IN THE SUPREME COURT OF NORTH CAROLINA
No. 233A19
Filed 17 July 2020
IN THE MATTER OF: A.B.C.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from orders entered on 21 March
2019 and 18 April 2019 by Judge William Fairley in District Court, Columbus County.
This matter was calendared for argument in the Supreme Court on 19 June 2020 but
determined on the record and briefs without oral argument pursuant to Rule 30(f) of
the North Carolina Rules of Appellate Procedure.
David S. Tedder, Assistant County Attorney, for petitioner-appellee Columbus County Department of Social Services.
Womble Bond Dickinson (US) LLP, by John E. Pueschel, for appellee Guardian ad Litem.
Annick Lenoir-Peek for respondent-appellant mother.
HUDSON, Justice.
Respondent, the mother of minor child A.B.C. (Adam)1, appeals from the trial
court’s order terminating her parental rights on the ground that she willfully failed
to make reasonable progress to correct the conditions that led to Adam’s removal from
her care. See N.C.G.S. § 7B-1111(a)(2) (2019). Because we hold that the evidence and
findings of fact support the trial court’s conclusion that grounds existed to terminate
1 A pseudonym is used to protect the juvenile’s identity and for ease of reading. IN RE A.B.C.
Opinion of the Court
respondent’s parental rights pursuant to N.C.G.S. § 7B-1111(a)(2), and that the trial
court did not abuse its discretion in concluding that it was in the child’s best interests
to terminate respondent’s parental rights, we affirm.
Factual and Procedural Background
This is the second appeal in this case. The following facts and procedural
history are derived in part from the Court of Appeals’ opinion in In re A.B.C., 821
S.E.2d 308, 2018 WL 6053343 (N.C. Ct. App. 2018) (unpublished).
On 10 April 2015, bystanders found respondent and her roommate sleeping
inside of a car in the parking lot of respondent’s employer. Adam, who was four
months old at the time, was crying in the back seat. The bystanders were unable to
wake respondent or the roommate and called emergency responders.
After this event, respondent agreed to place Adam with a safety resource. The
following week, on 17 April 2015, Columbus County Department of Social Services
(DSS) received a referral alleging that respondent was found unresponsive in a car
parked in a hospital parking lot. Respondent was admitted to the hospital for
treatment and observation due to a possible drug overdose. After this second incident,
the safety resource became unwilling to be the placement for Adam.
On 20 April 2015, DSS filed a juvenile petition alleging that Adam was
neglected and dependent and took him into nonsecure custody. After a hearing, the
trial court adjudicated Adam as dependent and dismissed the neglect allegation in an
order entered 16 June 2015. In a separate disposition order entered the same day,
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the trial court ordered respondent to submit to a substance abuse assessment and a
mental health assessment and to follow any resulting recommendations, comply with
weekly random drug screens requested by DSS, enroll in and complete parenting
classes, and establish suitable housing.
Respondent initially struggled to make progress on her case plan and was in
and out of drug rehabilitation facilities and jail. On 5 July 2016, the trial court ceased
reunification efforts with respondent and changed the permanent plan to
guardianship with a court-approved caretaker with a secondary plan of adoption.
On 21 January 2017, respondent was arrested for violating her probation. She
was released from jail in February 2017 and ordered to complete the six-month
substance abuse program at a substance abuse treatment facility, Our House. After
respondent completed the program at Our House, she was given the opportunity to
continue with a residential substance abuse rehabilitation program at Grace Court
where she could have resided with her child. However, respondent declined to enter
the program at Grace Court, and she decided to live with her boyfriend. While
respondent was participating in the program at Our House, the trial court held a
permanency planning hearing on 20 March 2017. In an order entered 30 March 2017,
the trial court changed the permanent plan to adoption with a secondary plan of
guardianship with a court-approved caretaker.
On 12 May 2017, DSS filed a petition to terminate respondent’s parental rights
alleging the grounds of neglect, willful failure to make reasonable progress toward
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correcting the conditions that led to Adam’s removal from the home, willful failure to
pay a reasonable portion of Adam’s cost of care, dependency, willful abandonment,
and that respondent’s parental rights as to another child have been terminated and
that she lacks the ability or willingness to establish a safe home. N.C.G.S. § 7B-
1111(a)(1)–(3), (6)–(7), and (9) (2019). After multiple continuances, a hearing was held
on the petition for termination on 3 and 17 January 2018. At the close of DSS’s
evidence, the trial court granted respondent’s motion to dismiss the ground alleged
by DSS concerning the fact that her parental rights as to another child had been
terminated. On 1 February 2018, the trial court entered adjudication and disposition
orders concluding that grounds existed to terminate respondent’s parental rights
based on her willful failure to make reasonable progress and that termination of
respondent’s parental rights was in Adam’s best interests. The trial court dismissed
the remaining alleged grounds, finding that DSS failed to satisfy its burden to prove
the allegations. Respondent appealed to the Court of Appeals.
Before the Court of Appeals, respondent argued that the trial court erred in
finding that she failed to make reasonable progress in correcting the conditions that
led to Adam’s removal from her care. In re A.B.C., 2018 WL 6053343, at *2. The Court
of Appeals concluded that there was “tension” between the trial court’s findings that
(1) respondent “willfully left the juvenile in foster care outside the home in excess of
twelve months without showing to the Court’s satisfaction that reasonable progress
under the circumstances has been made in correcting those conditions which led to
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the removal of the juvenile,” and (2) “DSS ‘failed to meet its burden to prove the
allegations of . . . incapability of providing care and supervision as they relate to
respondent.’ ” Id. at *3. The Court of Appeals reasoned that, “if DSS failed to show
that Respondent was incapable of providing care and supervision for her child going
forward, it suggest[ed] that Respondent had made at least some reasonable progress.”
Id. Therefore, the Court of Appeals vacated the termination order and remanded the
case to the trial court “for additional findings that eliminate the arguable tension” in
order to “permit [the] Court to engage in a meaningful appellate review of the trial
court’s findings of fact and conclusions of law.” Id. The Court of Appeals left it in the
trial court’s discretion whether to amend its findings based on the existing record, or
whether to conduct further proceedings the trial court deemed necessary. Id.
On remand, the trial court did not take new evidence and on 21 March 2019,
entered an amended adjudication order including additional findings of fact
regarding the alleged grounds for termination. The trial court again found that
grounds existed to terminate respondent’s parental rights based on her willful failure
to make reasonable progress toward correcting the conditions that led to Adam’s
removal from the home and found that DSS failed to meet its burden regarding the
other alleged grounds for termination. In a separate amended disposition order
entered 18 April 2019, the trial court concluded that termination of respondent’s
parental rights was in Adam’s best interests. Respondent appealed.
Analysis
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I. Motion to Dismiss
As an initial matter, DSS filed a motion to dismiss respondent’s appeal from
the trial court’s 21 March 2019 adjudication order arguing that her notice of appeal
was untimely because it was filed more than thirty days after entry and service of
that order.
Section 7B-1001 of the General Statutes of North Carolina sets out the orders
from which a party may appeal in juvenile matters and the appropriate court to which
they may be appealed. Pursuant to N.C.G.S. § 7B-1001, a final order “that terminates
parental rights or denies a petition or motion to terminate parental rights” may be
appealed directly to this Court. N.C.G.S. § 7B-1001(a1)(1) (2019). In juvenile cases,
“[n]otice of appeal . . . shall be given in writing . . . and shall be made within 30 days
after entry and service of the order . . . .” N.C.G.S. § 7B-1001(b) (2019).
DSS claims that N.C.G.S. § 7B-1001 provides that notice of appeal from the
trial court’s adjudication order in a termination of parental rights case must be filed
within thirty days after entry and service of the order. However, an adjudication
order in a termination of parental rights case is not listed as one of the orders from
which a party may appeal under N.C.G.S. § 7B-1001 because it does not terminate
parental rights; it determines only whether grounds exist to terminate parental
rights.
The North Carolina Juvenile Code provides for a two-stage process for the
termination of parental rights: adjudication and disposition. N.C.G.S. §§ 7B-1109, -
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1110 (2019). At the adjudicatory stage, the petitioner bears the burden of proving by
“clear, cogent, and convincing evidence” the existence of one or more grounds for
termination under N.C.G.S. § 7B-1111(a). N.C.G.S. § 7B-1109(e), (f). If the petitioner
fails to satisfy its burden of proving that grounds exist to terminate parental rights,
then the trial court must enter an order denying the petition or motion for
termination. Such order is appealable pursuant to the second part of N.C.G.S. § 7B-
1001(a1)(1), permitting an appeal from an order denying a petition or motion to
terminate parental rights.
However, if the trial court finds that at least one ground exists to terminate
parental rights, the resulting adjudication order is not a final order appealable under
N.C.G.S. § 7B-1001, as the case then proceeds to the dispositional stage where the
trial court must “determine whether terminating the parent’s rights is in the
juvenile’s best interest.” N.C.G.S. § 7B-1110(a). Thus, an adjudication order in which
the trial court determines that at least one ground exists to terminate parental rights
necessarily requires entry of a disposition order to address whether termination of
parental rights is in the child’s best interests.
Here, there was no final order terminating parental rights from which
respondent could appeal pursuant to N.C.G.S. § 7B-1001 until the trial court entered
its disposition order on 18 April 2019. Cf. In re P.S., 242 N.C. App. 430, 432, 775
S.E.2d 370, 372 (concluding in the abuse, neglect, and dependency context that “[a]n
adjudication order—even where it includes a temporary disposition—is not a final
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order” from which appeal of right lies under N.C.G.S. § 7B-1001), cert. denied, 368
N.C. 431, 778 S.E.2d 277 (2015); In re Laney, 156 N.C. App. 639, 643–44, 577 S.E.2d
377, 380 (concluding in the same context that the respondent-mother needed to notice
an appeal from the final disposition order pursuant to N.C.G.S. § 7B-1001 in order
for the adjudication order to be before the Court of Appeals), disc. review denied, 357
N.C. 459, 585 S.E.2d 762 (2003).2 Respondent timely filed her notice of appeal within
thirty days after entry and service of the disposition order, stating her desire to
appeal both the adjudication order and the disposition order. Therefore, respondent’s
appeal of both the adjudication order and the disposition order is properly before this
Court pursuant to N.C.G.S. § 7B-1001(a1)(1). As a result, we deny DSS’s motion to
dismiss.
II. Challenged Findings of Fact
Respondent challenges several of the trial court’s findings of fact. Findings of
fact in support of a trial court’s adjudication of grounds to terminate parental rights
must be supported by clear, cogent, and convincing evidence. In re B.O.A., 372 N.C.
372, 379, 831 S.E.2d 305, 310 (2019). “Findings of fact not challenged by respondent
are deemed supported by competent evidence and are binding on appeal. Moreover,
We recognize that jurisdictional provisions of N.C.G.S. § 7B-1001 were recently 2
amended to change the appellate court to which appeal of right lies in termination of parental rights cases. However, that amendment has no bearing on our determination that an adjudication order is not a final order from which a party has an immediate right to appeal under N.C.G.S. § 7B-1001. See S.L. 2017-41, § 8(a), 2017 N.C. Sess. Laws 214, 232–33.
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we review only those findings necessary to support the trial court’s determination
that grounds existed to terminate respondent’s parental rights.” In re T.N.H., 372
N.C. 403, 407, 831 S.E.2d 54, 58–59 (2019) (citations omitted).
Respondent first challenges finding of fact 38, which states that respondent
had engaged in multiple programs addressing drug abuse and treatment since the
filing of the underlying juvenile petition, including the substance abuse treatment
program at Our House, and that the “programs would have helped her acquire the
ability to overcome factors that resulted in the child’s placement but she did not do
so.” Respondent argues that this finding of fact conflicts with finding of fact 66, in
which the trial court found that respondent completed the rehabilitation program at
Our House in August 2017. We agree.
The trial court found in both finding of fact 33 and finding of fact 66 that
respondent completed the substance abuse treatment program at Our House, and the
evidence unequivocally demonstrates the same. To the extent that finding of fact 38
implies that respondent did not complete the program at Our House, it is not
supported by the evidence, and therefore we disregard this specific portion of that
finding of fact.
Respondent next challenges findings of fact 40 and 41, which state the
following:
40. That throughout the life of the case respondent mother’s housing has frequently been either jail or a treatment facility of some sort and she has not established
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stable housing.
41. That when not incarcerated or in a treatment facility respondent mother was and is currently staying with friends who provide accommodations. These friends and accommodations varied.
Respondent argues that these findings of fact fail to address her housing conditions
at the time of the termination hearing. She argues that since she completed the
substance abuse treatment program at Our House in August 2017, she had been
living with her boyfriend in a three-bedroom home. We agree that these findings of
fact are not supported by the evidence.
The trial court found that respondent “was and is currently staying with
friends who provide accommodations.” (Emphasis added). At the termination
hearing, the social worker testified that “since [she] was involved in the case[,]”
respondent’s housing was “either jail or treatment facilities.” Yet the social worker
also testified that she was unaware of respondent’s exact whereabouts at the time of
the termination hearing and that respondent had informed her that she was living in
Robeson County, although the social worker did not know the physical address. The
social worker also testified that she had stopped being involved in the case on 1
September 2017. Thus, the social worker did not have knowledge of respondent’s
housing situation in the four months leading up to the termination hearing.
Respondent and her boyfriend provided the only evidence regarding her housing
situation from September 2017 through the termination hearing in January 2018.
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Respondent testified that she lived in a three-bedroom home with her boyfriend, with
whom she had been in a relationship for about one year, and that she had been living
with him there since completing the program at Our House in August 2017.
Respondent’s boyfriend also testified that they had been living in the home together
since respondent was released from the program. Indeed, the trial court found that
respondent opted to live with her boyfriend after she completed the program.
Although the home was owned by the father of respondent’s boyfriend, the trial
court’s finding of fact that states that respondent was currently staying with a friend
who provided accommodations is supported by the evidence but is incomplete.
III. Grounds to Terminate Parental Rights
Respondent argues that the trial court erred by concluding that grounds
existed to terminate her parental rights based on her willful failure to make
reasonable progress pursuant to N.C.G.S. § 7B-1111(a)(2). Because the trial court’s
unchallenged findings of fact support the conclusion that respondent failed to make
reasonable progress on her substance abuse issue which “was the core cause of the
circumstances” that led to the child’s removal from respondent’s care, we affirm.
We review a trial court’s adjudication that grounds exist to terminate parental
rights to determine “whether the trial court’s findings of fact are supported by clear,
cogent, and convincing evidence and whether those findings support the trial court’s
conclusions of law.” In re B.O.A., 372 N.C. at 379, 831 S.E.2d at 310 (citation omitted).
“Unchallenged findings of fact made at the adjudicatory stage, however, are binding
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on appeal.” In re D.W.P., 373 N.C. 327, 330, 838 S.E.2d 396, 400 (2020) (citation
omitted).
Pursuant to N.C.G.S. § 7B-1111(a)(2), a trial court may terminate parental
rights if “[t]he parent has willfully left the juvenile in foster care or placement outside
the home for more than 12 months without showing to the satisfaction of the court
that reasonable progress under the circumstances has been made in correcting those
conditions which led to the removal of the juvenile.” N.C.G.S. § 7B-1111(a)(2). This
Court has stated that “a trial judge should refrain from finding that a parent has
failed to make ‘reasonable progress . . . in correcting those conditions which led to the
removal of the juvenile’ simply because of his or her ‘failure to fully satisfy all
elements of the case plan goals.’ ” In re B.O.A., 372 N.C. at 385, 831 S.E.2d at 314
(citation omitted). However, we have also stated that “a trial court has ample
authority to determine that a parent’s ‘extremely limited progress’ in correcting the
conditions leading to removal adequately supports a determination that a parent’s
parental rights in a particular child are subject to termination pursuant to N.C.G.S.
§ 7B-1111(a)(2).” Id. (citation omitted).
Here, the trial court’s finding of fact 67 establishes that “substance abuse was
the core cause of the circumstances that brought the child into foster care originally.”
In finding of fact 66, the trial court determined that respondent failed to make
reasonable progress. The trial court found that respondent made only “marginal
progress” due to her failure to continue her substance abuse treatment after she
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completed the six-month substance abuse treatment program at Our House, in that
she:
a) declined further rehabilitative services at Grace Court in August of 2017, services which would have allowed her to reside with her child while receiving residential rehabilitation services;
b) entered a methadone program without any counseling or plan to wean or otherwise end her methadone dependence; and
c) the [c]ourt does not believe the respondent mother’s contention that she is in counseling through AA or NA[ ] or any other recovery program.
Further, the trial court found that respondent’s progress was not reasonable under
the circumstances because her failure to continue with rehabilitation programs
demonstrated that she “failed to apply th[e] capabilities” that she learned during the
program at Our House toward resolving her “longstanding addiction” issue.
These unchallenged findings of fact3 support the trial court’s conclusion that
respondent failed to make reasonable progress to correct the conditions that led to
the removal of Adam from her care. Specifically, these findings of fact establish that,
after participating in the program at Our House, respondent decided to address her
3 Respondent does not challenge findings of fact 66 and 67 in her brief. In fact, she uses the veracity of finding of fact 66 to challenge the trial court’s finding of fact 38. Because findings of fact 66 and 67 are sufficient to support the trial court’s conclusion that grounds existed to terminate respondent’s parental rights, we need not further address finding of fact 38 beyond our discussion above. In re T.N.H., 372 N.C. 403, 407, 831 S.E.2d 54, 58–59 (2019) (“Moreover, we review only those findings necessary to support the trial court’s determination that grounds existed to terminate respondent’s parental rights.” (citation omitted)).
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“longstanding addiction” issue solely by entering a methadone program without any
counseling plan to resolve her resultant dependence on that substance. Further, we
note that it is not the role of this Court to second-guess the trial court’s credibility
determination, specifically that respondent’s testimony concerning her participation
in counseling programs was not credible. See In re J.A.M., 372 N.C. 1, 11, 822 S.E.2d
693, 700 (2019) (“But an important aspect of the trial court’s role as finder of fact is
assessing the demeanor and credibility of witnesses, often in light of inconsistencies
or contradictory evidence. It is in part because the trial court is uniquely situated to
make this credibility determination that appellate courts may not reweigh the
underlying evidence presented at trial.”). Moreover, the fact that respondent decided
to address her substance abuse issues in this manner—without counseling, all the
while having the available option to continue with another residential rehabilitation
program that would have allowed her to reside with her child—after she completed
the program at Our House is of great significance. As the trial court explained,
respondent’s approach demonstrated that she failed to apply the tools that she
learned during the program at Our House to adequately address her substance abuse
issue—the “core cause” of the child’s removal from her care—by the time of the
termination hearing. Therefore, the trial court’s findings of fact support the
conclusion that respondent failed to make reasonable progress toward correcting the
conditions which led to the child’s removal from her care. N.C.G.S. § 7B-1111(a)(2).
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Accordingly, we hold that the trial court did not err in concluding that grounds
existed to terminate respondent’s parental rights pursuant to N.C.G.S. § 7B-
1111(a)(2).
IV. Disposition under N.C.G.S. § 7B-1110
Respondent also contends that the trial court abused its discretion under
N.C.G.S. § 7B-1110(a) by determining it was in Adam’s best interests to terminate
her parental rights. Because we conclude that the trial court did not abuse its
discretion, we affirm the trial court’s decision to terminate respondent’s parental
If the trial court finds grounds to terminate parental rights under N.C.G.S.
§ 7B-1111(a), it proceeds to the dispositional stage where it must “determine whether
terminating the parent’s rights is in the juvenile’s best interest” based on the
following factors:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
(6) Any relevant consideration.
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N.C.G.S. § 7B-1110(a). It is well-established that the trial court’s assessment of a
juvenile’s best interests at the dispositional stage is reviewed only for abuse of
discretion. In re D.L.W., 368 N.C. at 842, 788 S.E.2d at 167; In re L.M.T., 367 N.C.
165, 171, 752 S.E.2d 453, 457 (2013). “Abuse of discretion results where the court’s
ruling is manifestly unsupported by reason or is so arbitrary that it could not have
been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d
523, 527 (1988). Dispositional findings not challenged by respondent-mother are
binding on appeal. In re Z.L.W., 372 N.C. 432, 437, 831 S.E.2d 62, 65 (2019) (citation
Here, the trial court made the following all-encompassing finding of fact
concerning the factors in subsection 7B-1110(a):
13. That the minor child is almost 3 years of age; that the likelihood of adoption is extremely high; that termination of parental rights will aid in the accomplishment of the permanent plan of the juvenile; that the bond between the juvenile and respondent mother is similar to that of playmates . . . that the quality of the relationship between the juvenile and the proposed adoptive parent is similar to that of parent/child.
The only part of this finding of fact that respondent challenges is the trial court’s
finding that the relationship between her and the child “is similar to that of
playmates.”
The finding of fact concerning the relationship between respondent and the
child being similar to that of playmates, however, is supported by the testimony of
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the social worker who supervised respondent’s visits with the child. Specifically, the
social worker testified that (1) the child associated his visits with respondent with
“play”; (2) the child did not refer to respondent as “Mom” during the visits, and
respondent had to instruct him to call her “Mom”; (3) respondent and the child played
very loudly during the visits such that the social worker had to tell them to “calm
down”; and (4) the social worker never observed respondent assume a “supervision or
a parental role” during the visits.
Respondent’s only other challenge to the trial court’s finding of fact concerning
the relationship between respondent and the child being similar to that of playmates
is that the “limited circumstances” of the supervised visits did not allow respondent
to have an “opportunity to show her ability to provide care for [the child].” Respondent
does not, however, point us to any authority or evidence in support of the proposition
that the context of a supervised visit had a confounding effect on her ability to form
or demonstrate a parental bond with the child.
Finally, respondent argues that the trial court abused its discretion in its
analysis of the best interests of the child because it improperly made the decision of
whether to terminate parental rights into a choice between respondent and the child’s
foster parent. Respondent relies on the Court of Appeals’ opinion in In re Nesbitt for
the proposition that it is improper for the trial court to “relegate[ ] [the decision of
whether to terminate parental rights] to a choice between the natural parent and the
foster family.” 147 N.C. App. 349, 360–61, 555 S.E.2d 659, 667 (2001). In re Nesbitt
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quoted from this Court’s decision in Peterson v. Rogers, 337 N.C. 397, 445 S.E.2d 901
(1994), to support that proposition. In re Nesbitt, 147 N.C. App. at 361, 555 S.E.2d at
667 (“Our Supreme Court has held that ‘even if it were shown, . . . that a particular
couple desirous of adopting a child would best provide for the child’s welfare, the child
would nonetheless not be removed from the custody of its parents so long as they were
providing for the child adequately.’ ” (quoting Peterson, 337 N.C. at 401, 445 S.E.2d
at 904)).
Here, by construing the trial court’s finding of fact 13 in conjunction with
findings of fact 18–21, 29, and 31, respondent argues that the trial court improperly
relegated the decision concerning whether to terminate respondent’s parental rights
into one involving a choice between respondent and the child’s foster parent.
Respondent asserts that findings of fact 18–21, 29, and 31 “portrayed the foster home
as ‘better’ than [respondent’s].” Findings of fact 18–21, 29, and 31 are reproduced as
follows:
18. That the juvenile has been placed with [the foster parent] since he was approximately 4 months. [The foster parent’s] 3-year[-old] granddaughter lives with [the foster parent] and the juvenile. The granddaughter and the juvenile get along very well together.
19. That [the foster parent] has been responsible for the juvenile’s day-to-day care and supervision for approximately the last 30 months. The de facto relationship between [the foster parent] and the juvenile is akin to mother/son in that she provides for the emotional and physical needs of the juvenile. [The foster parent]
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appropriately guides and supervises the juvenile together with providing care and discipline.
20. That the juvenile looks to [the foster parent] for guidance, comfort and security.
21. That the juvenile is healthy and happy in the care of [the foster parent] and the relationship between the two is extremely close and significant to the juvenile.
....
29. That this [c]ourt acknowledges that respondent mother loves the juvenile but the relationship between respondent mother and the juvenile is not akin to the relationship between [the foster parent] and the juvenile.
31. That the bond that exists between the minor child and respondent mother is good but not parental, and is most similar to a bond between playmates.
We note that the Court of Appeals’ decision in In re Nesbitt is not binding on
this Court, moreover the findings of fact quoted here fail to demonstrate that the trial
court relegated the decision of whether to terminate respondent’s parental rights to
a decision between respondent and the foster parent. See In re Nesbitt, 147 N.C. App.
at 361, 555 S.E.2d at 667. Specifically, findings of fact 18–21 and 31 involve no
comparison between respondent and the foster parent whatsoever. Further, although
finding of fact 29 does make a comparison between respondent’s and the foster
parent’s relationship with the child, the trial court was not endeavoring to determine
whose relationship with the child was qualitatively “better.” Viewing finding of fact
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29 in light of the trial court’s conclusion of law concerning the best interests of the
child demonstrates that the trial court’s ultimate assessment of respondent’s
relationship with the child was that it was not “akin” to a parental relationship. The
trial court’s conclusion of law regarding the best interests of the child is reproduced
as follows:
3. That the minor child is almost 3 years of age; that the likelihood of adoption is extremely high; that termination of parental rights will aid in the accomplishment of the primary permanent plan of the juvenile; that the bond between the juvenile and respondent mother is akin to playmates; . . . that the quality of the relationship between the juvenile and the proposed adoptive parent is similar to that of parent/child and adoption is extremely high.
The trial court’s conclusion of law on the issue of the best interests of the child
is virtually identical to the trial court’s finding of fact 13, and it draws no direct
comparison between respondent and the foster parent. The trial court’s conclusion of
law merely follows the directive of N.C.G.S. § 7B-1110(a) to evaluate both the “bond”
between respondent and the juvenile and the “quality of the relationship” between
the juvenile and the proposed adoptive parent.
Further, the trial court’s determination in its conclusion of law that
respondent’s relationship with the child was “akin to playmates,” illuminates the
reasoning behind the trial court’s statement in finding of fact 29 that respondent’s
relationship with the child was not “akin to the relationship between [the foster
parent] and the juvenile.” (Emphases added). Thus, it appears that finding of fact 29
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simply communicated that respondent’s relationship with the child was not “akin” to
a parental relationship. The trial court’s mention of the foster parent in finding of
fact 29 serves as somewhat of an inartful proxy for describing the quality of the
parental relationship.
Accordingly, the trial court’s conclusion that it was in the child’s best interests
to terminate respondent’s parental rights was supported by evidence in the record,
was reached according to the directive of N.C.G.S. § 7B-1110(a), and was not
otherwise arbitrary. Therefore, because the trial court’s decision was not an abuse of
its discretion, we affirm that decision.
Conclusion
Because we hold that the evidence and findings of fact support the trial court’s
conclusion that grounds existed to terminate respondent’s parental rights pursuant
to N.C.G.S. § 7B-1111(a)(2), and that the trial court did not abuse its discretion in
concluding that it was in the child’s best interests to terminate respondent’s parental
rights, we affirm.
AFFIRMED.
-21- Justice EARLS, dissenting.
In vacating the trial court’s original “Order of Adjudication on Termination of
Parental Rights” finding grounds to terminate respondent-mother’s parental rights
to her son Adam, the Court of Appeals directed the trial court to resolve the central
factual question of how respondent-mother failed to make reasonable progress toward
correcting the conditions that led to Adam being removed from her care when the
evidence failed to establish that she was incapable of providing proper care and
supervision for Adam. In re A.B.C., 821 S.E.2d 308, 2018 WL 6053343 (N.C. Ct. App.
2018) (unpublished). The Court of Appeals held that doing so was necessary to
“permit th[e] [c]ourt to engage in meaningful appellate review of the trial court's
findings of fact and conclusions of law.” Id. at *1. On remand, the trial court’s
minimal new findings of fact do not address this contradiction, and are not based on
“clear, cogent, and convincing evidence” that supports the legal conclusion that the
respondent failed to make reasonable progress to correct the issue that led to Adam
being removed from her care. See N.C.G.S. § 7B-1111(a)(2) (2019).
Contrary to the majority’s characterization, this is not a question of whether
to accept the trial court’s credibility determination regarding whether or not
respondent attended counseling programs through Alcoholics Anonymous (AA) or
Narcotics Anonymous (NA). The issue here is whether the trial court adequately IN RE A.B.C.
Earls, J. dissenting
addressed the Court of Appeals direction on remand; whether the findings of fact
made by the trial court are supported by clear, cogent, and convincing evidence in the
record; and whether the trial court’s findings adequately support its conclusions of
law. The trial court’s finding of fact, adopting language used by the Court of Appeals,
that respondent made only “marginal progress” towards correcting the conditions
that led to the removal of the child from her care is directly contradicted by its finding
of fact that DSS “has failed to carry its burden of proof as to [the] alleged incapacity
of the respondent mother to provide proper care and supervision of the child, …
indeed, the respondent mother demonstrated such capabilities by completing a
rehabilitation program at ‘Our House’ in August, 2017. … Thus, the [c]ourt cannot
say by clear, cogent and convincing evidence that the respondent mother is ‘incapable’
of providing proper care and supervision.” Not only did respondent complete the
rehabilitation program, she was no longer homeless, had a stable living arrangement
in a three-bedroom home, and was living with and parenting her younger child. I
dissent and would reverse the trial court’s termination orders because petitioners
have failed to establish any grounds to terminate respondent’s parental rights as to
Adam.
In its earlier opinion in this case, the Court of Appeals stated the following:
It is likely that the trial court's findings mean that Respondent made some marginal improvements since the filing of the petition and, thus, was not totally incapable of providing care and supervision for her child, but that, nonetheless, Respondent's progress was not enough to
demonstrate “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). But because of the important liberty interests that are implicated when a court terminates parental rights, we will remand this case for additional findings that eliminate the arguable tension identified by Respondent and permit this Court to engage in a meaningful appellate review of the trial court's findings of fact and conclusions of law. See In re A.B., 239 N.C. App. 157, 172, 768 S.E.2d 573, 581-82 (2015).
On remand, the trial court, in its discretion, may amend its findings based on the existing record, or may conduct any further proceedings that the court deems necessary.
In re A.B.C., 2018 WL 6053343, at *3. Hearing no new evidence,1 the trial court
simply amended its prior order to include the above-quoted language of the Court of
Appeals, failing to even correct the date of the order. The first sixty-two paragraphs
of the amended order are exactly the same as the prior Order. Indeed, the only new
findings are contained in finding of fact 66. There, the trial court paraphrased the
1 While the Court of Appeals left to the trial court’s discretion whether new evidence should be heard, I would note that as with neglect, a trial court must consider evidence of changed circumstances at the time of the TPR hearing to terminate parental rights under N.C. Gen. Stat. § 7B-1111(a)(2). In re O.C., 171 N.C. App. 457, 464-65, 615 S.E.2d 391, 396 (2005) (“to find grounds to terminate a parent’s rights under G.S. § 7B-1111(a)(2), the trial court must . . . determine . . . that as of the time of the hearing, . . ., the parent has not made reasonable progress under the circumstances to correct the conditions which led to the removal of the child”); see also In re A.B., 253 N.C. App. 29, 30, 799 S.E.2d 445, 447 (2017) (“Where the trial court’s findings and conclusions do not adequately account for respondent- mother’s circumstances at the time of the termination hearing, as required to support a termination of her parental rights under N.C.G.S. § 7B1111(a)(1) or (2), we vacate and remand.”)
passage from the Court of Appeals opinion excerpted above and identified its three
reasons why respondent’s progress with regard to her case plan was not adequate.
Namely that she declined to live at Grace Court following the residential treatment
program, that her methadone program did not include counseling or other plan to end
her methadone dependence, and that she was not receiving counseling through AA,
NA or any other recovery program. These findings of fact do not support the trial
court’s conclusion that respondent failed to make reasonable progress to correct the
conditions that led to the removal of Adam from her care.
At the time of the termination hearing, respondent had successfully completed
a six-month residential substance abuse program at a rehabilitation facility and had
been drug-free for nearly one year. Respondent continued her substance abuse
rehabilitation by voluntarily participating in a methadone program, a medication-
based therapy program for treating opioid addiction. Although the trial court found
that respondent declined to enter Grace Court after her completion of the program at
Our House, respondent was never ordered to participate in the additional program.
A parent’s decision not to attend an optional long-term residential rehabilitation
program after successfully completing an initial six-month residential rehabilitation
program and voluntarily participating in an out-patient treatment program does not
show a lack of reasonable progress by the parent.
Moreover, the evidence and supported findings also show that respondent had
been living in a three-bedroom home with her boyfriend for five months and that she
was engaging in regular visitation with Adam that went well. Although respondent’s
progress on her case plan regarding housing is partly attributed to her relationship
with her boyfriend, respondent’s “case plan does not and cannot require that she
alone be responsible for providing her housing and transportation.” In re C.N., 831
S.E.2d 878, 884 (N.C. Ct. App. 2019); see also id. (“Nothing in the record suggests or
supports the finding that the Respondent-mother’s dependence on her present
boyfriend for housing, transportation, and for providing her a cell phone bears any
relation to the causes of the conditions of the removal of [the children] from their
mother’s home.”).
The trial court found that it did not believe respondent’s testimony that she
was in counseling. However, DSS bore the burden of proving by clear, cogent, and
convincing evidence that grounds existed to terminate respondent’s parental rights.
N.C.G.S. § 7B-1109(f). Aside from respondent’s testimony, DSS did not present any
evidence of respondent’s participation, or lack thereof, in counseling and therapy.
DSS’s only evidence during the adjudication stage of the hearing was from a child
support enforcement supervisor, who did not testify as to respondent’s participation
in counseling, and a social worker, who had not been involved in respondent’s case
for the four months prior to the termination hearing. The social worker testified that
DSS “[was] not aware of any completion of any of the goals” of respondent’s case plan.
However, it is undisputed that respondent participated in the residential
rehabilitation program at Our House from February 2017 through August 2017.
Additionally, the social worker stopped being involved in the case on 1 September
2017 and did not testify regarding respondent’s actions or inactions from September
2017 through the termination hearing in January 2018. An absence of evidence is far
from clear, cogent, and convincing evidence that respondent did not complete the
requirements of the case plan.
Although respondent did not complete every aspect of her case plan, “[a]
parent’s failure to fully satisfy all elements of the case plan goals is not the equivalent
of a lack of ‘reasonable progress.’ ” In re J.S.L., 177 N.C. App. 151, 163, 628 S.E.2d
387, 394 (2006). The trial court found that respondent successfully completed the
court-ordered six-month residential substance abuse program and continued seeking
substance abuse treatment by voluntarily participating in a methadone program.
Evidence was also presented that respondent remained drug-free after completing
the residential substance abuse program, obtained suitable housing as required by
her case plan, and regularly visited with Adam, during which she behaved
appropriately.
The trial court’s finding of fact regarding respondent’s participation in a
methadone program is particularly inappropriate as a basis for concluding that she
has not made reasonable progress. It is undisputed that respondent was drug tested
frequently as part of her probation and methadone treatment. Respondent testified
that she saw a therapist once a month and that a medical decision had been made
not to wean her from methadone while she was experiencing back pain. Even though
the trial court specifically found that respondent’s statements about counseling were
not believable, it is for a medical professional, not the trial court, to determine
whether and how respondent’s duly prescribed medications should be discontinued.
As long as she was meeting the requirements of the methadone program she was
enrolled in, respondent would, in fact, be held accountable for not being compliant if
she chose to stop taking a medication being prescribed for her. Moreover, drug
addiction is a brain disease. See, e.g., Nora D. Volkow, George F. Koob, and A.
Thomas McLellan, Neurobiologic Advances from the Brain Disease Model of
Addiction, 374 N. Engl. J. Med. 363 (2016) (reviewing recent advances in
neurobiology of addiction to clarify link between addiction and brain function and to
broaden understanding of addiction as a brain disease.) A parent who is following a
doctor’s orders in a treatment program should not have that fact held against her,
just as one would not conclude that a diabetic relying on medication to control their
diabetes rather than diet and exercise is failing to make reasonable progress towards
good health.
Finally, respondent argues that she could have resumed custody of Adam as
evidenced by her having custody of her younger daughter Amy. While not
determinative, this Court has certainly considered it relevant when a parent has
previously had their parental rights terminated as to another child. Here, the fact
that respondent was parenting another child without any evidence of neglect should
have been relevant to the issue of whether respondent made reasonable progress
towards addressing the conditions that led to her son being removed from her care.
Willfulness “is established when the respondent had the ability to show
reasonable progress but was unwilling to make the effort.” In re Fletcher, 148 N.C.
App. 228, 235, 558 S.E.2d 498, 502 (2002). In the context of a termination of parental
rights proceeding, “the word ‘willful’ connotes purpose and deliberation.” See, e.g., In
re Nolen, 117 N.C. App. 693, 699, 453 S.E.2d 220, 224 (1995). The trial court’s finding
that respondent declined to enter a second, optional long-term residential
rehabilitation program and its finding that she was participating in the methadone
program without a plan to wean off of the methadone, along with its finding that it
did not believe respondent’s testimony that she was in counseling, do not support its
conclusion that respondent willfully left her child in care and did not make reasonable
progress to correct the conditions that led to Adam’s removal from her care. See In re
C.N., 831 S.E.2d at 884 (holding that the trial court’s findings that the respondent-
mother “had not been consistent in her treatment, was not fully compliant with her
case plan, and had only recently re-engaged in some services” did not support the
trial court’s conclusion that the respondent-mother had not made reasonable
progress); cf. In re I.G.C., 373 N.C. 201, 205–06, 835 S.E.2d 432, 435 (2019) (affirming
an order terminating parental rights under N.C.G.S. § 7B-1111(a)(2) where, despite
findings that the respondent-mother complied with her case plan by completing
multiple parenting courses, participating in domestic violence and substance abuse
treatment, and testing negative at three recent drug screens, there were additional
findings that the respondent-mother’s substance abuse and domestic violence
treatment were shorter in duration and less intense than recommended, she never
completed a court-ordered substance abuse assessment, and she admitted that she
would not feel comfortable caring for the children for another “year, year and a half”
because she feared she would relapse). Therefore, the trial court erred in concluding
that grounds existed to terminate respondent’s parental rights pursuant to N.C.G.S.
§ 7B-1111(a)(2).
Respondent also claims the trial court abused its discretion under N.C.G.S. §
7B-1110(a) by determining that it was in Adam’s best interests to terminate her
parental rights. Having concluded that the trial court erred in adjudicating grounds
for terminating respondent’s parental rights under N.C.G.S. § 7B-1111(a), there is no
need to address this issue. In re Young, 346 N.C. 244, 252, 485 S.E.2d 612, 617 (1997).
The statute concerning the dispositional phase of a termination of parental
rights proceeding provides that, where “circumstances authorizing termination of
parental rights do not exist, the court shall dismiss the petition.” N.C.G.S. § 7B-
1110(c) (2019). I would therefore reverse the trial court’s orders and remand the cause
for the dismissal of DSS’s petition. See Young, 346 N.C. at 253, 485 S.E.2d at 618.
Chief Justice BEASLEY and Justice DAVIS join in this dissenting opinion.
-9-