In re G.B., M.B., and A.O.J.

Opinions

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2021-NCSC-34

No. 438A19

Filed 16 April 2021

IN THE MATTER OF: G.B., M.B., and A.O.J.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 7

August 2019 by Judge Monica M. Bousman in District Court, Wake County. This

matter was heard in the Supreme Court on 13 January 2021.

Mary Boyce Wells, Office of the Wake County Attorney, for petitioner-appellee Wake County Human Services.

Michelle FormyDuval Lynch and Reginald O’Rourke for appellee guardian ad litem.

Robert W. Ewing for respondent-appellant mother.

Sean Paul Vitrano for respondent-appellant father.

MORGAN, Justice.

¶1 Respondent-mother and respondent-father appeal from the trial court’s order

terminating their parental rights to their minor children M.B. (Mark), who was born

in November 2013, and G.B. (Gail), who was born in July 2016. Respondent-mother

also appeals from the portion of the same order which terminated her parental rights

to her minor daughter from a previous relationship, A.O.J. (Ann), who was born in

December 2005.1 Ann’s father is not a party to this appeal. After careful review, we

1 Pseudonyms are used to protect the identities of the juveniles and for ease of reading.

Opinion of the Court

conclude that the trial court properly adjudicated at least one ground for termination

and did not abuse its discretion in determining that termination of respondents’

parental rights was in the children’s best interests. Accordingly, we affirm the

termination of parental rights order.

I. Factual Background and Procedural History

¶2 In November 2016, all three children were living with respondents. On 30

November 2016, respondent-father became incarcerated and remained in this

capacity throughout the proceedings in this case. After respondent-father’s

incarceration, respondent-mother became involved in a romantic relationship with

Deyonte Galloway, a nineteen-year-old with several felony convictions on his record.

¶3 In April 2017, officers with the Fuquay-Varina Police Department found Mark,

who was three years old at the time, wandering outside alone and only wearing a

diaper. After investigating this circumstance by going door-to-door in the

neighborhood, the officers located respondent-mother’s home. When questioned,

respondent-mother responded that no one in the home had realized that Mark was

outdoors. Between April and June 2017, Mark experienced several injuries, including

three black eyes and bruising that appeared to have been made by fingers. On 5 June

2017, Mark suffered a broken arm, but respondent-mother did not seek care for her

son until two days later. After Mark received a cast for the broken limb on 7 June

2017, respondent-mother left Mark in the bathtub, causing the cast to get wet and

requiring a new cast to be created for Mark’s arm on the following day.

¶4 At some point, petitioner Wake County Human Services (WCHS) received

reports that respondent-mother and Galloway had substance abuse issues and that

they engaged in domestic violence in the presence of the children, including incidents

that left holes in the walls of respondent-mother’s home and other occasions during

which Galloway damaged respondent-mother and Ann’s cellular telephones to

prevent them from contacting help. In August 2017, respondent-mother tested

positive for cocaine and marijuana; in another instance, respondent-mother refused

to provide a hair sample for a drug screen after having admitted that she had

previously used urine obtained from Ann in order to favorably affect her drug screen

results. WCHS also received reports that respondent-mother (1) had thrown a shoe

at Mark, striking his head; (2) had been moving the children from hotel to hotel along

with Galloway—a known gang member with multiple outstanding arrest warrants—

in order to avoid Galloway’s arrest; (3) was verbally abused by Galloway when she

made telephone calls; and (4) failed to use a voucher that she received to obtain free

eyeglasses for Ann, who is legally blind as a result of a degenerative eye disease.

¶5 On 13 October 2017, WCHS filed a petition alleging that Gail, Mark, and Ann

were abused and neglected juveniles. A nonsecure custody order was entered by the

trial court on the same date. On 20 October 2017, an amended petition was filed

which added allegations regarding (1) a sexual assault committed against Ann by

Galloway’s brother and (2) respondent-mother’s use of Ann to provide urine samples

for respondent-mother’s drug screen. Pursuant to the trial court’s nonsecure custody

order, Mark and Gail were placed with their paternal grandparents and Ann was

placed in foster care. At an adjudication hearing held on 14 November 2017,

respondents entered into a consent order in which they admitted that all three

children were neglected juveniles and that Mark was an abused juvenile in that “the

child’s parent, guardian, custodian or caretaker has inflicted or allowed to be inflicted

on the child a serious physical injury by other than accidental means and has created

or allowed to be created a substantial risk of physical injury by other than accidental

means.”

¶6 Respondent-mother agreed to a case plan under which she would (1) have

supervised visitation with the children for one hour per week, (2) obtain and maintain

safe, stable housing for herself and her children, (3) not allow Galloway in the vicinity

of her children, (4) obtain and maintain legal and sufficient income for herself and

her children, (5) provide documentation to verify her income once a month, (6)

complete a psychological evaluation and comply with any resulting recommendations,

(7) complete a substance abuse assessment and comply with any resulting

recommendations, (8) submit to random drug screens upon the request of WCHS and

treatment providers, (9) complete a parenting education program and demonstrate

skills and lessons learned, (10) complete a domestic violence assessment and any

program or services which were recommended, and (11) successfully complete a non-

offending caregiver program and demonstrate lessons learned. Under his own case

plan, respondent-father agreed to (1) establish legal paternity of Mark, (2) complete

a substance abuse assessment and comply with all resulting recommendations, (3)

submit to random drug screens upon the request of WCHS and treatment providers,

(4) complete a mental health assessment and comply with all resulting

recommendations, (5) obtain and maintain safe, stable housing, and (6) maintain

lawful income sufficient to meet the needs of his family and provide monthly

verification of it to WCHS.

¶7 At a review hearing in February 2018, respondent-mother represented that

she was living with an aunt in Holly Springs and that she was no longer in a

relationship with Galloway. However, family members reported that respondent-

mother had simply left her belongings with the aunt and was not actually staying in

the aunt’s home. In addition, respondent-father, who had been scheduled for release

from incarceration in March 2018, had been charged with illegally possessing a

cellular telephone while incarcerated, had received an additional 11-23 months of

active time, and had subsequently lost his right to visitation with Mark and Gail.

Furthermore, the children’s maternal grandmother, with whom Mark and Gail had

been living, had reported to WCHS that the grandmother needed medical treatment

due to her cancer diagnosis and could not provide further care for the children at the

time. Consequently, Mark and Gail were placed with foster parents. All three

children were reported to be doing well in their respective foster placements.

¶8 At a subsequent permanency planning review hearing in August 2018, the trial

court found that respondent-mother was unemployed and living with her mother.

Respondent-mother had also been charged with possession of marijuana, possession

of drug paraphernalia, and carrying a concealed weapon after being discovered

engaging in sexual activity in a car with Galloway in June 2018. When a WCHS social

worker interviewed respondent-mother about the incident, respondent-mother was

untruthful, stating that she had been pulled over in a friend’s car while alone in the

vehicle. Respondent-father had been transferred to Mountain View Correctional

Institution (MVCI) in June 2018 upon having received six infraction reports while

incarcerated at his previous penal facility, Franklin Correctional Center.

Respondent-father was transferred again in August 2018, going to Avery-Mitchell

Correctional Institution. While at this facility, he received numerous infractions for

disobeying orders, obtaining tattoos, assaulting and threatening staff, and making

false accusations.

¶9 At a February 2019 permanency planning review hearing, the trial court found

that respondent-mother continued to test positive for the presence of impairing

substances and continued to be involved with Galloway, who attended at least one

visitation with the children in violation of the visitation agreement. The case’s

guardian ad litem (GAL) recommended that the primary plan become adoption

because the children could not return to the care of respondents within a reasonable

time, noting that since the previous permanency planning hearing, respondent-father

had received twelve infractions while incarcerated and had advised the social worker

that he was going “to continue to receive infractions.” The trial court changed the

children’s primary plan to adoption.

¶ 10 On 22 March 2019, WCHS filed a motion to terminate the parental rights of

both respondents, alleging the existence of the following grounds: (1) neglect, (2) that

respondents “willfully left the juvenile[s] in foster care for more than twelve months

without showing to the satisfaction of the court that reasonable progress had been

made in correcting the conditions that led to the removal of the” children, and (3) that

the children had been in the custody of WCHS during which respondents, for a period

of six months preceding the filing of the motion, willfully failed for such period “to

pay a reasonable portion of the cost of the care for the [children] although physically

and financially able to do so.” See N.C.G.S. § 7B-1111(1), (2), and (3) (2019). A hearing

on the motion to terminate the parental rights of both respondents was held in June

2019, by which time the children had been in the custody of WCHS for more than

eighteen months. After the hearing, the trial court found the existence of all three

alleged grounds to terminate the parental rights of each respondent. The trial court

went on to conclude that termination of both respondents’ parental rights was in the

best interests of the children. Both respondents appeal from the order terminating

their respective parental rights.

II. Standards of Review

¶ 11 When considering a petition to terminate parental rights, the trial court must

first adjudicate the existence of the grounds for termination which have been alleged.

See N.C.G.S. § 7B-1109 (2019). “At the adjudicatory stage, the petitioner bears the

burden of proving by ‘clear, cogent, and convincing evidence’ the existence of one or

more grounds for termination under section 7B-1111(a) of the General Statutes.” In re

A.U.D., 373 N.C. 3, 5–6 (2019) (quoting N.C.G.S. § 7B-1109(f)). This Court reviews a

trial court’s adjudication of the existence of grounds to terminate parental rights in

order “to determine whether the findings are supported by clear, cogent and

convincing evidence and the findings support the conclusions of law.” In re E.H.P.,

372 N.C. 388, 392 (2019) (quoting In re Montgomery, 311 N.C. 101, 111 (1984)). All

findings of fact which are not challenged by a respondent are binding on appeal. In re

T.N.H., 372 N.C. 403, 407 (2019) (citing Koufman v. Koufman, 330 N.C. 93, 97 (1991)).

“The trial court’s conclusions of law are reviewable de novo on appeal.” In re C.B.C.,

373 N.C. 16, 19 (2019).

¶ 12 If the trial court finds that at least one ground to terminate parental rights

under N.C.G.S. § 7B-1111(a) exists, “it then proceeds to the dispositional stage,” In re

A.U.D., 373 N.C. at 6, at which it “determine[s] whether terminating the parent’s

rights is in the juvenile’s best interest.” N.C.G.S. § 7B-1110(a) (2019). In making that

determination, the trial

court shall consider the following criteria and make written findings regarding the following that are relevant:

(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.

Id. § 7B-1110(a). In reviewing a trial court’s dispositional determination, we evaluate

the trial court’s conclusion that a termination of parental rights would be in the best

interests of the child under an abuse of discretion standard. In re E.H.P., 372 N.C.

388, 392 (2019). “Abuse of discretion results when 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.” In re Z.L.W., 372 N.C. 432, 435 (2019).

III. Respondent-father’s Appeal

¶ 13 Respondent-father contends that the trial court erred both in finding the

existence of at least one ground for the termination of his parental rights to Mark and

Gail and in determining that the termination of his parental rights would be in the

children’s best interests. We disagree with both contentions.

A. Adjudication

¶ 14 Respondent-father first challenges the trial court’s conclusion that the ground

existed to terminate his parental rights to Mark and Gail based upon his willful

failure to make reasonable progress in correcting the circumstances that led to their

removal from respondent-mother’s home. See N.C.G.S. § 7B-1111(a)(2) (“The parent

has willfully left the juvenile in foster care or placement outside the home for more

than 12 months without showing to the satisfaction of the court that reasonable

progress under the circumstances has been made in correcting those conditions which

led to the removal of the juvenile.”). We conclude that the trial court did not err in

finding the existence of this ground for the termination of respondent-father’s

parental rights.

¶ 15 Respondent-father argues that the trial court erroneously considered the

circumstance of his incarceration in two ways: by finding that his incarceration was

a factor that caused his children to be placed in foster care and by failing to take into

account the limitations that incarceration imposed upon respondent-father’s ability

to comply with his case plan. Respondent-father notes that he was incarcerated at

the time that the children were taken into WCHS custody and asserts that the

conditions which led to the children being taken into the custody of WCHS were

substance abuse, domestic violence, and failure to address medical needs—conditions

created or caused by respondent-mother and Galloway, and thus unrelated to

respondent-father’s incarceration. Respondent-father further contends that “the

court was obligated to consider the limitations the incarceration imposed on his

ability to comply with the case plan, as well as other relevant factors.”

¶ 16 We do not subscribe to respondent-father’s view of these considerations. To the

contrary, our review of the case reveals that the trial court carefully considered

evidence about respondent-father’s ability to achieve his case plan requirements

despite his incarceration, as well as the impact of respondent-father’s acts and

decisions while incarcerated, in making its findings of fact and ultimately in

determining that respondent-father had failed to make reasonable progress.

¶ 17 While “[a] parent’s incarceration is a circumstance that the trial court must

consider in determining whether the parent has made reasonable progress toward

correcting those conditions which led to removal of the juvenile,” In re C.W., 182 N.C.

App. 214, 226 (2007) (quotation marks omitted), “incarceration, standing alone,

neither precludes nor requires finding the respondent willfully left a child in foster

care.” In re Harris, 87 N.C. App. 179, 184 (1987). Here, the trial court observed that

respondent-father was incarcerated when the children were removed from

respondent-mother’s home and recognized it as an occurrence which resulted in the

children’s placement in foster care. However, the trial court did not rely upon the fact

of respondent-father’s incarceration, standing alone, to conclude that the children

needed to be placed in foster care or that respondent-father had failed to make

reasonable progress. Concomitantly, the trial court did not ignore the impact of

respondent-father’s incarceration in assessing his ability to follow his case plan and

to make reasonable progress through compliance with it.

¶ 18 In our view, the trial court properly considered evidence regarding respondent-

father’s initial incarceration at the time that the children were removed from the

home and properly evaluated areas in which respondent-father made some progress

on his case plan—such as his attenuated attendance at Narcotics Anonymous

meetings and his attainment of several negative drug screens—along with

respondent-father’s unfortunate choices and actions while incarcerated which were

demonstrably detrimental to respondent-father’s ability to complete his case plan.

Such choices and actions resulted in a lengthy delay in respondent-father’s projected

release date from incarceration and significantly limited his access to classes,

programs, services, and employment which directly related to his case plan. For

example, the trial court specifically found that:

 respondent-father, at the time of the filing of the petition, “was housed in a local facility” and had a projected release date within three to four months;

 respondent-father had the opportunity to work in a job at the sign plant which would have allowed him to earn money to aid in the care of his children and which would have earned him “gain time” to push forward his release date, but despite the ability to do the job, respondent-father chose to forego the opportunity because he did not want the job;

 respondent-father “received nineteen infractions during his incarceration”

and “was placed in restricted confinement six times” as a result;

 respondent-father, having been relocated to a different correctional facility due in some measure to his infractions of penal rules, was unable to enroll

in desired classes, which would have reduced the period of incarceration which he was required to serve;

 respondent-father, at the time of the termination hearing, was held in solitary confinement by his own request following the stabbing of respondent-father by gang members;

 respondent-father had tattoos identifying him as a gang member although he denied being actively involved in a gang;

 respondent-father’s “lengthy incarceration limited his ability to participate in the services necessary to put him in a position to reunify with his children”;

 respondent-father illegally obtained a cellular telephone while incarcerated which resulted in an additional sentence, extending his potential release date; and

 respondent-father’s “repeated criminal activity and other decision making”

in prison “resulted in his absence from his children’s lives for at least sixteen months longer than anticipated at the time of adjudication.”

¶ 19 The dissent prefers to cast a view which diminishes the harmful impact upon

the children of the last two cited findings of fact which the trial court made regarding

the elongation of respondent-father’s time of incarceration due to the parent’s

voluntary choices. The dissent endeavors to buttress this stance by isolating

respondent-father’s cellular telephone offense to the exclusion of respondent-father’s

other deleterious decisions, while incorrectly elevating the role of this conviction

among the plentiful considerations which resulted in the termination of respondent-

father’s parental rights. However, “the best interests of the juvenile are of paramount

consideration by the court and . . . when it is not in the juvenile’s best interest to be

returned home, the juvenile will be placed in a safe, permanent home within a

reasonable amount of time.” N.C.G.S. § 7B-100(5) (emphasis added); see also In re

N.G., 374 N.C. 891, 907 (2020).

¶ 20 In his appeal to this Court, respondent-father has acknowledged the negative

effect of his relocation from Franklin Correctional Center—a facility where he was

able to receive drug screens, participate in Narcotics Anonymous, and have access to

an approved parenting program in pursuit of the satisfactory completion of his case

plan—to MVCI, the facility to which he was transferred upon his aggregation of

infractions and where the above-referenced opportunities were either unavailable or

more difficult to obtain. Also, respondent-father did not complete a mental health

assessment, which was another element of his case plan, in part because once he was

transferred to MVCI respondent-father was “mostly in isolation” and often could not

receive visits, even from a mental health professional. Further, the trial court

disapproved of visits between respondent-father and the children at MVCI because

of the distance that the children would have to travel.

¶ 21 We agree with respondent-father that his ability to comply with his case plan

was hampered by his movement to certain penal institutions and the limited options

offered by those institutions to fulfill his case plan, as opposed to those more plentiful

resources which were available at the facilities to which he was previously assigned.

There were also restrictions on programs made available to respondent-father due to

his specific incarceration status. However, the evidence in this case shows that

respondent-father chose to engage in activities during his incarceration which created

these obstacles for him and also decided to reject beneficial opportunities which were

made available to him. Respondent-father himself constructed the very barriers to

the achievement of his case plan goals about which he now complains. Accordingly,

we determine that there is no error in the trial court’s findings of fact regarding

respondent-father’s failures in accomplishing his case plan, most of which resulted

from circumstances for which respondent-father was responsible.

¶ 22 In sum, respondent-father repeatedly elected to engage in behaviors which

significantly extended his incarceration, greatly limited his options, and frequently

eliminated his opportunities, thus rendering him unavailable as a potential

placement for Mark and Gail and also eradicating his prospect of visits with the

children. These findings of fact which are supported by the evidence in turn support

the ultimate determination by the trial court that respondent-father failed to make

reasonable progress on his case plan. As such, we affirm the trial court’s conclusion

that the ground existed to terminate respondent-father’s parental rights for failure

to make reasonable progress under the circumstances in correcting the conditions

that led to removal pursuant to N.C.G.S. § 7B-1111(a)(2). Because the existence of

only one ground as identified by N.C.G.S. § 7B-1111 is required to support

termination of parental rights, we do not address respondent-father’s arguments as

to the remaining two additional grounds for termination of his parental rights which

were found by the trial court.

B. Disposition

¶ 23 Respondent-father argues that the trial court abused its discretion in

determining that termination of respondent-father’s parental rights was in the best

interests of the juveniles Mark and Gail. Specifically, respondent-father asserts that

“in light of [his] imminent completion of his sentence, the skills he had acquired in

prison, his ability and desire to support the children, and his interest in remaining

their father, termination was contrary to their best interests.” This assertion is

unpersuasive.

¶ 24 The dissenting view takes sweeping liberties to construct its conclusion that

this Court affirms the trial court’s order which terminates the parental rights of

respondent-father merely because he is incarcerated. In creating this narrative, the

dissent has devised propositions that are conclusory, deduced theories that are

illusory, and ultimately developed positions that are contradictory. Although the

opposing opinion characterizes our decision as being premised solely upon

respondent-father’s incarceration, a deeper analysis demonstrates that respondent-

father’s voluntary failure to fulfill the requirements of his case plan and his repeated

unwillingness to engage in identified available opportunities consistent with his case

plan are the overarching components in his failure to make reasonable progress

under the circumstances in correcting the conditions that led to removal of the

children from the home.

¶ 25 Due to being riveted by respondent-father’s incarceration, and combined with

this Court’s determination that the ground of failure to make reasonable progress

was sufficiently proven to exist at the trial level, so as to lead to termination of

respondent-father’s parental rights, the dissent unfortunately conflates its perceived

view that termination of respondent-father’s parental rights occurred because he was

incarcerated with our actual view that respondent-father failed to make reasonable

progress and the trial court concluded that it was in the children’s best interests to

terminate respondent-father’s parental rights because he consistently engaged in

activities on a voluntary basis while incarcerated which inhibited his ability to satisfy

his case plan and consequently experienced negative consequences for his negative

behavior which further compromised his opportunities to fulfill his case plan.

Although respondent-father happened to be incarcerated as these circumstances

were transpiring, his lack of freedom did not uniquely distinguish him from parents

with court-ordered case plans who are not incarcerated who likewise consistently

engage in activities on a voluntary basis which inhibit their abilities to satisfy their

respective case plans, consequently experience negative consequences for their

negative behavior, and ultimately have their parental rights terminated as a result.

¶ 26 “Incarceration, 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 (2017) (quoting In re

P.L.P., 173 N.C. App. 1, 10 (2005), aff’d per curiam, 360 N.C. 360 (2006)) (citation

omitted); see also In re T.N.H., 372 N.C. at 412; see also In re S.D., 374 N.C. 67, 75

(2020). While the dissent attempts to cast our decision to affirm the trial court’s order

terminating respondent-father’s parental rights as an outcome which utilizes

respondent-father’s incarceration as a sword against him, it is ironic that the dissent

in the present case trumpets the employment of respondent-father’s incarceration

alone as a shield to protect him from the adverse consequences of his failure to

satisfactorily complete his case plan.

¶ 27 As noted previously, a trial court’s decision to terminate parental rights is

reviewed only for abuse of discretion. Respondent-father does not take issue with the

analysis employed here by the trial court but only accentuates that he was scheduled

to be released shortly after the end of the termination of parental rights hearing, that

he had plans for housing and employment upon his release, and that he had a strong

desire to maintain his relationship with his children. While we acknowledge

respondent-father’s desire to retain his parental rights, he has not demonstrated that

the trial court’s disposition was “manifestly unsupported by reason or . . . so arbitrary

that it could not have been the result of a reasoned decision.” In re Z.L.W., 372 N.C.

at 435. Therefore, we affirm the trial court’s order terminating respondent-father’s

parental rights.

IV. Respondent-mother’s Appeal

¶ 28 Respondent-mother challenges only the trial court’s dispositional

determination that termination of her parental rights was in the children’s best

interests. Specifically, she notes that “this Court stated in a . . . recent opinion that

the abuse of discretion standard of review applies on appeal when determining if

termination of parental rights is in the best interests of the child,” citing In re D.L.W.,

368 N.C. 835, 842 (2016). However, respondent-mother contends that “this Court

[should] apply a de novo standard of review for the legal conclusion that termination

of parental rights is in a child’s best interest since a trial court is required to make

certain written findings of fact to support its conclusion of law.” We disagree with this

assertion.

¶ 29 Respondent-mother cites our decision in Carolina Power & Light Co. v. City of

Asheville, 358 N.C. 512, 517 (2004) for the proposition that “[c]onclusions of law

drawn by the trial court from its findings of fact are reviewable de novo on appeal.”

She then asserts that because N.C.G.S. § 7B-1110 was amended in 2011 to require

trial courts at the disposition stage to consider the criteria enumerated in N.C.G.S.

§ 7B-1110(a), which we previously referenced, and to make written findings

regarding those criteria that are relevant in any case, an appellate court should

conduct de novo review of a trial court’s best interests determination instead of

utilizing an abuse of discretion standard. However, respondent-mother cites no

authority to support her argument and further fails to address any of the numerous

cases decided by this Court in which we have applied an abuse of discretion standard

at the disposition stage of a termination of parental rights case. See, e.g., In re D.L.W.,

368 N.C. at 842; In re L.M.T., 367 N.C. 165, 171 (2013). Decades ago, this Court in In

re Montgomery designated the trial court’s determination at the disposition stage of

a termination of parental rights hearing as discretionary. 311 N.C. 101, 108 (1984)

(“[W]here there is a reasonable hope that the family unit within a reasonable period

of time can reunite and provide for the emotional and physical welfare of the child,

the trial court is given discretion not to terminate rights.” (emphasis added)). At no

point during this interim time period, including the 2011 amendment raised by

respondent-mother, has the Legislature chosen to amend the pertinent statute to

alter our holding in In re Montgomery by explicitly establishing a de novo standard

of review at the disposition stage of a termination of parental rights proceeding. See

Raeford Lumber Co. v. Rockfish Trading Co., 163 N.C. 314, 317 (1913) (holding that

we presume that the Legislature acts with full knowledge of prior and existing law

and its construction by the courts.).

¶ 30 More recently, in In re C.V.D.C., 374 N.C. 525 (2020), we considered and

rejected the exact argument advanced here by respondent-mother “regarding the

appropriate standard of appellate review for a disposition entered under N.C.G.S. §

7B-1110(a).” Id. at 528–29 (discussing but declining to accept a respondent-parent’s

assertion that de novo review is appropriate at the disposition stage based upon the

respondent-parent’s contention that “our deferential posture [is] a vestige of such

decisions as In re Montgomery, . . . which predate the amendments to N.C.G.S. § 7B-

1110(a) enacted by the legislature in 2005 and 2011 to safeguard the rights of

parents”). See also In re Z.L.W., 372 N.C. at 435 (“The trial court’s assessment of a

juvenile’s best interest at the dispositional stage is reviewed only for abuse of

discretion.”). As in that case, “we again reaffirm our application of the abuse of

discretion standard when reviewing the trial court’s determination of ‘whether

terminating the parent’s rights is in the juvenile’s best interest’ under N.C.G.S. § 7B-

1110(a).” In re C.V.D.C., 374 N.C. at 529; see also In re K.S.D-F., 375 N.C. 626, 636

(2020) (citing In re C.V.D.C. for the proposition that an “argument that each of the

N.C.G.S. § 7B-1110(a) factors weighs against termination in this matter when

reviewed under a de novo standard cannot prevail”).

¶ 31 In the present case, where the trial court made specific findings regarding the

relevant criteria identified in section 7B-1110 and where respondent-mother has not

argued that the dispositional determination of the trial court is not “manifestly

unsupported by reason or is so arbitrary that it could not have been the result of a

reasoned decision,” In re Z.L.W., 372 N.C. at 435, we hold that the trial court did not

abuse its discretion under N.C.G.S. § 7B-1110(a). We therefore affirm the order of the

trial court terminating respondent-mother’s parental rights.

AFFIRMED.

Justice EARLS dissenting.

¶ 32 Respondent-father was incarcerated and his two children were in the custody

of their mother when the events occurred which led to the children being adjudicated

abused and neglected and taken into care in October 2017. He was still incarcerated

when the trial court held hearings on 5, 6 and 27 June 2019 on the petition for

termination of parental rights, although the trial court made a finding that he was

due to be released “in late July 2019.” Publicly available records indicate respondent

was indeed released from custody on 26 July 2019 and he was therefore no longer in

prison by the time the trial court entered its order terminating his parental rights on

7 August 2019. The trial court’s findings of fact as they relate to respondent-father

do not support the conclusion that he failed to make reasonable progress in correcting

the conditions that led to the children being taken into care and his parental rights

should not be terminated on that basis. Instead, the majority makes its own findings.

North Carolina is not a jurisdiction which provides for the termination of parental

rights merely because a parent is incarcerated. The trial court’s order should be

reversed as to respondent-father.

¶ 33 States vary widely in how incarceration of a parent impacts the determination

of whether a parent’s rights to a child should be terminated. See Steven Fleischer,

Termination of Parental Rights: An Additional Sentence for Incarcerated Parents, 29

Seton Hall L. Rev. 312, 325 (1998) (categorizing state statutes). See also Stuart M.

Jones, Not Perfect, but Better than Most: South Carolina's TPR Process and Its

Justice Earls, dissenting

Surprisingly Fair Treatment of Incarcerated Parents, 62 S.C. L. Rev. 697, 700 (2011)

(“By 2005, TPR statutes in thirty-six states listed a parent’s incarceration as an

element to be considered in a TPR proceeding. Twenty-five of these states use the

length of the parent’s prison sentence as a determining factor in whether

incarceration is grounds for a TPR action. Some of these states specify exactly how

long a parent must be imprisoned, while others speak in broader terms.”).

¶ 34 Some states allow incarceration as a ground for the termination of parental

rights. See, e.g., Alaska Stat. § 47.10.080 (o)(1) (2020) (incarceration may be a

sufficient ground for termination if the term of incarceration is “significant” in light

of the child’s age and need for adult supervision); Colo. Rev. Stat. § 19-3-604(b)(III)

(2020) (permitting termination of parental rights if the parent will be incarcerated

for more than six years from the date the child was adjudicated dependent or

neglected); Ky. Rev. Stat. Ann. §§600.020(2)(b), 610.127(1) (2021) (reasonable efforts

to reunify a child do not need to be made when parent will be incarcerated for more

than a year beyond the date the child is taken into care); N.D. Cent. Code § 27-20-02

(2021) (reasonable efforts to reunify a family not necessary if a parent is incarcerated

for a specific length of time measured by the child’s age). Other states only allow

incarceration for certain offenses to be a ground for termination of parental rights.

See, e.g., Ind. Code §§ 31-35-3, -4 (2021) (a conviction for certain crimes, including

murder, involuntary manslaughter, or rape, can be grounds for termination of

parental rights).

¶ 35 On the other end of the spectrum are states with statutes that specifically say

that incarceration alone is not a basis for termination of parental rights. See, e.g.,

Mass. Gen. Laws ch. 210, § 3(c)(xiii) (2021) (“Incarceration in and of itself shall not

be grounds for termination of parental rights;”); Mo. Laws § 211.447(7)(6) (2020)

(same); Neb. Rev. Stat. § 43-292.02(2)(b) (2021) (state shall not file petition for

termination of parental rights if the sole basis for the petition is that the parent or

parents are incarcerated). Other states have specifically created statutory exceptions

to the general time limits on how long reasonable efforts must be made to reunify a

family when a parent is incarcerated. See, e.g., Colo. Rev. Stat. § 19-3-604(2)(k)(IV)

(2020); N.M. Stat. Ann. § 32A-4-29(G)(9) (2021).

¶ 36 What matters for this case is that the North Carolina General Assembly has

not provided for incarceration as a ground for termination of parental rights.

Therefore it is inappropriate for this Court to create such a basis. Yet that is precisely

what the majority opinion effectively accomplishes through the back door of basing

termination here on respondent-father’s decisions “to engage in behaviors which

significantly extended his incarceration, greatly limited his options, and frequently

eliminated his opportunities, thus rendering him unavailable as a potential

placement for Mark and Gail and also eradicating his prospect of visits with the

children.” These statements are equally true of every parent who is incarcerated, and

cannot, under North Carolina law, support a determination that the incarcerated

parent should lose their parental rights.

¶ 37 This legal error is compounded by the majority’s willingness to find its own

facts where the trial court’s order is deficient. Our task when reviewing a trial court’s

order terminating the rights of a parent to their child is “to determine whether the

findings are supported by clear, cogent, and convincing evidence and the findings

support the conclusions of law.” In re K.H., 375 N.C. 610, 612 (2020) (quoting In re

Z.A.M., 374 N.C. 88, 94 (2020)). The majority’s opinion goes beyond this task and

supplements the trial court’s order with new factual findings. The trial court’s

findings do not support its ultimate conclusion that respondent-father willfully failed

to make reasonable progress to correct the conditions leading to his children’s

removal from their home. As a result, this is not a legally permissible ground for

termination of respondent’s parental rights in this case.

¶ 38 Respondent-father was incarcerated on 30 November 2016. Almost a year

later, while he was serving his sentence, Mark and Gail were removed from the home

of respondent-mother and her boyfriend because, as the trial court found, “the

children were exposed to domestic violence” perpetrated by the boyfriend against

respondent-mother, respondent-mother’s boyfriend had intentionally injured Mark,

Mark’s medical needs “were not being met in a timely manner,” respondent-mother

and her boyfriend “were engaged in substance abuse,” and respondent-father was in

prison. Plainly, the only circumstance identified by the trial court that pertained to

respondent-father—rather than to respondent-mother and her abusive boyfriend—

and resulted in the children’s removal from the home was that respondent-father was

incarcerated.

¶ 39 As the majority notes, respondent-father subsequently entered into a case plan

with Wake County Human Services which required him to (1) establish legal

paternity of Mark, (2) complete a substance abuse assessment and comply with

recommendations, (3) submit to random urine and hair sample drug screens, (4)

complete a mental health assessment and comply with any recommendations, (5)

obtain and maintain safe, stable housing, and (6) obtain and maintain lawful income

sufficient to meet the needs of his family and provide monthly verification of the

same.

¶ 40 The trial court’s findings do not establish that respondent-father failed to

comply with this case plan. See In re A.J.P., 375 N.C. 516, 525 (2020) (“[P]arental

compliance with a judicially adopted case plan is relevant in determining whether

grounds for termination exist pursuant to N.C.G.S. § 7B-1111(a)(2) . . . as long as the

objectives sought to be achieved by the case plan” address the circumstances that

resulted in the children’s removal from the home.). Rather than finding that

respondent-father did not comply with his case plan, the trial court’s findings

pertaining to respondent-father focus almost exclusively on the fact of his

incarceration. Of eleven factual findings, one (Finding of Fact #31) addresses the fact

that respondent-father established paternity of Mark, two (Findings of Fact #36 and

#37) address the fact that respondent-father quit his job while in prison, and the

remaining eight have to do with respondent-father being incarcerated.

¶ 41 In Finding of Fact #32, the trial court states that respondent-father does not

make decisions that are in the best interests of his children, which appears to be a

conclusory finding premised upon the findings which follow it. In Findings of Fact

#33 and #34, the trial court states that respondent-father has been incarcerated since

30 November 2016, before the incidents which led to the children’s removal from the

home, and that he was convicted of illegally possessing a cellphone, which extended

his release date. In Finding of Fact #35, the trial court states that respondent-father

wanted to participate in classes that would reduce the amount of time that he was

incarcerated, but that he “was unable to enroll in classes at the facilities where he

was housed.” In Findings of Fact #36 and #37, the trial court states that respondent-

father was able to work, but chose not to, and that respondent-father might have had

an earlier release date if he chose to work. The trial court stated in Finding of Fact

#38 that respondent-father had received infractions while incarcerated and that he

has been placed in solitary confinement “which he reports is by his choice for his own

protection, as gang members stabbed him in March 2019, when he refused to carry

out an assault as directed by a higher-ranking gang member in the prison.” In

Finding of Fact #39, the trial court found that respondent-father denied active

involvement in a gang but acknowledged having gang tattoos. In Finding of Fact #40,

the trial court found that respondent-father had a limited ability to participate in

services as a result of his lengthy incarceration. Finally, in Finding of Fact #41, the

trial court found that respondent-father’s decisions resulted in incarceration, and a

resulting absence from his children’s lives “for at least sixteen months longer than

anticipated at the time of adjudication.”

¶ 42 The trial court’s order is devoid of findings related to respondent-father’s

completion of a substance abuse assessment and compliance with any

recommendations, respondent-father’s submission to random drug screens,

respondent-father’s completion of a mental health assessment and compliance with

any recommendations, whether respondent-father had safe and stable housing

prepared for his pending release from incarceration, or whether respondent-father

had similarly made plans for obtaining lawful income sufficient to meet the needs of

his family. The only trial court finding relating directly to respondent-father’s case

plan states that respondent-father established paternity of Mark, which suggests

compliance with his case plan. The only other aspect of the case plan which might

arguably be addressed in the trial court’s findings is the requirement that

respondent-father obtain and maintain lawful income sufficient to meet the needs of

his family—the trial court found that respondent-father “would have earned some

amount of money while working a job in prison,” but does not find—and indeed, it is

implausible to assume—that this would have been close to sufficient to meet the

needs of respondent-father’s children.

¶ 43 The trial court’s findings also fail to establish that respondent-father failed to

make “reasonable progress under the circumstances . . . in correcting those conditions

which led to the removal of the juvenile[s].” N.C.G.S. § 7B-1111(a)(2) (2019). A parent

need not “completely remediate the conditions that led to the children’s removal” nor

“render herself capable of being reunified with her children” to avoid termination of

parental rights under N.C.G.S. § 7B-1111(a)(2). In re J.S., 374 N.C. 811, 819–20

(2020). “Only reasonable progress in correcting the conditions must be shown.” Id. at

819 (quoting In re L.C.R., 226 N.C. App. 249, 252 (2013)). Further, a trial court “must

consider” a parent’s incarceration “in determining whether the parent has made

‘reasonable progress’ toward ‘correcting those conditions which led to the removal of

the juvenile.’ ” In re A.J.P., 375 N.C. at 530 (quoting In re C.W., 182 N.C. App. 214,

226 (2007)).

¶ 44 As noted previously, the children were removed from the home of respondent-

mother and her boyfriend primarily because respondent-mother and her boyfriend

exposed the children to domestic violence, substance abuse, and physical abuse and

failed to address the children’s medical needs. However, a parent in a termination of

parental rights action cannot be held responsible for the actions of others. Natural

parents have a “fundamental liberty interest . . . in the care, custody, and

management of their child” which “does not evaporate simply because they have not

been model parents or have lost temporary custody of their child to the State.”

Santosky v. Kramer, 455 U.S. 745, 753 (1982). In recognition of this interest, this

Court has long held that only the parent’s “conduct inconsistent with the parent’s

protected status” or a finding that the parent is unfit will warrant application of the

best interests of the child standard to award custody to a nonparent over the parent.

Price v. Howard, 346 N.C. 68, 79 (1997); see also Owenby v. Young, 357 N.C. 142, 145

(2003). (“Therefore, unless a natural parent’s conduct has been inconsistent with his

or her constitutionally protected status, application of the ‘best interest of the child’

standard in a custody dispute with a nonparent offends the Due Process Clause of the

United States Constitution.”). This standard of conduct is lower than that warranting

termination of parental rights pursuant to statute. Price, 346 N.C. at 79. It follows,

then, that if a determination that a parent has acted inconsistently with his or her

constitutionally protected status as a parent must be based on the conduct of that

parent, the higher standard of conduct warranting termination of parental rights

cannot be based on the conduct of another, for which the parent would be less

culpable. C.f. In re D.W.P., 373 N.C. 327, 339–40 (2020) (affirming trial court’s

decision to terminate the parental rights of a mother where the facts showed that her

boyfriend likely caused a child’s injuries because the mother re-established a

relationship with the boyfriend, hid the relationship from social services, and refused

“to make a realistic attempt to understand how [the child] was injured or to

acknowledge how her relationships affect her children’s wellbeing”). Instead, a

parent’s progress, or lack thereof, in ameliorating the conditions which led to a child’s

removal must relate to the conditions for which the parent is responsible.

¶ 45 Even assuming that respondent-father could be held responsible for

ameliorating the conditions which were caused by respondent-mother and her

boyfriend, the trial court’s findings do not, at any point, reference respondent-father’s

progress or lack thereof in addressing these circumstances. For example, the trial

court’s findings do not address respondent-father’s plans for his children after his

incarceration was to end—whether he planned to shield them from abuse by

respondent-mother and her boyfriend, whether he had made progress toward being

capable of addressing their medical needs, or whether he himself was engaging in

substance abuse or domestic violence. As a result, the trial court’s findings do not at

all address, with respect to respondent-father, what the trial court found to be the

principal circumstances that led to the children’s removal, even while the trial court’s

order terminates respondent-father’s parental rights for failing to correct the

conditions which led to the children’s removal.

¶ 46 Taken together, the trial court’s findings establish that respondent-father was

incarcerated and, as a result, not present to care for his children, and that

respondent-father possessed a cellphone while incarcerated, which lengthened his

incarceration. The trial court describes this as “repeated criminal activity and other

decision making [which] resulted in [respondent-father’s] absence from his children’s

lives for at least sixteen months longer than anticipated at the time of adjudication.”

While it may be true that respondent-father’s conduct in prison resulted in a longer

period of incarceration, I fail to see the justice, much less the legal basis, for

terminating a father’s rights in his children because he possessed a contraband

cellphone while incarcerated. In any case, a parent’s incarceration does not by itself

support a trial court’s decision to terminate the parent’s rights to a child. In re S.D.,

374 N.C. 67, 75 (2020) (“Incarceration, standing alone, is neither a sword nor a shield

in a termination of parental rights decision.” (cleaned up)).

¶ 47 The majority, in an attempt to shore up the trial court’s thin basis for

termination, posits that the trial court neither relied upon respondent-father’s

incarceration nor ignored it in reaching the determination that respondent-father’s

rights were subject to termination. The majority reaches this conclusion, however, by

supplementing the trial court’s order with its own facts. For example, the majority

writes that the trial court “properly evaluated areas in which respondent-father made

some progress on his case plan,” referencing attendance at Narcotics Anonymous

meetings and attaining several negative drug screens. However, neither those facts

nor any evidence of their consideration appears in the trial court’s order. The majority

also states that respondent-father’s “choices and actions . . . significantly limited his

access to classes, programs, services, and employment which directly related to his

case plan.” Again, this does not appear in the trial court’s order. Instead, the trial

court found that respondent-father’s “lengthy incarceration limited his ability to

participate in the services necessary to put him in a position to reunify with his

children.” However, this conclusory statement does nothing to support a finding that

respondent-father willfully failed to complete his case plan. Indeed, the trial court’s

order makes no reference to the substance abuse, mental health, housing, or income

needs which were the subject of respondent-father’s case plan. Moreover, while the

majority seems to have found as a fact that respondent-father was “relocated to a

different correctional facility” without classes that would have reduced respondent-

father’s period of incarceration “due in some measure to his infractions of penal

rules,” such a finding is not contained in the trial court’s order. In fact, the trial court’s

order does not even suggest, as the majority does, that respondent-father was

responsible for his inability to participate in classes, stating only that respondent-

father “wanted to participate in classes” but was “unable to enroll in classes at the

facilities where he was housed.”

¶ 48 Regardless of the majority’s assertions to the contrary, the trial court here did

not weigh all of the evidence and come to a reasoned conclusion that, taking into

account the barriers imposed by respondent-father’s incarceration, respondent-father

nevertheless willfully failed to ameliorate the conditions which led to the children’s

removal from their home despite respondent-father’s ability to do so. Rather, the trial

court’s findings clearly demonstrate that the trial court terminated respondent-

father’s parental rights because he was incarcerated and, while incarcerated, delayed

his release by possessing a cellphone. The trial court made no reference to the

substance abuse, domestic abuse, physical abuse, and lack of medical care that

resulted in the children’s removal, likely because those circumstances were not

attributable to respondent-father. The trial court did not even make reference to

respondent-father’s case plan, except to note that he had entered into one.

¶ 49 The majority also relies upon “the best interests of the juvenile” in its defense

of the trial court’s determination that grounds existed to terminate respondent-

father’s parental rights, citing N.C.G.S. § 7B-100(5) (stating that one purpose of the

“Abuse, Neglect, Dependency” subchapter of the Juvenile Code is to ensure “that the

best interests of the juvenile are of paramount consideration by the court”). However,

in termination of parental rights proceedings, the best interests of the juvenile are

considered at the dispositional stage. N.C.G.S. § 7B-1110(a) (2019) (“After an

adjudication that one or more grounds for terminating a parent’s rights exist, the

court shall determine whether terminating the parent’s rights is in the juvenile’s best

interest.”). At the adjudicatory stage, the only question for the trial court is whether

grounds exist to terminate the respondent’s parental rights. N.C.G.S. § 7B-1109(e)

(2019) (“The court shall take evidence, find the facts, and shall adjudicate the

existence or nonexistence of any of the circumstances set forth in G.S. 7B-1111 which

authorize the termination of parental rights of the respondent.”). See, e.g., In re

D.L.W., 368 N.C. 835, 842 (2016) (“The procedure for termination of parental rights

involves a two-step process. In the initial adjudication stage, the trial court must

determine whether grounds exist pursuant to N.C.G.S. § 7B-1111 to terminate

parental rights. If it determines that one or more grounds listed in section 7B-1111

are present, the court proceeds to the dispositional stage, at which the court must

consider whether it is in the best interests of the juvenile to terminate parental

rights.” (citations omitted)). See also In re Mashburn, 162 N.C. App. 386, 396 (2004)

(stating that it is improper for a trial court to consider “best interests” testimony

during adjudication). It is contrary to the statutory scheme to insert the best interests

determination into the adjudication of whether grounds exist to terminate

respondent’s parental rights.

¶ 50 In some circumstances, this Court remands for further factual findings when

the trial court’s findings are lacking. See, e.g., In re C.L.H., 2021-NCSC-

1, ¶ 20 (vacating and remanding for further proceedings where the trial court’s

findings did not establish the existence of a child support order enforceable during

the relevant period); In re R.D., 376 N.C. 244, 264 (2020) (vacating and remanding

for entry of a new dispositional order where the disposition was premised on a factual

finding without record support); In re N.K., 375 N.C. 805, 825 (2020) (remanding “for

further proceedings” where the record did not indicate whether the trial court

complied with the notice provisions of the Indian Child Welfare Act); In re K.C.T., 375

N.C. 592, 602, (2020) (reversing and remanding for entry of a new order “containing

proper findings and conclusions” where the trial court did not find willful intent on

the part of a parent when terminating parental rights pursuant to N.C.G.S. § 7B-

1111(a)(7)); In re K.R.C., 374 N.C. 849, 865 (2020) (vacating and remanding for the

entry of additional findings and conclusions where “the trial court erred in its failure

to enter sufficient findings of ultimate fact and conclusions of law” to support its

dismissal of a petition for termination of parental rights); In re K.N., 373 N.C. 274,

284–85 (2020) (vacating and remanding for further proceedings, “including the entry

of a new order containing appropriate findings of fact and conclusions of law on the

issue of whether grounds exist to support the termination of respondent’s parental

rights” where the trial court’s adjudicatory findings were insufficient but the record

contained evidence that could have supported the trial court’s conclusion that

termination was appropriate); In re N.D.A., 373 N.C. 71, 84 (2019) (same); Coble v.

Coble, 300 N.C. 708, 714–15 (1980) (vacating and remanding for further evidentiary

findings where findings did not establish that plaintiff was in need of financial

assistance from the defendant but where evidence in the record could support such

findings in an appeal from an order requiring defendant to provide partial child

support); see also In re K.H., 375 N.C. 610, 618 n.5 (2020) (suggesting that the proper

disposition is reversal rather than remand where the Court does “not find such

evidence in the record . . . that could support findings of fact necessary to conclude

that” a respondent’s parental rights are subject to termination under grounds

identified by the trial court). The significance of these cases here is the strong

precedent they set contrary to the notion that this Court can fill in the gaps when a

trial court’s order fails to make the required factual findings to support termination

of parental rights.

¶ 51 The United States Supreme Court has recognized that parenting is a

fundamental right. See Troxel v. Granville, 530 U.S. 57, 66–67 (2000); Santosky v.

Kramer, 455 U.S. 745, 753 (1982). For that reason, due process requires that a “clear

and convincing evidence” standard of proof is required in order to “strike[ ] a fair

balance between the rights of the natural parents and the State’s legitimate

concerns.” Santosky, 455 U.S. at 769. Here, the trial court did not make adequate

findings of fact based on that standard of proof, and this Court should not make its

own findings. Respondent-father should not, in North Carolina, have his parental

rights terminated merely because of his incarceration. The instant case is not one in

which the trial court’s findings justify severing the constitutionally protected bond

between parent and child. I respectfully dissent from the majority’s decision to affirm

the trial court’s order as to respondent-father.