In re A.B.C.

• Decision Date: 17 July 2020
• Docket Number: No. 233A19,233A19
• Court: North Carolina Supreme Court
• Parties: In the MATTER OF: A.B.C.

374 N.C. 752

844 S.E.2d 902

In the MATTER OF: A.B.C.

No. 233A19

Supreme Court of North Carolina.

Filed July 17, 2020

David S. Tedder, Assistant County Attorney, for petitioner-appellee Columbus County Department of Social Services.

Womble Bond Dickinson (US) LLP, Winston-Salem, by John E. Pueschel, for appellee Guardian ad Litem.

Annick Lenoir-Peek, for respondent-appellant mother.

HUDSON, Justice.

Respondent, the mother of minor child A.B.C. (Adam)¹ , appeals from the trial court's order terminating her parental rights on the ground that she willfully failed to make reasonable progress to correct the conditions that led to Adam's removal from her care. See N.C.G.S. § 7B-1111(a)(2) (2019). Because we hold that the evidence and findings of fact support the trial court's conclusion that grounds existed to terminate respondent's parental rights pursuant to N.C.G.S. § 7B-1111(a)(2), and that the trial court did not abuse its discretion in concluding that it was in the child's best interests to terminate respondent's parental rights, we affirm.

Factual and Procedural Background

This is the second appeal in this case. The following facts and procedural history are derived in part from the Court of Appeals’ opinion in In re A.B.C. , 821 S.E.2d 308, 2018 WL 6053343 (N.C. Ct. App. 2018) (unpublished).

On 10 April 2015, bystanders found respondent and her roommate sleeping inside of a car in the parking lot of respondent's employer. Adam, who was four months old at the time, was crying in the back seat. The bystanders were unable to wake respondent or the roommate and called emergency responders.

After this event, respondent agreed to place Adam with a safety resource. The following week, on 17 April 2015, Columbus County Department of Social Services (DSS) received a referral alleging that respondent was found unresponsive in a car parked in a hospital parking lot. Respondent was admitted to the hospital for treatment and observation due to a possible drug overdose. After this second incident, the safety resource became unwilling to be the placement for Adam.

On 20 April 2015, DSS filed a juvenile petition alleging that Adam was neglected and dependent and took him into nonsecure custody. After a hearing, the trial court adjudicated Adam as dependent and dismissed the neglect allegation in an order entered 16 June 2015. In a separate disposition order entered the same day, the trial court ordered respondent to submit to a substance abuse assessment and a mental health assessment and to follow any resulting recommendations, comply with weekly random drug screens requested by DSS, enroll in and complete parenting classes, and establish suitable housing.

Respondent initially struggled to make progress on her case plan and was in and out of drug rehabilitation facilities and jail. On 5 July 2016, the trial court ceased reunification efforts with respondent and changed the permanent plan to guardianship with a court-approved caretaker with a secondary plan of adoption.

On 21 January 2017, respondent was arrested for violating her probation. She was released from jail in February 2017 and ordered to complete the six-month substance abuse program at a substance abuse treatment facility, Our House. After respondent completed the program at Our House, she was given the opportunity to continue with a residential substance abuse rehabilitation program at Grace Court where she could have resided with her child. However, respondent declined to enter the program at Grace Court, and she decided to live with her boyfriend. While respondent was participating in the program at Our House, the trial court held a permanency planning hearing on 20 March 2017. In an order entered 30 March 2017, the trial court changed the permanent plan to adoption with a secondary plan of guardianship with a court-approved caretaker.

On 12 May 2017, DSS filed a petition to terminate respondent's parental rights alleging the grounds of neglect, willful failure to make reasonable progress toward correcting the conditions that led to Adam's removal from the home, willful failure to pay a reasonable portion of Adam's cost of care, dependency, willful abandonment, and that respondent's parental rights as to another child have been terminated and that she lacks the ability or willingness to establish a safe home. N.C.G.S. § 7B-1111(a)(1)–(3), (6)–(7), and (9) (2019). After multiple continuances, a hearing was held on the petition for termination on 3 and 17 January 2018. At the close of DSS's evidence, the trial court granted respondent's motion to dismiss the ground alleged by DSS concerning the fact that her parental rights as to another child had been terminated. On 1 February 2018, the trial court entered adjudication and disposition orders concluding that grounds existed to terminate respondent's parental rights based on her willful failure to make reasonable progress and that termination of respondent's parental rights was in Adam's best interests. The trial court dismissed the remaining alleged grounds, finding that DSS failed to satisfy its burden to prove the allegations. Respondent appealed to the Court of Appeals.

Before the Court of Appeals, respondent argued that the trial court erred in finding that she failed to make reasonable progress in correcting the conditions that led to Adam's removal from her care. In re A.B.C. , 2018 WL 6053343, at *2. The Court of Appeals concluded that there was "tension" between the trial court's findings that (1) respondent "willfully left the juvenile in foster care outside the home in excess of twelve months without showing to the Court's satisfaction that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile," and (2) "DSS ‘failed to meet its burden to prove the allegations of ... incapability of providing care and supervision as they relate to respondent.’ " Id. at *3. The Court of Appeals reasoned that, "if DSS failed to show that Respondent was incapable of providing care and supervision for her child going forward, it suggest[ed] that Respondent had made at least some reasonable progress." Id. Therefore, the Court of Appeals vacated the termination order and remanded the case to the trial court "for additional findings that eliminate the arguable tension" in order to "permit [the] Court to engage in a meaningful appellate review of the trial court's findings of fact and conclusions of law." Id. The Court of Appeals left it in the trial court's discretion whether to amend its findings based on the existing record, or whether to conduct further proceedings the trial court deemed necessary. Id.

On remand, the trial court did not take new evidence and on 21 March 2019, entered an amended adjudication order including additional findings of fact regarding the alleged grounds for termination. The trial court again found that grounds existed to terminate respondent's parental rights based on her willful failure to make reasonable progress toward correcting the conditions that led to Adam's removal from the home and found that DSS failed to meet its burden regarding the other alleged grounds for termination. In a separate amended disposition order entered 18 April 2019, the trial court concluded that termination of respondent's parental rights was in Adam's best interests. Respondent appealed.

Analysis

I. Motion to Dismiss

As an initial matter, DSS filed a motion to dismiss respondent's appeal from the trial court's 21 March 2019 adjudication order arguing that her notice of appeal was untimely because it was filed more than thirty days after entry and service of that order.

Section 7B-1001 of the General Statutes of North Carolina sets out the orders from which a party may appeal in juvenile matters and the appropriate court to which they may be appealed. Pursuant to N.C.G.S. § 7B-1001, a final order "that terminates parental rights or denies a petition or motion to terminate parental rights" may be appealed directly to this Court. N.C.G.S. § 7B-1001(a1)(1) (2019). In juvenile cases, "[n]otice of appeal ... shall be given in writing ... and shall be made within 30 days after entry and service of the order ...." N.C.G.S. § 7B-1001(b) (2019).

DSS claims that N.C.G.S. § 7B-1001 provides that notice of appeal from the trial court's adjudication order in a termination of parental rights case must be filed within thirty days after entry and service of the order. However, an adjudication order in a termination of parental rights case is not listed as one of the orders from which a party may appeal under N.C.G.S. § 7B-1001 because it does not terminate parental rights; it determines only whether grounds exist to terminate parental rights.

The North Carolina Juvenile Code provides for a two-stage process for the termination of parental rights: adjudication and disposition. N.C.G.S. §§ 7B-1109, -1110 (2019). At the adjudicatory stage, the petitioner bears the burden of proving by "clear, cogent, and convincing evidence" the existence of one or more grounds for termination under N.C.G.S. § 7B-1111(a). N.C.G.S. § 7B-1109(e), (f). If the petitioner fails to satisfy its burden of proving that grounds exist to terminate parental rights, then the trial court must enter an order denying the petition or motion for termination. Such order is appealable pursuant to the second part of N.C.G.S. § 7B-1001(a1)(1), permitting an appeal from an order denying a petition or motion to terminate parental rights.

However, if the trial court finds that at least one ground exists to terminate parental rights, the resulting adjudication order is not a final order appealable under N.C.G.S. § 7B-1001, as the case then proceeds to the dispositional stage where the trial court must "determine whether terminating the parent's rights is in the juvenile's best interest." N.C.G.S. § 7B-1110(a). Thus, an adjudication order in which the trial court determines that at least one ground exists to...