In re T.M.L.

• Decision Date: 23 April 2021
• Docket Number: No. 232A20,232A20
• Citation: 856 S.E.2d 785,377 N.C. 369
• Parties: In the MATTER OF: T.M.L. and A.R.L.
• Court: North Carolina Supreme Court

377 N.C. 369

856 S.E.2d 785

In the MATTER OF: T.M.L. and A.R.L.

No. 232A20

Supreme Court of North Carolina.

Filed April 23, 2021

Hockaday & Hockaday, P.A., Burnsville, by Daniel M. Hockaday, for petitioner-appellee Mitchell County Department of Social Services.

Michelle FormyDuval Lynch, for appellee Guardian ad Litem.

Wendy C. Sotolongo, Parent Defender, by Annick Lenoir-Peek, Deputy Parent Defender, for respondent-appellant father.

BERGER, Justice.

¶ 1 Respondent-father appeals from orders terminating his parental rights in the minor children "Troy" and "Ava."² The children's mother died during the course of the underlying juvenile proceedings and is not a party to this appeal. Based on our review of the record and respondent-father's arguments, we hold the trial court properly considered respondent-father's progress up to the time of the termination hearing before concluding that he willfully failed to make reasonable progress to correct the conditions that led to the children's removal from the home. See N.C.G.S. § 7B-1111(a)(2) (2019). We further hold the trial court did not err by failing to consider whether poverty was the "sole reason" for respondent-father's failure to correct the conditions which led to removal. See id. Accordingly, we affirm the trial court's orders.

I. Facts and Procedural History

¶ 2 Petitioner Mitchell County Department of Social Services (DSS) obtained nonsecure custody of the children on September 14, 2017, and filed juvenile petitions alleging that the children were neglected and dependent juveniles. The trial court adjudicated the children to be neglected and dependent juveniles on January 11, 2018. The trial court found that the mother and respondent-father had a history of substance abuse and domestic violence which had previously resulted in the children being removed from the home and placed in DSS custody. At the time the petitions were filed, the mother had removed the children from their DSS-approved safety placement with their maternal grandmother. When DSS later found the mother with the children at a medical clinic, she was in a disoriented condition and had multiple syringes and empty pill bottles in her possession.

¶ 3 In its initial adjudication and disposition order entered on January 11, 2018, the trial court ordered respondent-father to develop a case plan with DSS and delayed any visitation by respondent-father with the children "pending the signing of his DSS case plan and random clean drug screens." Respondent-father did not sign his DSS case plan until July 18, 2018. The case plan required him to address issues of substance abuse, domestic violence, parenting skills, and housing and employment stability.

¶ 4 On November 20, 2019, DSS filed petitions to terminate respondent-father's parental rights in Troy and Ava on the ground that he had willfully left them in an out-of-home placement for a period of at least twelve months without making reasonable progress to correct the conditions which led to their removal on September 14, 2017. See N.C.G.S. § 7B-1111(a)(2). Respondent-father failed to file an answer to the TPR petitions within the period prescribed by N.C.G.S. § 7B-1107 (2019). The trial court held a hearing on the petitions on January 3, 2020, and entered orders terminating respondent-father's parental rights in the children on February 7, 2020. Respondent-father gave timely notice of appeal to this Court pursuant to N.C.G.S. § 7B-1001(a1)(1) (2019).

II. Adjudication Under N.C.G.S. § 7B-1111(a)(2)

¶ 5 Respondent-father now claims the trial court erred in adjudicating grounds for the termination of his parental rights for his willful failure to make reasonable progress under N.C.G.S. § 7B-1111(a)(2). As a general matter, we review a trial court's adjudication under N.C.G.S. § 7B-1109

to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law, with the trial court's conclusions of law being subject to de novo review on appeal. Findings of fact not challenged by respondent are deemed supported by competent evidence and are binding on appeal. Moreover, we review only those findings necessary to support the trial court's determination that grounds existed to terminate respondent's parental rights.

In re M.A. , 374 N.C. 865, 869, 844 S.E.2d 916, 920 (2020) (cleaned up).

¶ 6 The statute at issue authorizes the trial court to terminate parental rights if the respondent-parent "has 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 the removal of the juvenile." N.C.G.S. § 7B-1111(a)(2). It further provides that "[n]o parental rights, however, shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty." Id.

A. Respondent-father's progress as of the termination hearing date

¶ 7 Respondent-father first claims the trial court erred by "fail[ing] to consider evidence of [his] progress through the date of [the] hearing" in determining whether he had made reasonable progress in correcting the conditions which led to the children's removal from the home. "While the trial court was correct in making findings of fact about [his] lack of progress in the year prior to the filing of the petition to terminate parental rights," respondent-father contends the trial court "cannot discount the progress he made from August 2019 through the date of the hearing" on January 3, 2020.

¶ 8 "[A]n adjudication under N.C.G.S. § 7B-1111(a)(2) requires that a child be left in foster care or placement outside the home pursuant to a court order for more than a year at the time the petition to terminate parental rights is filed." In re J.S. , 374 N.C. 811, 815, 845 S.E.2d 66, 71 (2020) (cleaned up). However, the reasonableness of the parent's progress "is evaluated for the duration leading up to the hearing on the motion or petition to terminate parental rights." Id. (quoting In re A.C.F. , 176 N.C. App. 520, 528, 626 S.E.2d 729, 735 (2006) ).

¶ 9 The trial court's findings of fact³ refute respondent-father's assertion that the court failed to consider his progress up to the date of the termination hearing. Among the trial court's findings in support of its adjudication under N.C.G.S. § 7B-1111(a)(2) are the following:

[B]y the time the respondent father signed his DSS case plan in July, 2018 his housing was inadequate for the [children] and had no running water; the respondent father has made no progress in the [c]ourt's judgment to remedy that problem; the respondent father testified he could now remedy the housing problem by either renting a home from $500–$600 per month or saving money for the purchase of a $60,000 home; the [c]ourt finds that approach by the respondent father ... does not provide any credible evidence to support he has any meaningful chance of securing suitable housing for the juvenile[s] ; as for employment, the respondent father has testified he has worked "most of the time" while not in prison; however, the most recent employment he described began in November, 2019 at 35–40 hours per week is inconsistent with his other testimony in which he acknowledged "no, I had not been employed by someone all the time"; ... the [c]ourt finds the respondent father has not obtained and maintained the necessary employment as required by the DSS case plan; ... the respondent father testified he has participated in Triple P Parenting [classes] although he has provided no documentation regarding the same; ... the respondent father has testified he has called approximately 50 times to DSS to express his concerns about the juvenile[s] and gain information regarding the case; the [c]ourt finds that testimony not credible ; ... that DSS workers have regularly and consistently reached out to the respondent father to let him know about the juvenile[s]; that the respondent father's contact with ... DSS ... or efforts to comply with the DSS case plan has been essentially nonexistent ; that the respondent father continues to reside in his residence in Cleveland County with his girlfriend; [and] the same still has no running water ....

(Emphases added.) The suggestion that the trial court failed to consider respondent-father's circumstances as of the termination hearing has no merit.

¶ 10 Respondent-father also accuses the trial court of "discrediting any progress [he] made ... in the six months leading up to the termination hearing." Although respondent-father makes no reference to the trial court's actual discussion of the issue—whether in open court at the termination hearing or in its written order—our own review of the record confirms the trial court's mistaken view of the time period pertinent to an adjudication under N.C.G.S. § 7B-1111(a)(2).

¶ 11 After hearing the parties’ evidence and closing arguments, the trial court announced as follows:

The [c]ourt finds and accepts that it is charged by law with evaluating whether the Respondent-Father has made reasonable effort to accomplish the plan goals and to eliminate those barriers or matters which led to the children being taken into the custody of [DSS] in that 12-month time period between November 21, 2018, and November 20 of 2019, the time of the filing of this action. The [c]ourt has heard evidence, events both before ... November 21, 2018, and after November 20, 2019, and makes findings relative to those events, only as they might shed light on the events and significance of what occurred in the year preceding the filing of the termination petition by [DSS].

¶ 12 The trial court included similar language in its written orders as part of finding of fact 10:

[I]n evaluating whether the respondent father has made reasonable efforts to accomplish the plan goals and to eliminate the reasons the juvenile[s] came into

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