In re K.N.

• Decision Date: 24 January 2020
• Docket Number: No. 110A19,110A19
• Citation: 373 N.C. 274,837 S.E.2d 861
• Parties: In the MATTER OF: K.N.
• Court: North Carolina Supreme Court

373 N.C. 274

837 S.E.2d 861

In the MATTER OF: K.N.

No. 110A19

Supreme Court of North Carolina.

Filed January 24, 2020

Mercedes O. Chut, Greensboro, for petitioner-appellee Guilford County Department of Health and Human Services.

K&L Gates, LLP, Charlotte, by Erica Hicks for Guardian ad Litem.

Jeffrey William Gillette for respondent-appellant father.

DAVIS, Justice.

In this case, we consider whether the trial court erred by terminating the parental rights of respondent-father (respondent) to K.N. ("Keith")¹ on the basis of neglect. Because we conclude that the findings in the trial court's order are insufficient to support a determination that respondent had neglected Keith, we vacate the termination order and remand this case to the District Court, Guilford County, for further proceedings.

Factual and Procedural Background

Respondent and "Maria"² are the biological parents of Keith, who was born on 17 September 2016. On or about 26 December 2016, the Guilford County Department of Health and Human Services (DHHS) received a report that Keith's parents were involved in a verbal dispute during which respondent claimed Maria was attempting to suffocate the child. Maria accused respondent of being intoxicated and holding onto Keith "too tightly" while they argued. Both Maria and Keith were taken to the hospital, but no injuries were discovered to either of them. Maria reported that respondent's relatives had "jumped" her the previous night and also disclosed several incidents of domestic violence between her and respondent.

On 10 January 2017, a safety plan with DHHS was updated and, as part of that plan, Maria agreed to keep Keith in a safe environment. However, on or about 29 January 2017, she violated the safety plan by returning to her mother's residence, which DHHS considered unsafe due to prior involvement with Child Protective Services and a history of domestic violence between Maria, her mother, and her brother. On 6 February 2017, DHHS obtained nonsecure custody of Keith and filed a juvenile petition in District Court, Guilford County, alleging that Keith was a neglected and dependent juvenile.

On 28 August 2017, the trial court entered an order adjudicating Keith to be a neglected and dependent juvenile. Pursuant to a case plan entered into with DHHS, respondent was ordered to participate in an anger management evaluation and follow all recommendations. He was allowed weekly visitations with Keith. Respondent was also ordered to comply with his case plan, which required him, among other things, to (1) secure and maintain appropriate housing suitable for Keith and to notify DHHS accordingly; (2) provide verification of his Supplemental Security Income (SSI) benefits; (3) participate in and successfully complete the Parent Assessment Training and Education (PATE) program; (4) submit to a substance abuse assessment and follow any recommendations; (5) participate in the Domestic Violence Intervention Program (DVIP); (6) notify DHHS of any incidents of domestic violence; (7) comply with the terms of his probation; and (8) refrain from incurring any new criminal charges. Keith remained in DHHS custody.

On 14 November 2017, the trial court entered a permanency planning hearing order. The court found that respondent was living in a boarding house and was on probation for thirty months, effective January 2017. He had completed a parenting evaluation but refused to engage in individual counseling—despite having received a recommendation to do so—due to the cost of the sessions. He had successfully completed the Treatment Accountability for Safer Communities (TASC) substance abuse program.

The trial court further found that respondent had indicated that he would take part in anger management classes, but then refused to participate in the DVIP program because "he had not been ... charged as an abuser." As a result of his failure to "actively engage in his case plan," the court determined that respondent was "acting in a manner inconsistent with the health and safety of the juvenile." The trial court ordered that the permanent plan be reunification with a concurrent secondary plan of adoption.

The trial court entered a subsequent permanency planning hearing order on 5 February 2018. The court found that respondent was living in a location unsuitable for Keith and was continuing to refuse to participate in individual parenting counseling due to cost. Although he completed anger management classes, he had attended only one DVIP class and remained uninterested in the program. The trial court changed the primary permanent plan to adoption with a concurrent secondary permanent plan of reunification. DHHS was ordered to proceed with filing a petition for termination of respondent's parental rights within sixty days.

On 15 March 2018, DHHS filed a petition to terminate respondent's parental rights pursuant to N.C.G.S. § 7B-1111(a)(1)–(2).³ The termination hearing was conducted on 27 and 28 November 2018. On 7 January 2019, the trial court entered an order finding that grounds existed to terminate respondent's parental rights on the basis that respondent had neglected Keith and that such neglect was likely to recur if the juvenile was returned to respondent. See N.C.G.S. § 7B-1111(a)(1).⁴ The trial court also determined that the termination of respondent's parental rights was in the best interests of Keith. See N.C.G.S. § 7B-1110(a). Respondent gave notice of appeal to this Court pursuant to N.C.G.S. § 7B-1001(a1)(1).

Analysis

On appeal, respondent contends that (1) the trial court made various findings of fact that were not supported by the evidence; and (2) the court's findings were insufficient to support its conclusion that Keith was neglected pursuant to N.C.G.S. § 7B-1111(a)(1). Our Juvenile Code provides for a two-step process for the termination of parental rights—an adjudicatory stage and a dispositional stage. N.C.G.S. §§ 7B-1109, -1110 (2017). During 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 pursuant to subsection 7B-1111(a) of the General Statutes of North Carolina. N.C.G.S. § 7B-1109(e), (f) (2017).

If a trial court finds that a ground exists for termination, it then proceeds to the dispositional stage at which it must "determine whether terminating the parent's rights is in the juvenile's best interest." N.C.G.S. § 7B-1110(a).

We review a trial court's adjudicatory findings under N.C.G.S. § 7B-1109 "to determine whether [they] are supported by clear, cogent and convincing evidence and the findings support the conclusions of law." In re Montgomery , 311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984). "The trial court's conclusions of law are reviewable de novo on appeal." In re C.B.C. , 832 S.E.2d 692, 695 (N.C. 2019) (citing In re S.N. , 194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008), aff'd per curiam , 363 N.C. 368, 677 S.E.2d 455 (2009) ).

In its termination order, the trial court made the following pertinent findings of fact in support of its conclusion that grounds existed to terminate respondent's parental rights pursuant to N.C.G.S. § 7B-1111(a)(1) :

12. [Respondent] entered into a case plan on April 3, 2017. The components of the plan, and his progress therewith, are as follows:

A. Housing/Environment/Basic Physical Needs: The father was to secure and maintain appropriate, independent housing suitable for his child. Once the father secured housing he was to provide DHHS with a copy of his lease with his name on it within 72 hours. He was to cooperate with announced and unannounced visits to his home. [Respondent] did ultimately obtain suitable housing, after a period of residing in boarding houses. However, he is currently incarcerated at the Guilford County Department of Corrections, awaiting trial for charges of DUI, Assault with a Deadly Weapon on a Government Official, F[lee]ing to Elude Arrest, Unlawful Passing of an Emergency Vehicle, and Failure to stop at a Red Light. Although he has testified that he expects to make his $28,000.00 bond next week, the Court finds that it is uncertain when and if he will be released pending trial.

B. Employment: The father was to provide DHHS with verification of his SSI benefits. [DHHS] did ultimately independently receive verification of [respondent's] benefits. At that time [DHHS] sought, and obtained, transfer of the juvenile's portion of those benefits from [Maria] (who had been receiving them throughout the case) to [DHHS]. In addition to his SSI benefit, [respondent] works odd jobs and has just started a cleaning business. He has not provided financially for the juvenile, although the juvenile now does receive a $190.00 per month benefit from SSI.

C. Parenting Skills:

1) The father was to participate in a Parenting Psychological Evaluation and follow all recommendations. The father completed the Parenting Evaluation through Dr. Michael McColloch. Dr. McColloch recommended that [respondent] participate in individual counseling and continue to work his case plan in an effort to be reunified with his son. [Respondent] participated in individual therapy through Family Service[ ] of the Piedmont. In April of 2018 he was released from therapy with a determination that he had achieved his treatment goals.

2) The father was to participate in the PATE Parenting Classes or parenting classes through Family Service[ ] of the Piedmont until successfully completed and a certificate received. He was to visit with [Keith] once per week. [Respondent] completed the PATE Program on 10/03/17. He visited consistently with [Keith] and the visits were appropriate and went well, with no concerns to note.

3) The father was to contact Child Support Enforcement and enter into a voluntary child support agreement. [Respondent] reported that he receives SSI and cannot be pursued for Child Support.

D. Substance Abuse: The father was to submit to a substance abuse assessment and

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