B. I agree.
¶ 59 In an adjudicatory hearing for termination of parental rights, the trial court
must “take evidence, find the facts, and shall adjudicate the existence or nonexistence
of any of the circumstances set forth in G.S. 7B-1111 which authorize the termination
of parental rights of the respondent.” N.C. Gen. Stat. § 7B-1109(e) (2021). As the
majority opinion above explains, “[i]n termination of parental rights proceedings, the
trial court’s ‘finding of any one of the . . . enumerated grounds is sufficient to support
a termination.’ ” In re N.T.U., 234 N.C. App. 722, 733, 760 S.E.2d 49, 57 (2014)
(quoting In re J.M.W., 179 N.C. App. 788, 791, 635 S.E.2d 916, 918-19 (2006)).
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WOOD, J., dissenting
Notwithstanding this, when entering its judgment to terminate parental rights, the
trial court must 1) “find the facts specifically,” 2) “state separately its conclusions of
law thereon,” and 3) “direct the entry of the appropriate judgment.” N.C. Gen. Stat.
§ 1A-1, R. 52(a)(1) (emphasis added); see In re Anderson, 151 N.C. App. 94, 96, 564
S.E.2d 599, 601-02 (2002); Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657
(1982), superseded by statute on other grounds, N.C. Gen. Stat. § 50-13.4(f)(9) (2021).
¶ 60 In other words, “the trial court’s factual findings must be more than a
recitation of allegations. They must be the ‘specific ultimate facts . . . sufficient for
the appellate court to determine that the judgment is adequately supported by
competent evidence.’ ” In re Anderson, 151 N.C. App. at 97, 564 S.E.2d at 602(emphasis added) (quoting Montgomery v. Montgomery, 32 N.C. App. 154, 156-57, 231
S.E.2d 26, 28 (1977)); see In the Matter of: B.F.N. and C.L.N., 2022-NCSC-68, ¶ 15
(“The trial court is under a duty to find the facts specially and state separately its
conclusions of law thereon, regardless of whether the court is granting or denying a
petition to terminate parental rights.”). “Ultimate facts are the final resulting effect
reached by processes of logical reasoning from the evidentiary facts.” Id. (quotation
omitted); see Quick, 305 N.C. at 451, 290 S.E.2d at 657 (“[A] proper finding of facts
requires a specific statement of the facts on which the rights of the parties are to be
determined, and those findings must be sufficiently specific to enable an appellate
court to review the decision and test the correctness of the judgment.”).
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WOOD, J., dissenting
¶ 61 In In re Anderson, we addressed the interplay between an adjudication order,
N.C. Gen. Stat. § 7B-1109, and Rule 52. There, the respondent contended the trial
court erred by concluding grounds existed under N.C. Gen. Stat. § 7B-1111 to
terminate his parental rights. In re Anderson, 151 N.C. App. at 96, 564 S.E.2d at
601. On appeal, we reviewed the trial court’s order on adjudication and found it only
possessed three findings of fact. Id. at 97, 564 S.E.2d at 602. We concluded these
findings of fact were insufficient because “[t]wo merely recite[d] that DSS filed a
petition and that service was proper on [the parties]” and the third finding of fact was
a “mere recitation[] of allegations.” Id. We further held “[e]ven if the factual findings
here did not merely recite allegations, they remain insufficient to support the
conclusions of law that grounds exist for termination.” Id.¶ 62 Notably, the majority’s opinion discusses the trial court’s oral adjudication of
H.B.; however, a trial court’s oral adjudication at trial does not constitute a judgment.
See Dabbondanza v. Hansley, 249 N.C. App. 18, 21, 791 S.E.2d 116, 119 (2016);
Spears v. Spears, 245 N.C. App. 260, 286, 784 S.E.2d 485, 502 (2016) (“The
announcement of an order in court merely constitutes rendition of the order, not its
entry.”). In its oral adjudication, the trial court included DSS’s exhibits A, B, C, and
D which was comprised of H.B.’s birth certificate, the July 1, 2020 permanency
planning order, an affidavit status of H.B., and an affidavit prepared by DSS.
Notwithstanding, this oral rendition is not a final order as it was not “reduced to
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WOOD, J., dissenting
writing, signed by the judge, and filed with the clerk of court.” N.C. Gen. Stat. § 1A-
1, R.58. Even if a trial court enters an oral ruling, “a trial court’s oral findings are
subject to change before the final written order is entered.” In re E.D.H., 2022-NCSC-
70, ¶ 19 (quoting In re A.U.D., 373 N.C. 3, 9-10 (2019); see In re L.G.A., 277 N.C. App.
46, 54, 2021-NCCOA-137, ¶ 22 (“[T]he written, signed, and filed order may not have
exactly the same provisions as announced at the conclusion of the hearing.”). While
the trial court is “not required to make detailed findings of fact in open court,” In re
T.M., 180 N.C. App. 539, 549, 638 S.E.2d 236, 242 (2006), the same is not true for
written orders. After the trial court enters an oral rendition, it is the responsibility
of the trial court to ensure that the written order comports to the findings and rulings
of the trial court, regardless of whom drafts the written order.
¶ 63 Here, the court made numerous oral findings that were not contained in the
written order; however, since the trial court retains the authority to change its ruling
prior to entry of the written order, we cannot presume that the trial court was still
confident in its finding made during its oral rendition at the time the written order
was signed and filed. Upon review, then, we cannot mend the trial court’s
shortcomings in drafting the order with our own investigation of that court’s previous
statements. Because the trial court’s oral adjudication is not a judgment, this Court’s
review must be limited to the trial court’s written order for the purpose of this appeal.
See id.; Spears, 245 N.C. App. at 286, 784 S.E.2d at 502; Oltmanns v. Oltmanns, 241
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WOOD, J., dissenting
N.C. App. 326, 330, 773 S.E.2d 347, 351 (2015).
¶ 64 Here, the majority’s opinion concludes,
[T]he trial court clearly identifies the grounds upon which
to terminate mother’s parental rights pursuant to
subsection (a)(2): that mother “has willfully left [H.B.] 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 [H.B.].”
By so concluding, the majority disregards the trial court’s failure to “find the facts”
specifically, and thus has failed to fulfil its fact-finding duty. The first six findings of
fact merely recite the juvenile’s name, location of the child’s current residence, that
service was proper upon Mother and father, that DSS filed a petition and non-secure
custody order, and that H.B. was adjudicated neglected. See In re Anderson, 151 N.C.
App. at 97, 564 S.E.2d at 602. These first six findings are not “ultimate facts required
by Rule 52(a) to support the trial court’s conclusions of law, but rather are mere
recitations of” the jurisdictional posture of the trial court and procedure of this case.
Id. (internal quotation marks omitted). Although finding of fact number 7 found by
the trial court took judicial notice of the underlying case file, it fails to make a specific
ultimate finding of fact. See id.; Quick, 305 N.C. at 451, 290 S.E.2d at 657.
¶ 65 Moreover, findings of fact numbers 8, 10, 11, and 12 are mere recitations of the
statutory language of N.C. Gen. Stat. § 7B-1111(a)(1)-(3), (9). N.C. Gen. Stat. § 7B-
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1111 provides,
[t]he court may terminate the parental rights upon a
finding of one or more of the following:
(1) The parent has abused or neglected the juvenile. The
juvenile shall be deemed to be abused or neglected if the
court finds the juvenile to be . . . a neglected juvenile within
the meaning of G.S. 7B-101. [See N.C. Gen. Stat. § 7B-
101(15)(e) (2021) (stating a juvenile is neglected when the
caretaker “[c]reates or allows to be created a living
environment that is injurious to the juvenile’s welfare”).]
(2) 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. 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.
(3) 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.
...
(9) The parental rights of the parent with respect to
another child of the parent have been terminated
involuntarily by a court of competent jurisdiction and the
parent lacks the ability or willingness to establish a safe
home.
N.C. Gen. Stat. § 7B-1111(a)(1)-(3), (9) (2021).
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¶ 66 Finding of fact number 8 mirrors the language of N.C. Gen. Stat. § 7B-
1111(a)(2), stating
[t]he mother, . . . [Mother], has willfully left the child 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. There is a high likelihood that the
neglect would continue.
Likewise, finding of fact number 10 copies the language of N.C. Gen. Stat. §§ 7B-1111
and 7B-101(15)(e), providing, “[t]he mother, . . . [Mother] has neglected the juvenile
and the juvenile lives in an environment injurious to the juveniles’ welfare.” Finding
of fact number 11 also copies the language of N.C. Gen. Stat. § 7B-1111(a)(3), stating,
“[t]he mother, . . . [Mother] failed to pay a reasonable portion of the costs of the
children’s care for a continuous period of six months immediately preceding the filing
of the petition, although physically and financially able to do so.” Finally, finding of
fact number 12 is a recitation of N.C. Gen. Stat. § 7B-1111(a)(9): “The parental rights
with respect to another child of the parent have been terminated involuntarily by a
court of competent jurisdiction and the parent lacks the ability or willingness to
establish a safe home.”
¶ 67 Because findings of fact numbers 8, 10, 11, and 12 are merely recitations of the
statutory language of N.C. Gen. Stat. § 7B-1111, the trial court failed to “find the
facts specifically.” N.C. Gen. Stat. § 1A-1, R. 52(a)(1). In other words, by copying the
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statutory language of N.C. Gen. Stat. § 7B-1111, these findings of facts are not
ultimate findings of fact because they are not “the final resulting effect reached by
processes of logical reasoning from the evidentiary facts.” In re Anderson, 151 N.C.
App. at 97, 564 S.E.2d at 602 (quotation omitted). Therefore, findings of fact numbers
8, 10, 11, and 12 are insufficient to support the trial court’s judgment.
¶ 68 Finally, findings of fact numbers 13, 14, and 15 are also insufficient to support
the termination of Mother’s rights to H.B. Finding of fact number 13 concerns the
unknown father and thus is not applicable to Mother. Finding of fact number 14 is
more properly categorized as a conclusion of law than a finding of fact. A conclusion
of law is “any determination requiring the exercise of judgment, or the application of
legal principles.” China Grove 152, LLC v. Town of China Grove, 242 N.C. App. 1, 6,
773 S.E.2d 566, 569 (2015) (In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675
(1997)). Finding of fact number 14 provides, “[a]s such, and based on clear, cogent
and convincing evidence, grounds exist to terminate the parental rights of the
Respondent mother[] . . . and the Respondent unknown father.” This determination
requires the trial court judge to exercise her judgment and determine “clear, cogent
and convincing” evidence existed so as to terminate Mother’s rights to H.B.
Accordingly, although finding of fact number 14 is labeled as a finding of fact, it is
“more properly classified [as] a conclusion of law.” In re Helms, 127 N.C. App. at 510,
491 S.E.2d at 675. Lastly, finding of fact number 15 states “[t]he Court relies on and
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accepts into evidence the Timeline, marked DSS Exhibit ‘__’, [sic] in making these
findings and finds the said report to be [sic] both credible and reliable.” This finding
does not state what information in the Timeline the trial court relied on and fails to
identify for this court what the DSS Exhibit’s identification number is.
¶ 69 Based on the foregoing, the trial court’s findings of fact were wholly insufficient
for an appellate court to determine “whether the trial court correctly exercised its
function to find facts and apply the law thereto.” In the Matter of: B.F.N. and C.L.N.,
at ¶ 15 (quotation omitted). Although the majority notes “the trial court’s findings
are bare-boned and disordered,” their subsequent affirmation of the trial court’s
judgment disregards the trial court’s duty to make specific findings of facts. This
duty is not to be taken lightly, especially in a case such as the one sub judice where a
parent’s constitutional right to his or her child is involved. The trial court erred by
failing to make specific findings of fact in this case to support its termination of
Mother’s parental rights to H.B. Thus, I would vacate and remand the judgment of
the trial court for further findings of fact.
B. Best Interests at Disposition
¶ 70 Mother contends the disposition’s finding of fact number 8 is not supported by
competent evidence, and thus the trial court abused its discretion by basing its best
interest determination on this fact. This finding provides, “there is no bond between
the minor child and the Respondent mother.” After a careful review of the record,
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there is no evidence in the record to support this finding of fact. Rather, DSS’ witness
at the hearing, Chandra McKoy, testified H.B. recognized Mother and appeared
happy to see her when visits did occur. Furthermore, the guardian ad litem’s report
to the court reported “[e]ven though . . . [H.B.] has been in foster care for over two
years, she still has a bond with her mother. She loves and misses her.”
¶ 71 Despite this testimony and guardian ad litem report, the majority concludes
the trial court nonetheless scraped together additional considerations to support the
trial court’s inability to find a sufficient bond between mother and child. The trial
court could have inferred a lack of bond, the majority argues, from other passages
within the guardian ad litem’s report. These passages show that H.B. was adapting
well to foster care, that Mother’s parental rights as to another child had already been
terminated, and that Mother was not progressing well with drug rehabilitation.
While these observations may have been true and useful for other factual findings,
none support the finding at issue. The lack of a mother’s bond with her child cannot
reasonably be determined from evidence that merely shows the child is doing well in
foster care, the mother’s rights as to another child have already been adjudicated, or
the mother struggles with substance abuse.
¶ 72 The majority cites to other cases where we have upheld orders finding a lack
of bond between parent and child. In all of these cases, though, the trial court relied
upon evidence related to the parent-child relationship to arrive at its finding. In In
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re K.A.M.A., the trial court based its finding upon “the lack of visits” from the parent.
379 N.C. 424, 2021-NCSC-152, ¶ 16. In In re C.J.C., the trial court based its finding
upon the parent being “minimally involved.” 374 N.C. 42, 47, 839 S.E.2d 742, 746
(2020). In this case, no such evidence of the lack of parent-child relationship is
present. These cases are thus distinguishable.
¶ 73 Instead, we should look to cases like In re R.G.L. where our Supreme Court
held that
although there is no testimony specifically concerning the
bond between respondent and Robert, contrary to finding
of fact 55 that there was “absolutely no bond at all between
[Robert] and his parents,” the social worker testified a bond
existed “between the child and mom.” We hold the evidence
does not support the challenged portions of findings of fact
32 and 55.
¶ 74 379 N.C. 452, 2021-NCSC-155, ¶ 28. Similarly, the social worker in this case
testified that Mother’s visitations went well and the guardian ad litem’s report
explicitly states that there existed a bond between Mother and H.B. As such, the
trial court here erred by making finding of fact number 8 as the evidence does not
support the challenged finding of fact.
C. Additional Ground for Termination
¶ 75 Mother next argues the trial court committed reversible error by allowing DSS
to amend the petition and add a claim under N.C. Gen. Stat. § 7B-1111(a)(9) during
the termination hearing. See N.C. Gen. Stat. § 7B-1111(a)(9) (2021) (“The parental
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rights of the parent with respect to another child of the parent have been terminated
involuntarily by a court of competent jurisdiction and the parent lacks the ability or
willingness to establish a safe home.”). This court has repeatedly held a trial court
may not grant a motion to amend a petition to terminate a parent’s parental rights
during a termination hearing. In re G.B.R., 220 N.C. App. 309, 314, 725 S.E.2d 387,
390 (2012); In re B.L.H., 190 N.C. App. 142, 146, 660 S.E.2d 255, 257 (2008), aff’d per
curiam, 362 N.C. 674, 669 S.E.2d 320 (2008). As such, the trial court erred by
allowing such amendment.
IV. Conclusion
¶ 76 Our appellate case law and Rule 52 of North Carolina Civil Procedure requires
a trial court to make specific findings of fact. The trial court made no substantive
findings of fact in this case. Without specific findings of fact to support the trial
court’s conclusions of law that grounds existed to terminate Mother’s parental right
to H.B. under N.C. Gen. Stat. § 7B-1111, we are left with insufficient facts from which
to determine whether the trial court’s judgment is adequately supported by
competent evidence. As such, the trial court failed to fulfill its fact-finding duty.
Thus, the judgment of the trial court should be vacated and remanded for further
findings of fact, and I respectfully dissent.