In re: S.D.Â

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 15-122
Filed: 1 September 2015
Wake County, No. 13 JT 81
IN THE MATTER OF: S.D.
Appeal by respondent from order entered 8 October 2014 by Judge Monica
Bousman in District Court, Wake County. Heard in the Court of Appeals 17 August
2015.
Roger A. Askew, for petitioner-appellee Wake County Human Services.
Deana K. Fleming, for guardian ad litem.
Miller & Audino, LLP, by Jay Anthony Audino, for respondent-appellant.
STROUD, Judge.
Respondent appeals from an order terminating her parental rights to her child.
For the following reasons, we reverse and remand.
I. Background
In September of 2012, while incarcerated on drug-related charges, respondent
gave birth to Sam.1 On 14 March 2013, Wake County Human Services, “WCHS,”
filed a petition alleging Sam was a neglected and dependent juvenile and also
received non-secure custody of Sam. On 9 April 2013, after a hearing, the trial court
entered a consent adjudication and disposition order determining Sam was a
1Pseudonyms will be used for both the children and parents to protect the identity of the
minors involved.
IN RE: S.D.
Opinion of the Court
neglected and dependent juvenile. The order contained various requirements for
respondent to complete in order to be reunified with Sam, including that she
consistently visit with Sam, obtain sufficient income and housing, obtain a substance
abuse assessment, resolve her pending legal issues, and complete a psychological
evaluation and parenting class. On 23 July 2014, WCHS filed a motion to terminate
respondent’s parental rights. On 8 October 2014, after a hearing, the trial court
entered an order terminating respondent’s parental rights for failure to make
reasonable progress regarding the conditions which led to Sam’s removal from
respondent.2 Respondent appeals.
II. Standard of Review
A proceeding to terminate parental rights is a
two step process with an adjudicatory stage
and a dispositional stage. A different
standard of review applies to each stage. In
the adjudicatory stage, the burden is on the
petitioner to prove by clear, cogent, and
convincing evidence that one of the grounds
for termination of parental rights set forth in
N.C. Gen. Stat. § 7B–1111(a) exists. The
standard for appellate review is whether the
trial court’s findings of fact are supported by
clear, cogent, and convincing evidence and
whether those findings of fact support its
2 WCHS’s brief does not properly note the disposition by the trial court. WCHS’s brief states,
“The court ultimately concluded that both parents neglected the minor child and were incapable of
providing appropriate care for the child in the future[,]” and then cites to DSS’s motion to terminate
as its evidence. However, the trial court did not find that respondent had neglected Sam. The trial
court specifically stated when rendering the order that it did not conclude there were grounds for
termination based on respondent’s neglect, and the written order only finds grounds for the
termination of respondent’s rights due to failure to make reasonable progress.
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IN RE: S.D.
Opinion of the Court
conclusions of law. Clear, cogent, and
convincing describes an evidentiary standard
that is stricter than a preponderance of the
evidence, but less stringent than proof beyond
a reasonable doubt. If the petitioner meets its
burden of proving at least one ground for
termination of parental rights exists under
N.C. Gen. Stat. § 7B–1111(a), the court
proceeds to the dispositional phase and
determines whether termination of parental
rights is in the best interests of the child. The
standard of review of the dispositional stage
is whether the trial court abused its discretion
in terminating parental rights.
The trial court's conclusions of law are reviewable de
novo on appeal.
In re T.J.D.W., 182 N.C. App. 394, 400-01, 642 S.E.2d 471, 475 (emphasis added)
(citations, quotation marks, and brackets omitted), aff’d per curiam, 362 N.C. 84, 653
S.E.2d 143 (2007). “Clear, cogent, and convincing evidence is evidence which should
fully convince.” North Carolina State Bar v. Talford, 147 N.C. App. 581, 587, 556
S.E.2d 344, 349 (2001) (citation and quotation marks omitted), aff’d and modified,
356 N.C. 626, 576 S.E.2d 305 (2003).
III. Reasonable Progress
Respondent contends that the trial court’s findings of fact do not support the
conclusion that she failed to make reasonable progress. We will address each of the
requirements set by the trial court’s prior orders and the trial court’s findings of fact
as to respondent’s compliance with each item. The trial court had ordered respondent
to (1) “consistently visit the child in accordance with a written visitation plan[,]” and
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Opinion of the Court
the trial court found that “[s]ince her release from jail, the mother has consistently
visited with the child. . . . Since June 2014 when her visits were changed to bi-weekly
instead of weekly visits, . . . [respondent] has been consistent in attendance and in
punctuality.”
The trial court had ordered respondent to (2) “obtain and maintain suitable
housing, sufficient for herself and the child[].” The trial court found respondent “has
been living in a friend’s home where she does not pay rent, is not on the lease, and
where she helps out the with groceries. She has [resided in that] home for
approximately 9 months.” The trial court did not address in the order whether the
housing was “suitable” or “sufficient for herself and the [child.]” However, the
findings of fact seem to indicate that the residence was stable, since she had resided
in the same location for the 9 months since her release from jail. When rendering the
ruling, the trial court addressed respondent’s living arrangements in more detail:
I will be honest with you, the housing is concerning to me.
It appears that she’s been there for some time. I don't know
anything about the financial arrangements. I don't know
anything about how long she can stay. And apparently, she
has no legal basis for being there, but [the social worker]
says that the home appears to be appropriate. There are
no concerns with the roommate. So I'm not going to find
that she can't -- that she doesn't have suitable housing.
(Emphasis added.) We note that despite the absence of a direct finding as to
“suitability” of respondent’s housing in the written order, the trial court did state that
respondent’s housing was suitable, although by use of a double negative.
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The trial court had ordered respondent to (3) “obtain and maintain legal
employment sufficient to meet the needs of herself and the children” and found that
[t]he Court found at the June 2014 hearing that the mother
had not been able to obtain employment, partially because
of her pending criminal charges. At this hearing on the
motion to terminate her parental rights, she testified that
she secured a job with a cleaning service in May 2014, and
has been working there 5 nights per week for 4 hours per
night and receiving cash payment of about $435.00 per
month. She is not keeping records of her wages, and has
not offered proof of employment or her wages. Regardless
of the truth of her assertions, the worker has indicated to
the mother that the wages are not adequate to meet the
needs of she and [Sam]. The mother offered no evidence
that she receives or will receive any other supports, except
that she was waiting on . . . the appeal decision to receive
SSI which she was receiving prior to her arrest.
Thus, the trial court found that respondent had found “legal employment,” despite
the impediment of pending criminal charges, and that she had applied for SSI. We
would agree with the social worker that $435.00 per month might not be sufficient
income to support a mother and a child, but North Carolina General Statute § 7B-
1111(a)(2) provides that “no parental rights shall be terminated for the sole reason
that the parents are unable to care for the juvenile on account of their poverty.” N.C.
Gen. Stat. § 7B-1111(a)(2) (2013).
The trial court had ordered respondent to (4) “submit to a substance abuse
assessment and follow all recommendations[.]” Despite respondent’s arrest for drug
charges, all of the evidence in our record seems to indicate that her criminal charges
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were a result of Sam’s father, Mr. Carl Smith’s, involvement in drug abuse and
trafficking of drugs. Other than noting that respondent smoked marijuana in the
past, respondent’s psychological evaluation did not note any involvement with illegal
drugs and did not recommend any treatment for substance abuse. The trial court did
not make a written finding of fact regarding the substance abuse assessment. During
rendition, the trial court stated, “I have no concerns about the substance abuse
assessment. She had one drug screen, and that’s apparently all that the County
required of her, and that screen was negative.”
The trial court had ordered respondent to (5) “resolve all legal issues regarding
her criminal charges” and found that respondent “is waiting for the disposition of the
father’s criminal case before proceeding with the disposition of her case. The Court
was not given any indication of when this would occur. It is still possible that the
mother may be incarcerated if convicted of the pending charges.” Respondent’s
unresolved criminal charges seem to be the primary reason for the trial court’s
conclusion that respondent failed to make reasonable progress, but the trial court’s
portion of the finding regarding the resolution of Mr. Smith’s criminal charges which
stated, “The Court was not given any indication of when this would occur[,]” is not
supported by the evidence.
All of the evidence tended to show an expectation that Mr. Smith would be
pleading guilty and that as a result of his plea, respondent would then plead and not
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IN RE: S.D.
Opinion of the Court
have to serve additional time in jail. The WCHS social worker testified that she had
been in contact with respondent’s attorney for the criminal matter, and he had
“basically confirmed everything” respondent told her regarding a possible plea for
time served and also testified that respondent’s attorney “reiterated . . . that he would
not intend on putting [respondent’s] case on the calendar until [Mr. Smith’s] case had
gone on the calendar first.” The WCHS social worker further testified that Mr. Smith
had a court date the following week, on September 24, so the evidence did provide
some “indication” of when respondent’s criminal issues would be addressed. Even the
trial court stated, when rendering the order, “I understand, from her standpoint, why
she would want to wait to see what is going to happen with Mr. Smith, if there might
not be any further significant jail time for her[.]”
We realize that even if Mr. Smith’s criminal charges were on the court calendar
for the next week, there is always uncertainty about whether the case will be reached
or if the intended resolution will actually happen; however, we are concerned that the
respondent’s parental rights seem to have been terminated in large part because of
the “possibility” that she may be incarcerated. The trial court may not have found
the evidence from the social worker or respondent to be credible, but there was an
“indication” of when the criminal matters would be resolved, and it was expected to
happen very soon. Certainly, we agree that it is not reasonable to wait for years for
the criminal process to conclude, but the evidence here shows that respondent’s
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IN RE: S.D.
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criminal matters might be resolved the very next week.3 We cannot discern based
upon the record why the trial court did not wait for Mr. Smith’s court date to find out
if respondent would actually be subject to further incarceration or if she would be
able to resolve the criminal charges as anticipated. In any event, no evidence shows
that respondent had acted in any way to delay the criminal matters or done anything
other than follow her attorney’s instructions.
The trial court had ordered respondent to (6) “complete a psychological
evaluation and follow all recommendations” and found:
16. The mother completed a psychological
evaluation while she was in jail, and when she was
released in December 2013, she met with the worker to go
over the evaluation and the expectations regarding
recommendations. The mother is diagnosed with
depression, ADD, and psychosis which requires her to take
and manage medicines. The psychological [evaluation]
recommended strongly that the mother have intensive
individual counseling, develop a support group to assist her
in parenting the child and making some important
decisions, and that intensive in-home services would have
to be implemented prior to any placement of the child in
3 We realize that hindsight is 20/20, and this information was not before the trial court, but
we can take judicial notice of the fact that the official records of the North Carolina Department of
Public Safety, Division of Adult Correction show that Carl Smith is currently serving active time in
prison for the crimes for which he was charged at the inception of this WCHS proceeding, committed
on the same date that WCHS received an investigative assessment regarding Mr. Smith’s arrest. See
N.C. Gen. Stat. § 8C-1, Rule 201 (2013) (regarding judicial notice); see also State v. Black, 197 N.C.
App. 373, 375, 677 S.E.2d 199, 201 (2009) (“Although not included in the record on appeal, we take
judicial notice that defendant has completed this sentence[.]”) Mr. Smith was sentenced for his crimes
on 9 October 2014, within a month after the hearing on termination of parental rights, which is
consistent with the evidence provided by respondent and the social worker of the expected timing for
resolution of the criminal matters. The official records also show that respondent has never been
committed to the Division of Adult Correction to serve any active sentence for any crime, which is
consistent with the social worker’s testimony that respondent expected not to serve any additional
active sentence upon entering a plea.
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IN RE: S.D.
Opinion of the Court
her home.
....
17. The mother was referred to Monarch for mental
health services, but she has not sufficiently engaged in
mental health counseling through Monarch. Prior to the
June 2014 hearing, she had attended some sessions, but
had missed at least 5 sessions, and was not making
progress toward her treatment goals. The mother
discovered during therapy that she was having a difficult
time perceiving reality. She was prescribed medication for
this schizophrenic-like symptom, which caused an allergic
reaction and which had to be reviewed by a psychiatrist.
She was attending therapy only one time per month, which
she said was all her therapist is requiring. The Court
found at the June 2014 hearing, more than 15 months from
the filing of the petition and 21 months since her child was
placed outside of her home, that . . . [respondent] did not
seem to understand the importance of her engaging in
intensive therapy to be able to safely parent her child.
Counseled by her social worker that her current therapy
regime did not meet the recommendation for intensive
therapy made in her psychological evaluation, the mother
did arrange with her therapist to have a session every
three weeks, and she attended sessions under this schedule
between June 2014 and this hearing on September 18,
2014. No evidence was offered by the mother to show any
progress in her therapy. The social worker testified that
the mother was not meeting the requirement of intensive
therapy in light of her serious mental health problems and
the recommendations of the psychological [evaluation].
Thus, the trial court’s findings acknowledge that respondent submitted to the
psychological evaluation and took medications as recommended.
Respondent’s psychological evaluation actually did not recommend “intensive
individual counseling[,]” and in that regard, the trial court’s finding of fact is not
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supported by the evidence. The psychological evaluation actually recommended
“individual counseling services[,]” and the trial court noted that respondent attended
therapy, and although she had missed some sessions, once a month was the frequency
required by her therapist. Furthermore, when respondent was informed that she
would benefit from further therapy, she increased her sessions to once every three
weeks and had regularly attended those sessions. It was also recommended that
respondent take medication for her mental well-being, and according to the evidence,
respondent took her medications as prescribed.
It seems that the trial court would have preferred that respondent receive more
frequent therapy than she had, but our record does not support a finding that
respondent failed to comply with the therapy as recommended by her therapist or
required by the trial court’s prior orders. Other than missing a few sessions,
respondent complied with her therapist’s initial recommendations regarding the
frequency of therapy, and upon being informed she needed more therapy, she fully
complied with her social worker’s instructions in both having more therapy and
faithfully attending her sessions. We also recognize that attending therapy and
actually benefitting from it are two different things, but it is difficult to say that there
was clear, cogent, and convincing evidence in this case that respondent was not
making progress. While respondent may benefit from more frequent treatment, the
evidence showed that she complied with the frequency of treatment required of her.
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The trial court ordered respondent to (7) “complete a positive parenting class
and demonstrate knowledge learned in her interactions with the children in her life
choices[.]” The trial court found that respondent “attended the MOVE program with
SAFEChild to learn more about the impact of domestic violence on children” and
during rendition stated, “while I applaud the fact that she has completed the
parenting class, again, I note she did not complete it within 12 months[.]” As to
respondent’s parenting skills, we also note that respondent had another child, Sue,
who was seven years old at the time respondent was arrested. Our record indicates
that respondent had never had any prior social services involvement regarding Sue.4
The trial court ordered respondent to (8) “maintain regular contact with the
assigned social worker, notifying WCHS of any change in situation or circumstances
within 5 business days.” The trial court did not make a finding as to this requirement
in its order, but all of the evidence, including the WCHS social worker’s testimony,
indicated that respondent did maintain contact with her social worker throughout
the case.
After addressing each of the requirements of respondent’s case plan, it appears
that the possibility of respondent’s incarceration was the primary factor supporting
4 Our record indicates that Sue was a well-behaved and well-adjusted child with no apparent
issues that needed to be addressed at the time of WCHS’s intervention. While our record as to
termination deals only with Sam, the initial order for adjudication did include Sue so our record
includes information regarding her as well. Based upon our record, the permanent plan for Sue was
custody with her maternal grandmother, and respondent’s parental rights to Sue would not be
terminated.
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the trial court’s conclusion that she had failed to make reasonable progress. Our
concern about this factor is that it was only a possibility of incarceration which may
not even come to pass, and the evidence indicated that respondent’s criminal matter
would be disposed of quite soon. A secondary factor was respondent’s failure to make
adequate progress in addressing her mental health issues, but in this regard
respondent did essentially all that the trial court or her therapist had required. The
only other factor which could support the trial court’s conclusion was respondent’s
meager income, but again, poverty alone cannot be a basis for termination of parental
rights. See N.C. Gen. Stat. § 7B-1111(a)(2). While “[e]xtremely limited progress is
not reasonable progress[,]” In re Baker, 158 N.C. App. 491, 496-97, 581 S.E.2d 144,
148 (2003) (citations and quotation marks omitted), certainly perfection is not
required to reach the “reasonable” standard. As noted above, some portions of the
trial court’s findings of fact are not supported by the evidence, and although they are
just portions of the findings, they are findings on the pivotal issues. In addition, when
we consider the failures as addressed by the trial court in tandem with the numerous
ways respondent did comply with her parenting plan, the findings of fact do not
support the conclusion of law that respondent has failed to make reasonable progress.
While we fully appreciate the importance of resolving this termination case as quickly
as possible so that Sam may have a stable and safe home, we must reverse the order
terminating respondent’s parental rights.
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IV. Conclusion
For the foregoing reasons, we reverse and remand; for this reason, we need not
address respondent’s other issues raised on appeal.
REVERSED and REMANDED.
Judges GEER and TYSON concur.
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