In re: M.B., A.B.

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-198
Filed: 17 October 2017
Rockingham County, No. 14 JT 182-84
IN THE MATTER OF: E.B., M.B., A.B.
Appeal by respondent-father from orders entered 22 November 2016 by Judge
Frederick Wilkins in Rockingham County District Court. Heard in the Court of
Appeals 10 August 2017.
Beverley A. Smith, for Petitioner-Appellee Rockingham County Department of
Social Services.
Lauren Golden, for guardian ad litem.
Peter Wood, for Respondent-Appellant father.
MURPHY, Judge.
“Harvey”1 the father of juveniles E.B., M.B., and A.B. (“Ernie,” “Molly,” and
“Annie,”2), appeals from an order terminating his parental rights. The trial court
declared that Harvey had willfully abandoned his children and that he made no
reasonable progress on the case plan, thus rendering them neglected. After careful
review, we reverse and remand for additional findings of fact and conclusions of law.
Background
1 The father will be referred to by a pseudonym to protect the identities of the children.
2 The children will be referred to by pseudonyms to protect their identities. E.B. is “Ernie,”
M.B. is “Molly,” and A.B. is “Annie.”
IN RE: E.B., M.B., & A.B.
Opinion of the Court
On 10 December 2014, the Rockingham County Department of Social Services
(“DSS”) filed a petition alleging that Ernie, Molly, and Annie were neglected and
dependent juveniles due to “severe and ongoing domestic violence” in their home.
DSS stated that the family came to its attention after Harvey assaulted a child who
was in his home. That child, who is not one of the juveniles who is the subject of this
action, entered DSS’s care and informed DSS that there was domestic violence in
Harvey’s home. DSS learned that on 5 June 2013, Ernie was injured when his mother
(“Gert”3) threw a metal cup which hit Ernie in the face. Harvey and Gert gave
differing stories as to whether Gert intended to throw the cup at Eddie or at Harvey.
Harvey’s family was referred for in-home services.
On 8 December 2014, a social worker went to Harvey’s home for a scheduled
visit to provide services. During a check of the home, the DSS worker heard an
altercation taking place inside of the home and decided to call the police. On arrival,
the social worker observed a lamp, and then wooden pieces from a broken table
thrown from a window in the residence. The social worker called the police. Harvey
and Gert later acknowledged to the social worker that they had been in an altercation.
All three juveniles were present during the incident. Harvey and the juveniles were
transported to the paternal grandmother’s home with, according to DSS, “the
3 Gert will be referred to by a pseudonym in order to protect the identities of the children.
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IN RE: E.B., M.B., & A.B.
Opinion of the Court
understanding that they were to remain there for the time being while new
arrangements were made to address the ongoing domestic violence.”
On 10 December 2014, DSS social worker Jordan Houchins went to the
residence to discuss the 8 December 2014 incident with Gert. The social worker found
their home in ruins. There were multiple holes in walls in the residence; all of the
tables in the house had been destroyed; and there were broken dishes on the floor of
the juveniles’ bedrooms. These conditions resulted from numerous domestic violence
incidences. Gert told the social worker that she and Harvey had hit each other during
these altercations. Gert, however, refused to seek a domestic violence protection
order and did not want to go to a shelter. When the social worker examined the
juveniles’ bedrooms, she found Harvey hiding under a blanket in one of the beds.
Harvey claimed to be sleeping, and denied that he was hiding from the social worker.
He became belligerent when confronted by the social worker. The social worker
attempted to assume emergency custody of the children. Harvey then picked up
Molly, an infant, and left the residence. Molly was not appropriately dressed as she
was wearing only a “onesie” and it was a “bitterly cold morning.” Law enforcement
subsequently located Harvey and Molly several blocks from the residence. DSS
subsequently obtained non-secure custody of all the juveniles.
On 10 November 2015, the trial court adjudicated the juveniles to be neglected
and dependent after Harvey and Gert admitted to the altercations alleged in the
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IN RE: E.B., M.B., & A.B.
Opinion of the Court
petition. The trial court ordered Harvey to comply with a case plan, which included:
(1) complete a domestic violence offender treatment/education and counseling; (2)
complete an approved parenting class; (3) submit to a mental health assessment and
comply with all recommendations; (4) obtain and maintain suitable housing for the
juveniles; (5) obtain employment with income sufficient to provide for the basic needs
of the juveniles; and (6) obtain transportation sufficient to provide for Harvey’s and
the juveniles’ basic needs.
The trial court initially ordered a permanent plan of reunification for the
juveniles. The trial court later changed the primary permanent plan to adoption
because Harvey and Gert “continue[d] to engage in domestic violence.” The secondary
plan remained reunification. On 28 September 2016, DSS filed a petition to
terminate Harvey’s and Gert’s parental rights pursuant to N.C.G.S. § 7b-1111(a)(1)
(neglect) and (2) (failure to make reasonable progress) (2015).
Analysis
N.C.G.S. § 7B-1111 sets out the statutory grounds for terminating parental
rights. A finding of any one of the separately enumerated grounds is sufficient to
support termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990).
“The standard of appellate review is whether the trial court’s findings of fact are
supported by clear, cogent, and convincing evidence and whether the findings of fact
support the conclusions of law.” In re D.J.D., 171 N.C. App. 230, 238, 615 S.E.2d 26,
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IN RE: E.B., M.B., & A.B.
Opinion of the Court
32 (2005) (citing In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal
dismissed, disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001)). We review the
trial court’s conclusions of law de novo. In re S.N., 194 N.C. App. 142, 146, 669 S.E.2d
55, 59 (2008), aff’d per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).
In the instant case, the trial court concluded that grounds existed to terminate
Harvey’s parental rights pursuant to N.C.G.S. § 7B-1111(a)(1) and (2). First,
regarding N.C.G.S. § 7B-1111(a)(1), where termination is based on neglect, our
General Statutes define a “[n]eglected juvenile” as:
[a] juvenile who does not receive proper care, supervision,
or discipline from the juvenile’s parent, guardian,
custodian, or caretaker; 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; . . . or who
has been placed for care or adoption in violation of law.
N.C.G.S. § 7B-101(15) (2015). Generally, “[i]n deciding whether a child is neglected
for purposes of terminating parental rights, the dispositive question is the fitness of
the parent to care for the child at the time of the termination proceeding.” In re
L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d 236, 242 (2005) (citations and quotations
omitted).
Second, to terminate a parent’s rights under N.C.G.S. § 7B-1111(a)(2), the trial
court must perform a two-part analysis. The trial court must determine by clear,
cogent and convincing evidence that: (1) a child has been willfully left by the parent
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IN RE: E.B., M.B., & A.B.
Opinion of the Court
in foster care or placement outside the home for over twelve months; and (2) the
parent has not made reasonable progress under the circumstances to correct the
conditions which led to the removal of the child. In re O.C., 171 N.C. App. 457, 464-
65, 615 S.E.2d 391, 396 (2005) (internal citations omitted), disc. review denied, 360
N.C. 64, 623 S.E.2d 587 (2005).
Here, in support of its conclusion that grounds existed pursuant to N.C.G.S §
7B-1111(a)(1) and (2) to terminate Harvey’s parental rights, the trial court found as
fact:
7. The minor children were adjudicated to be neglected and
dependent juveniles on February 5 2015 . . . .
....
12. Both parents entered counseling at Hope Services in
February and March of 2016 following an incident of
domestic violence in January of 2016.
13. After attending weekly sessions of counseling at Hope
Services, another incident of domestic violence occurred on
July 5, 2016.
14. All three minor children were placed in the nonsecure
custody of the Department due to severe domestic violence
between the parents. The domestic violence was also a
finding of fact in the adjudication order from February of
2015.
Based on these findings, the trial court concluded:
17. The respondent-father . . . neglected the juveniles
within the meaning of N.C.G.S. §§ 7B-101 and 7B-
1111(a)(1), in that: The minor children were adjudicated
neglected and dependent on February 5, 2015 based on
their exposure to domestic violence by the respondent
parents. There is no evidence of changed circumstances
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IN RE: E.B., M.B., & A.B.
Opinion of the Court
related to the respondent as he continues to engage in
domestic violence with the respondent-mother. It is likely
that the respondent-father’s neglect would be repeated in
the future if the children were returned to his care.
18. Pursuant to N.C.G.S. § 7B-1111(a)(2), the respondent-
father . . . left the minor children in foster care 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. The
children have been placed in foster care since December 10,
2014, and the respondent-father has not taken corrective
action to alleviate those conditions that led to the children’s
removal as there is the continuation of domestic violence
between the respondent parents.
(Emphasis added).
Harvey contends that the trial court’s findings concerning domestic violence
were insufficient to support the court’s conclusions of law. We agree.
Our Supreme Court has stated:
Effective appellate review of an order entered by a trial
court sitting without a jury is largely dependent upon the
specificity by which the order’s rationale is articulated.
Evidence must support findings; findings must support
conclusions; conclusions must support the judgment. Each
. . . link in the chain of reasoning must appear in the order
itself. Where there is a gap, it cannot be determined on
appeal whether the trial court correctly exercised its
function to find the facts and apply the law thereto.
Coble v. Coble, 300 N.C. 708, 714, 268 S.E.2d 185, 190 (1980).
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IN RE: E.B., M.B., & A.B.
Opinion of the Court
Here, it is apparent from the court’s conclusions of law 17 and 18 that the sole
basis for termination of Harvey’s parental rights was the alleged continuation of
domestic violence between Harvey and Gert. However, the only findings made by the
trial court concerning continuing incidents of domestic violence were findings 12 and
13, in which the court merely found that the “incident[s]” of domestic violence
“occurred” in January and July of 2016. The trial court’s succinct findings shed little
light on the circumstances of the domestic violence, its severity, or the impact on the
juveniles. Most importantly, entirely absent from the findings are facts showing
Harvey was engaged in the domestic violence incident involving Gert. Instead, the
evidence clearly demonstrated that Gert was the aggressor and was the only one
involved in domestic violence. Thus, there is insufficient evidence to support the trial
court’s conclusion that Harvey continued to engage in domestic violence. We conclude
that the trial court’s vague findings regarding domestic violence lack the required
specificity necessary “to enable an appellate court to review the decision and test the
correctness of the judgment.” Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657
(1982); see also In re Gleisner, 141 N.C. App. 475, 481, 539 S.E.2d 362, 366 (2000) (the
trial court’s “vague and apparently inaccurate” finding of fact could not be used as a
basis for the trial court’s determination that the juvenile was neglected because it
“impedes our ability to determine whether the trial court’s conclusions are supported
by the findings.”).
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IN RE: E.B., M.B., & A.B.
Opinion of the Court
Consequently, we hold the trial court’s findings do not support the trial court’s
determination that there was a continuation of domestic violence, as well as its
conclusion that grounds existed to terminate Harvey’s parental rights based on
neglect and willful failure to correct the conditions which led to the juveniles’ removal
from Harvey’s care.
However, there remains an issue concerning Harvey’s living situation. As was
found during the original adjudication of neglect of the children, Harvey appears to
live with Gert. The trial court terminated her parental rights, but she did not appeal
that order. On remand, the trial court must make additional findings of fact and
conclusions of law concerning where the children will live if they are to return to
Harvey’s care. It should inquire into the effect that living with Gert will have on the
children, including the possibility of future domestic violence. Accordingly, we
reverse the trial court’s order terminating Harvey’s parental rights and remand for
further findings of fact.
REVERSED AND REMANDED.
Judge BRYANT concurs in the result only.
Judge HUNTER, JR. concurs in a separate opinion.
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No. COA17-198 – In re: E.B., M.B., A.B.
HUNTER, JR., Robert N., Judge, concurring in separate opinion.
I concur with the majority opinion. The trial court’s findings do not support
the conclusion that grounds existed to terminate the father’s parental rights. The
trial court seems to base this conclusion on two incidents of domestic violence which
occurred in 2016. However, as a result of these incidents the mother was charged
with assault and resisting an officer. There is nothing in the record indicating the
role, if any, the father played in these incidents.
Furthermore, there is evidence in the record tending to show the father has made
progress on his case plan. Specifically, he completed a parenting class, submitted to
a mental health assessment, obtained employment as a truck driver, obtained and
maintained transportation, and obtained stable housing. He has complied with the
child support order and interacted appropriately with the children during visits, in
addition to attending weekly domestic violence counseling services.
On remand the trial court needs to address these issues to determine whether
this and other evidence support a finding that the father did or did not make sufficient
progress on his case plan during the time the children were in the custody of the
Department of Social Services. I would leave to the trial court the decision whether
or not to take additional evidence on remand.