In re A.D.

• Docket Number: COA 22-118
• Decision Date: 16 August 2022
• Citation: 876 S.E.2d 825
• Parties: In the MATTER OF: A.D.
• Court: North Carolina Court of Appeals

876 S.E.2d 825

In the MATTER OF: A.D.

No. COA 22-118

Court of Appeals of North Carolina.

Filed August 16, 2022

Peter Wood, for the Respondent-Appellant.

Reeves, DiVenere, Wright, Attorneys at Law, Boone, by Anné C. Wright, for Ashe County Department of Social Services, Petitioner-Appellee.

Paul W. Freeman, Jr., Wilkesboro, and Matthew D. Wunsche, Durham, for the Guardian ad Litem.

WOOD, Judge.

¶ 1 Respondent-Father ("Father") appeals an order terminating his parental rights to his minor child, A.D. ("Allison")¹ , on the ground of willful failure to make reasonable progress to correct the conditions that led to his child's removal from his care. See N.C. Gen. Stat. § 7B-1111(a)(2) (2021). Because we hold the evidence does not support all the findings of fact and the findings of fact do not support the trial court's conclusion that grounds existed to terminate Father's parental rights, we reverse the order of the trial court.

I. Factual and Procedural Background

¶ 2 Respondent-Mother ("Mother")² gave birth to Allison on August 5, 2019. Mother was unmarried at the time of Allison's birth. Before Allison was born, Mother was in a relationship with Father for approximately three or four months prior to becoming pregnant and for one or two months after learning she was pregnant. According to Mother, the relationship ended due to Mother's concerns that Father suffered from mental health issues and what she described as aggressiveness. Mother told Father that she was pregnant prior to Allison's birth and contacted him from the hospital after giving birth.

¶ 3 Seven days after Allison's birth, Ashe County Department of Social Services ("DSS") filed a petition alleging Allison to be neglected because the child tested positive for barbiturates at birth and Mother tested positive for amphetamines

for which she was not prescribed. Mother admitted to using amphetamines and smoking methamphetamine during her pregnancy. The petition did not list a father for Allison. DSS was awarded non-secure custody of Allison. Two days later, at a hearing for continued non-secure custody, Mother testified that Allison's father may be Father or another individual, and subsequently, the trial court ordered Father to submit to DNA testing. On this same day, Mother provided DSS with a phone number to reach Father, but the phone number was disconnected. DSS was later able to locate Father through other means and served Father with an order to submit to DNA testing on September 12, 2019 while he was in the custody of the Rowan County Jail. According to Ms. Charity Ballou ("Ms. Ballou"), the foster care social worker assigned to work with Allison, DSS did not make contact with Father until mid to late October 2019. Father completed DNA testing on November 4, 2019. On November 8, 2019, Allison was adjudicated neglected based upon Mother's substance abuse. The order did not contain any findings relating to the putative father of the child. On November 21, 2019, Father received his paternity test results, which concluded the probability of Father's paternity was 99.99%.

¶ 4 During the January 10, 2020 review hearing, paternity for Allison was established. The trial court granted Father supervised, bi-weekly, one-hour visits with Allison. At the time of the hearing, Father lived with his girlfriend and her parents in Rockwell; was employed with Premier Heating and Air in Rowan County; and did not hold a valid driver's license but did have a vehicle.³ The trial court found that "[a]t this point [Father] is not participating in a family service case plan and has just recently become involved in the child's life." The trial court concluded that the best primary permanent plan of care for Allison was reunification with a secondary plan of adoption. On January 23, 2020, Father entered into a family service case plan with DSS and agreed to: maintain steady employment, obtain stable housing and transportation, communicate with DSS, take parenting classes, and attend visits with Allison.

¶ 5 At a permanency planning review hearing on February 28, 2020, the trial court found that Father was living in Rockwell, North Carolina with his girlfriend⁴ , but was attempting to relocate to Ashe County to live near Allison, including applying for employment in that county at Nations Inn and construction jobs. The court also found that Father did not have a valid driver's license; was working with a day labor company part-time in Rowan County; had made himself available to the court, DSS, and GAL; and had signed up for a parenting program in Rowan County. In terms of visitation, the trial court found that Father had difficulty attending his visits with Allison because of lack of transportation and had attended three visits at the time of the hearing. The trial court modified Father's supervised visitation to occur once per week for one hour and ordered reasonable efforts towards reunification with Mother and Father be made to eliminate the need for Allison's placement in foster care.

¶ 6 Father's case plan was later amended in March 2020. DSS communicated with Father to discuss "some ongoing concerns, based on collateral information that there was potentially some substance use and mental health issues." Subsequently, Father agreed to take a substance use assessment through Daymark, follow any resulting recommendations, and submit to random urine drug screens.⁵ DSS then made referrals to different Daymark locations based upon the counties in which he was living between March and December 2020: namely, Rowan County, Ashe County, and Watauga County.

¶ 7 On May 16, 2020, Father entered into an agreement to pay child support for Allison in the amount of $50 per month and $25 per month towards arrears owed beginning June 1, 2020.

¶ 8 At a May 22, 2020 permanency plan review hearing, two months into the pandemic, the trial court found that Father continued to live in Rockwell at his girlfriend's parent's residence. In terms of his employment, the trial court found that he was currently unemployed but seeking employment, having previously "worked for the Coffee House Restaurant (1-2 weeks), a day labor company, [and] more recently for McDonald's (for 3-4 weeks)." Father was living off the stimulus payments, due to the COVID-19 pandemic, he and his girlfriend received. The court found that Father had 1) paid all fines to have his driver's license restored; 2) completed parenting classes and obtained certification of his completion along with his girlfriend; and 3) made himself available to the court, DSS, and GAL. Because Father resided with his girlfriend and her family, the trial court found she too needed to enter into a family service case plan with DSS. The trial court also found that since the beginning of the COVID-19 pandemic, Father had participated in weekly supervised video conference calls with his daughter via Zoom, which had gone well, and had sent Easter presents to his daughter. The trial court determined that Father was participating and cooperating with the family service case plan and continued the primary permanent plan of care being reunification with a secondary permanent plan of care being adoption. Shortly after the review hearing, in approximately June or July 2020, Father ended his relationship with his girlfriend because he did not feel that she was on "the same page ... as far as ... providing for [Allison] and assisting [him] and [his] efforts to have [Allison] in [his] life."

¶ 9 A permanency plan review hearing was held on September 11, 2020. At the time of the hearing, Father lived at the Hospitality House located in Boone, North Carolina, and "for a period of time had to stay in a tent on the grounds of the Hospitality House due to COVID-19 restrictions." Father resubmitted an application to HUD for housing allowances, opened a bank account, and saved money for housing. In terms of employment, the court found that Father had worked for a construction company in Boone for approximately two months. Father also received advice and help from the Director of the Hospitality House to build a support network. At the time, Father was on probation for larceny and was required to pay probation fees. The court also found that transportation was a barrier for Father and "[i]t would be easier for him to visit [Allison] every other week rather than once weekly." Father would not be eligible to apply for reinstatement of his driver's license until November 2020. From July 21, 2020 until August 6, 2020, Father was incarcerated.

¶ 10 On August 24, 2020, Father submitted to a drug screen, which according to the court, "was inconclusive due to the creatinine

level being lower than normal. This could be due to kidney failure, or he tampered with the drug screen." A substance abuse assessment for Father was scheduled on August 26, 2020, but he did attend that appointment or a second appointment.

¶ 11 After the May 2020 hearing, Father attended five (one in June, two in July, and two in August) of the ten scheduled visits with Allison between the May and September hearings. According to Father, he and Allison bonded during these visits and having his daughter "helped him to want to do better." Father was also under order to pay child support, and accordingly, paid $300 towards his child support obligation on the day of the hearing. Ms. Ballou testified that during this period of time, there were "times where phone numbers would change, where we were unable to make contact, but overall, I would say that [Father] has been – at least once per month I have been able to somehow make contact with him." Ms. Ballou further reported that during this time, "there have been times in which he has been difficult to locate or that there have been many attempts made to get that one contact in per month and then there have been other months where he has been very communicative where I have -- I would say -- regular contact with him." The court changed the primary permanent plan of care for...