In re B.O.A.

• Citation: 372 N.C. 372,831 S.E.2d 305
• Decision Date: 16 August 2019
• Docket Number: No. 264PA18,264PA18
• Parties: In the MATTER OF B.O.A.
• Court: United States State Supreme Court of North Carolina

372 N.C. 372

831 S.E.2d 305

In the MATTER OF B.O.A.

No. 264PA18

Supreme Court of North Carolina.

Filed August 16, 2019

Hicks & Wrenn, PLLC, by C. Gill Frazier, II, and N. Kyle Hicks, Oxford, for petitioner Granville County Department of Social Services, and Bell, Davis & Pitt, P.A., Charlotte, by Derek M. Bast, Guardian ad Litem Program attorney for the minor child, appellants.

Edward Eldred Attorney at Law, PLLC, by Edward Eldred, for respondent-appellee mother.

Elizabeth Kennedy-Gurnee and Jamie Hamlett for North Carolina Association of Social Services Attorneys, amicus curiae.

ERVIN, Justice.

The issue before the Court in this case is whether the Court of Appeals correctly held that the trial court had erred by determining that the parental rights of respondent-mother Lauren B. in her daughter, B.O.A.,¹ were subject to termination pursuant to N.C.G.S. § 7B-1111(a)(2) on the grounds that respondent-mother had failed to make reasonable progress in correcting the conditions that led to Bev's removal from her home. After careful consideration of the relevant legal authorities in light of the record evidence, we reverse the Court of Appeals' decision.

Bev was born to respondent-mother and Harry A.² on 4 April 2015. On 9 August 2015, the Butner Department of Public Safety was called to the family home after respondent-mother sought emergency assistance to deal with assaultive conduct in which the father was engaging against her. As a result of this altercation, both parties were placed under arrest. In view of the fact that Bev was present in the family home at the time of the disturbance and had a lengthy bruise on her arm, investigating officers notified the Granville County Department of Social Services about what had occurred. On 10 August 2015, DSS filed a petition alleging that Bev was a neglected juvenile because she lived "in an environment injurious to the juvenile's welfare." On the same date, Judge Daniel F. Finch entered an order granting nonsecure custody of Bev to DSS based upon the fact that Bev had a bruised right arm.

On 20 August 2015, a social worker met with respondent-mother for the purpose of developing an Out of Home Service Agreement, or case plan.³ In the resulting case plan, respondent-mother agreed, among other things, to obtain a mental health assessment; complete domestic violence counseling and avoid situations involving domestic violence; complete a parenting class and utilize the skills learned in the class during visits with the child; remain drug-free; submit to random drug screenings; participate in weekly substance abuse group therapy meetings; continue to attend medication management sessions; refrain from engaging in criminal activity; and maintain stable income for at least three months. After a hearing held on 17 and 18 December 2015, Judge J. Henry Banks entered an order on 12 January 2016, in which he found, among other things, that the home maintained by Bev's parents constituted an "injurious environment"; that respondent-mother was "in therapy for domestic violence, addiction, ADHD/ADD and rape"; and that respondent-mother was being prescribed medication, and concluded that Bev was a neglected juvenile as defined in N.C.G.S. § 7B-101(15). As a result, Judge Banks adjudicated Bev to be a neglected juvenile, required that Bev remain in DSS custody, permitted respondent-mother to participate in supervised visitations with Bev on a weekly basis, and "continue[d] the remainder of the dispositional phase of the hearing" to allow DSS to modify its dispositional recommendations following an additional meeting with the parents. On 5 February 2016, Judge Finch entered a dispositional order in which he ordered that Bev remain in DSS custody, that the existing visitation arrangements be continued, and that respondent-mother comply with the provisions of the case plan to which she had agreed with DSS.

Over the course of the ensuing year, periodic review proceedings were conducted, each of which resulted in the entry of orders requiring DSS to attempt to reunify Bev with respondent-mother. After a review hearing held on 15 December 2016, Judge Carolyn J. Thompson entered an order on 11 January 2017 discontinuing reunification efforts and changing Bev's permanent plan from reunification to adoption. On 24 January 2017, DSS filed a petition seeking to have respondent-mother's parental rights in Bev terminated on the grounds that respondent-mother had neglected Bev and had "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 removal of the juvenile."

The termination petition came on for hearing before the trial court on 13 July 2017 and 17 August 2017. On 8 September 2017, the trial court entered an order in which it found as fact, among other things, that:

9. [Respondent-mother] signed a[ case plan] with [DSS] on August 20, 2015, but she has not met the terms of that Agreement.

10. [Respondent-mother] completed a domestic violence class ... but has not demonstrated the skills she was to learn in that. In the last six months, [respondent-mother] has called the police on her live-in boyfriend and father of her new born child.

11. [Respondent-mother] has not remained free of controlled substances, and has continued to test positive for controlled substances (even during her recent pregnancy).

12. [Respondent-mother] admitted that she does not take her medications as prescribed and takes her prescriptions, "when she feels like it[.]"

13. [Respondent-mother] has tested positive for extremely high levels of amphetamines ....

....

29. [Respondent-mother] was to engage in therapy as part of her [case plan] and there is no credible evidence of therapy.

30. [T]here is no credible evidence that [respondent-mother] is able to protect her child.

31. [Respondent-mother] was to complete a neuro-psychological examination as part of her [case plan], but [she] never rescheduled her examination appointment after having the examination explained to her by the social worker and the psychologist.

32. [Respondent-mother] declined a visit with the juvenile on December 27, 2016 after [DSS] changed the plan to adoption and ceased reunification efforts.

33. [Respondent-mother] continues to make excuses and cannot demonstrate what she has learned during her parenting classes and continues to shift her focus away from the juvenile during multiple visitations.

34. [Respondent-mother] exhibits delusional tendencies, as evidenced by her statement to the court that she "could pass the Bar today."

35. [Respondent-mother] has remained hostile and combative to [DSS] and has not completed her [case plan].

36. [Respondent-mother] has not demonstrated an ability to put her child first.

37. [Respondent-mother] revoked her consent for [DSS] to have access to her mental health records.

38. [Respondent-mother] continues to make inconsisten[t statements] regarding her medical diagnosis.

39. [Respondent-mother] has willfully left the minor child in an out of home placement for more than twelve 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, pursuant to N.C.G.S. § 7B-1111(a)(2).

After determining that respondent-mother's parental rights in Bev were subject to termination pursuant to N.C.G.S. § 7B-1111(a)(2)⁴ and that the termination of respondent-mother's parental rights in Bev would be in Bev's best interests, the trial court ordered that respondent-mother's parental rights in Bev be terminated. Respondent-mother noted an appeal to the Court of Appeals from the trial court's termination order.

In seeking relief from the trial court's termination order before the Court of Appeals, respondent-mother argued that the trial court had erred by terminating her parental rights in Bev pursuant to N.C.G.S. § 7B-1111(a)(2) given that the trial court's findings of fact did not support its conclusion that she had failed to show reasonable progress in correcting the conditions that led to Bev's removal. In re B.O.A. , ––– N.C.App. ––––, 818 S.E.2d 331, 333 (2018). More specifically, respondent-mother contended that Bev had been removed from the parental home as the result of concerns relating to domestic violence and the bruising of Bev's arm and that the trial court's findings of fact did not establish that she had failed to address these concerns. Id.

In reversing the trial court's termination order, the Court of Appeals began by determining that a number of the trial court's findings of fact lacked sufficient evidentiary support and failed to support its ultimate conclusion that respondent-mother had failed to correct the domestic violence-related problems that had led to Bev's removal from respondent-mother's home. Id. at 334–36. For example, the Court of Appeals held with respect to Finding of Fact No. 10 that respondent-mother's decision to call the police based upon the abusive conduct of her live-in boyfriend did not reflect a failure to learn how to address domestic violence-related problems given the absence of any evidence tending to show "that the incident involved violence, force, or any actions constituting domestic violence under [ N.C.G.S. § 50B-1(a) ]." Id. at 335. Similarly, the Court of Appeals held that the trial court had erred in making Finding of Fact No. 30, which referred to the absence of "credible evidence" tending to show that respondent-mother was "able to protect her child," on the grounds that DSS bore the burden of proving that respondent-mother's parental rights in Bev were subject to termination and that "DSS did not present any evidence to support a conclusion that [r]espondent[-mother] was not capable of protecting Bev." Id. at 335. Moreover, the Court of Appeals determined that the...