In re: M.T. & K.T.

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-593

No. COA21-755

Filed 6 September 2022

Durham County, Nos. 18-JT-1, 18-JT-2

IN THE MATTER OF: M.T. and K.T.

Appeal by respondent-mother from orders entered on or about 13 October 2020

and 5 July 2021 by Judge Shamieka L. Rhinehart in District Court, Durham County.

Heard in the Court of Appeals 9 August 2022.

Miller & Audino, LLP, by Jeffrey L. Miller, and Elizabeth Simpson, for

appellant-respondent mother.

Michelle FormyDuval Lynch and Matthew D. Wunsche, for appellee guardian

ad litem.

The Law Office of Derrick J. Hensley, PLLC, by Derrick J. Hensley, and

Elizabeth P. Kennedy-Gurnee for appellee-petitioner Durham County

Department of Social Services.

Jaclyn Maffetore, for Amicus Curiae The ACLU of North Carolina Legal

Foundation.

Kathleen Lockwood and Nisha Williams, for Amicus Curiae North Carolina

Coalition Against Domestic Violence.

Laura Holland, Quisha Mallette, and Sarah Laws, for Amici Curiae North

Carolina Justice Center and North Carolina Community Bail Fund of Durham.

Tin, Fulton, Walker & Owen, PLLC, by Abraham Rubert-Schewel, for Amicus

Curiae North Carolina NAACP.

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Opinion of the Court

STROUD, Chief Judge.

¶1 All cases involving abuse, neglect, and dependency of children or termination

of parental rights arising from physical abuse of a baby are tragic; cases arising from

serious and life-threatening non-accidental injuries to a baby are perhaps the most

challenging and tragic of all. Here, as in most cases involving life-threatening non-

accidental injuries to a baby, there is no direct evidence of exactly what happened. A

baby cannot tell anyone what happened, and no one, other than someone who hurt

the baby, saw what happened. Trial courts must often make these difficult and

momentous decisions based upon circumstantial evidence and evaluation of

credibility and weight of the evidence. In this case, the trial court carefully

considered evidence from many witnesses and hundreds of pages of exhibits and

reports, including medical records, presented at hearings held over many days. The

trial court entered several orders over four years and ultimately entered an order of

termination of parental rights, setting out the facts about the abuse, the parents, and

the children in thoughtful and careful detail. The trial court also painstakingly

considered the best interests of the children before deciding that under the law,

Mother’s parental rights must be terminated.

¶2 In addition to the difficult issues regarding the abuse of the baby, we note

several organizations have filed amicus, or “friend of the court,” briefs to present

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arguments regarding larger issues they contend this case presents. Those briefs

address issues including: the “disproportionate and negative impact of the child

welfare system on marginalized racial groups;” the “role of race in the proceeding;”

the concern that “responses to domestic violence in the child welfare system” may

create greater trauma for the children; and the effects of “wealth-based pre-trial

incarceration” on families. We do not discount any of the concerns presented by

Amici, but as an appellate court, we can address only the issues presented by the

facts of this case and the law as established by the General Assembly and prior

caselaw. The trial court’s job, ultimately, is to make hard decisions based upon the

evidence presented, with the best interests of these two young children, Mark and

Ken,1 as its primary consideration. And our job, as an appellate court, is to determine

if the trial court did that job correctly, in accord with the law. Because the trial court

did that difficult job correctly, we affirm the trial court’s order.

¶3 Respondent Mother appeals from the trial court’s order ceasing reunification

in an abuse, neglect, and dependency proceeding and from its order terminating

parental rights as to both her children Ken and Mark.2 After granting Mother’s

Petition for Writ of Certiorari (“PWC”) to review the trial court’s order ceasing

1 We use stipulated pseudonyms to protect the identity of the minor children.

2 The same orders ceased reunification efforts with Father and terminated his parental

rights, but Father does not appeal.

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reunification, we determine the trial court did not abuse its discretion because it

made a reasoned decision based on its Findings regarding Mother’s progress on her

case plan and the still unexplained nature of some of Ken’s injuries and conditions

that led to the abuse and neglect proceeding. Because competent evidence supports

the trial court’s Findings of Fact and those Findings support the trial court’s

Conclusions of Law, the trial court properly adjudicated termination of Mother’s

parental rights on the grounds of neglect as to both Mark and Ken and on the grounds

of abuse as to Ken pursuant to North Carolina General Statute § 7B-1111(a)(1)

(2019). Because we conclude the abuse and neglect grounds were proper, we do not

address the other ground for termination, willful failure to make reasonable progress

under North Carolina General Statute § 7B-1111(a)(2). Finally, because the trial

court made a reasoned decision in excluding testimony from one of Mother’s experts

at the dispositional phase of the termination proceeding, the trial court did not err on

those grounds. We therefore affirm.

I. Background

¶4 On or about 5 January 2018, Durham County Department of Social Services

(“DSS”) filed a juvenile petition alleging Ken and Mark were neglected and dependent

and that Ken was abused. The petition arose from a report of medical neglect in early

December 2017 after Ken, who at that time was under six months old and had only

been home from the hospital a short time following his premature birth, was taken

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to the emergency room and diagnosed with “a head bleed, seizures and possible blood

loss in the abdomen.” At the time, Ken’s “prognosis was unclear.” According to the

petition, further testing revealed Ken had “skull fractures, rib fractures in various

stages of healing and retinal hemorrhages in both eyes” that “[a]ccording to the

medical team” were “significant head injuries from non-accidental trauma consistent

with physical abuse.” As a result of those injuries, at the time the petition was filed,

Ken still “require[d] twenty-four hour care, three medications, numerous follow-up

medical appointment[s,] . . . therapies,” and “monitoring for a blood clot in his leg.”

Finally, the petition noted while the perpetrator of the abuse had not been identified

“[t]he parents were the sole care providers of the children and could not offer any

explanation” for Ken’s injuries such that his “risk of further injury . . . [was] too great.”

¶5 While the petition noted Mark had “no special needs or identified injuries,” it

alleged he was neglected because he “live[d] in an injurious environment due to the

abuse and neglect of his sibling” Ken. As a result, DSS sought nonsecure custody of

both children, which the trial court granted the same day.

¶6 On 25 June 2018, following a hearing held the same day, the trial court entered

an order adjudicating Ken abused, dependent, and neglected and adjudicating Mark

neglected based on stipulated Findings of Fact made with clear and convincing

evidence. The trial court found Ken had been born prematurely, was released from

the hospital in early November 2017 and twice had medical appointments in

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November where no one noted concerns for unexplained injuries. The trial court also

recounted the parents taking Ken to the ER for “changed behavior” including “lack of

crying, and voiding for two days, and foot jumping, and twitching, cranky and

decreased eating for one day.” The Findings then expanded upon the extent and “life-

threatening” nature of Ken’s injuries and conditions when presented at the hospital

on 3 December 2017 that led to the DSS report:

12. The Emergency Department sought a CANMEC [a

child abuse evaluation] consult for initial concerns for

medical neglect due to the delay in seeking treatment,

concern for malnutrition, and possible head trauma. The

child, [Ken], received immediate critical care treatment for

imminent or life-threatening deterioration of the following

conditions: endocrine crisis, metabolic crisis, shock,

trauma, central nervous system failure or compromise and

respiratory failure for status epilepticus, profound anemia

and profound hypoglycemia. His body temperature was 94

degrees. He was intubated. He was admitted to the

hospital where he remained until December 30, 2017.

The trial court also found diagnostic testing revealed Ken’s additional injuries listed

in DSS’s initial petition as well as “brain injuries due to trauma and oxygen loss.”

The trial court further found, consistent with the petition, Ken required twenty-four

hour care and multiple medications with “[t]he long term consequences of his injuries

. . . unknown.”

¶7 After recounting Ken’s injuries, the trial court made Findings related to

possible causes. Ken’s medical providers ruled out “genetic or medical causes for the

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injuries” and determined they were “consistent with non-accidental or inflicted

trauma on one or multiple occasions with at least the occurring [sic] between” the

period when Ken had his last medical appointment and when he was taken to the

hospital. A child abuse expert not affiliated with the hospital reviewed and

“concur[red]” with the findings Ken “clear[ly]” suffered abuse and “probabl[y]

experienced neglect and medical neglect.” The trial court found—again in a Finding

stipulated to by both parents—during this period of time when Ken’s injuries were

caused, “[t]he parents were the sole care providers,” and, despite being “informed of

the medical findings on several occasions,” they “could not or would not offer any

explanation for the child’s injuries.” Specifically, the parents “both den[ied] inflicting

any non-accidental trauma and [were] unaware of any event that may have caused

the injuries alleged,” but they “reviewed the medical evidence” and consented to the

Findings to show “their willingness to cooperate with” DSS and the court.

¶8 Beyond the Findings on Ken’s injuries and potential causes, the trial court

noted Mark “has no special needs or identified injuries” although “due to back and

forth over consent from the parents” a diagnostic test for injuries was not “timely . . .

completed.” Following Ken’s admission to the hospital and DSS’s subsequent

involvement, Mark was placed with his maternal grandparents, but that placement

only lasted about a month before Father’s “disruptive behavior” and the

grandmother’s health made it “no longer viable.” As such, no relative placement was

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available for the children.

¶9 Based on these Findings, the trial court concluded Ken was abused, neglected,

and dependent and Mark was neglected. The trial court then entered an order

adjudicating the same.

¶ 10 After a hearing that immediately followed the abuse, neglect, and dependency

adjudication, the trial court entered a disposition order on 28 August 2018. After

incorporating its adjudication order Findings, the trial court noted how still “[n]o one

ha[d] come forth and provided an explanation as to how [Ken] was injured.” The trial

court also found Mother did not believe the grandparents had injured Ken when they

had cared for him previously. The parents told the social worker they believed Ken

was injured while at the hospital following his premature birth, but Mother had taken

Ken for doctor appointments after his initial discharge and “no medical concerns”

were noted either time. The trial court further found the parents’ belief the hospital

caused the injuries was “unreasonable” and “perplex[ing]” since two separate experts

in child abuse, including an expert retained by the parents for a second opinion,

opined the injuries were “non-accidental” and sustained during a period of time when

the parents were sole caretakers.

¶ 11 In its remaining Findings in the disposition order, the trial court addressed:

Mother’s care for Ken in the relevant time period, parents’ “pattern of refusing

medical treatment for both” Mark and Ken, the lack of viability of potential relative

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placements, a text message Father sent while high saying “When I’m not high I’m a

very negative, abusive and ugly person,” parents’ employment and engagement with

services, and DSS’s recommendations and reasonable efforts. The trial court then

made ultimate Findings that it was contrary to the children’s best interests to be

returned home because of (1) the lack of explanation as to how Ken sustained his

multiple injuries and (2) the risk from “[t]he parents’ pattern of refusing medical

treatment.”

¶ 12 Based on these Findings, the trial court concluded DSS made reasonable

efforts; it was in the children’s best interests that DSS have legal custody and

placement authority; and the parents should engage in services to remediate the

cause of the adjudication and have only supervised visitation. The trial court then

granted DSS legal custody and placement authority with supervised visitation for the

parents; DSS also would “continue to explore potential kinship placements and

continue to make reasonable efforts to reunify the family.” The trial court also

ordered both Mother and Father to engage in the following services: “[a)] submit to a

comprehensive Parenting Capacity Assessment, follow the recommendations of the

assessment; [b)] complete a parenting class and demonstrate that the children will

be physically safe in [their] care; [c)] demonstrate during visitation what is learned

in parenting classes; [d)] submit to random drug screens.” As part of these services,

the trial court ordered their “therapy is not to be solely about their feelings related to

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the loss of the children. The Court has questions about what happened to [Ken] which

should be explored in therapy.”

¶ 13 Over the following two years, the trial court held three review and permanency

planning hearings that produced three orders. We only recount the relevant portions

from the first two orders because they are not at issue in this appeal. In the final of

the three permanency planning orders, the trial court ceased reunification efforts.

Since Mother challenges the trial court’s decision to cease reunification efforts in her

appeal, we review that order in more detail.

¶ 14 The trial court entered its first review and permanency planning order on 12

April 2019 following hearings on 19 February and 21 March of that year. In relevant

part, the trial court first found both parents had been in jail since November 2018 “on

charges arising from the injuries [Ken] received” and had “been unable to post bond

or to engage in services.” The trial court also made Findings about a new explanation

Mother gave for Ken’s injuries. Specifically, Mother testified her stepfather had

abused her and he had access to Ken. The trial court rejected this explanation,

finding the stepfather causing Ken’s injuries was “contrary to what [Mother]

stipulated to” in the adjudication order and contrary “to the established window of

the occurrence of the injuries.” The trial court also “question[ed]” why Mother had

previously suggested her stepfather and mother (i.e. the maternal grandparents) to

DSS as people who could take the children pursuant to a safety plan. As a result, the

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trial court expressed its “continue[d] . . . concern[] that there is no plausible

explanation for the injuries” because the parents were the only caretakers during the

time period the court had found the injury was sustained. The trial court then found

the children could not be returned to either parent “as there [was] still no credible

explanation for how [Ken] was injured and the parents remain[ed] incarcerated.”

¶ 15 After making Conclusions of Law about DSS’s reasonable efforts and the

children’s best interests, the trial court ordered DSS would retain custody and

placement authority and the parents would have visitation with Mark “as long as it

[was] not contraindicated by his behavior” and no visitation with Ken while

incarcerated, with supervised visitation to resume if they were released from jail.

The trial court set the permanent plan as adoption with a secondary plan of

reunification and tertiary plan of guardianship. The trial court finally ordered the

parents engage in the same services as in its initial disposition order with DSS to

“determine what, if any, services can be accessed in the jail and make referrals, if

possible.”

¶ 16 The trial court entered its second review and permanency planning order on

22 November 2019 following a hearing on 11 September 2019. In relevant part, the

trial court first found the parents “were recently released” from jail on the charges

related to Ken’s injuries. Specifically, Mother had been released in July 2019. The

trial court expressed its “continue[d] . . . concern[] that there is no plausible

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explanation for [Ken’s] injuries” and that neither Mother nor Father knew “how and

why [Ken] sustained his injuries.” Finally, the trial court found the parents had

stopped visiting with Mark while incarcerated because they did not want him “to see

them behind the glass.” In this regard, the trial court also noted Mark “act[ed] out

in daycare” following a visit with Mother at the jail. His “concerning and disruptive

. . . behavior” continued following visits after Mother’s release from jail.

¶ 17 After entering Conclusions of Law on DSS’s reasonable efforts and the best

interests of the children, the trial court ordered DSS would continue to have legal

custody and placement authority. The trial court also suspended visitation for both

parents and would reevaluate visitation based on “medical and mental health records

. . . as well as updated information as would normally be available in [a] full

permanency planning review hearing.” Finally, “[a]ny and all provisions of the

previous order not inconsistent with” the instant order would remain in effect,

including that the parents engage in the previously-ordered services.

¶ 18 On or about 13 October 2020, the trial court filed the third and final

permanency planning review order following hearings held on 10 February and 6–7

July 2020; the hearing was not completed until July 2020 because of an extended

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adjournment due to the COVID-19 pandemic.3 To separate this order from the prior

permanency planning orders, as relevant to Mother’s appeal of this order, we refer to

this order as the October 2020 Order.

¶ 19 In the October 2020 Order, the trial court made numerous Findings of Fact

based on clear, cogent, and convincing evidence. First, the trial court recounted the

evidence and testimony it reviewed, DSS’s “reasonable efforts” at relative placement,

and the current well-being of the two children with their current placement

determining it was in their best interest to remain in that placement. The trial court

then addressed the history of the children’s adjudication, incorporating and “re-

iterat[ing]” some Findings from that order. Further, the trial court made updated

Findings about the still-pending felony charges both parents faced as a result of Ken’s

injuries, Mother’s release from jail, and how Mother believed her criminal charges

were in the “process of being deferred.” As part of this summary of pending charges,

the trial court found Father had a pending assault by strangulation charge, in which

Mother was the victim. Related to that incident, the trial court made Findings on the

history of domestic violence Father perpetrated against Mother including that

3Orders of the Chief Justice of the North Carolina Supreme Court postponed most in-person

court proceedings between 13 March and 1 June 2020. See Order of the Chief Justice

Emergency Directives 1 to 2 (13 Mar. 2020) (postponing for 30 days); Order of the Chief

Justice Emergency Directives 1 to 7 Postponing Court Proceedings Until June 1 (2 April

2020).

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Mother “desire[d] to file a permanent domestic protective order but” had not done so

and that Father had not threatened or physically abused Mother prior to the children

coming into DSS care.

¶ 20 As part of recounting the case history, the trial court reiterated the four

services Mother was ordered to undertake:

a) submit to a comprehensive Parenting Capacity

Assessment, follow the recommendations of the

assessment;

b) complete a parenting class and demonstrate that the

children will be physically safe in her care;

c) demonstrate during visitation what is learned in

parenting classes;

d) submit to random drug screens

It then made a Finding about Mother’s progress on the services explaining Mother

completed some parenting programs, tested negative on a random drug screen, and

completed a parental capacity assessment. Mother had a no-contact order with Ken,

and the trial court suspended her visitation in the previous order. Later, the trial

court found the parenting class’s “safety information was limited to childproofing the

home and discussion of child health as in what to do if the child is sick or injured.”

The trial court also found the parental capacity evaluation failed to adequately

address a referred question relating to the continued lack of explanation for Ken’s

injuries.

¶ 21 The trial court made extensive findings regarding the continued lack of

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explanation for Ken’s injuries. First, the trial court noted an email from Father to

the social worker in May 2020 in which Father said “When [Ken] came home I

actually dropped him on accident. He landed very hard on the floor and immediately

started seizing. I was so scared I didn’t know what to do. [Mother] wasn’t home. I

had been smoking and drinking . . . and yea, that’s what happened.” (Ellipses in

original.) The trial court then made findings about how Mother had learned about

the email and noted she “believes” Father caused Ken’s injuries but “did not ask any

further questions” such that “the court observed no curiosity from the [M]other to find

out what happened or more about the [F]ather’s disclosure.” The trial court also

found the social worker told the original hospital evaluators about Father’s statement

and they did not change their original opinion of abuse because “this new information

does not explain all of [Ken]’s symptoms and injuries.”

¶ 22 As a result of this evidence and the trial court’s credibility determination about

Father’s email, the court made numerous Findings on its continuing concerns about

the lack of explanation for Ken’s injuries and conditions. For example, the trial court

explained none of the versions of events presented to it “explain [Ken]’s poor state of

health at the time he was presented . . . to include being malnourished and having

skull fractures, retinal hemorrhages and other fractures of differing ages.”

¶ 23 In its final relevant Findings, the trial court determined reunification efforts

“would clearly be unsuccessful and inconsistent with the minor children’s health or

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safety” in part because of the continued lack of explanation of Ken’s injuries and the

varied explanations over time. The trial court also found DSS made reasonable

efforts and visitation was not in the children’s best interests.

¶ 24 Based on these Findings, the trial court concluded it was in the children’s best

interests for DSS to retain legal custody and placement authority, visitation to be

suspended, and Mother to complete the services previously ordered. It also concluded

reunification efforts with Mother and Father “would be clearly unsuccessful and

inconsistent with the minor children’s health or safety” such that DSS was relieved

of further reunification efforts and the primary permanent plan would be adoption

with a secondary plan of guardianship. Finally, the court concluded it was “in the

children’s best interests that . . . DSS file a proceeding to terminate parental rights

within sixty (60) days of this hearing.” The court entered an order that aligned with

its Conclusions of Law and specifically restated the services Mother needed to

undertake to “correct the conditions” that led to the children’s adjudication.

¶ 25 As ordered to by the later filed written order entered on or about 13 October

2020, DSS filed a “Motion and Petition for Termination of Parental Rights” on 13 July

2020. (Capitalization altered.) After recounting the past proceedings as laid out

above, DSS alleged the following as grounds for terminating Mother’s parental rights:

a. The [M]other has abused and/or neglected the children,

and the children are neglected and abused children within

the meaning of G.S. 7B-101 (1) and (15). The children have

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been previously adjudicated neglected and/abused, have

been previously neglected and/or abused, and there is a

reasonable likelihood of neglect if they were returned to the

[M]other.

b. The [M]other has willfully left the children in foster care

for more than twelve (12) months without showing to the

satisfaction of the Court that reasonable progress under

the circumstances has been made within twelve (12)

months in correcting those conditions which led to the

removal of the children.

c. The children have been placed in the custody of . . . DSS

and the [M]other, for a continuous period of six (6) months

next preceding the filing of the petition, has willfully failed

for such period to pay a reasonable portion of the cost of

care for the children although physically and financially

able to do so.

d. The [M]other has committed murder or voluntary

manslaughter of another child of the parent or other child

residing in the home; has aided, abetted or voluntarily

solicited to commit murder or voluntary manslaughter of

the child, another child of the parent, or other child

residing in the home; has committed felony assault that

results in serious bodily injury to the child, another child

of the parent, or other child residing in the home, or has

committed murder or voluntary manslaughter of the other

parent of the child.

Mother filed an answer 11 August 2020.

¶ 26 The trial court held hearings on the termination of parental rights in May

2021. It heard extensive testimony, over five days, during both the adjudication and

disposition stages of the proceedings. As relevant to the issues on appeal, Mother

called Dr. Jessica Pryce as a witness during the disposition phase; she was “tendered

and accepted as an expert in child welfare policy and practice.” According to her

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proffered report, Dr. Pryce sought to testify about racial disparity and

disproportionality in child welfare systems, domestic violence and such systems, and

evidence about the importance of avoiding family separation based upon research

about the long term impact of foster care versus kin placement. During some

foundational testimony, both DSS and the Guardian ad Litem (“GAL”) objected to Dr.

Pryce’s testimony on grounds including lack of foundation and relevance. After

extended voir dire and arguments from the parties on whether the expert should be

allowed to testify, the trial court excluded the testimony because it was “irrelevant.”

Mother’s counsel then submitted the expert’s report as an offer of proof.

¶ 27 Following these hearings, on or about 5 July 2021, the trial court entered an

order terminating parental rights. Within the order, the trial court included sections

on both adjudication and disposition.

¶ 28 For the adjudication order, the trial court made Findings of Fact by clear,

cogent, and convincing evidence. First, the trial court took judicial notice of its prior

orders and made a number of Findings related to jurisdiction and procedural matters.

It then recounted the original removal of Mark and Ken from their home,

incorporating most of the Findings stipulated to in the abuse, neglect, and

dependency adjudication order. The trial court further recounted its initial

disposition order Findings as well as the four services it ordered Mother to undertake

“to remediate or remedy behaviors or conditions which led or contributed to the

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children’s adjudication or the Court’s decision to remove custody of the children” from

her. Lastly as to the pure procedural history, the trial court recounted relevant parts

of its first two review and permanency planning orders including the parents’

changing explanations, the court’s continued concern about the lack of explanation

for Ken’s injuries, and the need for services to redress that lack of explanation.

¶ 29 The trial court then made updated Findings on Mother’s compliance with the

services it had previously ordered. After incorporating its Findings from the October

2020 Order, the trial court determined “there [was] no change of circumstances” as

to the parental capacity evaluation and reiterated the initial evaluation “failed to

fully, objectively and adequately address the conditions that led to the removal of the

children from the home.” Similarly, the trial court found Mother still had not

“engaged in any parenting class which fully and completely addressed the medical

and safety reasons that the child [Ken] came into care.” Overall, the trial court

determined Mother “participated in services that do not address the reason the

children came into care.”

¶ 30 The trial court also made numerous Findings on the continued lack of

explanation for Ken’s injuries and its attempts to receive one. First, the trial court

incorporated many of its Findings from the October 2020 Order. Then, the trial court

explained how Father’s email explanation “has no weight and there is no credibility

to it,” although in the wake of the email, Father pleaded guilty to child abuse charges

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and the prosecutor voluntarily dismissed Mother’s charges. The court found, though,

Mother believed Father’s email and had no explanation “for each of [Ken]’s

conditions” when he arrived at the hospital. After noting that the parents were Ken’s

sole caretakers in the relevant period, the trial court addressed testimony from two

medical experts in child abuse pediatrics, including one who was Mother’s expert;

both experts determined Ken’s injuries were the result of non-accidental trauma and

were not explained by the events described in Father’s email. The trial court noted

it had “pleaded and begged for information as to what happened to” Ken but it

remained unexplained.

¶ 31 Finally, the trial court made Findings on the history of domestic violence

perpetrated by Father against Mother, finding there was no domestic violence before

the removal of the children from the home, and a series of ultimate Findings as to the

grounds for termination alleged in the petition. As to the neglect ground, the trial

court found a “likelihood of repetition of neglect and abuse” because of the continued

lack of explanation for Ken’s injuries and Mother and Father’s “failure to adequately

and timely address the issues that led to the removal of the juveniles from the home.”

As to the willfully leaving the children in foster care ground, the trial court found the

children had been in foster care for over twelve months and Mother and Father

“willfully failed or refused” to “complete court ordered services” in that neither had

made “reasonable progress under the circumstances to correct the conditions that led

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to the juveniles’ removal.”

¶ 32 Based on those Findings, the trial court entered adjudication Conclusions of

Law, determining grounds existed to terminate Mother and Father’s parental rights

for abuse as to Ken and neglect as to Ken and Mark under North Carolina General

Statute § 7B-1111(a)(1) and for willfully leaving the juveniles with DSS for over 12

months and willfully failing to make reasonable progress in correcting the conditions

that led to the children’s removal from the home under North Carolina General

Statute § 7B-1111(a)(2). The trial court also concluded the additional ground of

committing a felony assault inflicting serious injury applied only to Father, not

Mother. DSS chose not to proceed on the other ground in the petition, so the trial

court concluded it was not established.

¶ 33 Having found grounds to terminate parental rights, the trial court proceeded

to the dispositional phase. After incorporating all the adjudication Findings, the trial

court made additional Findings on the children’s current placement, the “strong

likelihood of adoption” in that placement, the bond with the parents, and the bond

with the “potential adoptive parents.” The trial court then concluded it was in the

best interest of the children that the parents’ rights be terminated. The trial court

then entered an order terminating Mother and Father’s parental rights, giving legal

and physical custody with placement authority to DSS, and directing DSS to

“continue to follow through with the adoption process.”

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¶ 34 Mother filed written notice of appeal from the order terminating parental

rights to our Supreme Court, with appeal to this Court as an alternative given a then-

recent change in law, on 14 July 2021. She filed an amended notice of appeal of the

same order to this Court on 23 July 2021.

II. Legal Background and Issues Presented

¶ 35 To help better situate Mother’s arguments, we start by giving a brief

background of juvenile proceedings around abuse, neglect, and dependency as well as

termination of parental rights.

¶ 36 Parents have a constitutional right to “custody of their child and to determine

the care and supervision suitable for their child.” In re Montgomery, 311 N.C. 101,

106, 316 S.E.2d 246, 250 (1984) (citing Santosky v. Kramer, 455 U.S. 745, 758–59, 71

L.Ed.2d 599, 610 (1982)). “The constitutional parental right is, of course, not

absolute.” In re E.B., 375 N.C. 310, 315–16, 847 S.E.2d 666, 671 (2020) (citing In re

C.B.C., 373 N.C. 16, 19, 832 S.E.2d 692, 695 (2019)). But it is a “fundamental liberty

interest which warrants due process protection.” Id., 375 N.C. at 316, 847 S.E.2d at

671 (quoting In re Montgomery, 311 N.C. at 106, 316 S.E.2d at 250 (internal

quotations and citations omitted)).

¶ 37 Juvenile abuse, neglect, and dependency proceedings and termination of

parental rights proceedings include specific statutory procedures to provide such due

process protections. See N.C. Gen. Stat. § 7B-100 (2021) (directing courts to interpret

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and construe abuse, neglect, and dependency and termination of parental rights

statutes “[t]o provide procedures for the hearing of juvenile cases that assure fairness

and equity and that protect the constitutional rights of juveniles and parents”); see

also, e.g., In re Montgomery, 311 N.C. at 114–15, 316 S.E.2d at 255 (summarizing

statutory protections under termination of parental rights statutes and how they

“adequately assure” parents receive “procedural due process protection”); In re J.C.,

380 N.C. 738, 2022-NCSC-37, ¶ 6 (explaining “statutory burden of proof by clear

cogent, and convincing evidence” provided for in North Carolina General Statute §

7B-1109(f) (on adjudication hearings for terminations of parental rights) “protects a

parent’s constitutional due process rights as enunciated by” Santosky); In re K.W.,

272 N.C. App. 487, 491, 846 S.E.2d 584, 589 (2020) (addressing how same statutory

burden of proof in abuse, neglect, and dependency proceedings “assure[s] due process

of law” (quoting N.C. Gen. Stat. § 7B-802 (2019))); In re Eckard, 148 N.C. App. 541,

547, 559 S.E.2d 233, 236 (2002) (discussing parents’ constitutional rights in context

of abuse, neglect, and dependency hearings).

¶ 38 Turning to the specific statutory procedures that protect parents’

constitutional rights, both abuse, neglect, and dependency proceedings and

termination of parental rights proceedings follow a two-step process. See In re K.W.,

272 N.C. App. at 491, 846 S.E.2d at 589 (“A proceeding to protect an allegedly abused,

neglected, or dependent juvenile requires two hearings.”); In re A.W., 377 N.C. 238,

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2021-NCSC-44, ¶ 34 (“Our Juvenile Code provides for a two-step process for

termination of parental rights proceedings consisting of an adjudicatory stage and a

dispositional stage.” (quoting In re Z.A.M., 374 N.C. 88, 94, 839 S.E.2d 792, 796–97

(2020) (in turn citing N.C. Gen. Stat. §§ 7B-1109, 1110 (2019)))).

¶ 39 Focusing on abuse, neglect, and dependency proceedings first, this Court has

recently explained the two steps as follows:

First, the trial court holds an adjudicatory hearing to

determine if a child is abused, neglected, or dependent. [In

re O.W., 164 N.C. App. 699, 701, 596 S.E.2d 851, 853

(2003).] At this stage, heightened requirements are in place

to “protect the rights of . . . the juvenile’s parent” and

“assure due process of law.” N.C. Gen. Stat. § 7B-802

(2019). The trial court must apply the Rules of Evidence,

N.C. Gen. Stat. § 7B-804 (2019), and can find a child

abused, neglected, or dependent only if that status is

proven “by clear and convincing evidence.” N.C. Gen. Stat.

§ 7B-805 (2019).

If the trial court finds at adjudication that the allegations

in a petition have been proven by clear and convincing

evidence and concludes based on those findings that a

juvenile is abused, neglected, or dependent, the court then

moves on to an initial disposition hearing. N.C. Gen. Stat.

§ 7B-901 (2019). At this stage, the trial court, in its

discretion, determines the child’s placement based on the

best interests of the child. O.W., 164 N.C. App. at 701, 596

S.E.2d at 853.

In re K.W., 272 N.C. App. at 491, 846 S.E.2d at 589 (alterations in original). Following

the initial disposition hearing and order, the trial court continues to conduct review

or permanency planning hearings. See N.C. Gen. Stat. § 7B-906.1 (eff. 1 Oct. 2021)

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(mandating court conduct such hearings with certain required components).4 At

permanency planning hearings, the trial court must adopt one or more of the listed

statutory permanent plans including, as relevant here, reunification, adoption, and

guardianship. N.C. Gen. Stat. § 7B-906.2(a) (eff. 1 Oct. 2021); see also N.C. Gen. Stat.

§ 7B-906.2(a) (2019) (including same provisions in previous version). This concurrent

planning “shall continue until a permanent plan is or has been achieved.” N.C. Gen.

Stat. § 7B-906.2(a1) (eff. 1 Oct. 2021); see also N.C. Gen. Stat. § 7B-906.2(a1) (2019)

(including same provisions in previous version).

¶ 40 The two-step process for termination of parental rights resembles that of

abuse, neglect, and dependency proceedings:

In conducting a termination of parental rights proceeding,

the trial court begins by determining whether any of the

grounds for termination delineated in N.C.G.S. § 7B-

1111(a) exist. See N.C.G.S. § 7B-1109 (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

section 7B-1111(a) of the General Statutes.” In re A.U.D.,

373 N.C. 3, 5–6, 832 S.E.2d 698 (2019) (quoting N.C.G.S. §

7B-1109(f)). “If a trial court finds one or more grounds to

terminate parental rights under N.C.G.S. § 7B-1111(a), it

4Section 7B-906.1 had changes go into effect 1 October 2021, which was after the trial court

entered the order terminating parental rights on appeal here, but the changes relevant to

our discussion here merely added new language clarifying the difference between

permanency planning hearings and review hearings. See 2021 North Carolina Laws S.L.

2021-132, § 1(h) (1 Sept. 2021) (indicating changes to language of § 7B-906.1(a) and then

changes to other sub-sections); see also 2021 North Carolina Laws S.L. 2021-100, § 10 (6 Aug.

2021) (updating language to reflect difference between permanency planning and review

hearings in additional parts of § 7B-906.1).

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then proceeds to the dispositional stage,” id. at 6, 832

S.E.2d 698, at which it “determine[s] whether terminating

the parent’s rights is in the juvenile’s best interest.”

N.C.G.S. § 7B-1110(a) (2019).

In re A.E., 379 N.C. 177, 2021-NCSC-130, ¶ 13 (alterations in original). Unlike an

abuse, neglect, and dependency proceeding, once the termination of parental rights

proceeding reaches a disposition terminating rights, the trial court does not

undertake further actions. See N.C. Gen. Stat. § 7B-1112 (2021) (“An order

terminating the parental rights completely and permanently terminates all rights and

obligations of the parent to the juvenile and of the juvenile to the parent arising from

the parental relationship . . . .” (emphasis added)).

¶ 41 Turning to Mother’s arguments, they fit within three of the four possible stages

between abuse, neglect, and dependency and termination of parental rights

proceedings. She does not present any arguments as to the abuse, neglect and

dependency adjudication order, to which she consented. Within the abuse, neglect

and dependency disposition stage, Mother argues “[t]he trial court erred in

eliminating reunification as a permanent plan.” Turning to the termination of

parental rights adjudication stage, Mother makes three arguments: (1) Findings of

Fact 82–83 and 85–88 are “not supported by the evidence” and the Findings present

other issues; (2) “[t]he trial court erred in terminating Mother’s parental rights to

each of her two children based on abuse or neglect”; and (3) “[t]he trial court erred in

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terminating Mother’s parental rights on the ground she willfully failed to make

reasonable progress.” Finally, on the termination of parental rights disposition stage,

Mother contends “[t]he trial court erred as a matter of law by excluding relevant

evidence mandated for consideration” as to “best interest.” We review each of

Mother’s arguments in turn.

III. Elimination of Reunification as a Permanent Plan

¶ 42 Mother first argues the trial court “erred in eliminating reunification as a

permanent plan for Mother.” Specifically, she asserts the order eliminating

reunification, which we are calling the October 2020 Order, “was not based on

sufficient evidence and was not supported by the evidence or findings sufficient to

support the conclusion.” Then, she contends the court erred for the reasons stated in

In re J.M., N.M., 276 N.C. App. 291, 2021-NCCOA-92.

A. Preservation of Issue for Appeal

¶ 43 Before reaching the merits, we address whether this issue is properly before

us. Both GAL and DSS argue Mother failed to preserve her appeal of the October

2020 Order eliminating reunification as a permanent plan. In recognition of her

failure to “timely and properly appeal” the October 2020 Order, Mother has filed a

petition for writ of certiorari (“PWC”) as to the Order and, in the alternative, asks us

to use our power under Rule of Appellate Procedure 2 to suspend the Rules of

Appellate Procedure as to proper filing of an appeal.

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¶ 44 In our discretion, we grant Mother’s PWC to allow us to “review the order

eliminating reunification together with an appeal of the order terminating parental

rights.” See In re C.H., 2022-NCSC-84, ¶ 18 (quoting N.C. Gen. Stat. § 7B-1001(a2))

(granting PWC as to orders ceasing reunification and recognizing statute directing

this Court to hear such appeals, when properly filed, with order terminating parental

rights). Granting a PWC in this situation is appropriate since there is a statutory

mandate to vacate an order terminating parental rights “[i]f the order eliminating

reunification is vacated or reversed.” N.C. Gen. Stat. § 7B-1001(a2) (eff. 1 Oct. 2021).

Further, Mother filed a “Notice to Preserve Right of Appeal” of the October 2020

Order; it was merely untimely. (Capitalization altered.) For these reasons and in

the exercise of our discretion, we grant Mother’s PWC. Because we grant the PWC,

we decline to invoke Rule 2.

B. Standard of Review

¶ 45 “This Court reviews an order that ceases reunification efforts to determine

whether the trial court made appropriate findings, whether the findings are based

upon credible evidence, whether the findings of fact support the trial court’s

conclusions, and whether the trial court abused its discretion with respect to

disposition.” In re C.M., 273 N.C. App. 427, 429, 848 S.E.2d 749, 751 (2020) (quoting

In re C.M., 183 N.C. App. 207, 213, 644 S.E.2d 588, 594 (2007)); see also In re J.H.,

373 N.C. 264, 267–268, 837 S.E.2d 847, 850 (2020) (listing same standard of review

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in part relying on In re C.M., 183 N.C. App. at 213, 644 S.E.2d at 594). “At the

disposition stage, the trial court solely considers the best interests of the child.” In re

J.H., 373 N.C. at 268, 837 S.E.2d at 850 (quotations and citations omitted). “The trial

court’s findings of fact are conclusive on appeal if supported by any competent

evidence.” Id., 373 N.C. at 267, 837 S.E.2d at 850 (quotations and citations omitted).

“An abuse of discretion occurs when the trial court’s ruling is so arbitrary that it could

not have been the result of a reasoned decision.” Id., 373 N.C. at 268, 837 S.E.2d at

850 (quotations and citations omitted).

C. Analysis

¶ 46 Mother asserts the October 2020 Order “was not based on sufficient evidence

and was not supported by the evidence or findings sufficient to support the

conclusion” and the trial court erred for the reasons stated in In re J.M. Specifically

as to In re J.M., Mother argues the October 2020 Order included “numerous findings

which confirmed Mother’s continuing suitability as a parent entitled to reunification”

including her completion of her case plan, “glowing reports” from the “parental

capacity expert and the parenting instructor,” employment, a new residence, ending

her relationship with Father, and “believe[ing] Father’s confession that he injured

Ken.” Mother contends her “only failure was being unable to explain Ken’s 2017

injuries to the personal satisfaction of the Judge, which is an insufficient basis to

eliminate reunification” under In re J.M.

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¶ 47 As to the first argument, Mother fails to identify any specific Findings of Fact

not supported by the evidence, so she has failed to preserve any challenges to the

Findings. See Dalenko v. Collier, 191 N.C. App. 713, 719, 664 S.E.2d 425, 429 (2008)

(concluding party failed to preserve challenge to findings of fact because she “failed

to assign error to specific findings of fact by the trial court, and instead resort[ed] to

a broadside attack on the order ‘that its finding are not support by pleadings,

submissions, evidence of record and arguments of the parties . . .’” (ellipses in

original)); In re Y.I., 262 N.C. App. 575, 579, 822 S.E.2d 501, 504 (2018) (determining

mother abandoned her challenge to three specifically named findings of fact because

she “wholly fail[ed] to support her contention with explanation or citation to the

record”).

¶ 48 As a result, we only consider Mother’s argument the trial court erred based on

In re J.M. For that argument, we must decide whether the trial court abused its

discretion in ceasing reunification efforts based on the best interest of the children.

See In re J.H., 373 N.C. at 267–68, 837 S.E.2d at 850 (explaining our courts review

orders ceasing reunification for abuse of discretion and that, as with any order at the

disposition stage, the trial court only considers the child’s best interests).

¶ 49 “At a permanency planning hearing, ‘reunification shall be a primary or

secondary plan unless,’ inter alia, ‘the court makes written findings that reunification

efforts clearly would be unsuccessful or would be inconsistent with the juvenile’s

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health or safety.’” Id., 373 N.C. at 268, 837 S.E.2d at 850 (alterations from original

omitted) (quoting N.C. Gen. Stat. § 7B-906.2(b) (2019)). The court also “must make

findings ‘which shall demonstrate the degree of success or failure toward

reunification’ including:

‘(1) Whether the parent is making adequate progress

within a reasonable period of time under the plan.

(2) Whether the parent is actively participating in or

cooperating with the plan, the department, and the

guardian ad litem for the juvenile.

(3) Whether the parent remains available to the court, the

department, and the guardian ad litem for the juvenile.

(4) Whether the parent is acting in a manner inconsistent

with the health or safety of the juvenile.’”

Id., 373 N.C. at 268, 837 S.E.2d at 850–51 (quoting N.C. Gen. Stat. § 7B-906.2(d)).

¶ 50 Mother does not argue the trial court failed to make these required Findings,

nor could she. As to Mother’s case plan and her progress thereon (requirements (1)

and (2) above), the trial court recounted the four elements of the case plan including:

a) submit to a comprehensive Parenting Capacity

Assessment, follow the recommendations of the

assessment;

b) complete a parenting class and demonstrate that the

children will be physically safe in her care;

c) demonstrate during visitation what is learned in

parenting classes;

d) submit to random drug screens

The trial court then made findings that Mother completed parenting programs in

2018 and 2019 and submitted to a random drug screen in 2018. In a later Finding,

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the trial court noted the program’s “safety information was limited to childproofing

the home and discussion of child health as in what to do if the child is sick or injured.”

As to visitation, the trial court noted both parents were subject to a no-contact order

with Ken and visitation as to Mark was suspended in September 2019. The trial

court specifically found the suspension of visitation “was providently entered and

continues to be in the best interest of the children” based on a recommendation from

Mark’s therapist, since adoption was the primary plan. Further, the trial court noted

the parenting coach “ha[d] not observed the parents interacting with their children”

since the parenting class. Finally, the trial court found Mother “completed a

Parenting Capacity Evaluation,” and we will address the court’s additional, more

specific Findings on the parenting capacity evaluation below when we address

Mother’s main argument.

¶ 51 As to Mother’s availability to the court, DSS, and GAL (requirement (3)), the

trial court recounted in numerous Findings Mother’s contact with it, DSS, and the

GAL. For example, the trial court noted how Mother had attended a previous hearing

in April 2020, “maintained sporadic communication with” DSS, and “text[ed] the

Social Worker monthly to get updates on the children and to see photos.”

¶ 52 As to the final § 7B-906.2(d) factor, the trial court made multiple Findings

regarding Mother acting “in a manner inconsistent with the health or safety of the

juvenile.” N.C. Gen. Stat. § 7B-906.2(d)(4). For example, the trial court found:

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63. Reunification efforts with the [M]other and [F]ather

would clearly be unsuccessful and inconsistent with the

minor children’s health or safety, because: there is still no

explanation as to how [Ken] was injured and how he came

to be in the state of health as presented on December 3,

2017 despite the various accounts and the case pending for

more than two (2) years. The [F]ather’s account of one sole

incident is inconsistent with the injuries which were of

different ages according to the medical evidence previously

adduced by this court. Further reunification efforts with

[M]other or [F]ather would be unsuccessful and

inconsistent with the health and safety of both children

based on the parents’ inability to provide a safe, stable and

secure home free of domestic violence and substance use.

The Court finds that the safety risk to [Mark], as a child in

the home of the abused sibling, continues to be great based

on the lack of forthright explanation by the parents, as well

as the minimized domestic violence and substance abuse

issues.

The trial court’s previous Findings made clear it was referring to Father when

discussing the substance abuse issues and perpetration of the domestic violence, at

least as against Mother.

¶ 53 Mother argues the trial court erred in eliminating reunification because she

“completed her case plan,” received “glowing reports” from her parental capacity

expert and parenting instructor, and only failed “to explain Ken’s 2017 injuries to the

personal satisfaction of the Judge, which is an insufficient basis to eliminate

reunification” under In re J.M. We conclude the trial court did not abuse its discretion

in ceasing reunification efforts because it made a “reasoned decision” that Mother

had not completed her case plan and it properly considered Mother’s lack of

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explanation as to Ken’s 2017 injuries. See In re J.H., 373 N.C. at 268, 837 S.E.2d at

850 (explaining an abuse of discretion only occurs when trial court’s ruling “could not

have been the result of a reasoned decision”).

¶ 54 First, Mother’s summary of her case plan progress does not align with the trial

court’s unchallenged Findings of Fact. Specifically, while Mother emphasizes the

parental capacity expert’s evaluation and the parenting instructor’s feedback, the

trial court made numerous Findings explaining why it gave reduced weight to this

evidence.

¶ 55 As to the parental capacity evaluation, the trial court explained:

58. Both parents underwent a Parenting Capacity

Evaluation by April Harris Britt and Dr. Harris Britt

testified in this matter as to her findings on February 10,

2020.

59. The court thoroughly reviewed the Parenting Capacity

Evaluations. There were three referral questions as follows:

First, “ [parents] [have] some parenting capacity; however,

it is concerning that [they] [are] not willing to disclose what

happened to [Ken]. Can [they] parent effectively and meet

his [sic] child’s needs?” Second, “Is [parent] willing and able

to keep [his/her] children safe from harm” and third, “Is

[parent] able to provide and care for [his/her] children

without relying on significant others for support”.

60. The complete medical records from [the hospital] were

provided for [Mark] and [Ken] by DSS to Dr. Harris-Britt

but her report states that they “could not be reviewed as

the disc was password protected”. On the other hand, Dr.

Harris Britt did review medical records of Dr. Michael

Holick and Dr. Daniel Ostrovsky as to causation of [Ken]’s

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injuries. In fact, she did review Petitioner’s Exhibit #6

which is the letter that summarizes the care and condition

of [Ken]. This letter is clear that [Ken] was in poor health

when he was presented to Duke Hospital. He was

malnourished, had bleeding on the brain and had

numerous fractures of different ages, both old and newer.

Dr. April Harris-Britt reviewed the court orders in this

case. The Court has a continued concern about what

happened to [Ken] because the Court does not have any

explanations from either parent at the time of the

completion of the PCE. Although Dr. Harris-Britt did not

have the entire medical record for [Ken], she formed an

opinion that [Mother] can provide safety to her children. Dr.

Harris-Britt looked at the previous court orders and the

Court has been consistent in articulating its concern of what

caused [Ken]’s injuries. This Court is perplexed in how Dr.

Harris-Britt didn’t believe it was important as to what

happened to [Ken] to be factored in her formulating her

opinion that [M]other could parent [Ken] and [Mark] safely.

She didn’t think she needed to review the Duke medical

records in order to assess the parenting capacity of the

parents.

61. As for reviewing and considering the orders of this

court, Dr. Harris Britt considered the initial Disposition

order #11, 12 (Finding of Fact) 13 and 14 most of which

were not the salient causation findings regarding the abuse

and lack of explanation for the abuse. This court has been

consistently concerned with how [Ken] was injured and the

court orders reflect this concern. The first question in the

PCE reflects this concern as well. Dr. Harris Britt

concluded that [M]other and [F]ather would be safe

parents. This court is perplexed as to how the Duke

medical records were not relevant to that assessment.

(Emphasis added; all other alterations in original except changes to names of

children, removal of names to protect the children’s identity, and “[sic].”)

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¶ 56 Throughout its Findings on the parental capacity evaluation, the trial court

repeatedly emphasized the importance of receiving an explanation for Ken’s injuries.

The Findings indicate the trial court did not fully credit the evaluation because the

evaluation failed to address that important question and did not include a review of

records of Ken’s injuries. These concerns about the parental capacity evaluations

then link directly to the court’s ultimate Findings reunification efforts would be

unsuccessful and inconsistent with the children’s health, safety, and welfare. For

example, the trial court emphasized “there is still no explanation as to how [Ken] was

injured and how he came to be in the state of health” in December 2017. Thus, the

trial court determined the parenting capacity evaluation Mother received did not

address one of the questions the trial court noted as a reason for the referral and

therefore did not credit the evaluation.

¶ 57 In addition to its concerns about the parenting capacity evaluation, the trial

court questioned whether the parenting class adequately addressed the reasons the

children were removed from the home as required by the case plan. Specifically, the

trial court found the parenting class’s “safety information was limited to childproofing

the home and discussion of child health as in what to do if the child is sick or injured.”

(Emphasis added.)

¶ 58 The trial court’s questioning of the parental capacity evaluation and parenting

class is important because it undermines Mother’s argument she completed her case

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plan and thus the only reason for the cessation of reunification efforts was her failure

to explain the injuries. A trial court can consider failure to make adequate progress

on a case plan when determining whether to cease reunification efforts. See N.C.

Gen. Stat. § 7B-906.2(d)(1) (requiring a trial court to make Findings on whether the

parent is making “adequate progress within a reasonable period of time under the

plan” at permanency planning hearings); see also In re J.R., 279 N.C. App. 352, 2021-

NCCOA-491, ¶¶ 33, 37 (finding credible evidence the mother was “not making

adequate progress within a reasonable time under case plan” and then determining

that finding and others “support the trial court’s cessation of reunification efforts”).

As long as the trial court’s view of the evidence is reasonable, it is binding on appeal

even if that view is contrary to a party’s characterization of the evidence on appeal.

See In re L.R.L.B., 377 N.C. 311, 2021-NCSC-49, ¶ 26 (finding binding on appeal a

trial court’s “contrary evaluation” of whether a mother made adequate progress by

engaging with certain services because the trial court’s view was reasonable based on

the evidence). Thus, the trial court’s questions about the evaluation and parenting

class help demonstrate it made a reasoned decision, and thus did not abuse its

discretion, in ceasing reunification efforts.

¶ 59 Turning to the trial court’s emphasis on the lack of explanation for Ken’s

injuries directly, the trial court did not abuse its discretion in ceasing reunification

efforts on those grounds. As an initial matter, we note Mother relies on In re JM, 276

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N.C. App. 291, 2021-NCCOA-92, and our Supreme Court granted discretionary

review of that decision after the parties (and Amici) completed briefing in this appeal.

GAL, with support of DSS, filed a motion to “continue oral argument and hold [the]

case in abeyance” as a result of the Supreme Court’s action, but we denied that

motion. (Capitalization altered.) Further, we note Mother’s response in objection to

GAL’s motion argued “the logic and reason and precedent supporting the principles

involved in the issues before this Court remain valid and appropriate for arguments”

even though In re J.M. itself is “stayed by supersedeas pending the Supreme Court’s

decision.”

¶ 60 The trial court made numerous unchallenged Findings of Fact regarding the

failure of the parents, and specifically Mother, to explain Ken’s injuries “and

condition at the time he was presented for treatment,” which was key to its ultimate

Finding required to cease reunification efforts. Specifically, even after receiving

Father’s emailed statement from 13 May 2020 that he dropped Ken and Ken

“immediately started seizing,” the trial court remained “baffled” because

“[c]onsidering [Ken]’s numerous injuries . . . the [F]ather’s statement does not explain

[Ken]’s other conditions (his low temperature, low blood sugar, hypoglycemia and

other conditions).” The trial court made that Finding based in part on the unchanged

opinions of the doctors who originally evaluated Ken for child abuse: “The Social

Worker apprised Dr. Lyndsay Terrell and Dr. Karen St. Claire at [the hospital] about

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the [F]ather’s statement. The original opinions and diagnosis still stand as this new

information does not explain all of [Ken]’s symptoms and injuries.”

¶ 61 The trial court also explained how none of the parents’ previous explanations

fully explained Ken’s injuries either:

The Court has been given different versions of events from

the parents throughout the case to explain [Ken]’s injuries

and condition when he was presented to [the hospital] on

December 3, 2017 at the time of the filing of the petition.

At first, the parents said it was the fault of [hospital]

providers, as a malpractice allegation. Then, they alleged

it was the stepfather who caused the injuries. Now there is

the [F]ather’s statement as to a one-time fall occurring

while the [F]ather was under the influence. None of these

accounts explain [Ken]’s poor state of health at the time he

was presented on December 3, 2017, to include being

malnourished and having skull fractures, retinal

hemorrhages and other fractures of differing ages. It is

notable that [Ken] was examined at [the hospital] prior to

that date, on November 9, 2017, and was found to be at a

healthy baseline without injury, retinal hemorrhages,

malnutrition or fractures as demonstrated by the medical

records in evidence.”

Thus, the trial court had ample support for its ultimate Finding about the continued

lack of explanation of Ken’s injuries.

¶ 62 The trial court also made certain Findings specific to Mother and her lack of

explanation. While the trial court found Mother “believes that the [F]ather injured”

Ken, the trial court also noted certain inconsistencies with Mother’s view of the

events. For example, while Father’s email explained Mother was not home when

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Father dropped Ken on the floor and Ken immediately started seizing, the trial court

noted:

The [M]other also claims that the [F]ather was rarely left

in the home with the children and they were there together

with the children. The [M]other continues to report that

she noticed that when she was changing [Ken]’s diaper and

his upper body was twitching, and he was looking in one

spot and that is when she decided to take him to the

hospital. This is at the point where she noticed something

was not right with [Ken].

The trial court also repeatedly highlighted instances when Mother could have sought

to gain more information but did not. For example, the trial court found:

The [M]other gave testimony about her knowledge of the

[F]ather’s emails to the social worker. According [to] the

[M]other, she was informed by her cousin about the

[F]ather’s emails. The [M]other did not ask any further

questions and the court observed no curiosity from the

[M]other to find out what happened or more about the

[F]ather’s disclosure. The [M]other contacted her attorney.

(Emphasis added.)

¶ 63 These Findings explain why the trial court “remain[ed] gravely concerned that

neither parent is providing the full picture on [Ken]’s injuries.” (Emphasis added.)

They also clarify what the trial court believed Mother needed to do to satisfy its

concerns, namely better understand the cause of all of Ken’s injuries, not just the

ones potentially explained by Father’s email admission.

¶ 64 These Findings regarding the lack of explanation for the injuries are a valid

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ground on which to cease reunification efforts. In the similar context of termination

of parental rights adjudications, which Mother’s favored case of In re J.M. relies upon,

see In re J.M., ¶¶ 29–30 (citing to In re Y.Y.E.T., 205 N.C. App. 120, 695 S.E.2d 517

(2010), before contrasting the facts there to Y.Y.E.T.); Y.Y.E.T., 205 N.C. App. at 127–

28, 695 S.E.2d at 521–22 (discussing the trial court’s attempt to discover the cause of

the child’s non-accidental injuries under a heading on terminating parental rights),

our Courts have found a continued failure to explain children’s injuries adequate

grounds to find a likelihood of future neglect of the child by a parent. 5 E.g., In re

D.W.P. 373 N.C. 327, 339–40, 838 S.E.2d 396, 405–06 (2020) (discussing Mother’s

lack of explanation for her child David’s injuries before concluding “Respondent-

mother acknowledges her responsibility to keep David safe, but she refuses to make

a realistic attempt to understand how he was injured or to acknowledge how her

relationships affect her children’s wellbeing. These facts support the trial court’s

conclusion that the neglect is likely to reoccur if the children are returned to

respondent-mother’s care.”).

¶ 65 For example, in In re Y.Y.E.T., this Court found the parents “refusal to accept

responsibility for the child’s injury indicate[d] that the conditions which led to the

5 We also do not have precedent on cessation of reunification efforts in the context of

unexplained injuries that must have been caused by at least one of the two parents given In

re J.M. is subject to a stay.

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child’s initial removal from [their] home ha[d] not been corrected.” 205 N.C. App. at

129, 695 S.E.2d at 523. In that case, the trial court had been unable to “conclusively

determine who was the perpetrator of the injury” but knew the child’s injury “was not

accidental” and was indicative of child abuse such that “[a]s the child’s sole care

providers, it necessarily follow[ed] that [the parents] were jointly and individually

responsible for the child’s injury. Whether each [parent] directly caused the injury

by inflicting the abuse or indirectly caused the injury by failing to prevent it, each

[parent] is responsible.” Id., 205 N.C. App. at 128–29, 695 S.E.2d at 523–24. Based

on those facts and a finding the parents were protecting each other, this Court held

the trial court “properly determined that the repetition of abuse or neglect [was]

probable.” Id., 205 N.C. App. at 129, 695 S.E.2d at 523.

¶ 66 Here, similar to In re Y.Y.E.T., the trial court found Ken’s injuries were non-

accidental and indicative of child abuse. The trial court had already previously found

in the stipulated-to adjudication order that Mother and Father “were the sole care

providers of the children during the time of the injuries to” Ken. Further, even

accepting Father’s explanation that he dropped Ken one time, the trial court found

numerous other aspects of Ken’s condition when he was taken to the hospital

remained unexplained. Thus, the trial court could not “conclusively determine” who

caused all of Ken’s conditions but could still permissibly determine both parents were

responsible for Ken’s condition either directly or indirectly. In re Y.Y.E.T., 205 N.C.

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App. at 128–29, 695 S.E.2d at 522–23. While the trial court here did not specifically

find Mother was protecting Father, it had concerns about the plausibility of Mother’s

explanations of events and her lack of interest in trying to learn more information

about what happened to Ken. Therefore, we conclude the trial court properly

determined reunification efforts would be inconsistent with the children’s health or

safety based on Mother’s failure to fully explain Ken’s injuries and condition when

admitted to the hospital.

¶ 67 Mother’s progress on her case plan does not change our determination.

Parental compliance with a case plan alone is not always sufficient to preserve

parental rights. See In re L.G.G., 379 N.C. 258, 2021-NCSC-139, ¶ 34 (explaining

parental compliance with a case plan “does not preclude a finding of neglect”

(citations and quotations omitted)). In the similar best interest context for

termination of parental rights, this Court explained, “[P]arents must demonstrate

acknowledgment and understanding of why the juvenile entered DSS custody as well

as changed behaviors.” In re Y.Y.E.T., 205 N.C. App. at 131, 695 S.E.2d at 524. For

example, in In re L.G.G., the parents “completed substantially all of their case plan

but, despite their participation, they have shown that they have not gleaned sufficient

insight into why their . . . children came into DSS custody.” In re L.G.G., ¶ 34. Here,

we have addressed how the trial court did not believe the parenting capacity

evaluation or the parenting class Mother took part in adequately addressed the

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reasons for her children being in DSS custody because they failed to explain or teach

Mother to prevent the injuries and conditions Ken had when presented at the

hospital. Thus, even with Mother’s progress on her case plan, the trial court’s reasons

for its decision still withstand our scrutiny.

¶ 68 Mother first argues In re J.M. supports her positions, but even assuming

arguendo the case was not subject to a pending appeal to our Supreme Court, we are

not persuaded. First, In re J.M. is distinguishable from this case for several reasons.

The facts regarding the specific injuries to the child in In re J.M. are similar in that

the child, Nellie, was about four months old when her parents took her to the hospital

after she “became completely silent and limp.” In re J.M., ¶ 2. At the hospital, a

“CAT scan showed an acute subdural hematoma” and additional testing revealed

“severe multilayer retinal hemorrhages to both eyes and rib fractures that appeared

to be several days old.” Id., ¶¶ 2–3. Nellie’s doctor determined her injuries “were

highly specific for child abuse.” Id., ¶ 3.

¶ 69 But aside from the types of tragic injuries involved, In re J.M. then proceeds

quite differently from this case both procedurally and factually. For example, neither

parent was charged with any criminal offense arising from Nellie’s injuries, nor did

either parent plead guilty to any crime. As relevant to the evidence regarding how

the injuries may have occurred and the trial court’s evaluation of that evidence, this

Court noted in In re J.M. that DSS had not conducted a proper investigation of the

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injuries, leaving open a question as to whether either parent actually caused the

injuries. Id., ¶ 51. Specifically, two older step-siblings, ages 10 and 14, lived in the

home with Nellie and her parents, but

DSS did not interview Respondent-Mother’s older two

children in the home during their investigation of Nellie’s

injuries.

DSS offers no reason why it failed to interview Respondent-

Mother’s older children. The trial court found, in the

adjudication order, Jon and Nellie were under

Respondents’ exclusive custody and care based on the

statements made by the Respondents to social workers and

police regarding their care of Nellie. It is unreasonable to

presume, however, that parents have eyes on their children

at all times. Parents and children must sleep at some point,

and presumably, parents must tend to other children or to

household needs, allowing for children to be left without

eyes-on supervision for some periods of time, no matter

how short.

Pursuant to N.C. Gen. Stat. § 7B-300, DSS is required “to

establish protective services for juveniles alleged to be

abused, neglected, or dependent. [The p]rotective services

shall include the screening of reports, the performance of

an assessment using either a family assessment response

or an investigative assessment response . . . .” N.C. Gen.

Stat. § 7B-300 (2019). This Court in its discretion takes

judicial notice that the policies and protocols that guide

and govern family assessments and investigative

assessments, “CPS Family and Investigative Assessments,

Policy, Protocol, and Guidance,” (“DSS’s Assessment

Manual”), are found in North Carolina’s Child Welfare

Manual published by the North Carolina Department of

Health and Human Services. See N.C. Gen. Stat. § 8C-1,

Rule 201 (2019).

The “purpose of the [Child Protective Services] Assessment

is to . . . determine if . . . [t]he child is safe within the home

and, if not, what interventions can be implemented that

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will ensure the child’s protection and maintain the family

unit intact if reasonably possible.” N.C. Dep’t of Health &

Hum. Servs., CPS Family and Investigative Assessments

Policy, Protocol, and Guidance, 1 (July 2019),

https://policies.ncdhhs.gov/divisional/social-services/child-

welfare/policymanuals/modified-manual-

1/assessments.pdf.

DSS can approach an instance of alleged neglect, abuse,

and dependency through a “Family Assessment,” or

“Investigative Assessment. [Footnote]” Both methods

require face-to-face interviews with all children residing in

the home. N.C. Dep’t of Health & Hum. Servs., CPS Family

and Investigative Assessments Policy, Protocol, and

Guidance, 64, 69 (July 2019),

https://policies.ncdhhs.gov/divisional/social-services/child-

welfare/policy-manuals/modified-manual-

1/assessments.pdf. (emphasis added).

Id., ¶¶ 46–51 (alterations in original except for footnote removal).

¶ 70 Aside from these factual differences, In re J.M. turned on two key facts: (1) the

mother there “engaged in all services required of her in order to correct the conditions

that led to the removal of the children and that she had objectively learned from and

benefitted from the services”; and (2) the mother acknowledged the child’s injuries

were “nonaccidental” but could not explain the cause of the injuries because she was

not present for them. Id., ¶¶ 30–31. As to the first fact, the trial court here found, in

a series of unchallenged Findings of Fact, Mother’s parental capacity evaluation and

parenting class did not correct the conditions of removal because they failed to fully

address the still unexplained nature of all of Ken’s injuries. As to the second fact,

while Mother acknowledged Father’s email and believed it, the trial court still had

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concerns about the plausibility of Mother’s explanations of events and her lack of

interest in trying to learn more information about what happened to Ken. Given

these factual differences from the situation in In re JM, the trial court made a

reasoned decision in ceasing reunification efforts and thus did not abuse its discretion

even when considering that case.

¶ 71 Mother also argues, in her reply brief, the cases on which we rely are

distinguishable, albeit in the context of her argument about termination of parental

rights adjudication on abuse or neglect grounds. We reject each of her attempts to

distinguish the cases. First, Mother argues In re L.G.G. is distinguishable because

there neither parent would acknowledge the source of the children’s “significant

sexualized behaviors.” Here, the trial court found Mother failed to acknowledge the

“full picture” of the extensive injuries and ailments Ken presented when admitted to

the hospital could not be explained by Father’s admission he dropped Ken once.

While the factual scenarios were different, the lack of acknowledgement of all the

reasons for DSS involvements were similar. Second, Mother argues In re Y.Y.E.T. is

distinguishable because here there was “a valid and positive” parental capacity

evaluation. As we have laid out above, the trial court made unchallenged Findings

of Fact recounting its misgivings about the evaluation here, particularly that the

evaluation failed to fully address the still-unexplained nature of all of Ken’s injuries.

¶ 72 After our review, we conclude the trial court did not abuse its discretion in

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ceasing reunification efforts. The trial court made the required Findings of Fact, and

it made a reasoned decision in ceasing reunification efforts based on its Findings on

Mother’s case plan progress and the still unexplained nature of some of Ken’s injuries

and ailments.

IV. Termination of Mother’s Parental Rights- Adjudication Issues

¶ 73 Beyond her argument about ceasing reunification at the disposition stage of

the abuse, neglect, and dependency proceeding, Mother also argues the trial court

erred “in terminating [her] parental rights [as] to each of her two children.” As to the

adjudication stage of the termination of parental rights proceeding, Mother makes

three arguments: (1) Findings of Fact 82–83 and 85–88 are “not supported by the

evidence” and present other issues; (2) “[t]he trial court erred in terminating

Mother’s parental rights to each of her two children based on abuse or neglect”; and

(3) “[t]he trial court erred in terminating Mother’s parental rights on the ground she

willfully failed to make reasonable progress.” After addressing the standard of review

at the termination of parental rights adjudication stage, we address each argument

in turn.

A. Standard of Review

¶ 74 Our Supreme Court has recently described the standard of review for the

adjudication stage of termination of parental rights proceedings as follows:

“We review a district court’s adjudication under N.C.G.S. §

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7B-1111(a) to determine whether the findings are

supported by clear, cogent and convincing evidence and the

findings support the conclusions of law.” In re J.S., 374

N.C. 811, 814[, 845 S.E.2d 66] (2020) (cleaned up) (quoting

In re N.P., 374 N.C. 61, 62–63[, 839 S.E.2d 801] (2020)).

“Findings of fact not challenged by respondent are deemed

supported by competent evidence and are binding on

appeal.” In re B.R.L., 379 N.C. 15, 2021-NCSC-119, ¶ 11,

(quoting In re T.N.H., 372 N.C. 403, 407[, 831 S.E.2d 54]

(2019)). “A trial court’s finding of fact that is supported by

clear, cogent, and convincing evidence is deemed conclusive

even if the record contains evidence that would support a

contrary finding.” In re A.L., 378 N.C. 396, 2021-NCSC-92,

¶ 16 (quoting In re B.O.A., 372 N.C. 372, 379[, 831 S.E.2d

305] (2019)). “ ‘[T]he issue of whether a trial court’s

adjudicatory findings of fact support its conclusion of law

that grounds existed to terminate parental rights pursuant

to N.C.G.S. § 7B-1111(a)’ is reviewed de novo by the

appellate court.” In re M.R.F., 378 N.C. 638, 2021-NCSC-

111, ¶ 7 (alteration in original) (quoting In re T.M.L., 377

N.C. 369, 2021-NCSC-55, ¶ 15). “Under a de novo review,

the court considers the matter anew and freely substitutes

its own judgment for that of the trial court.” In re T.M.L.,

377 N.C. 369, 2021-NCSC-55, ¶ 15 (cleaned up) (quoting In

re C.V.D.C., 374 N.C. 525, 530 (2020)).

In re M.K., 2022-NCSC-71, ¶ 12.

B. Challenged Findings of Fact

¶ 75 Mother first argues Findings of Fact 82–83 and 85–88 are “not supported by

the evidence” and present other issues. We review each Finding in turn and

determine whether they are supported by clear, cogent, and convincing evidence. In

re M.K., ¶ 12.

¶ 76 Mother argues Finding of Fact 82 “is a conclusion of law and not supported by

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the evidence as to” her. Finding 82 recounts:

At the time of this termination hearing, the Petitioner

demonstrated by and through the evidence presented that

the conditions rising to the level of neglect existed during

the pendency of the termination action. There is no change

in the safety risk to the children. There continues to be no

explanation for [Ken]’s injury and medical condition as it

existed on December 3, 2017. This continues to present a

significant safety risk for [Mark] and [Ken] should they be

returned to the care of either parent. Returning these

children to their parents is a risk that this court cannot

afford to take. There is a likelihood of repetition of neglect

and abuse if the juveniles were returned to the home of the

Respondents based upon the findings of fact herein.

¶ 77 Mother attempts to argue both this is a Conclusion of Law and is not supported

by the evidence, which is the standard of review we apply to Findings of Fact. In re

M.K., ¶ 12. But we “are obliged to apply the appropriate standard of review to a

finding of fact or conclusion of law, regardless of the label which it is given by the

trial court,” In re J.S., 374 N.C. at 818, 845 S.E.2d at 73, so we must determine

whether this is a Finding or Conclusion. While in the past this Court and our

Supreme Court have “characterized . . . grounds for termination as both an ‘ultimate

finding’ and a ‘conclusion’ of law,” we treat discussions of the grounds for termination

as conclusions of law. See In re D.A.A.R., 377 N.C. 258, 2021-NCSC-45, ¶ 38 (applying

conclusion of law standard of review to a ground for termination). The evidence of

neglect and the likelihood of repetition of neglect and abuse relate directly to the

ground for termination in North Carolina General Statute § 7B-1111(a)(1). See N.C.

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Gen. Stat. § 7B-1111(a)(1) (2019) (permitting termination of parental rights on the

ground the parent “has abused or neglected the juvenile”); In re L.G.G., ¶ 20

(“Termination of parental rights based upon this statutory ground requires a showing

of neglect at the time of the termination hearing or, if 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.” (quoting In re R.L.D., 375 N.C. 838, 841, 851 S.E.2d 17

(2020)). Therefore, we treat Finding 82 as a Conclusion of Law. See In re D.A.A.R.,

¶ 38 (treating grounds for termination as conclusions of law for purposes of review).

Since Mother already separately argues “[t]he trial court erred in terminating [her]

parental rights to each of her two children based on abuse or neglect,” we will review

Finding 82 below when we discuss that argument.

¶ 78 Although Mother does not include similar statements about the remaining

Findings of Facts she challenges being Conclusions of Law, Findings 83, 85, and 86

are also Conclusions of Law. Finding 83 focuses on the “probability neglect will be

repeated” and Findings 85 and 86 concern Mother and Father “willfully” leaving Ken

and Mark in placement outside the home and “willfully fail[ing] or refus[ing]” to

“complete court ordered services and services on the case plan” such that they did not

make “reasonable progress under the circumstances to correct the conditions that led

to the juveniles’ removal.” Finding 83 thus addresses the same legal question as

Finding 82, which was in reality a Conclusion of Law on the ground for adjudication

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in § 7B-1111(a)(1). Similarly, Findings 85 and 86 use language that mirrors the

ground for termination in § 7B-1111(a)(2): “The 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. Gen. Stat. § 7B-1111(a)(2). Therefore, they are Conclusions of

Law as well under In re D.A.A.R., ¶ 38. As with Finding 82, we address these

Findings below when discussing Mother’s challenges to the trial court’s adjudication

on the grounds of abuse or neglect and of willful failure to make reasonable progress.

¶ 79 Finding of Fact 87 states:

The court has pleaded and begged for information as to

what happened to [Ken]. It remains unexplained. The

[M]other has participated in services that do not address

the reason the children came into care. Presented with the

risk of substantial death, with these two children, the

parents were supposed to protect them, and they did not

protect these children. At this time, the environment the

children lived in on or about November 7, 2017 through

December 3, 2017 still exists. After the children have been

in the care of the agency for the last three (3) years, neither

the [F]ather nor the [M]other have explained the injuries.

Mother’s only argument about the Finding is that it “reveal[s] the court’s improper

shifting of the burden of proof to Mother. Mother could not explain what she did not

know,” always appeared in court, and “answered every question about Ken’s injuries.”

Mother thus only challenges the last sentence of the Finding about neither Father

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nor Mother explaining the injuries.

¶ 80 Mother does not point to any place where she explained the injuries, nor could

she as she acknowledges, so the trial court had competent evidence to make this

Finding. The trial court also made other Findings recounting how it did not have an

explanation of all of Ken’s injures. For example, it incorporated its Findings of Fact

from the October 2020 Order ceasing reunification efforts that we recounted above.

The trial court also explicitly found Mother gave sworn testimony that she could not

explain the injuries but believed Father caused them:

At the termination hearing, the Mother . . . gave sworn

testimony and was asked specifically if she had any

explanation for each of [Ken]’s conditions as he was

presented to the hospital on December 3, 2017. Mother

testified that she had no explanation for any of the injuries

except that she believed the Father was the cause and she

believed his explanation in his email on May 13, 2020.

¶ 81 But we appreciate Mother’s argument is not that Finding 87 is unsupported by

the evidence, as a traditional challenge to a finding of fact would be, but rather she

challenges how the trial court used her lack of explanation of Ken’s injuries.

Essentially, she argues she was required to prove a negative, and “[t]he law generally

does not require a party to prove a negative . . . .” Ochsner v. N.C. Department of

Revenue, 268 N.C. App. 391, 410, 835 S.E.2d 491, 504 (2019). And in cases involving

this type of non-accidental injuries to a baby, there is often no direct evidence of what

happened. The baby cannot tell what happened, and there was no witness to the

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events causing the injuries. Trial courts must often make these very difficult and

momentous decisions based upon circumstantial evidence and evaluation of

credibility and weight of the evidence available.

¶ 82 While Mother is correct DSS has the burden of proof in the adjudication

proceeding, see, e.g., In re A.E., ¶ 13 (noting petitioner bears burden of proof at

adjudication stage of termination of parental rights proceeding); N.C. Gen. Stat. § 7B-

1111(b) (“The burden in these proceedings is on the petitioner or movant to prove the

facts justifying termination by clear and convincing evidence.”), the trial court here

did not shift that ultimate burden to Mother. Rather, the trial court addressed

Mother’s lack of explanation here because it was relevant to its consideration of two

grounds for terminating parental rights DSS alleged, namely Mother’s abuse or

neglect of the children and her willful failure to make “reasonable progress . . . in

correcting those conditions which led to the removal of the juvenile.” N.C. Gen. Stat.

§ 7B-1111(a)(1)–(2). As we discuss more below when we address the abuse or neglect

termination ground, the lack of explanation relates to neglect or abuse because it

speaks to the likelihood of future neglect or abuse. See In re D.W.P., 373 N.C. at 339–

40, 838 S.E.2d at 405–06 (explaining a failure to understand how child was injured

helped support “the trial court’s conclusion that the neglect is likely to reoccur”). The

lack of explanation also touches Mother’s reasonable progress, or lack thereof,

because the trial court repeated its explanations, as recounted above, of how her

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parental capacity evaluation did not address its referral questions and added the

evaluation “failed to fully, objectively and adequately address the conditions that led

to the removal of the children from the home.” Thus, the trial court’s focus on

Mother’s lack of explanation did not shift the burden to her but rather helped it

evaluate whether DSS had met its burden as to the grounds for adjudication.

¶ 83 Mother’s final challenge to a Finding of Fact is to Finding 88, which states:

That on or about July 7, 2020 the court entered an order

eliminating reunification as a permanent plan and ceasing

further reunification efforts with the Respondent Parents.

The court finds the following facts would continue to

support a finding that further reunification efforts would

clearly be unsuccessful or inconsistent with the juvenile’s

health or safety:

a. Mother . . . continues to have no explanation for

[Ken]’s injuries which is a risk to their health and

safety.

b. The parents have not participated in any other

services since the July 7, 2020 hearing which

directly address the reasons the children were

removed, their safety or her accountability for

[Ken]’s condition as he was presented on December

3, 2017.

c. There has been no substantial change in

circumstances since the entry of the July 7, 2020

permanency planning order and the court re-adopts

the findings of fact from that order and finds that

they were providently entered with regard to the

issue of elimination of reunification.

d. Respondent Father was convicted of a felony

assault that resulted in a serious bodily injury of

[Ken] and as a condition of his conviction, he is

prevented from having contact with his children.

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Within this long Finding, Mother specifically argues she “accepted and believed

Father was responsible for Ken’s injuries.” She also contests the court’s

determination of no substantial change in circumstances since entry of the 7 July

2020 permanency planning order. We address each contention in turn.

¶ 84 As to her first contention, Mother is correct she testified she believed Father’s

explanation that he dropped Ken. The trial court found as much in unchallenged

Finding 46. But the trial court also made other Findings indicating Mother’s belief

of Father’s explanation was not sufficient. First, the trial court made an

unchallenged Finding Father’s email “ha[d] no weight and there [was] no credibility

to it.” Second, the trial court made unchallenged Findings that Father’s explanation

could not explain the full extent of the injuries. In fact, Mother’s own medical expert

even rejected the idea Father accidentally dropping Ken once could explain any

condition beyond the skull fractures. The trial court’s Finding 88(a)—its last

adjudicatory Finding—took into account all of these previous, unchallenged and

therefore binding, Findings of Fact. Thus, when the trial court found Mother

continues to have no explanation, it in essence found Mother had no reasonable or

even medically defensible explanation for Ken’s injuries, and Mother could not

credibly believe Father’s explanation since his email did not account for the full

extent of the injuries. That sort of credibility determination is within the trial court’s

purview, and we cannot disturb it on appeal. See In re A.R.A., 373 N.C. 190, 196, 835

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S.E.2d 417, 422 (2019) (explaining “it is well-established that a district court has the

responsibility to pass upon the credibility of the witnesses and the weight to be given

their testimony and the reasonable inferences to be drawn therefrom” (quotations,

citations, and alterations omitted)).

¶ 85 Mother’s belief in Father’s emailed explanation also contradicts her own

explanation of events. Specifically, Father’s email said he dropped Ken at a time

when Mother was not home. But, as the trial court found in an unchallenged Finding

of Fact, Mother repeatedly testified from the initial disposition hearing to the

termination hearing that she was “in the home caring for” Ken and Mark

“continuously” from when Ken initially came home from the hospital to when he was

admitted in December 2017 with the serious injuries and conditions at issue here.

(Emphasis added.) Mother could not have been both at home continuously as she

testified and also not home when Father dropped Ken as Father’s email she believed

explained. This discrepancy again further reinforces the trial court’s determination

Mother’s understanding of the harm that came to Ken was not reasonable.

¶ 86 Mother also argues “[t]he findings in the July 7 permanency planning order

show changed circumstances in favor of Mother” and otherwise contests Finding 88’s

statement there has not been a substantial change in circumstances since that order

such that the trial court “providently” ceased reunification efforts. To a large extent

we have already rejected this argument above when we addressed why the trial court

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did not believe, in the October 2020 Order ceasing reunification, that circumstances

changed in favor of Mother to the extent she now argues. To the extent it was unclear

before, the trial court also made further unchallenged Findings on why it discounted

the parental capacity evaluation and Mother’s parenting classes. The trial court

found:

37. As to the parenting capacity evaluation, there is no

change of circumstances presented at the termination

hearing and no new evidence presented as to any updated

opinion of Dr. Harris Britt. Because Dr. April Harris-Britt

did not take into consideration the Duke medical records

(8,000 pages of medical records on disc – Petitioner’s Ex. 3)

or this court's prior adjudicatory findings pertaining to

[Ken]’s injuries set forth in the June 25, 2018 Adjudication

Order, her original evaluation failed to fully, objectively

and adequately address the conditions that led to the

removal of the children from the home.

....

40. At the time of the termination hearing, neither the

Mother . . . or the Father . . . had engaged in any parenting

class which fully and completely addressed the medical and

safety reasons that the child [Ken] came into care, especially

the facts that were of the most concern to this court to

include [Ken]’s low blood sugar/hypoglycemia, low body

temperature and cachectic (wasted away) appearance at the

time of his admission in addition to [Ken]’s other brain

injuries, fractures and retinal hemorrhages. The court’s

concern for the physical safety of [Ken], and [Mark] as a

sibling in the home, was not alleviated by the testimony or

the letter submitted by Ms. Lea Ray [the parenting class

witness] because this was not covered in her courses and

there was not any other evidence of any other services

which addressed this concern.

(Emphasis added.) While Mother correctly states the court did not require any other

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services since July 2020, Mother also failed to address the trial court’s concerns about

the services she had undertaken and their inadequacy.

¶ 87 Mother’s other two changed circumstances also do not convince us the trial

court’s Finding of no substantial changed circumstances was unsupported by the

evidence. First, Mother indicates she “pursued restoration of her visitation.” While

true, she did that before the trial court entered its October 2020 Order ceasing

reunification efforts, so no change happened between the October 2020 Order and the

termination of parental rights, especially considering the October 2020 Order ordered

visitation remain suspended. Second, while Mother correctly points out the criminal

charges against her were dismissed, the trial court could still reasonably decide how

much weight to give that and determine if it was a substantial change in

circumstances within the leeway provided by the abuse of discretion standard of

review for cessation of reunification efforts that Finding 88 addresses. See In re J.H.,

373 N.C. at 267–68, 837 S.E.2d at 850 (explaining a dispositional order of an abuse,

neglect, and dependency proceeding is reviewed for abuse of discretion and an abuse

of discretion only occurs when the trial court has failed to make a reasoned decision).

As such, we reject Mother’s challenges to Finding 88.

¶ 88 We have now addressed all of Mother’s challenges to Findings of Fact. We

determine Findings 82–83 and 85–86 were in reality Conclusions of Law on the

grounds for termination of parental rights, so we discuss those challenges below with

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our review of those grounds. We also find clear, cogent, and convincing evidence

supports Findings 87 and 88, so we reject Mother’s challenges to those Findings.

C. Termination on Abuse or Neglect Ground

¶ 89 Turning to the legal grounds for termination, Mother argues “[t]he trial court

erred in terminating [her] parental rights to each of her two children based on abuse

or neglect.” Specifically, Mother contends “[t]he evidence and findings were

insufficient to show a reasonable likelihood Mother would neglect or abuse Ken if he

was returned to her custody” because she “fully complied with and completed her case

plan” and because the trial court failed to “address any clear and convincing evidence

of changed circumstances of a substantial risk of abuse or neglect by Mother at the

time of the termination hearing.” As to Mark, Mother specifically asserts the neglect

adjudication “is based on the circumstances relating to Ken’s abuse or neglect in

2017” and “[t]here are no supported findings establishing the presence of other factors

with a nexus to Mark or to the likelihood he would be neglected by Mother if his

custody was returned to her.” We provide a general overview of the relevant law and

then address the adjudication of each child.

¶ 90 Relevant to these arguments by Mother, the trial court determined grounds

exist to terminate Mother’s parental rights under North Carolina General Statute §

7B-1111(a)(1). Under § 7B-1111(a)(1):

The court may terminate the parental rights upon a finding

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of one or more of the following:

(1) The parent has abused or neglected the juvenile.

The juvenile shall be deemed to be abused or

neglected if the court finds the juvenile to be an

abused juvenile within the meaning of G.S. 7B-101

or a neglected juvenile within the meaning of G.S.

7B-101.

N.C. Gen. Stat. § 7B-1111(a)(1). The trial court specifically determined both parents

“have abused [Ken] and neglected both the juveniles.”

¶ 91 Under North Carolina General Statute § 7B-101, the definitions of abused

juvenile and neglected juvenile in effect at the time the trial court terminated

parental rights were, in relevant part:

(1) Abused juveniles.--Any juvenile less than 18 years of

age (i) who is found to be a minor victim of human

trafficking under G.S. 14-43.15 or (ii) whose parent,

guardian, custodian, or caretaker:

a. Inflicts or allows to be inflicted upon the juvenile a

serious physical injury by other than accidental means;

b. Creates or allows to be created a substantial risk of

serious physical injury to the juvenile by other than

accidental means;

....

(15) Neglected juvenile.--Any juvenile less than 18 years of

age . . . (ii) whose parent, guardian, custodian, or caretaker

does not provide proper care, supervision, or discipline; or

. . . who lives in an environment injurious to the juvenile’s

welfare . . . . In determining whether a juvenile is a

neglected juvenile, it is relevant whether that juvenile lives

in a home where another juvenile has died as a result of

suspected abuse or neglect or lives in a home where

another juvenile has been subjected to abuse or neglect by

an adult who regularly lives in the home.

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N.C. Gen. Stat. § 7B-101(1), (15) (eff. 1 Dec. 2019 to 30 Sept. 2021).6

¶ 92 As our Supreme Court has recently explained,

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 D.L.W., 368 N.C.

835, 843, 788 S.E.2d 162, 167 (2016) (citing In re Ballard,

311 N.C. 708, 713–15, 319 S.E.2d 227, 231–32 (1984)).

However, “if the child has been separated from the parent

for a long period of time, there must be a showing of past

neglect and a likelihood of future neglect by the parent.” Id.

at 843, 788 S.E.2d at 167.

In re J.J.H., 376 N.C. 161, 167, 851 S.E.2d 336, 341–42 (2020) (block quoting In re

J.O.D., 374 N.C. 797, 801–02, 844 S.E.2d 570, 575 (2020)). The trial court is required

“to evaluate the likelihood of future neglect on the basis of an analysis of any ‘evidence

of changed circumstances occurring between the period of past neglect and the time

of the termination hearing.’” In re N.B., 377 N.C. 349, 2021-NCSC-53, ¶ 12 (quoting

In re Z.V.A., 373 N.C. 207, 212, 835 S.E.2d 425, 430 (2019)). “Thus, when a child has

6 The definition of neglect changed shortly after the trial court entered its order terminating

parental rights. See In re M.K., ¶ 32 n.4 (summarizing changes). The trial court here found

Mother and Father neglected Mark and Ken “by creating an environment which was

injurious to the juveniles’ welfare and by failing to provide proper care and supervision of the

juveniles” which tracks with the new statutory language:

“(15) Neglected juvenile.--Any juvenile less than 18 years of age . . . (ii) whose parent,

guardian, custodian, or caretaker does any of the following: a. Does not provide proper care,

supervision, or discipline. . . . . e. Creates or allows to be created a living environment that is

injurious to the juvenile’s welfare.” N.C. Gen. Stat. § 7B-101(15) (eff. 1 Dec. 2021); see also

N.C. Gen. Stat. § 7B-101(15) (eff. 1 Oct. 2021 to 30 Nov. 2021) (including same relevant

language with different subsection numbering).

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been separated from their parent for a long period of time, the petitioner must prove

(1) prior neglect of the child by the parent and (2) a likelihood of future neglect of the

child by the parent,” In re D.W.P., 373 N.C. at 339, 838 S.E.2d at 405, based on an

analysis of any evidence of changed circumstances between the time of neglect and

the termination hearing.

¶ 93 Here, Mother’s arguments only focus on the likelihood of future neglect as to

both Ken and Mark. We also note the trial court made an unchallenged Finding of

Fact that Mother had previously consented to all the facts that led to an adjudication

in an abuse, neglect, and dependency proceeding of Ken as abused and both Ken and

Mark as neglected. See In re J.J.H., 376 N.C. at 167, 851 S.E.2d at 341–42 (noting

trial court finding children had previously been adjudicated neglected immediately

after setting out the two required steps when children have been separated from their

parents for a time before the termination proceeding). Thus, we examine only the

likelihood of future neglect.

¶ 94 The trial court’s Conclusion of Law for § 7B-1111(a)(1) states:

That grounds exist to terminate the parental rights of the

Respondents [Mother] and [Father] as to the juveniles

[Mark] and [Ken] pursuant to N.C. Gen. Stat. § 7B-

1111(a)(l) in that both the Respondents have abused [Ken]

and neglected both the juveniles by creating an

environment which was injurious to the juveniles’ welfare

and by failing to provide proper care and supervision of the

juveniles. There is a reasonable probability that such abuse

and neglect would be continued and would be repeated if

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the juveniles were to be returned to the care, custody, or

control of the Respondents [Mother] and [Father], jointly

and severally.

¶ 95 As explained above, some of the trial court’s ultimate Findings of Fact, which

we treat as Conclusions of Law, explain its reasoning for this Conclusion in more

detail. See In re K.L.T., 374 N.C. 826, 845, 845 S.E.2d 28, 42 (2020) (treating ultimate

findings made in support of conclusion of law under § 7B-1111(a)(1) as conclusions of

law that need to be supported by findings of fact). Specifically, Findings 82 and 83

explain why the trial court determined “[t]here is a reasonable probability that such

abuse and neglect would be continued and would be repeated if the juveniles were to

be returned to the care, custody, or control” of Mother and Father. Findings 82 and

83 provide:

82. At the time of this termination hearing, the Petitioner

demonstrated by and through the evidence presented that

the conditions rising to the level of neglect existed during

the pendency of the termination action. There is no change

in the safety risk to the children. There continues to be no

explanation for [Ken]’s injury and medical condition as it

existed on December 3, 2017. This continues to present a

significant safety risk for [Mark] and [Ken] should they be

returned to the care of either parent. Returning these

children to their parents is a risk that this court cannot

afford to take. There is a likelihood of repetition of neglect

and abuse if the juveniles were returned to the home of the

Respondents based upon the findings of fact herein.

83. Respondent Mother[‘s] . . . and Respondent Father[‘s] .

. . failure to adequately and timely address the issues that

led to the removal of the juveniles from the home

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constitutes neglect. That failure to adequately and timely

address the neglectful behaviors, renders the Respondents

incapable of providing adequate care and supervision of the

juveniles. The probability that the neglect will be repeated

and said incapability will continue in the future is high

given the failure of the Respondents to address and

alleviate the issues.

¶ 96 The trial court’s unchallenged, and therefore binding, Findings of Fact support

the challenged ultimate Findings 82 and 83. As to Finding 82, the trial court

repeatedly emphasized the lack of complete explanation for Ken’s injuries and

condition when he was admitted to the hospital as well as the trial court’s concern

about such lack of explanation. First, the trial court specifically incorporated

Findings of Fact 33–39 and 53–57 from its October 2020 Order ceasing reunification

efforts, and those Findings, as we have already explained, recount how the trial court

was concerned the parents had not been able to explain all of Ken’s conditions when

admitted because the Father’s admission he dropped Ken only explained some of the

injuries.

¶ 97 The trial court then expanded upon its previous Findings and noted additional

testimony received at the termination hearing. As to Father’s emailed explanation,

the trial court specifically found Father was being “untruthful” and “his email ha[d]

no weight and there [was] no credibility to it.” The trial court also noted how both

medical experts who testified, including Mother’s expert, determined most or all of

Ken’s injuries were non-accidental and Father’s email explanation of accidentally

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dropping Ken did not change their opinions because it could only explain one of the

head injuries, not the full spectrum of injuries and conditions Ken presented with

when admitted to the hospital. The trial court again noted Mother believed Father’s

email about dropping Ken and came to believe Father intentionally hurt Ken, but the

trial court explained Father’s explanation for how he hurt Ken, i.e. a single drop,

whether intentional or not could not explain all Ken’s brain and head injuries based

on testimony from Mother’s own expert. Further, as we explained above, Mother’s

own testimony she was constantly present with the children contradicted Father’s

email in which he said Mother was not home. Combined with the trial court’s

rejection of Mother and Father’s prior explanations from its October 2020 Order, the

trial court made clear in these unchallenged Findings of Fact why it did not credit

any of the explanations proffered for Ken’s injuries. As a result, the trial court had

still received no explanation for Ken’s injuries, thereby supporting that part of

Finding 82.

¶ 98 As to the other part of Finding 82, the trial court’s Findings linked the injuries

and conditions to a period of time when Mother and Father were the sole caretakers.

Specifically as to Mother, the trial court noted she cared for Ken and Mark

“continuously from the time [Ken] came home from the hospital on November 7, 2017

through December 3, 2017,” when Ken was admitted to the hospital again. The trial

court also explained how the injuries most likely occurred during a period of time

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between 30 November and 3 December because Ken had an doctor’s appointment on

30 November where he did not have any of the injuries. As such, at least one of the

parents must have been the cause of the injuries and conditions, leading to the safety

risk of returning the children to the parents discussed in Finding 82. The trial court’s

Findings on the continued lack of explanation of the injuries support its

determination the safety risk has not changed since that time when Ken’s injuries

and conditions were caused.

¶ 99 Mother makes several arguments against Finding 82. First, she argues the

trial court had no evidence of neglect toward Mark specifically, which we address

below when discussing whether the trial court’s overall Conclusion of Law was

properly supported. Mother next contends “[t]here was a positive change in the safety

risk based on the parenting evaluations and the completion of her case plan.” We

address this argument below too because Finding 83—and Mother’s challenge to it—

concerns Mother’s compliance with her case plan, or lack thereof, as evidence of

neglect.

¶ 100 Mother’s only other argument against Finding 82 specifically is that Ken’s

premature birth and “Father’s admitted guilt” explain Ken’s condition. The other

unchallenged Findings of Fact reject Mother’s proffered explanations. As we already

explained, medical experts, including Mother’s own expert, testified Father dropping

Ken, as he admitted to, could not explain the full spectrum of Ken’s injuries and

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conditions. The trial court also made unchallenged Findings that implicitly ruled out

premature birth as a cause. For example, the trial court found providers ruled out

“other possible medical explanations” for Ken’s conditions, and experts from both

sides explained Ken’s injuries were caused by “non-accidental trauma.”

¶ 101 Amicus North Carolina Coalition Against Domestic Violence (“the Coalition”)

also argues the trial court was wrong in Finding 82 to “rel[y] heavily on a finding that

[Mother] has no clear explanation for [Ken]’s injuries leading to the removal of the

children.” Specifically, the Coalition contends Finding 82 “conflate[s] an explanation

of the events leading to [Ken]’s injuries with a reduction in safety risk for the

children” and “relies heavily on an inference that [Mother] either participated in or

condoned any abuse leading to [Ken]’s injuries.” This argument is part of the

Coalition’s broader argument “the trial court’s errors may retraumatize domestic

violence survivor-parents and children in the child welfare system,” which comes

after its more general point “effective responses to domestic violence in the child

welfare system are necessary to ensure the health and safety of children.”

(Capitalization altered.)

¶ 102 We agree with the Coalition’s first overarching point that “effective responses

to domestic violence in the child welfare system are necessary to ensure the health

and safety of children,” (capitalization altered), but we do not agree with its

interpretation of the trial court’s repeated emphasis on the failure to explain Ken’s

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injuries. As to the connection between the lack of explanation for Ken’s injuries and

conditions and the safety risk to the children, we have explained above how the trial

court included numerous Findings about its concern with the lack of explanation of

Ken’s injuries and condition. Caselaw also demonstrates why the lack of explanation

can be so important. In a case the Coalition acknowledges is relevant to this

consideration, our Supreme Court explained a parent’s “refus[al] to make a realistic

attempt to understand how [her child] was injured” can help support a “trial court’s

conclusion that the neglect is likely to reoccur.” In re D.W.P., 373 N.C. at 340, 838

S.E.2d at 406. The In re D.W.P. Court inferred if a parent is not able to explain how

their children were harmed before, there is a risk the children will be harmed the

same way again if returned to the parent’s custody, and that is a risk our courts are

not required to take. See id., 373 N.C. at 339–40, 838 S.E.2d at 406 (explaining the

paramount importance of child safety before drawing the conclusion in the previous

sentence). The trial court here permissibly drew the same inference explaining in

Findings 87 and 88, which we have found support for above, the lack of explanation

of Ken’s injuries means there is a continued “risk to [both children’s] health and

safety.”

¶ 103 As to the Coalition’s other contention, the trial court was not inferring Mother

participated in or condoned abuse and it need not have. The trial court made clear it

understood Mother “believes the Father intentionally hurt” Ken. The Findings

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regarding a lack of explanation instead turned on Mother’s lack of recognition of the

medical impossibility of Father’s proffered explanation causing all the conditions Ken

presented with at the hospital. The trial court also did not need to draw such an

inference because the definition of neglect includes “liv[ing] in an environment

injurious to the juvenile’s welfare,” and neglect can include failing to prevent injuries

like the ones here. N.C. Gen. Stat. § 7B-101(15) (eff. 1 Dec. 2019 to 30 Sept. 2021);

see In re Y.Y.E.T., 205 N.C. App. at 127–29, 695 S.E.2d at 522–23 (explaining, in a

case where the trial court could not determine who caused a child’s non-accidental

injuries and terminated parental rights on the grounds of abuse and neglect, the trial

court permissibly found both parents responsible because they either “directly caused

the injury by inflicting the abuse or indirectly caused the injury by failing to prevent

it” (emphasis added)). This reflects the broader recognition “[t]ermination of parental

rights proceedings are not meant to be punitive against the parent,”— which might

lead to an increased focused on individual culpability—“but to ensure the safety and

wellbeing of the child.” In re D.W.P., 373 N.C. at 340, 838 S.E.2d at 406 (citing In re

Montgomery, 311 N.C. at 109, 316 S.E.2d at 252). As a result, we reject the Coalition’s

challenge to Finding 82.

¶ 104 We also note the trial court made twelve unchallenged Findings of Fact in its

adjudication order in the termination of parental rights proceeding that addressed

domestic violence, and most notably made an unchallenged Finding there was “no

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evidence of domestic violence occurring between the parents before the filing of the

petition” for abuse, neglect, and dependency. Mother testified to as much; in an

unchallenged and therefore binding Finding, the court noted during the termination

hearing, “[M]other testified that there was no domestic violence between her and the

[F]ather prior to their DSS involvement.” And the first mention of domestic violence

between the parents in the record before us, namely the strangulation incident from

Fall of 2018, does not appear until the 10 February 2020 hearing that led to the

October 2020 Order, which is over two years after the incident that led to the

children’s removal from the home.7

¶ 105 We also reject Mother’s argument the trial court erred “in refusing to allow

testimony or reports from Dr. Parker and Attorney McCool as expert witnesses

related to domestic violence.” First, we note the trial court heard testimony from both

witnesses as described in its unchallenged Findings of Fact. The trial court, in

unchallenged Findings, explained it allowed Dr. Parker to testify as a “fact witness”

rather than an expert because of her lack of full licensure and summarized her

7 In the June 2018 hearings that led to the August 2018 initial disposition order, the trial

court received into evidence a text in which Father said when not high on marijuana he was

“a very negative, abusive and ugly person.” Aside from generically using the word “abusive,”

this does not give any insight into the nature, extent, or timeline of the abuse. Notably, the

trial court did not make any additional Findings on domestic violence in the two subsequent

permanency planning and review orders and only discussed the subject again in the October

2020 Order.

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testimony. As to McCool, the trial court, again in an unchallenged Finding, explained

it “accepted her as an expert in” the field of “victimology and domestic violence

advocacy in the law.” The trial court only excluded testimony from McCool because

“intimate partner violence [was] not a fact in issue because it [was] not a reason or

condition which caused the removal of the children.” It also found Mother’s therapy

with Dr. Parker did not assist Mother “in alleviating the conditions or reasons for

removal of the children” for the same reason.

¶ 106 This case is not one where there was a history, report, or even suspicion of

domestic violence before DSS removed the children from the home, so, as the trial

court found, domestic violence did not play a role in the removal of the children from

the home. As a result, we reject both Mother’s and Amicus Coalition’s arguments

about domestic violence as they relate to the specific facts in this specific case.

¶ 107 Turning to Finding 83, the trial court’s unchallenged Findings of Fact provided

ample support for its conclusion the parents, and Mother specifically, had failed to

“address and alleviate” the conditions that brought Mark and Ken into DSS custody.

The court again recounted Mother’s case plan from the original abuse, neglect, and

dependency proceeding, as we addressed in detail above in Mother’s challenge to the

October 2020 Order. The trial court then incorporated its Findings 58–62 from the

October 2020 Order that recounted Mother’s efforts up to the time of that order.

Those Findings from the October 2020 Order explained how the trial court did not

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credit Mother’s parental capacity evaluation because it did not address the lack of

explanation for Ken’s injuries and how the trial court did not find Mother’s parenting

class sufficient because it was “limited to childproofing the home and discussion of

child health as in what to do if the child is sick or injured.”

¶ 108 In the order terminating parental rights, the trial court made additional

Findings updating Mother’s efforts, or lack thereof, on those two fronts and further

explained why it did not find her previous efforts sufficient. On the parenting

capacity evaluation, the trial court noted “there is no change of circumstances”

because the evaluator did not give an updated opinion and the “original evaluation

failed to fully, objectively and adequately address the conditions that led to the

removal of the children from the home.” As to the parenting class, the trial court also

found no change because the parenting class teacher offered no updated opinion and

neither parent took additional parenting classes. The trial court then further

explained its determination the previous parenting class was inadequate for the

purpose of showing the parents were making progress towards addressing the

conditions that led to DSS involvement:

At the time of the termination hearing, neither the Mother

. . . or the Father . . . had engaged in any parenting class

which fully and completely addressed the medical and

safety reasons that the child [Ken] came into care,

especially the facts that were of the most concern to this

court to include [Ken]’s low blood sugar/hypoglycemia, low

body temperature and cachectic (wasted away) appearance

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at the time of his admission in addition to [Ken]’s other

brain injuries, fractures and retinal hemorrhages. The

court’s concern for the physical safety of [Ken], and [Mark]

as a sibling in the home, was not alleviated by the

testimony or the letter submitted by [the parenting class

teacher] because this was not covered in her courses and

there was not any other evidence of any other services

which addressed this concern.

These Findings thus provide ample support for ultimate Finding 83 that parents had

not addressed the issues that led to the juveniles’ removal from the home, thereby

constituting neglect.

¶ 109 Mother argues she completed her case plan and thereby showed the progress

she needed to show. As we have explained when rejecting Mother’s argument that

the trial court erred in ceasing reunification efforts, the trial court took a different

view of Mother’s efforts than Mother takes. The trial court explained extensively—

even more so in this termination order than in the October 2020 Order ceasing

reunification—why Mother did not adequately address its concerns, and given we

only review whether the Findings of Fact support ultimate Findings we treat as

Conclusions of Law, we reject her arguments. See In re M.K., ¶ 12 (explaining

standard of review for Conclusions of Law). Mother’s arguments about compliance

with her case plan as of the date of the termination proceeding are also particularly

poorly received because she already had the benefit of the trial court’s order ceasing

reunification efforts from October 2020 where it specifically told her why and how it

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did not think her parental capacity evaluation and parenting class sufficiently

addressed the reasons for DSS involvement. Even if Mother had previously believed

her parental capacity evaluation and parenting class were sufficient, she was on

notice the trial court believed she needed to undertake additional efforts by the time

of the termination proceeding.

¶ 110 Finally, based upon these ultimate Findings, the trial court also had a legally

sufficient basis for its conclusion this amounted to a likelihood of future neglect, as it

was required to find since Mother had been separated from Mark and Ken prior to

the termination proceeding. In re D.W.P., 373 N.C. at 339, 838 S.E.2d at 405. As we

explained above when analogizing to termination of parental rights cases when

discussing cessation of reunification efforts, our courts have repeatedly upheld trial

court orders terminating parental rights on the grounds of the likelihood of future

neglect when parents have been unable to explain children’s past injuries. E.g., In re

D.W.P. 373 N.C. at 339–40, 838 S.E.2d at 405–06 (summarizing facts and then

explaining, “Respondent-mother acknowledges her responsibility to keep David safe,

but she refuses to make a realistic attempt to understand how he was injured or to

acknowledge how her relationships affect her children’s wellbeing. These facts

support the trial court’s conclusion that the neglect is likely to reoccur if the children

are returned to respondent-mother’s care.”). For example, in In re Y.Y.E.T., this

Court found the parents’ “refusal to accept responsibility for the child’s injury

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indicate[d] that the conditions which led to the child’s initial removal from [their]

home ha[d] not been corrected” and thus “repetition of abuse or neglect [was]

probable.” Id., 205 N.C. App. at 129, 695 S.E.2d at 523.

¶ 111 In the above section on cessation of reunification efforts, we explained how the

trial court’s Findings of Fact in that order aligned with the facts of In re Y.Y.E.T. and

we find similar alignment here. First, the trial court incorporated its key Findings

on the lack of explanation from its October 2020 Order ceasing reunification efforts

in its order terminating parental rights. Second, the trial court made additional

Findings on the continued lack of explanation and medical impossibility of Father’s

explanation for Ken’s injuries and condition when Ken was admitted to the hospital.

As such, the trial court had ample support for its Conclusion there was a likelihood

of future neglect because of Mother’s lack of explanation of Ken’s injuries.

¶ 112 The trial court’s Conclusion further properly determines both Ken and Mark

can be considered neglected, via the likelihood of future neglect and abuse, based on

Ken’s injuries alone. The definition of neglected juvenile explains abuse or neglect of

any juvenile in the home is relevant to determining whether any other juvenile in the

home is neglected:

In determining whether a juvenile is a neglected juvenile,

it is relevant whether that juvenile lives in a home where

another juvenile has died as a result of suspected abuse or

neglect or lives in a home where another juvenile has been

subjected to abuse or neglect by an adult who regularly

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lives in the home.

N.C. Gen. Stat. § 7B-101(15) (eff. 1 Dec. 2019 to 30 Sept. 2021). This link reflects “the

trial court need not wait for actual harm to occur to the child if there is a substantial

risk of harm to the child in the home.” In re D.B.J., 197 N.C. App. 752, 755, 678

S.E.2d 778, 780–81 (2009) (quoting In re T.S., III & S.M., 178 N.C. App. 110, 113, 631

S.E.2d 19, 22 (2006)). While the fact of prior abuse alone is not enough, this Court

has recognized that a “parent’s lack of acceptance of responsibility” can be a required

additional factor “to suggest that the neglect or abuse will be repeated.” See In re

J.C.B., 233 N.C. App. 641, 644, 757 S.E.2d 487, 489 (2014) (summarizing In re P.M.,

169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005) as indicating a “parent’s lack of

acceptance of responsibility” is a sufficient additional factor). Similarly here, the trial

court could rely on the prior abuse and neglect of Ken plus Mother’s lack of

explanation for Ken’s injuries and condition when he arrived at the hospital to

determine Mark was also a neglected juvenile because of the likelihood of future

neglect or abuse.

¶ 113 As a result, we reject Mother’s argument the adjudication as to Mark “is based

on the circumstances relating to Ken’s abuse or neglect in 2017” and “[t]here are no

supported findings establishing the presence of other factors with a nexus to Mark or

to the likelihood he would be neglected by Mother if his custody was returned to her.”

Mother’s lack of explanation for Ken’s injuries is the other factor with a nexus to

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Mark because he was—and would be if returned to Mother’s custody—in the same

environment where Ken’s injuries occurred, as the trial court recognized in ultimate

Finding 82.

¶ 114 Beyond the relevance of Ken’s injuries as to the neglect ground of termination

for Mark, the trial court also recounted, throughout the proceedings in this case,

various concerns about Mark, which the trial court took notice of when entering the

adjudication order in the termination proceeding. Specifically, in both the abuse

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