In re A.B.
| Decision Date | 18 April 2017 |
| Docket Number | No. COA16-1040,COA16-1040 |
| Parties | In the MATTER OF: A.B., C.B., J.B., A.B. |
| Court | North Carolina Court of Appeals |
Stephen A. Moore, Asheville and H. Jay White, for petitioner-appellee Cabarrus County Department of Human Services.
Mark L. Hayes, for respondent-appellant.
Brandon J. Huffman, for guardian ad litem.
Where the trial court's findings and conclusions do not adequately account for respondent-mother's circumstances at the time of the termination hearing, as required to support a termination of her parental rights under N.C.G.S. § 7B-1111(a)(1) or (2), we vacate and remand.
On 22 October 2013, the Cabarrus County Department of Human Services ("CCDHS") obtained non-secure custody of the respondent-mother's1 minor children A.B. (born October 2001), C.B. (born August 2006), J.B. (born March 2010), and A.B. (born November 2012) (collectively, "the children"). CCDHS filed petitions2 alleging that they were neglected "due to ongoing substance abuse and domestic violence" by respondent-mother and respondent-father (collectively, "respondents"), which "place[d] their four young children at risk of harm" and created an environment injurious to their welfare. The petition described CCDHS's unsuccessful efforts to provide treatment services to respondents and implement a safety resource plan after substantiating reports of neglect and physical abuse, which reports included respondent-father's inappropriate physical discipline of respondents’ two oldest daughters, who were then six and eleven years of age. The initial child protective services report was received on 25 February 2013.
The trial court held a hearing on CCDHS's petitions on 13 March 2014 and adjudicated the children to be neglected and dependent juveniles. It maintained the children in CCDHS custody and directed that they remain in their current placements. In its disposition, the court identified "substance abuse, improper supervision, injurious environment and domestic violence involving the parents" as the "issues which led to [the children's] placement" outside the home. It found that "[t]he following community-level services [were] needed to strengthen the home situation and to remediate or remedy the issues which led to placement:
The trial court imposed separate case plans for each respondent to address these concerns. Respondent-mother was ordered to obtain a new substance abuse evaluation through Genesis and follow any recommendations; submit to random drug screens as requested by CCDHS; comply with the recommendations of her parenting capacity evaluation by Dr. Susan Hurt; complete a court-approved parenting course and demonstrate skills learned in the course during visitation; comply with her visitation plan; attend the children's medical, dental, and school appointments; maintain bi-weekly contact with her CCDHS social worker, reporting any changes in address, employment, or other significant events; sign releases allowing CCDHS to obtain information from service providers; "maintain her own suitable housing, including utilities, appropriate for the placement of all the children" for at least six months; and maintain employment allowing her to provide financially for her children for a continuous four- to six-month period. The court established reunification as the permanent plan.
The trial court ceased reunification efforts as to respondent-father in June 2015 and instituted concurrent permanent plans of reunification with respondent-mother only and adoption. At a subsequent review hearing on 13 August 2015, the court relieved CCDHS of further reunification efforts as to respondent-mother and changed the permanent plan to adoption with a secondary plan of legal guardianship.
CCDHS filed a motion to terminate respondents’ parental rights on 28 October 2015. After hearing evidence on 12 and 31 May 2016, the trial court concluded that respondent-mother's parental rights were subject to termination for (1) neglect, and (2) willful failure to make reasonable progress to correct the conditions that led to the children's removal from the home over three years earlier. N.C. Gen. Stat. § 7B-1111(a)(1)–(2) (2015). The court further determined that terminating respondent-mother's parental rights was in the best interests of the children. Respondent-mother filed timely notice of appeal from the termination order.
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On appeal, respondent-mother claims the trial court's findings of fact do not support its adjudication of grounds to terminate her parental rights under either N.C. Gen. Stat. § 7B-1111(a)(1) or (2). She contends the court found no facts tending to show that, at the time of the May 2016 termination hearing, she had failed to resolve the issues of substance abuse and domestic violence which led to the children's removal from her home and adjudication as neglected juveniles. As those issues were the only factors cited by CCDHS at the time of the initial removal and adjudication, respondent-mother argues that the court could not find a likelihood of a repetition of neglect if the children were returned to her care, see N.C.G.S. § 7B-1111(a)(1), or that she willfully failed to make reasonable progress to correct the conditions leading to the children's placement in foster care, see id. § 7B-1111(a)(2). For the following reasons, we agree.
We review an adjudication under N.C. Gen. Stat. § 7B-1111(a)(1) or (a)(2) to determine (1) whether the court's findings of fact are supported by clear, cogent, and convincing evidence, and (2) whether its findings in turn support its conclusions of law. In re Shepard , 162 N.C.App. 215, 221–22, 591 S.E.2d 1, 6 (2004) (citing In re Clark , 72 N.C.App. 118, 124, 323 S.E.2d 754, 758 (1984) ). Uncontested findings are deemed to be supported by the evidence for purposes of our review. See In re H.S.F. , 182 N.C.App. 739, 742, 645 S.E.2d 383, 384 (2007). "[E]rroneous findings unnecessary to the determination do not constitute reversible error" where an adjudication is supported by sufficient additional findings grounded in competent evidence. In re T.M. , 180 N.C.App. 539, 547, 638 S.E.2d 236, 240 (2006) (citation omitted). The adjudication of any single ground under N.C. Gen. Stat. § 7B-1111(a) will support an order terminating parental rights. In re P.L.P. , 173 N.C.App. 1, 8, 618 S.E.2d 241, 246 (2005) (citation omitted).
The trial court found grounds to terminate respondent-mother's parental rights for neglecting the children under N.C. Gen. Stat. § 7B-1111(a)(1). Where a child has been in a placement outside the home for a significant period of time, an adjudication under N.C.G.S. § 7B-1111(a)(1) may be supported by "evidence of prior neglect and [of] the probability of a repetition of neglect" if the child were returned to the parent's care. In re Ballard , 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). "The trial court must ... consider any evidence of changed conditions" since the prior adjudication of neglect and "make an independent determination of whether neglect authorizing termination of the respondent's parental rights existed at the time of the termination hearing." Id . at 715–16, 319 S.E.2d at 232–33 (emphasis added); accord In re Young , 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997) . As our Supreme Court has emphasized, "[t]he determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding ." Ballard , 311 N.C. at 715, 319 S.E.2d at 232.
The trial court also adjudicated grounds to terminate respondent-mother's parental rights under N.C.G.S. § 7B-1111(a)(2), which allows termination where "[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.G.S. § 7B-1111(a)(2). A finding that the parent acted "willfully" under N.C.G.S. § 7B-1111(a)(2) "does not require a finding of fault by the parent." In re B.S.D.S. , 163 N.C.App. 540, 545, 594 S.E.2d 89, 93 (2004) (citation omitted). "Willfulness may be found where a parent has made some attempt to regain custody of the child but has failed to exhibit ‘reasonable progress or a positive response toward the diligent efforts of DSS.’ " Id . (quoting In re Oghenekevebe , 123 N.C.App. 434, 440, 473 S.E.2d 393, 398 (1996) ). Moreover, though "[a] parent's failure to fully satisfy all elements of the case plan goals is not the equivalent of a lack of ‘reasonable progress,’ " In re J.S.L. , 177 N.C.App. 151, 163, 628 S.E.2d 387, 394 (2006) (citation omitted), a parent's "prolonged inability to improve her situation, despite some efforts in that direction, will support" an adjudication under N.C.G.S. § 7B-1111(a)(2). In re B.S.D.S. , 163 N.C.App. at 546, 594 S.E.2d at 93.
As with an adjudication of neglect under N.C.G.S. § 7B-1111(a)(1), "the nature and extent of the parent's reasonable progress" must be "evaluated for the duration leading up to the hearing on the motion or petition to terminate parental rights ." In re A.C.F. , 176 N.C.App. 520, 528, 626 S.E.2d 729, 735 (2006) (second emphasis added) (citing In re O.C. & O.B. , 171 N.C.App. 457, 466–67, 615 S.E.2d 391, 396 (2005) ).
Initially, we must address respondent-mother's argument that the trial court failed to enter affirmative findings of fact with regard to her conduct during the course of this case. Respondent-mother contends that the court's findings simply state what the court itself found at prior...
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