In re: A.B., C.B., J.B.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA16-1040

Filed: 18 April 2017

Cabarrus County, Nos. 13 JT 121–24

IN THE MATTER OF: A.B., C.B., J.B., A.B.

Appeal by respondent mother from order entered 5 July 2016 by Judge Christy

E. Wilhelm in Cabarrus County District Court. Heard in the Court of Appeals 3 April

2017.

Stephen A. Moore and H. Jay White for petitioner-appellee Cabarrus County

Department of Human Services.

Mark L. Hayes for respondent-appellant.

Brandon J. Huffman for guardian ad litem.

BRYANT, Judge.

Where the trial court’s findings and conclusions do not adequately account for

respondent-mother’s circumstances at the time of the termination hearing, as

required to support a termination of her parental rights under N.C.G.S. § 7B-

1111(a)(1) or (2), we vacate and remand.

On 22 October 2013, the Cabarrus County Department of Human Services

(“CCDHS”) obtained non-secure custody of the respondent-mother’s1 minor children

1 Respondent-father is not a party to this appeal.

IN RE: A.B., C.B., J.B., A.B.

Opinion of the Court

A.B. (born October 2001), C.B. (born August 2006), J.B. (born March 2010), and A.B.

(born November 2012) (collectively, “the children”). CCDHS filed petitions2 alleging

that they were neglected “due to ongoing substance abuse and domestic violence” by

respondent-mother and respondent-father (collectively, “respondents”), which

“place[d] their four young children at risk of harm” and created an environment

injurious to their welfare. The petition described CCDHS’s unsuccessful efforts to

provide treatment services to respondents and implement a safety resource plan after

substantiating reports of neglect and physical abuse, which reports included

respondent-father’s inappropriate physical discipline of respondents’ two oldest

daughters, who were then six and eleven years of age. The initial child protective

services report was received on 25 February 2013.

The trial court held a hearing on CCDHS’s petitions on 13 March 2014 and

adjudicated the children to be neglected and dependent juveniles. It maintained the

children in CCDHS custody and directed that they remain in their current

placements. In its disposition, the court identified “substance abuse, improper

supervision, injurious environment and domestic violence involving the parents” as

the “issues which led to [the children’s] placement” outside the home. It found that

2 We note that the record on appeal contains only the petition and non-secure custody order

filed with regard to the youngest child, A.B, in case number 13 JA 124, but includes the summonses

issued and returned in all four cases.

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“[t]he following community-level services [were] needed to strengthen the home

situation and to remediate or remedy the issues which led to placement:

a. Psychological Evaluation

b. Drug/Alcohol Screens

c. Mental Health Treatment

d. Medication Management

e. Parenting Education

f. Suitable [H]ousing[.]”

The trial court imposed separate case plans for each respondent to address

these concerns. Respondent-mother was ordered to obtain a new substance abuse

evaluation through Genesis and follow any recommendations; submit to random drug

screens as requested by CCDHS; comply with the recommendations of her parenting

capacity evaluation by Dr. Susan Hurt; complete a court-approved parenting course

and demonstrate skills learned in the course during visitation; comply with her

visitation plan; attend the children’s medical, dental, and school appointments;

maintain bi-weekly contact with her CCDHS social worker, reporting any changes in

address, employment, or other significant events; sign releases allowing CCDHS to

obtain information from service providers; “maintain her own suitable housing,

including utilities, appropriate for the placement of all the children” for at least six

months; and maintain employment allowing her to provide financially for her

children for a continuous four- to six-month period. The court established

reunification as the permanent plan.

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The trial court ceased reunification efforts as to respondent-father in June

2015 and instituted concurrent permanent plans of reunification with respondent-

mother only and adoption. At a subsequent review hearing on 13 August 2015, the

court relieved CCDHS of further reunification efforts as to respondent-mother and

changed the permanent plan to adoption with a secondary plan of legal guardianship.

CCDHS filed a motion to terminate respondents’ parental rights on 28 October

2015. After hearing evidence on 12 and 31 May 2016, the trial court concluded that

respondent-mother’s parental rights were subject to termination for (1) neglect, and

(2) willful failure to make reasonable progress to correct the conditions that led to the

children’s removal from the home over three years earlier. N.C. Gen. Stat. § 7B-

1111(a)(1)–(2) (2015). The court further determined that terminating respondent-

mother’s parental rights was in the best interests of the children. Respondent-mother

filed timely notice of appeal from the termination order.

______________________________________________________

On appeal, respondent-mother claims the trial court’s findings of fact do not

support its adjudication of grounds to terminate her parental rights under either N.C.

Gen. Stat. § 7B-1111(a)(1) or (2). She contends the court found no facts tending to

show that, at the time of the May 2016 termination hearing, she had failed to resolve

the issues of substance abuse and domestic violence which led to the children’s

removal from her home and adjudication as neglected juveniles. As those issues were

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the only factors cited by CCDHS at the time of the initial removal and adjudication,

respondent-mother argues that the court could not find a likelihood of a repetition of

neglect if the children were returned to her care, see N.C.G.S. § 7B-1111(a)(1), or that

she willfully failed to make reasonable progress to correct the conditions leading to

the children’s placement in foster care, see id. § 7B-1111(a)(2). For the following

reasons, we agree.

We review an adjudication under N.C. Gen. Stat. § 7B-1111(a)(1) or (a)(2) to

determine (1) whether the court’s findings of fact are supported by clear, cogent, and

convincing evidence, and (2) whether its findings in turn support its conclusions of

law. In re Shepard, 162 N.C. App. 215, 221–22, 591 S.E.2d 1, 6 (2004) (citing In re

Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984)). Uncontested findings are

deemed to be supported by the evidence for purposes of our review. See In re H.S.F.,

182 N.C. App. 739, 742, 645 S.E.2d 383, 384 (2007). “[E]rroneous findings

unnecessary to the determination do not constitute reversible error” where an

adjudication is supported by sufficient additional findings grounded in competent

evidence. In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006) (citation

omitted). The adjudication of any single ground under N.C. Gen. Stat. § 7B-1111(a)

will support an order terminating parental rights. In re P.L.P., 173 N.C. App. 1, 8,

618 S.E.2d 241, 246 (2005) (citation omitted).

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The trial court found grounds to terminate respondent-mother’s parental

rights for neglecting the children under N.C. Gen. Stat. § 7B-1111(a)(1). Where a

child has been in a placement outside the home for a significant period of time, an

adjudication under N.C.G.S. § 7B-1111(a)(1) may be supported by “evidence of prior

neglect and [of] the probability of a repetition of neglect” if the child were returned to

the parent’s care. In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). “The

trial court must . . . consider any evidence of changed conditions” since the prior

adjudication of neglect and “make an independent determination of whether neglect

authorizing termination of the respondent’s parental rights existed at the time of the

termination hearing.” Id. at 715–16, 319 S.E.2d at 232–33 (emphasis added); accord

In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997) (“Termination of parental

rights for neglect may not be based solely on past conditions which no longer exist.”

(citation omitted)). As our Supreme Court has emphasized, “[t]he determinative

factors must be the best interests of the child and the fitness of the parent to care for

the child at the time of the termination proceeding.” Ballard, 311 N.C. at 715, 319

S.E.2d at 232.

The trial court also adjudicated grounds to terminate respondent-mother’s

parental rights under N.C.G.S. § 7B-1111(a)(2), which allows termination where

“[t]he 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

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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). A

finding that the parent acted “willfully” under N.C.G.S. § 7B-1111(a)(2) “does not

require a finding of fault by the parent.” In re B.S.D.S., 163 N.C. App. 540, 545, 594

S.E.2d 89, 93 (2004) (citation omitted). “Willfulness may be found where a parent

has made some attempt to regain custody of the child but has failed to exhibit

‘reasonable progress or a positive response toward the diligent efforts of DSS.’ ” Id.

(quoting In re Oghenekevebe, 123 N.C. App. 434, 440, 473 S.E.2d 393, 398 (1996)).

Moreover, though “[a] parent’s failure to fully satisfy all elements of the case plan

goals is not the equivalent of a lack of ‘reasonable progress,’ ” In re J.S.L., 177 N.C.

App. 151, 163, 628 S.E.2d 387, 394 (2006) (citation omitted), a parent’s “prolonged

inability to improve her situation, despite some efforts in that direction, will support”

an adjudication under N.C.G.S. § 7B-1111(a)(2). In re B.S.D.S., 163 N.C. App. at 546,

594 S.E.2d at 93.

As with an adjudication of neglect under N.C.G.S. § 7B-1111(a)(1), “the nature

and extent of the parent’s reasonable progress” must be “evaluated for the duration

leading up to the hearing on the motion or petition to terminate parental rights.” In

re A.C.F., 176 N.C. App. 520, 528, 626 S.E.2d 729, 735 (2006) (second emphasis added)

(citing In re O.C. & O.B., 171 N.C. App. 457, 466–67, 615 S.E.2d 391, 396 (2005)).

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IN RE: A.B., C.B., J.B., A.B.

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I. Preliminary Issue

Initially, we must address respondent-mother’s argument that the trial court

failed to enter affirmative findings of fact with regard to her conduct during the

course of this case. Respondent-mother contends that the court’s findings simply

state what the court itself found at prior hearings. However, we read the court’s

findings as summarizing respondent-mother’s progress—or lack thereof—at various

points in these proceedings. Finding of Fact No. 23 is representative of the order’s

format:

23. At the Review Hearing on May 8, 2014, [respondent-

mother was] present in the courtroom and represented by

counsel. . . . The mother’s progress was as follows:

a. Mother continues to reside at 224 Evans St.

Concord, NC. This is the same home that the

children resided in prior to coming into CCDHS

custody.

b. Mother has not provided any information as to

relative placement for her children during this

reporting period.

c. Mother has not provided CCDHS with verification

of income.

(Emphasis added).

The trial court did not find merely that certain findings of fact were made at

the prior hearings in this cause. Rather, as shown in Finding of Fact No. 23, the court

made specific findings with regard to respondent-mother’s progress as of the date of

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each prior hearing.3 As respondent-mother does not contest the evidentiary support

for these findings, they are binding on appeal. In re H.S.F., 182 N.C. App. at 742, 645

S.E.2d at 384 (citation omitted). Moreover, the fact that the court may have copied

findings from its prior orders is “irrelevant,” absent a claim that the findings are not

supported by the evidence presented at the termination hearing. In re J.W., ___ N.C.

App. ___, ___, 772 S.E.2d 249, 253 (2015) (“The purpose of trial court orders is to do

justice, not foster creative writing.”).

II. Insufficient Findings of Fact

Respondent-mother claims that the findings of fact in the termination order

are insufficient to support an adjudication under either N.C.G.S. § 7B-1111(a)(1) or

(2). Specifically, she points to an absence of findings with regard to either the “fitness

of [respondent-mother] to care for the child[ren],” or “the nature and extent of

[respondent-mother’s] reasonable progress” “at the time of the termination

proceeding.” See Ballard, 311 N.C. at 715, 319 S.E.2d at 232 (“The determinative

3 It is also true that the termination order refers to many of the trial court’s prior findings in

the cause. Finding of Fact No. 23, for example, states that “[a]t the Review hearing on May 8, 2014, .

. . [t]he Court found that while the mother and father made progress . . ., the progress made is

insufficient for the court to be assured that the juveniles could safely return to either mother or father’s

care.” (Emphasis added). This type of procedural history is not necessarily out of place in an order

terminating parental rights, particularly where a case has been pending for almost three years at the

time of the termination hearing. However, we do not rely on the trial court’s account of its own earlier

findings when assessing the reasonableness of respondent-mother’s progress under N.C.G.S. § 7B-

1111(a)(2). Cf. generally In re O.W., 164 N.C. App. 699, 703, 596 S.E.2d 851, 854 (2004) (explaining

that a recitation of what a witness testified “is not even really a finding of fact”); cf. also In re T.M.,

180 N.C. App. at 547, 638 S.E.2d at 240–41 (allowing appellate court to disregard erroneous findings

unnecessary to the trial court’s adjudication).

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factors must be the best interests of the child and the fitness of the parent to care for

the child at the time of the termination proceeding.”); A.C.F., 176 N.C. App. at 528,

626 S.E.2d at 735 (noting that a parent’s reasonable progress “is evaluated for the

duration leading up to the hearing on the motion or petition to terminate parental

rights” (citation omitted)). We agree. Although the termination hearing was held

more than three months after the 11 February 2016 review hearing, the court made

no findings regarding respondent-mother’s conduct or circumstances at any time

subsequent to the 11 February 2016 hearing date.

We recognize that the trial court’s ultimate findings with regard to the grounds

for termination purport to describe present conditions:

46. The Court finds that the following grounds for

termination exist to terminate the parental rights of

mother and father pursuant to NC Gen Stat. §7B-1111(1)

[sic]; that mother and father neglected the juveniles . . . and

that there is a likelihood that such neglect would continue

in the future; pursuant to NC Gen Stat. §7B-1111(a)(2),

mother and father willfully left the juveniles in foster care

for more than twelve months without showing to the

satisfaction of the Court that reasonable progress under

the circumstances have [sic] been made in correcting those

conditions which led to the removal of the juveniles from

the custody and care of the parents . . . .

(Emphasis added). However, such ultimate findings must arise “by processes of

logical reasoning from the evidentiary facts” found by the court. In re Anderson, 151

N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002) (citation omitted); see also In re D.M.O.,

___ N.C. App. ___, ___, 794 S.E.2d 858, 861 (2016) (“[A] trial court must make

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adequate evidentiary findings to support its ultimate finding of willful intent.”

(citation omitted)). Here, the evidentiary facts found and recited by the court are

inadequate to support these ultimate facts.

Our review of the transcript reveals that CCDHS social worker Cynthia

Bowers and respondent-mother presented testimony that would support additional

findings up to the time of the termination hearing. We further believe “there are

material conflicts in the evidence relating to the issue of respondent-mother’s

willfulness” and the reasonableness of her progress “that were not resolved by the

trial court’s order.” In re D.M.O., ___ N.C. App. at ___, 794 S.E.2d at 865–66 (vacating

and remanding where the trial court’s findings were “inadequate or fail[ed] to resolve

conflicts in the evidence material to a conclusion that respondent-mother abandoned”

the juvenile). Similarly, we believe the evidence would support different inferences

and conclusions regarding the likelihood of a repetition of neglect based on evidence

regarding respondent-mother’s circumstances at the time of the hearing. “Given the

findings of fact, however, we would be speculating as to the trial court’s rationale”

were we to affirm its adjudication under either N.C.G.S. § 7B-1111(a)(1) or (2). In re

F.G.J., 200 N.C. App. 681, 694, 684 S.E.2d 745, 754 (2009).

The evidence and the trial court’s findings show that, following the initial

adjudication of neglect and dependency in March 2014, respondent-mother engaged

in an extended period of positive drug screens and general non-compliance with the

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court-ordered requirements for reunification. By the time of the May 2016

termination hearing, however, the nature and extent of respondent-mother’s progress

was improved.

As CCDHS conceded at the hearing, respondent-mother had an unbroken

series of negative drug screens between June 2015 and March 2016, after completing

her third substance abuse evaluation and third round of treatment. In July 2015,

she attended and completed the six individual therapy sessions recommended by

Genesis as part of her most recent substance abuse re-evaluation. Respondent-

mother had separated from respondent-father in December 2014 and obtained a

domestic violence protective order against him in June 2015, which remained in place

at the time of the termination hearing. After obtaining her commercial driver’s

license, respondent-mother had obtained full-time employment as an interstate truck

driver and was current on her child support payments.

In addition, with regard to respondent-mother’s court-ordered parenting

classes, the trial court found as follows:

Mother completed parenting classes with Mar-Lee Cook,

NC Certified Parent Educator, on June 5, 2014, and, as

previously reported by Ms. Cook in her case summary, it is

her experience with [respondent-mother and respondent-

father] that, “nothing I say or present will change their

parenting styles or the dysfunctional dynamics in the

family.”

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Despite this negative report from Ms. Cook, which predates respondent-mother’s

separation from respondent-father, we find no evidence that CCDHS or the trial court

ever prescribed additional parenting classes for respondent-mother after June 2014.

Nor do the court’s prior orders suggest that respondent-mother failed to demonstrate

appropriate parenting techniques during her visitations, as originally ordered by the

trial court.

To the contrary, the permanency planning orders show that respondent-

mother consistently attended visitation throughout these proceedings and was found

to interact with the children in an appropriate—and sometimes praiseworthy—

manner. These orders include findings that respondent-mother “brings interactive

fun activities for all her children to engage in, such as how to sew, doing nails,

decorating shoes, board games, etc.,” and that she “does a wonderful job of

acknowledging and spending equal amounts of time with the children.” After CCDHS

permitted the eldest daughter, A.B., who was nearly fifteen years old at the time of

the hearing, to opt out of visitations based on her belief that respondent-mother was

overly critical of her, the court subsequently reiterated its finding that “[v]isits with

the three younger children and [respondent-mother] go well and she is appropriate

with the children.”

The parties offered conflicting testimony with regard to respondent-mother’s

willingness or ability to notify CCDHS in advance of her availability for random drug

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screens. Ms. Bowers testified that CCDHS had been unable to perform any

subsequent random screens, because respondent-mother failed to notify the

department of her availability based on her work schedule, other than during her

scheduled visitations. Respondent-mother explained that, as a truck driver, she did

not receive her work schedule in advance and had “no way” to know whether or when

she would be in Cabarrus County during the work week. She provided CCDHS with

the phone number of her fleet manager to verify this information.

While respondent-mother acknowledged that her current residence lacked

water and electricity, she testified that she had the means to have these utilities

turned on, but had chosen not to do so while her employment required her to stay out

of town. We also note Ms. Bowers’s testimony that respondent-mother’s residence

would “meet minimal standards” for the children, even without utilities, once a

background check was performed on her aunt and any other adult residents in the

downstairs dwelling.4 Respondent-mother admitted having failed to provide CCDHS

with the necessary personal information about her aunt but claimed her aunt had

refused to authorize the disclosure.

We hold the trial court’s findings and conclusions do not adequately account

for respondent-mother’s circumstances at the time of the termination hearing, as

required to support a termination of her parental rights under N.C.G.S. 7B-1111(a)(1)

4 Respondent-mother testified that her aunt’s husband and daughter also lived downstairs.

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or (2). As discussed above, the parties’ evidence supports competing findings on

material issues of fact, which in turn would support competing inferences with regard

to the existence of grounds for termination. Accordingly, “we vacate the trial court’s

order and remand for further findings of fact and conclusions of law regarding N.C.

Gen. Stat. § 7B-1111(a)[(1)–(2)]. The trial court may hear and receive additional

evidence.” In re D.M.O., ___ N.C. App. at ___, 794 S.E.2d at 866; see also In re F.G.J.,

200 N.C. App. at 695, 684 S.E.2d at 755.

VACATED AND REMANDED.

Judges DAVIS and TYSON concur.

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