IN THE SUPREME COURT OF NORTH CAROLINA
No. 319A19
Filed 18 December 2020
IN THE MATTER OF: A.L.L.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 29
April 2019 by Judge April C. Wood in District Court, Davie County. Heard in the
Supreme Court on 2 September 2020.
Christopher M. Watford for petitioner-appellees.
Jeffrey L. Miller, for respondent-appellant mother.
EARLS, Justice.
Respondent appeals from an order entered by the Davie County District Court
terminating her parental rights to her minor daughter, Ann.1 The trial court
determined that grounds existed to terminate respondent’s parental rights pursuant
to N.C.G.S. §§ 7B-1111(a)(6) and (a)(7). Although we agree with petitioners that the
Davie County District Court had subject-matter jurisdiction to enter a termination
order, we conclude that petitioners have not proven by clear, cogent, and convincing
evidence that grounds existed to terminate respondent’s parental rights. Further, we
hold that the requirements of N.C.G.S. § 7B-1111(a)(6) are not met in this case
1 We refer to the juvenile by the pseudonym “Ann” for ease of reading and to protect
the privacy of the juvenile. IN RE A.L.L.
Opinion of the Court
because Ann resides with legal permanent guardians and that the record lacks any
evidence supporting a conclusion that respondent acted willfully within the meaning
of N.C.G.S. § 7B-1111(a)(7). Accordingly, there is no cause to remand for further fact-
finding, and we reverse the trial court’s order.
Standard of Review
A trial court with subject-matter jurisdiction “is authorized to order the
termination of parental rights based on an adjudication of one or more statutory
grounds.” In re J.A.E.W., 375 N.C. 112, 117, 846 S.E.2d 268, 271 (2020). Absent
subject-matter jurisdiction, a trial court cannot enter a legally valid order infringing
upon a parent’s constitutional right to the care, custody, and control of his or her
child. In re E.B., 375 N.C. 310, 315–16, 847 S.E.2d 666, 671 (2020). Whether or not a
trial court possesses subject-matter jurisdiction is a question of law that is reviewed
de novo. See, e.g., Willowmere Cmty. Ass’n, Inc. v. City of Charlotte, 370 N.C. 553, 556,
809 S.E.2d 558, 560 (2018). Challenges to a trial court’s subject-matter jurisdiction
may be raised at any stage of proceedings, including “for the first time before this
Court.” In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006).
“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)].” In re J.A.E.W., 375 N.C. at 116, 846 S.E.2d at 271
(citation omitted). We review a trial court’s order “to determine whether the findings
are supported by clear, cogent and convincing evidence and the findings support the
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conclusions of law.” In re Montgomery, 311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984).
The trial court’s conclusions of law are reviewed de novo. In re C.B.C., 373 N.C. 16,
19, 832 S.E.2d 692, 695 (2019).
Background
Respondent gave birth to her daughter, Ann, in July 2015. On the day Ann was
born, respondent made concerning statements to hospital personnel indicating a lack
of understanding of what was required to safely care for a newborn child. After
receiving respondent’s mental-health treatment records, which indicated that she
had previously been diagnosed with schizophrenia, obsessive compulsive disorder,
bipolar disorder, and an eating disorder, a doctor from the hospital conducted a
mental health assessment and confirmed a primary diagnosis of schizophrenia. A
report was made to the Davidson County Department of Social Services (DSS)
alleging that respondent’s mental health conditions might render her unable to
independently care for Ann. Respondent was unable or unwilling to provide
information about Ann’s father. She was unable to provide DSS with the name of any
person that could assist her in caring for Ann or who could serve as an appropriate
kinship placement.
Two days later, DSS filed a petition seeking to have Ann adjudicated to be a
dependent juvenile. DSS obtained nonsecure custody and placed Ann with foster
parents, the petitioners in the present case. Respondent entered into an out-of-home
family services agreement, agreeing to participate in parenting classes, complete a
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psychological and parenting capacity assessment, complete individual counseling,
and maintain suitable housing and visits with Ann. At a hearing on 7 October 2015,
the parties stipulated that Ann was a dependent juvenile and the Davidson County
District Court entered an order to that effect. Respondent was ordered to make
progress towards completing the terms of her case plan. She was allowed supervised
visits with Ann twice a week for two hours each time.
The trial court’s first permanency-planning order reflects that respondent
made significant progress towards satisfying the terms of her case plan. She had
completed parenting classes and a psychological and parenting capacity assessment,
started attending therapy and counseling, and obtained stable housing. She attended
all visitations with Ann except one. However, DSS and others involved in treating
respondent’s mental health conditions continued to report significant concerns about
respondent’s capacity to safely care for Ann. Although respondent was receiving
counseling and taking medications, she denied that she had a mental illness. She also
failed to appropriately interact with her child during visits, persisting in behaviors
suggesting inattentiveness to or incomprehension of Ann’s needs. She demonstrated
an unwillingness to acknowledge and address her deficiencies as a parent,
disregarding basic parenting advice offered by DSS. Weighing respondent’s progress
against her undeniable shortcomings as a parent, the trial court established a
permanent plan of reunification and a secondary plan of guardianship.
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After the first permanency-planning hearing, respondent continued to struggle
to address her severe mental health issues. At times, respondent was combative and
disrespectful towards DSS. She repeatedly provided Ann with gifts, clothing, and food
that were not age appropriate. Although none of her relatives were able to serve as a
kinship placement, a potential guardian who was acquainted with respondent’s
immediate family was identified and approved as an appropriate alternative
caregiver for Ann. However, the trial court changed the permanent plan to
guardianship with a secondary plan of termination of parental rights and adoption.
Ultimately, the trial court implemented the primary permanent plan by appointing
petitioners as Ann’s legal permanent guardians pursuant to N.C.G.S. § 7B-600.
Respondent was awarded visitation with Ann for one hour every three months
supervised by petitioners in a public place of their choosing. The trial court waived
future permanency planning and review hearings.
On 27 February 2018, petitioners filed a petition seeking to terminate
respondent’s parental rights in Davie County District Court. Petitioners stated that
they wished to have respondent’s parental rights terminated in order to adopt Ann
“as soon as possible.” Over respondent’s objection, the trial court appointed her an
attorney and a guardian ad litem. At a termination hearing on 15 April 2019, the trial
court received evidence from a psychologist who evaluated respondent and the DSS
social worker who managed respondent’s case. The evidence indicated that while
respondent “did everything that DSS and the [c]ourt asked her to do,” her mental
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health conditions, and resultant deficiencies as a parent, rendered her unable to
safely care for her daughter. Testimony presented at the hearing also indicated that
respondent had persisted in her refusal to take prescribed medication to treat her
mental health conditions, although the DSS social worker acknowledged that even if
respondent had complied with her medication plan, she would still lack the “mental
health stability” necessary to be a parent.
On 29 April 2019, the Davie County District Court entered an order
terminating respondent’s parental rights on the grounds that she was incapable of
providing for the proper care and supervision of Ann such that Ann was a dependent
juvenile, pursuant to N.C.G.S. § 7B-1111(a)(6), and that she had willfully abandoned
Ann, pursuant to N.C.G.S. § 7B-1111(a)(7). Respondent appealed the trial court’s
order.
Analysis
Respondent raises three challenges to the Davie County District Court’s order
terminating her parental rights to Ann. First, she contends that the Davie County
District Court lacked subject-matter jurisdiction to enter an order terminating her
parental rights because the Davidson County District Court had previously entered
a permanency-planning order establishing petitioners as Ann’s legal permanent
guardians. Second, respondent argues that the trial court failed to make adequate
findings to support a conclusion that she lacked an “appropriate alternative child care
arrangement” for Ann as required under N.C.G.S. § 7B-1111(a)(6) and that the
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requirements of N.C.G.S. § 7B-1111(a)(6) cannot be satisfied as a ground for
terminating the rights of a parent whose child has been placed with legal permanent
guardians. Third, respondent argues that the trial court failed to make adequate
findings to support a conclusion that she had “willfully abandoned” Ann within the
meaning of N.C.G.S. § 7B-1111(a)(7) and that the record lacks any evidence
indicating that her behavior was anything other than a manifestation of her severe
mental health conditions. We address each argument in turn.
a. Jurisdiction
Respondent argues that the Davie County District Court lacked jurisdiction
because the Davidson County District Court had previously entered a legally valid
order establishing a permanent plan of guardianship in Ann’s underlying dependency
proceeding. If respondent were correct that the Davie County trial court lacked
subject-matter jurisdiction, then its order terminating respondent’s parental rights
was “[a] void judgment [which] is, in legal effect, no judgment. No rights are acquired
or divested by it.” Hart v. Thomasville Motors, Inc., 244 N.C. 84, 90, 92 S.E.2d 673,
678 (1956); see also In re T.R.P., 360 N.C. at 590, 636 S.E.2d at 790 (“Subject-matter
jurisdiction is the indispensable foundation upon which valid judicial decisions rest,
and in its absence a court has no power to act[.]”). However, we conclude that the
Davie County District Court had subject-matter jurisdiction to enter an order
terminating respondent’s parental rights.
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A trial court’s subject-matter jurisdiction over a petition to terminate parental
rights is conferred by N.C.G.S. § 7B-1101.
The court shall have exclusive original jurisdiction to hear and determine any petition or motion relating to termination of parental rights to any juvenile who resides in, is found in, or is in the legal or actual custody of a county department of social services or licensed child-placing agency in the district at the time of filing of the petition or motion.
N.C.G.S. § 7B-1101 (2019). Respondent does not dispute that at the time the
termination petition was filed, Ann resided with her legal permanent guardians in
Davie County. Respondent does not dispute that petitioners were an appropriate
party to file a termination petition given that they had “been judicially appointed as
the guardian of the person of the juvenile.” N.C.G.S § 7B-1103(a)(1) (2019). In an
attempt to circumvent the necessary conclusion that the Davie County District Court
had subject-matter jurisdiction, respondent contends that permitting one court to
override another court’s permanency planning order frustrates the Juvenile Code’s
overarching policy of preserving family autonomy by preventing the unnecessary
dissolution of parent-child bonds. See N.C.G.S. § 7B-100 (2019). Further, she argues
that permitting the Davie County District Court to exercise jurisdiction would be
inconsistent with North Carolina’s “integrated” juvenile system, which creates “one
continuous juvenile case with several interrelated stages, not a series of discrete
proceedings.” In re T.R.P., 360 N.C. at 593, 636 S.E.2d at 792.
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It is well-established that “[a] court’s jurisdiction to adjudicate a termination
petition does not depend on the existence of an underlying abuse, neglect, and
dependency proceeding.” In re E.B., 375 N.C. at 317, 847 S.E.2d at 672. Indeed,
although the Juvenile Code permits petitioners to seek termination in the same
district court that is simultaneously adjudicating an underlying abuse, neglect, or
dependency petition, the statutory language does not mandate filing in a single court.
See N.C.G.S. § 7B-1102(a) (2019) (“When the district court is exercising jurisdiction
over a juvenile and the juvenile’s parent in an abuse, neglect, or dependency
proceeding, a person or agency specified in [N.C.G.S. §] 7B-1103(a) may file in that
proceeding a motion for termination of the parent’s rights in relation to the
juvenile.”). Thus, as the Court of Appeals has correctly held, a trial court lacks
jurisdiction over a termination petition if the requirements of N.C.G.S. § 7B-1101
have not been met, even if there is an underlying abuse, neglect, or dependency action
concerning that juvenile in the district in which the termination petition has been
filed. In re J.M., 797 S.E.2d 305, 306 (N.C. Ct. App. 2016). However, if the
requirements of N.C.G.S. § 7B-1101 have been met in one county, then a district court
in that county has jurisdiction, even if an abuse, neglect, or dependency action is
pending in another county.2 In this case, the petitioners were Ann’s legal permanent
guardians who filed their petition in the district court in the county where they
2 We note that Davidson County and Davie County are in the same judicial district.
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resided with Ann, satisfying the requirements of N.C.G.S. § 7B-1101. Accordingly, we
reject respondent’s jurisdictional claim and turn to the merits of the termination
b. Dependency
A ground exists to terminate parental rights pursuant to N.C.G.S. § 7B-
1111(a)(6) if petitioners can prove by clear, cogent, and convincing evidence that “the
parent is incapable of providing for the proper care and supervision of the juvenile,
such that the juvenile is a dependent juvenile within the meaning of [N.C.G.S. §] 7B-
101, and that there is a reasonable probability that such incapability will continue
for the foreseeable future.” N.C.G.S. § 7B-1111(a)(6). In order for dependency to
provide a basis for terminating parental rights, the petitioners must also prove that
“the parent lacks an appropriate alternative child care arrangement.” Id. In the
present case, the parties do not dispute that due to respondent’s mental health
conditions, she is unable to care for her child. Instead, respondent argues that the
trial court made no findings of fact which provide clear, cogent, and convincing
evidence that she “lacks an appropriate alternative child care arrangement” for Ann.
A review of the record shows that respondent is correct. The burden was on the
petitioners to prove that N.C.G.S. § 7B-1111(a)(6) supported termination by “(1)
alleg[ing] and prov[ing] all facts and circumstances supporting the termination of the
parent’s rights; and (2) demonstrat[ing] that all proven facts and circumstances
amount to clear, cogent, and convincing evidence that the termination of such rights
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is warranted.” In re Pierce, 356 N.C. 68, 70, 565 S.E.2d 81, 83 (2002). The trial court’s
termination order contains no findings of fact addressing the availability to
respondent, or lack thereof, of an alternative child care arrangement. Accordingly,
the trial court’s conclusion that the ground of dependency existed to terminate
respondent’s parental rights is not supported by clear, cogent, and convincing
evidence, and its conclusion that respondent’s parental rights may be terminated
pursuant to N.C.G.S. § 7B-1111(a)(6) must be vacated.
Additionally, respondent asserts more broadly that the requirements of
N.C.G.S. § 7B-1111(a)(6) cannot be satisfied in this case because Ann resides with
legal permanent guardians. According to respondent, a legal permanent guardian is
necessarily “an appropriate alternative child care arrangement” within the meaning
of N.C.G.S. § 7B-1111(a)(6). In response, petitioners argue that the requirements of
N.C.G.S. § 7B-1111(a)(6) have been satisfied because respondent did not herself
identify, and is not presently able to identify, a viable alternative child care
arrangement.
The effect of a child’s placement with a legal permanent guardian on the
requirements of N.C.G.S. § 7B-1111(a)(6) is a novel issue for this Court. However,
this issue has been addressed by the Court of Appeals, which has concluded that the
requirements of N.C.G.S. § 7B-1111(a)(6) are met even when a parent has acquiesced
to a DSS-arranged placement, unless “the parent . . . ha[s] taken some action to
identify [a] viable alternative[]” child care arrangement. In re C.B., 245 N.C. App.
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197, 211, 783 S.E.2d 206, 216 (2016) (emphasis added). As the Court of Appeals
explained in another case
the fact that [the juvenile] was placed with his maternal grandmother cannot mean, without anything more, that respondent father had an alternative care arrangement. If this were the case, the requirement would be meaningless because, in the words of the guardian ad litem, “our courts will always do their best to ensure that someone” cares for children. Having an appropriate alternative childcare arrangement means that the parent himself must take some steps to suggest a childcare arrangement—it is not enough that the parent merely goes along with a plan created by DSS.
In re L.H., 210 N.C. App. 355, 365–66, 708 S.E.2d 191, 198 (2011).
We begin by noting that N.C.G.S. § 7B-1111(a)(6) contains no language
indicating that it is the parent, and the parent alone, who must locate and secure an
appropriate alternative child care arrangement. See King v. Town of Chapel Hill, 367
N.C. 400, 404, 758 S.E.2d 364, 369 (2014) (determining that when ascertaining the
meaning of statutes, “we first must look to the plain language of the statutes
themselves”). Rather, the statute provides that it is the availability or unavailability
of an appropriate alternative child care arrangement, not the parent’s success or
failure in identifying one, that determines whether or not N.C.G.S. § 7B-1111(a)(6)
supports the termination of parental rights. This Court has previously characterized
N.C.G.S. § 7B-1111(a)(6) utilizing language that accords with this understanding,
stating that a ground exists for terminating parental rights upon proof of “the
[un]availability to the parent of alternative child care arrangements.” In re K.L.T.,
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374 N.C. 826, 847, 845 S.E.2d 28, 43 (2020) (alteration in original) (emphasis added).
By analogy, the statutory provision defining indigency for the purposes of assessing
a defendant’s eligibility for court-appointed counsel utilizes a similarly passive
construction. See N.C.G.S. § 7A-450(a) (2019) (“An indigent person is a person who is
financially unable to secure legal representation and to provide all other necessary
expenses of representation . . . .” (emphasis added)). In construing N.C.G.S. § 7A-450,
this Court held that it is the availability or unavailability of sufficient resources to
secure legal representation that determines a defendant’s eligibility for court-
appointed counsel, not the defendant’s personal role in obtaining those resources. See
State v. McDowell, 329 N.C. 363, 373, 407 S.E.2d 200, 206 (1991) (holding that an
otherwise indigent defendant was ineligible for assistant court-appointed counsel
when family members paid for the defendant’s private attorney). Similarly, the most
natural reading of N.C.G.S. § 7B-1111(a)(6) is that it is the objective availability or
unavailability of an appropriate alternative child care arrangement that is relevant
in assessing dependency under N.C.G.S. § 7B-1111(a)(6), not the parent’s personal
role in securing the alternative arrangement.
This reading of N.C.G.S. § 7B-1111(a)(6) is consistent with the legislative
intent embodied in North Carolina’s Juvenile Code. See, e.g., State v. Tew, 326 N.C.
732, 738, 392 S.E.2d 603, 607 (1990) (“It is a cardinal principle that in construing
statutes, the courts should always give effect to the legislative intent.”). The
overarching purpose of the Juvenile Code is the “protection of children by
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constitutional means that respect both the right to family autonomy and the needs of
the child.” In re T.R.P., 360 N.C. at 598, 636 S.E.2d at 794. It serves the state’s
interest in protecting children to authorize termination of parental rights when a
parent is unable to provide appropriate care for a child and no appropriate alternative
child care arrangement is available. However, when a parent is unable to provide
appropriate care, but the child is residing with another appropriate permanent
caretaker, then the parent’s incapability does not itself supply a reason for the state
to intervene to dissolve the constitutionally protected parent-child relationship. In
this circumstance, requiring the parent to affirmatively identify an alternative child
care arrangement threatens the parent’s constitutional status without serving the
state’s parens patriae interest in the child’s safety.
We disagree with the Court of Appeals that our interpretation of N.C.G.S. § 7B-
1111(a)(6) renders the provision meaningless. Many of the provisions supplying
grounds for terminating parental rights apply at some points in a juvenile proceeding
and do not apply at others. There are still circumstances in which N.C.G.S. § 7B-
1111(a)(6) will be a valid ground for terminating parental rights due to dependency.
We emphasize that Ann currently resides with court-approved legal permanent
guardians. Even if respondent could identify another appropriate alternative
caregiver, respondent lacks legal authority to remove Ann from her guardians unless
the trial court determines that terminating the guardianship serves Ann’s best
interests. N.C.G.S. § 7B-600(b) (2019). Thus, Ann will remain in her guardians’ “care,
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custody, and control” until she reaches the age of majority or until the trial court
determines that guardianship is no longer in Ann’s best interests, that the guardians
are unfit or neglectful, or that the guardians are no longer willing or able to care for
Ann. See id.
Permanent guardianship, which provides a child with stability and the
opportunity to develop durable, healthy, dependent bonds with adult caregivers, is
distinct from a temporary custodial arrangement which leaves a juvenile in a state of
ongoing uncertainty. See Josh Gupta-Kagan, The New Permanency, 19 U.C. Davis J.
Juv. L. & Pol’y 1 (2015) (describing how permanent guardianship serves the juvenile
system’s interest in permanency by facilitating stable placements and reducing
unnecessary litigation); Sarah Katz, The Value of Permanency: State Implementation
of Legal Guardianship Under the Adoption and Safe Families Act of 1997, 2013 Mich.
St. L. Rev. 1079, 1089 (2013) (“[P]ermanent legal guardianship is widely recognized
as a positive permanency outcome by a broad array of child-welfare experts . . . .”).
Requiring the identification of an alternative child care arrangement serves a child’s
interest in permanency when the child is in the custody of an incapable parent or a
temporary caregiver. But when the child resides with a permanent legal guardian,
the parent’s ability to identify an alternative child care arrangement is extraneous to
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the concerns animating our Juvenile Code.3 To construe N.C.G.S. § 7B-1111(a)(6) to
be satisfied in this circumstance would make a parent’s constitutional rights
contingent on his or her ability to jump through an unnecessary procedural hoop.
Accordingly, we hold that the requirements of N.C.G.S. § 7B-1111(a)(6) are not
satisfied as a ground for terminating parental rights when, as in the present case,
the parent’s child has been placed with a legal permanent guardian pursuant to a
valid order implementing the child’s permanency plan. Because the requirements of
N.C.G.S. § 7B-1111(a)(6) cannot be satisfied in the present case, a remand for further
factual findings to address the availability to respondent of an appropriate
alternative child care arrangement is unnecessary.
c. Willful Abandonment
In addition to N.C.G.S. § 7B-1111(a)(6), the trial court also found that
termination was warranted pursuant to N.C.G.S. § 7B-1111(a)(7), which permits
termination of parental rights if “[t]he parent has willfully abandoned the juvenile
for at least six consecutive months immediately preceding the filing of the petition or
3 When, as in this case, the guardianship results from the implementation of a juvenile’s permanency plan, there is no reason for the mother to feel obligated to identify and propose an alternative child care arrangement which the parent will have no cause or authority to effectuate. By contrast, preliminary custody orders and other placement arrangements that recur throughout the history of abuse and neglect proceedings do not create the sorts of permanent alternative child care arrangements that suffice to preclude a finding that the parent's parental rights are subject to termination pursuant to N.C.G.S. § 7B-1111(a)(6). Until a legal permanent guardianship has been established, a parent will still have reason to identify and propose an alternative child care arrangement.
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motion.” N.C.G.S. § 7B-1111(a)(7). Willful abandonment requires both actual
abandonment and a “willful intent to abandon [a] child” which is “a question of fact
to be determined from the evidence.” In re N.D.A., 373 N.C. 71, 77, 833 S.E.2d 768,
773 (2019). To find that a parent has willfully abandoned his or her child, the trial
court must “find evidence that the parent deliberately eschewed his or her parental
responsibilities in their entirety.” In re E.B., 375 N.C. at 318, 847 S.E.2d at 673. At
the adjudicatory stage, the petitioner bears the burden of proving willful
abandonment by clear, cogent, and convincing evidence. In re N.D.A., 373 N.C. at 74,
833 S.E.2d at 771.
There is no dispute that the trial court failed to make any findings regarding
respondent’s conduct within the “determinative” six months preceding the filing of
the termination petition. See id. at 77, 833 S.E.2d at 773 (“[A]lthough the trial court
may consider a parent’s conduct outside the six-month window in evaluating a
parent’s credibility and intentions, the determinative period for adjudicating willful
abandonment is the six consecutive months preceding the filing of the petition.”
(cleaned up)). The trial court’s order is also bereft of any factual findings or
conclusions of law stating that respondent willfully abandoned her child. Thus, the
trial court’s conclusion of law that N.C.G.S. § 7B-1111(a)(7) supplied a ground for
terminating respondent’s parental rights is not supported by clear, cogent, and
convincing evidence. See In re Young, 346 N.C. 244, 252, 485 S.E.2d 612, 617 (1997).
Recognizing this deficiency, petitioners invite us to remand for further fact-finding,
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asserting that there is evidence in the underlying record that could support a
conclusion of law that respondent willfully abandoned Ann within the meaning of
N.C.G.S. § 7B-1111(a)(7). See Green Tree Fin. Servicing Corp. v. Young, 133 N.C. App.
339, 341, 515 S.E.2d 223, 224 (1999) (determining that vacatur and remand is
appropriate unless “the facts are not in dispute and only one inference can be drawn
from them”). In particular, petitioners emphasize respondent’s mental-health
treatment records, which show that during the determinative six-month window, she
continued to suffer from “delusions” and “struggle[s] with reality,” persisted in her
refusal to take prescribed medications, and became “easily agitated,” “delusional,”
and “incoherent” during a visit with Ann.
To prove that termination of parental rights is warranted, petitioners carry the
burden of proving that respondent “acted willfully in abandoning [her] child.” In re
L.M.M., 375 N.C. 346, 353, 847 S.E.2d 770, 776 (2020). Even if it were correct that
respondent actually abandoned Ann, nothing in the trial court’s findings of fact
supports the legal conclusion that respondent’s behavior evinced a “purposeful,
deliberative” intent to “forego all parental duties and relinquish all parental claims
to the child.” In re A.G.D., 374 N.C. 317, 319, 841 S.E.2d 238, 240 (2020) (cleaned up).
The evidence in the record also does not support this conclusion. Instead, the evidence
shows that respondent’s deficient conduct as a parent was largely, if not entirely, a
manifestation of her severe mental illnesses. The trial court expressly found that
respondent intended to be a parent to Ann, finding that she was “not capable of
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providing proper care or supervision [to Ann], even though she desires to do so.” An
entry in respondent’s treatment records from the night before a scheduled visit with
Ann states that respondent was “excited for [the] visit tomorrow.” The record also
confirms that respondent’s actions did not always mirror her intentions—for
example, on multiple occasions she attempted to demonstrate her love and affection
for Ann by providing gifts and expressing concern for her child’s well-being, although
she frequently did so in misguided ways. Petitioners have not identified any evidence
detracting from the obvious conclusion that respondent intended to parent Ann but,
due to her mental health conditions, lacked the capacity to do so. Nothing in the
record suggests that her conduct “manifest[ed] a willful determination to forego all
parental duties and relinquish all parental claims to the child.” In re Young, 346 N.C.
at 251, 485 S.E.2d at 617 (citation omitted).
Evidence that respondent acted in a manner consistent with the symptoms of
her severe mental illness is not, standing alone, evidence that she willfully intended
to abandon her child. Nor does respondent’s refusal to take prescribed medications
transform her conduct into rational, volitional conduct, as both the trial court and
petitioners imply. Respondent’s refusal to take necessary medications may itself have
resulted from the very mental health conditions that caused her to require treatment
in the first place. See, e.g., Washington v. Harper, 494 U.S. 210, 231 (1990) (citing
Harold I. Schwarz, William Vingiano & Carol Bezirganian Perez, Autonomy and the
Right to Refuse Treatment: Patients’ Attitudes After Involuntary Medication, 30
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Hospital & Community Psychiatry 1049 (1988)) (“Particularly where the patient is
mentally disturbed, his own intentions will be difficult to assess and will be
changeable in any event.”). Further, we agree with the Court of Appeals that,
logically, there must be “[e]vidence showing a parent’s ability, or capacity to acquire
the ability, to overcome factors which resulted in their children being placed in foster
care” in order to support the conclusion that a parent has willfully abandoned his or
her child by failing to correct those conditions. In re Matherly, 149 N.C. App. 452, 455,
562 S.E.2d 15, 18 (2002). Thus, at a minimum, a trial court presented with evidence
indicating that a mentally ill parent has willfully abandoned his or her child must
make specific findings of fact to support a conclusion that such behavior illustrated
the parent’s willful intent rather than symptoms of a parent’s diagnosed mental
illness.4
Our reasoning should in no way be taken to suggest that every parent who
struggles with a mental health condition lacks the capacity to make choices signifying
an intent to abandon one’s child. Rather, just as “[i]ncarceration, standing alone, is
neither a sword nor a shield in a termination of parental rights decision,” In re
M.A.W., 370 N.C. 149, 153, 804 S.E.2d 513, 517 (2017) (alteration in original),
4 Although it may be difficult to distinguish between a mentally ill parent who makes
a volitional choice to refuse treatment and a mentally ill parent who refuses treatment because of his or her mental illness, courts must make a similar distinction when deciding if a mentally ill litigant is competent to refuse treatment or may be forcibly medicated against their expressed wishes. See generally Grant H. Morris, Judging Judgment: Assessing the Competence of Mental Patients to Refuse Treatment, 32 San Diego L. Rev. 343, 370 (1995).
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behavior emanating from a parent’s mental health conditions may supply grounds for
terminating parental rights only “upon an analysis of the relevant facts and
circumstances,” such as the severity of the parent’s condition and the extent to which
the parent’s behavior is consistent with recognizable symptoms of an illness. In re
K.N., 373 N.C. 274, 283, 837 S.E.2d 861, 868 (2020). In the present case, evidence
that respondent “failed and refused to follow the medication regimen proposed by her
doctors” and “dwelt in her mental illness” is insufficient to support the conclusion
that she willfully abandoned Ann. Because there is no evidence in the record showing
(1) that her failure to follow the medication regimen was itself a willful act, and (2)
that compliance with her medication regimen would have enabled her to cure the
parenting deficiencies caused by her mental illnesses, there is no cause to remand for
further fact-finding.
We emphasize that our decision in this case does not threaten the petitioners’
status as Ann’s legal permanent guardians, although we acknowledge the tangible
and symbolic differences between guardianship and parenthood. However, the
protections provided to parents by our Juvenile Code and by our federal and state
constitutions are enjoyed by healthy and infirm parents alike. Moreover, parents who
cannot provide for their children as independent caregivers may still be able to
maintain a limited but meaningful bond with their children that may benefit both
the parent and the child, a bond which may grow over time if the parent-child
relationship is preserved and the parent’s condition improves. See, e.g., In re Cameron
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B., 154 A.3d 1199, 1201 (Me. 2017) (“When it is appropriate, a permanency
guardianship allows parents whose children cannot be returned to them to have a
meaningful opportunity to maintain a legal relationship with their children and to
have the court determine their rights to have contact with their children.”). Although
respondent’s mental health challenges obviously interfere with her ability to be a
parent to Ann, her condition is not prima facie evidence that her parental rights may
be terminated.
Conclusion
The Davie County District Court had subject-matter jurisdiction to enter the
order terminating respondent’s parental rights, notwithstanding the prior order
establishing petitioners as Ann’s permanent guardians entered by the Davidson
County District Court in the underlying dependency proceeding. However,
petitioners have failed to carry their burden of proving the existence of a ground for
terminating parental rights by clear, cogent, and convincing evidence. Because the
requirements of N.C.G.S. § 7B-1111(a)(6) have not been met when a child has been
placed with permanent legal guardians and because there is no evidence in the record
indicating that respondent willfully abandoned her child, we reverse the trial court’s
order terminating respondent’s parental rights.
REVERSED.
-22- Justice NEWBY concurring in part and dissenting in part.
I agree with the majority that the district court had subject matter jurisdiction
to terminate respondent’s parental rights. I disagree with the majority’s conclusion
to reverse the termination of respondent’s parental rights under subsections 7B-
1111(a)(6) and (a)(7) of our General Statutes. This case involves a mother who is
unable to parent her child due to severe mental illness that, according to the trial
court’s findings and evidence in the record, has only deteriorated in the over four
years since the child was born. The majority, for policy reasons of its own, chooses
guardianship over adoption, invalidating the trial court’s decision to terminate
respondent’s parental rights on these two grounds, subsections 7B-1111(a)(6) and
(a)(7). It does so by making its own findings, rendering a portion of the relevant
statutes meaningless, and relying on social science articles and out-of-state cases that
do not effectuate the purpose and intent of North Carolina’s statutes providing for
termination of parental rights. I would conclude that both grounds for termination
are satisfied here. As such, I concur in part and dissent in part.
The first ground upon which the trial court terminated respondent’s rights was
dependency. Subsection 7B-1111(a)(6) provides that a parent’s rights may be
terminated when
the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101, and that there is a reasonable probability that the incapability IN RE A.L.L.
Newby, J., concurring in part and dissenting in part
will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, intellectual disability, mental illness, organic brain syndrome, or any other cause or condition that renders the parent unable or unavailable to parent the juvenile and the parent lacks an appropriate alternative child care arrangement.
N.C.G.S. § 7B-1111(a)(6) (2019). Therefore, in addition to showing an incapability to
care for the child, there must also be a showing that “the parent lacks an appropriate
alternative child care arrangement.”
There is no dispute that respondent is incapable of parenting the child in this
case. Additionally, it is clear that, in the four years between the child’s birth and the
termination hearing, respondent was never able to identify an alternative childcare
arrangement. The trial court order and record here show that from the time the child
was born, respondent was unable and unwilling to provide the necessary information
to establish an alternative childcare arrangement opportunity, beginning with her
unwillingness to give any identifying information as to the child’s father. Thus, the
express statutory language is met. The majority now holds, however, that when DSS
places the child in an arrangement that results in permanent guardianship, the
requirements of subsection 7B-1111(a)(6) can never be met. Simply fulfilling its
statutory duty, DSS arranged for a suitable home for the child without any assistance
from respondent. Contrary to the majority’s holding, a trial court can find that the
dependency ground exists despite the fact that a child is placed in a permanent
guardianship. Since 2011, the Court of Appeals has interpreted subsection 7B-
1111(a)(6) to mean “the parent must have taken some action to identify viable
[childcare] alternatives.” In re L.H., 210 N.C. App. 355, 364, 708 S.E.2d 191, 197
(2011). If this interpretation were wrong, the General Assembly would have acted to
correct it. Now the majority overrules this ten-year-old precedent.
The majority reasons that the statutory language does not require a parent to
have identified any alternative childcare arrangement; in the majority’s view, where
DSS has established an appropriate alternative childcare arrangement, the second
prong of subsection 7B-1111(a)(6) cannot be satisfied. The majority reasons that so
long as “the child is residing with another appropriate permanent caretaker, then the
parent’s incapability does not itself supply a reason for the state to intervene” to
terminate a respondent’s parental rights. Even more concerning, the majority
reasons that the alternative childcare arrangement element is never “satisfied as a
ground for terminating parental rights when, as in the present case, the parent’s child
has been placed with a legal permanent guardian,” even when respondent has not
participated in identifying a permanent guardian for the child. Thus, the majority
holds that where DSS acts in a way to protect the child by identifying a family that
can serve as a permanent guardian when the parent is incapable of caring for the
child, the parent’s rights can never be terminated on dependency grounds.
Surely this reasoning cannot be correct given that DSS frequently has to
identify a placement for a child upon that child’s removal from the home and does so
without any input from the parent. As the Court of Appeals has previously
recognized, a holding to the contrary renders the second portion of subsection
7B-1111(a)(6) meaningless, which could not have been the General Assembly’s intent
in crafting the precise language and requirements of this statutory provision. See In
re L.H., 210 N.C. App. at 365–66, 708 S.E.2d at 198 (“[T]he fact that [the child] was
placed with his maternal grandmother cannot mean, without anything more, that
respondent father had an alternative care arrangement. If this were the case, the
[statutory] requirement would be meaningless because, in the words of the guardian
ad litem, ‘our courts will always do their best to ensure that someone’ cares for
children.”). The fact that DSS has identified an alternative placement does not relieve
a parent from his or her obligation to show, when dependency arises, that there is an
alternative childcare placement that should prevent termination of parental rights.
The majority’s opinion to the contrary creates a Catch-22 situation for DSS,
discouraging DSS from immediately identifying a placement for the child because
they will later be precluded from terminating a parent’s rights on dependency
grounds.
Moreover, it is the General Assembly, not this Court, that should make policy
decisions. The General Assembly has decided as a matter of policy that a parent’s
rights may be terminated in dependency situations where the parent has a mental
illness that makes parenting impossible. As clearly stated in our statutes, “it is in the
public interest to establish a clear judicial process for adoptions, [and] to promote the
integrity and finality of adoptions.” N.C.G.S. § 48-1-100(a) (2019); see also N.C.G.S.
§ 48-1-100(b) (2019) (discussing that it is desirable to “advance the welfare of minors
by . . . facilitating the adoption of minors in need of adoptive placement by persons
who can give them love, care, security, and support”). The majority here advances its
own policy preferences, favoring permanent guardianship over adoption, instead of
deferring to the policy enactments of the General Assembly. The legislature will have
to intervene now that the majority has rendered subsection 7B-1111(a)(6)
meaningless under these circumstances.
The trial court also terminated respondent’s parental rights based on N.C.G.S.
§ 7B-1111(a)(7) (2019), the willful abandonment ground for termination. Subsection
7B-1111(a)(7) provides that a trial court may terminate a parent’s parental rights if
“[t]he parent has willfully abandoned the juvenile for at least six consecutive months
immediately preceding the filing of the petition or motion.”
Though the trial court here did not explicitly reference the six months
preceding the termination hearing, it is clear the trial court considered the relevant
period since it made numerous findings related to respondent’s abandonment of the
child. The trial court noted that respondent persistently brought the child
inappropriate gifts, consistently refused medication treatment for her mental illness,
failed to comply with her physicians’ recommendations, testified about the out-of-
body experiences she has had and the times she has put herself in dangerous
situations, and continuously demonstrated psychosis, mania, anger, poor insight, and
poor impulse control without showing any improvement in the four years before the
hearing. The trial court stated that, “[s]ince the child was born, the Respondent
Mother’s mental health status has deteriorated.” Based on the fact that, when viewed
as a whole, there is evidence in the record that supports the trial court’s decision to
terminate respondent’s parental rights based on her conduct within the relevant six-
month period, I would also uphold termination on this basis as well.
The majority finds facts not in the trial court order or the record about
respondent’s ability to parent the child and then concludes that there is no evidence
that respondent’s actions have been willful. Supporting its approach with various
social science articles not presented to the trial court and cases from other states, the
majority reasons that where a parent has a mental illness, in many cases, the trial
court will not be able to determine that an individual’s actions are willful if they can
be attributable to an individual’s mental illness. Though the majority notes that
courts must make distinctions about the willfulness of mental capacity in other
circumstances, the majority removes the trial court’s ability to make a willfulness
determination here; instead, it finds that the trial court should not have concluded
that respondent’s actions could be categorized as willful. In short, the majority
assumes itself to be in a better position to judge the willfulness of respondent’s
conduct from a cold record than the trial court which personally observed respondent.
Under the type of reasoning that the majority advances, the more severe the
mental illness, the less likely it will be for the trial court to terminate parental rights
based on any ground requiring a willfulness determination. This approach will leave
children in legal limbo, unable to be adopted so long as a biological parent suffers
from a significant mental health disorder. Thus, the chances of permanency through
adoption will dramatically decrease as a parent’s mental illness worsens. Surely this
reasoning does not support the legislative goals of promoting the physical and
emotional well-being of the child and providing permanency for juveniles at the
earliest possible age. See N.C.G.S. § 7B-1100(1), (2) (2019). Nor does this reasoning
promote the clearly established goal to facilitate and promote the integrity and
finality of adoptions. See N.C.G.S. § 48-1-100(a), (b). The majority’s new policy-driven
standard for preventing termination of parental rights in cases in which the parent
has worsening mental illness undermines expressly stated statutory goals for
termination. The General Assembly will also need to address this issue.
To achieve its policy outcome the majority’s opinion sets an unrealistic
standard for termination that undermines the goals set forth in our termination
statutes and ignores express statutory language. It places its policy preferences over
those enacted by the legislature. I would affirm termination of respondent’s parental
rights on both grounds. Therefore, I concur in part and dissent in part.
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