In re K.M.W.

• Citation: 376 N.C. 195,851 S.E.2d 849
• Decision Date: 18 December 2020
• Docket Number: No. 356A19,356A19
• Parties: In the MATTER OF: K.M.W. and K.L.W.
• Court: United States State Supreme Court of North Carolina

376 N.C. 195

851 S.E.2d 849

In the MATTER OF: K.M.W. and K.L.W.

No. 356A19

Supreme Court of North Carolina.

Filed December 18, 2020

Robert Griffin, Raleigh, for petitioner-appellee Lenoir County Department of Social Services.

Michelle FormyDuval Lynch, for appellee Guardian ad Litem.

Annick Lenoir-Peek, Deputy Parent Defender, for respondent-appellant mother.

ERVIN, Justice.

Respondent-mother Holly W. appeals from orders terminating her parental rights in her children K.M.W. and K.L.W.¹ After careful consideration of the arguments advanced in respondent-mother's brief in light of the record and the applicable law, we hold that the challenged termination orders should be reversed and that this case should be remanded to the District Court, Lenoir County, for further proceedings not inconsistent with this opinion, including a new termination hearing.

Khloe was born on 22 November 2012, while Kylee was born on 25 March 2008. The Duplin County Department of Social Services became involved with respondent-mother and the father² on 9 July 2015 after receiving a report alleging that respondent-mother—who, at the time, had custody of the children—had engaged in an incident involving domestic violence with her boyfriend in the presence of the children and had been administering medicine to the children in order to get them to sleep. An investigation into this report revealed that domestic violence had occurred, that respondent-mother had been consuming marijuana, and that respondent-mother lacked stable housing.

Following the making of this report, the children were voluntarily placed with their paternal grandparents. On 22 July 2015, respondent-mother broke down an interior door in the paternal grandparents’ home, at which point the children were placed with their father and his girlfriend by the consent of all parties.

On 4 April 2016, DSS filed a petition alleging that the children were neglected juveniles. On 29 July 2016, Judge Sarah C. Seaton entered an order finding that the children were neglected juveniles. After this case was transferred from Duplin County to Lenoir County by consent of the parties following respondent-mother's move from Swansboro to Kinston, the trial court entered a dispositional order on 20 October 2015 placing the children in the joint custody of their parents, with the father being awarded primary physical custody and with respondent-mother having been awarded two hours of visitation each week, and requiring respondent-mother to take a number of steps in order to alleviate the conditions that had led to the finding that the children were neglected juveniles, including, but not limited to, obtaining a mental health assessment and complying with any resulting recommendations, obtaining a substance abuse assessment and complying with any resulting recommendations, participating in parental responsibility classes and demonstrating the ability to use the skills that she had learned, obtaining and maintaining stable housing and employment, participating in Family Drug Treatment Court, participating in an anger management course or counseling, and attending victim empowerment education.

A review hearing was held on 6 December 2016 at which the trial court instructed respondent-mother to refrain from making unannounced visits to the father's home. At a review hearing held on 24 January 2017, the trial court learned that respondent-mother had made unannounced appearances at the father's home on two occasions for the purpose of seeing the children. As a result, the trial court entered an order granting custody of the children to the father; allowing respondent-mother to have unsupervised visitation with the children every other weekend and every Wednesday evening; ordering respondent-mother to abide by many of the same corrective conditions that she had previously been ordered to comply with and the additional condition that respondent-mother refrain from having men in her home when the children were present; and removing this case from the active review docket, subject to the understanding that the court remained available to hear any matter that any party might elect to raise in the future.

After the entry of the 24 January 2017 order, DSS learned that, despite the trial court's prior order, respondent-mother had had a male friend in her home while the children were present and that respondent-mother's male friend had allegedly sexually abused Khloe while in respondent-mother's home. After refusing to participate in a Safety Assessment, respondent-mother violated a Safety Assessment that had been entered into by the father by allowing Khloe to speak on the phone with the alleged perpetrator. Following this conversation, Khloe recanted her accusation of sexual abuse against respondent-mother's male friend and subsequently told respondent-mother that the father had touched her "pee-pee."

A second petition alleging that the children were neglected juveniles was filed by the Lenoir County Department of Social Services on 17 May 2017, with James Perry having been appointed to represent respondent-mother in this matter. On 16 November 2017, the trial court entered an order finding that Khloe and Kylee were neglected juveniles and putting the children in DSS custody; approving the placement of the children with their maternal grandparents; terminating respondent-mother's visitation with the children until the children and respondent-mother had begun therapy; and ordering respondent-mother to obtain a mental health assessment and comply with any resulting recommendations, obtain a substance abuse assessment and comply with any resulting recommendations, attend and participate in parenting responsibility classes and demonstrate the ability to use the skills that she had learned in those classes, obtain and maintain stable housing and employment, submit to random drug testing, attend and participate in a victim empowerment class or address such issues in counseling, and refrain from having any contact with her male friend.

After a review hearing was held on 14 November 2017, the trial court entered an order on 30 January 2018 relieving DSS from any obligation to attempt to reunify respondent-mother with the children and refusing to allow respondent-mother to visit the children in the absence of a recommendation that such visitation be authorized by the children's therapist. After a permanency planning hearing held on 12 December 2017, the trial court entered an order eliminating reunification with the parents from the children's permanent plan and changing the children's permanent plan to a primary plan of guardianship and a secondary plan of custody with a relative or other suitable person. In addition, the trial court noted that the children's therapist's was recommending that respondent-mother have no contact with the children, ordered that respondent-mother not be allowed to visit with the children until such contact was recommended by the children's therapist and approved by the trial court, and authorized respondent-mother to contact the therapist in order to provide the therapist with respondent-mother's perspective.

After a permanency planning review hearing held on 15 May 2018, the trial court entered an order on 8 June 2018 in which it reiterated that the current permanent plan for the children remained a primary plan of guardianship and a secondary plan of custody with a relative or other suitable person. In addition, the trial court noted that the children's therapist continued to recommend that respondent-mother have no contact with the children, pointed out that the therapist's recommendation was bolstered by respondent-mother's failure to comply with prior orders of the court, and reiterated that respondent-mother might be able to visit with the children in the future in the event that such visits were recommended by the children's therapist and approved by the trial court. Perhaps most importantly, the trial court acknowledged that the maternal grandparents were no longer interested in serving as a long-term placement for the children and pointed out that DSS had identified respondent-mother's cousins by marriage as a prospective placement for the children.

On 30 August 2018, the trial court entered a permanency planning order in which it authorized the placement of the children with respondent-mother's cousins by marriage, changed the permanent plan for the children to a primary plan of adoption and a secondary plan of guardianship, and ordered DSS to file a petition seeking to have the parents’ parental rights in the children terminated. After a permanency planning hearing held on 20 November 2018, the trial court entered an order on 2 January 2019 in which it observed, among other things that, while respondent-mother had recently begun to comply with her case plan, she "ha[d] not adequately addressed issues of domestic violence, housing stability, unemployment, substance abuse, and mental health concerns in the years that she has been involved with [DSS.]" As a result of the fact that the trial court had scheduled another permanency planning review hearing for 16 April 2019, counsel for DSS served a copy of the 2 January 2019 order upon Mr. Perry on 7 January 2019.

On 21 December 2018, DSS filed petitions seeking to have both parents’ parental rights in Khloe and Kylee terminated on the basis of neglect, N.C.G.S. § 7B-1111(a)(1) (2019), and willful failure to make reasonable progress toward correcting the conditions that had led to the children's removal from the family home, N.C.G.S. § 7B-1111(a)(2). On 3 January 2019, Mr. Perry filed a motion seeking leave to withdraw as respondent-mother's counsel in light of her decision to retain privately-employed counsel using funds derived from a back payment that she had received in connection with a recent SSI award.

At a hearing held on 8 January 2019, respondent-mother confirmed in the presence of the trial court that she wished to retain...