In re M.B.
| Decision Date | 19 August 2022 |
| Docket Number | 325A21 |
| Parties | IN THE MATTER OF: M.B., J.B., and J.S. |
| Court | North Carolina Supreme Court |
Appeal pursuant to N.C. G.S. § 7B-1001(a1)(1) (2019) from orders entered on 1 June 2021 by Judge Marion M. Boone in District Court, Surry County. This matter was calendared for argument in the Supreme Court on 1 July 2022 but determined on the record and briefs without oral argument pursuant to Rule 30(f) of the North Carolina Rules of Appellate Procedure.
R Blake Cheek for petitioner-appellee Surry County Department of Social Services.
James N. Freeman Jr. for appellee Guardian ad Litem.
David A. Perez for respondent-appellant mother.
¶ 1 Respondent appeals from the trial court's orders terminating her parental rights in Mary[1] (born April 2010), James (born August 2011), and Joy (born September 2016) based on neglect and failure to show reasonable progress in correcting the conditions which led to the removal of the children from the home. Because the trial court failed to make necessary determinations to support the adjudication of grounds for termination under N.C. G.S § 7B-1111(a)(1) and (2), we vacate the trial court's orders and remand for further proceedings not inconsistent with this opinion. See N.C. G.S. § 7B-1111(a)(1)-(2) (2021).
¶ 2 On 22 March 2019, the Surry County Department of Social Services (DSS) filed juvenile petitions alleging that Mary, James,[2] and Joy[3] were neglected juveniles. The petitions alleged that the children lived in an injurious environment due to respondent's substance abuse, improper supervision, and unsanitary home conditions. DSS explained that it had been providing case management services to the family since January 2019, but that respondent failed to participate in any referred services, including Intensive Family Preservation Services and assessments for mental health and substance abuse. The petitions alleged that a DSS social worker visited respondent's home twice on 22 March 2019 to develop a safety plan for the children, but respondent refused to meet with the social worker. The social worker observed that there were "numerous bags of trash piled up on the back porch" and the home had a mouse infestation. The petition also alleged that Mary and Joy both had untreated boils on their bodies and that Mary had "blistery areas on her face." After the filing of the juvenile petitions, DSS obtained nonsecure custody of the children. The children were placed in foster care, and the trial court awarded respondent two hours of supervised visitation once per week.
¶ 3 On 17 April 2019, respondent entered into a case plan with DSS to address the issues that led to the children's removal from her home. The case plan required respondent to: obtain a substance abuse assessment and comply with recommended treatment including random drug screens, complete parenting classes, obtain and maintain suitable housing, and obtain and maintain gainful employment.
¶ 4 On 11 June 2019, the trial court adjudicated Mary, James, and Joy neglected juveniles and continued custody with DSS. Respondent stipulated to the factual allegations in the petition that supported the trial court's adjudication. The trial court ordered respondent to comply with the components of her case plan and set the primary permanent plan as reunification with a secondary plan of termination of parental rights and adoption.
¶ 5 Following a 31 October 2019 review hearing, the trial court entered an order on 16 December 2019 reducing respondent's visitation to two hours every other week due to her poor attendance. The court found that respondent had attended only seven of the thirteen scheduled visits. The court also found that respondent completed a comprehensive clinical assessment on 16 July 2019 and was referred to substance abuse intensive outpatient treatment. Finally, the court found that respondent was provided the opportunity to complete substance abuse treatment and parenting programs but had inconsistent attendance.
¶ 6 In an order entered on 27 October 2020, the trial court changed the children's primary permanent plan to termination of parental rights and adoption due to respondent's ongoing mental health and substance abuse issues. The court found respondent was diagnosed with opiate use disorder severe, amphetamine use disorder severe, post traumatic stress disorder, and unspecified depressive disorder. Respondent was not compliant with her substance abuse treatments and continued to struggle with her sobriety, testing positive for amphetamines and methamphetamines on 10 June 2020. The court found that respondent was not making reasonable progress on her case plan and that there remained significant barriers to reunification.
¶ 7 On 23 December 2020, DSS filed a motion to terminate respondent's parental rights in Mary, James, and Joy, alleging that grounds existed for termination based on neglect and willfully leaving the minor children in foster care without showing reasonable progress in correcting the conditions which led to the removal of the children from the home. See N.C. G.S. § 7B-1111(a)(1)-(2).
¶ 8 On 7 April 2021, the trial court held a hearing on the motion to terminate respondent's parental rights. In a 1 June 2021 adjudication order, the trial court found that respondent had not completed substance abuse treatment as required by her case plan, had tested positive for illicit substances on six drug screens, had not maintained safe and stable housing, and was not employed. The trial court further found that respondent was not making reasonable progress under the circumstances in correcting the conditions that led to the removal of the children and, therefore, grounds existed to terminate respondent's parental rights under N.C. G.S. § 7B-1111(a)(1) and (2). In a separate disposition order entered the same day, the court concluded that it was in the children's best interests that respondent's parental rights be terminated and terminated respondent's parental rights. Respondent timely appealed.
¶ 9 On appeal, respondent argues that the trial court failed to make certain necessary determinations regarding both grounds for termination. First, respondent contends that the trial court failed to make the necessary determination that there was a probability of repetition of neglect under N.C. G.S. § 7B-1111(a)(1). Second, respondent contends that the trial court failed to make the necessary determination that her failure to make reasonable progress was willful under N.C. G.S. § 7B-1111(a)(2).[4]
¶ 10 "Our Juvenile Code provides for a two-step process for termination of parental rights proceedings consisting of an adjudicatory stage and a dispositional stage." In re Z.A.M., 374 N.C. 88, 94, (2020) (citing N.C. G.S. §§ 7B-1109, 1110 (2019)). At 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 under N.C. G.S. § 7B-1111(a). N.C. G.S. § 7B-1109(e)-(f) (2021). We review an adjudication order "to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law." In re E.H.P., 372 N.C. 388, 392 (2019) (quoting In re Montgomery, 311 N.C. 101, 111 (1984)). "Findings of fact not challenged by respondent are deemed supported by competent evidence and are binding on appeal." In re T.N.H., 372 N.C. 403, 407 (2019). "The trial court's conclusions of law are reviewable de novo on appeal." In re C.B.C., 373 N.C. 16, 19 (2019).
¶ 11 First, respondent argues that the trial court erred in concluding that grounds existed to terminate her parental rights based on neglect because it failed to determine the likelihood of a repetition of neglect. We agree, and therefore vacate this portion of the trial court's orders.
¶ 12 Pursuant to N.C. G.S. § 7B-1111(a)(1), a trial court may terminate parental rights upon a finding that the parent has neglected the juvenile. Generally, "[t]ermination of parental rights based upon this statutory ground requires a showing of neglect at the time of the termination hearing." In re L.H., 378 N.C. 625, 2021-NCSC-110, ¶ 10 (quoting In re R.L.D., 375 N.C. 838, 841 (2020)). However, in instances where "the child has been separated from the parent for a long period of time, there must be a showing of a likelihood of future neglect by the parent." Id. (emphasis added) (quoting In re R.L.D., 375 N.C. at 841). "In such cases, a trial court may terminate parental rights based upon prior neglect of the juvenile if the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to [his or] her parents." In re E.L.E., 243 N.C.App. 301, 308 (2015) (cleaned up) (emphasis added).
¶ 13 Because it lacks a crystal ball, a trial court may consider many past and present factors to make this forward-looking determination. See In re L.H. ¶ 17 (). For instance, a trial court "must consider evidence of changed circumstances occurring between the period of past neglect and the time of the termination hearing." In re Z.V.A., 373 N.C. 207, 212 (2019). Likewise, a trial court may consider "whether the parent has made any meaningful progress in eliminating the conditions that led to the removal of the children." In re O.W.D.A., 375 N.C. 645, 654 (2020) (quoting In re J.H.K., 215 N.C.App. 364, 369 (2011)). When these factors evidence "a likelihood of repetition of neglect, the trial...
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