In re M.B.

• Court: Supreme Court of North Carolina
• Decided: August 19, 2022
• Docket: 325A21
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-96

No. 325A21

Filed 19 August 2022

IN THE MATTER OF: M.B., J.B., and J.S.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) (2019) from orders entered on 1

June 2021 by Judge Marion M. Boone in District Court, Surry County. This matter

was calendared for argument in the Supreme Court on 1 July 2022 but determined

on the record and briefs without oral argument pursuant to Rule 30(f) of the North

Carolina Rules of Appellate Procedure.

R. Blake Cheek for petitioner-appellee Surry County Department of Social Services.

James N. Freeman Jr. for appellee Guardian ad Litem.

David A. Perez for respondent-appellant mother.

HUDSON, Justice.

¶1 Respondent appeals from the trial court’s orders terminating her parental

rights in Mary1 (born April 2010), James (born August 2011), and Joy (born

September 2016) based on neglect and failure to show reasonable progress in

correcting the conditions which led to the removal of the children from the home.

Because the trial court failed to make necessary determinations to support the

1 Pseudonyms are used throughout the opinion to protect the identities of the children and for ease of reading. IN RE M.B., J.B., J.S.

Opinion of the Court

adjudication of grounds for termination under N.C.G.S. § 7B-1111(a)(1) and (2), we

vacate the trial court’s orders and remand for further proceedings not inconsistent

with this opinion. See N.C.G.S. § 7B-1111(a)(1)–(2) (2021).

I. Factual and Procedural Background

¶2 On 22 March 2019, the Surry County Department of Social Services (DSS) filed

juvenile petitions alleging that Mary, James,2 and Joy3 were neglected juveniles. The

petitions alleged that the children lived in an injurious environment due to

respondent’s substance abuse, improper supervision, and unsanitary home

conditions. DSS explained that it had been providing case management services to

the family since January 2019, but that respondent failed to participate in any

referred services, including Intensive Family Preservation Services and assessments

for mental health and substance abuse. The petitions alleged that a DSS social

worker visited respondent’s home twice on 22 March 2019 to develop a safety plan for

the children, but respondent refused to meet with the social worker. The social worker

observed that there were “numerous bags of trash piled up on the back porch” and

the home had a mouse infestation. The petition also alleged that Mary and Joy both

had untreated boils on their bodies and that Mary had “blistery areas on her face.”

After the filing of the juvenile petitions, DSS obtained nonsecure custody of the

2 Mary and James share the same father, who is deceased. 3 Joy’s father is not a party to this appeal. IN RE M.B., J.B., J.S.

children. The children were placed in foster care, and the trial court awarded

respondent two hours of supervised visitation once per week.

¶3 On 17 April 2019, respondent entered into a case plan with DSS to address the

issues that led to the children’s removal from her home. The case plan required

respondent to: obtain a substance abuse assessment and comply with recommended

treatment including random drug screens, complete parenting classes, obtain and

maintain suitable housing, and obtain and maintain gainful employment.

¶4 On 11 June 2019, the trial court adjudicated Mary, James, and Joy neglected

juveniles and continued custody with DSS. Respondent stipulated to the factual

allegations in the petition that supported the trial court’s adjudication. The trial court

ordered respondent to comply with the components of her case plan and set the

primary permanent plan as reunification with a secondary plan of termination of

parental rights and adoption.

¶5 Following a 31 October 2019 review hearing, the trial court entered an order

on 16 December 2019 reducing respondent’s visitation to two hours every other week

due to her poor attendance. The court found that respondent had attended only seven

of the thirteen scheduled visits. The court also found that respondent completed a

comprehensive clinical assessment on 16 July 2019 and was referred to substance

abuse intensive outpatient treatment. Finally, the court found that respondent was

provided the opportunity to complete substance abuse treatment and parenting IN RE M.B., J.B., J.S.

programs but had inconsistent attendance.

¶6 In an order entered on 27 October 2020, the trial court changed the children’s

primary permanent plan to termination of parental rights and adoption due to

respondent’s ongoing mental health and substance abuse issues. The court found

respondent was diagnosed with opiate use disorder severe, amphetamine use disorder

severe, post traumatic stress disorder, and unspecified depressive disorder.

Respondent was not compliant with her substance abuse treatments and continued

to struggle with her sobriety, testing positive for amphetamines and

methamphetamines on 10 June 2020. The court found that respondent was not

making reasonable progress on her case plan and that there remained significant

barriers to reunification.

¶7 On 23 December 2020, DSS filed a motion to terminate respondent’s parental

rights in Mary, James, and Joy, alleging that grounds existed for termination based

on neglect and willfully leaving the minor children in foster care without showing

reasonable progress in correcting the conditions which led to the removal of the

children from the home. See N.C.G.S. § 7B-1111(a)(1)–(2).

¶8 On 7 April 2021, the trial court held a hearing on the motion to terminate

respondent’s parental rights. In a 1 June 2021 adjudication order, the trial court

found that respondent had not completed substance abuse treatment as required by

her case plan, had tested positive for illicit substances on six drug screens, had not IN RE M.B., J.B., J.S.

maintained safe and stable housing, and was not employed. The trial court further

found that respondent was not making reasonable progress under the circumstances

in correcting the conditions that led to the removal of the children and, therefore,

grounds existed to terminate respondent’s parental rights under N.C.G.S. § 7B-

1111(a)(1) and (2). In a separate disposition order entered the same day, the court

concluded that it was in the children’s best interests that respondent’s parental rights

be terminated and terminated respondent’s parental rights. Respondent timely

appealed.

¶9 On appeal, respondent argues that the trial court failed to make certain

necessary determinations regarding both grounds for termination. First, respondent

contends that the trial court failed to make the necessary determination that there

was a probability of repetition of neglect under N.C.G.S. § 7B-1111(a)(1). Second,

respondent contends that the trial court failed to make the necessary determination

that her failure to make reasonable progress was willful under N.C.G.S. § 7B-

1111(a)(2).4

II. Analysis

¶ 10 “Our Juvenile Code provides for a two-step process for termination of parental

rights proceedings consisting of an adjudicatory stage and a dispositional stage.” In

4 Respondent does not challenge the trial court’s determination that termination of her parental rights was in the best interests of the children. IN RE M.B., J.B., J.S.

re Z.A.M., 374 N.C. 88, 94, (2020) (citing N.C.G.S. §§ 7B-1109, 1110 (2019)). At the

adjudicatory stage, the petitioner bears the burden of proving by “clear, cogent, and

convincing evidence” the existence of one or more grounds for termination under

N.C.G.S. § 7B-1111(a). N.C.G.S. § 7B-1109(e)–(f) (2021). We review an adjudication

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)).

“Findings of fact not challenged by respondent are deemed supported by competent

evidence and are binding on appeal.” In re T.N.H., 372 N.C. 403, 407 (2019). “The

trial court’s conclusions of law are reviewable de novo on appeal.” In re C.B.C., 373

N.C. 16, 19 (2019).

A. Adjudication Under N.C.G.S. § 7B-1111(a)(1)

¶ 11 First, respondent argues that the trial court erred in concluding that grounds

existed to terminate her parental rights based on neglect because it failed to

determine the likelihood of a repetition of neglect. We agree, and therefore vacate

this portion of the trial court’s orders.

¶ 12 Pursuant to N.C.G.S. § 7B-1111(a)(1), a trial court may terminate parental

rights upon a finding that the parent has neglected the juvenile. Generally,

“[t]ermination of parental rights based upon this statutory ground requires a showing

of neglect at the time of the termination hearing.” In re L.H., 378 N.C. 625, 2021- IN RE M.B., J.B., J.S.

NCSC-110, ¶ 10 (quoting In re R.L.D., 375 N.C. 838, 841 (2020)). However, in

instances where “the child has been separated from the parent for a long period of

time, there must be a showing of a likelihood of future neglect by the parent.” Id.

(emphasis added) (quoting In re R.L.D., 375 N.C. at 841). “In such cases, a trial court

may terminate parental rights based upon prior neglect of the juvenile if the trial

court finds by clear and convincing evidence a probability of repetition of neglect if the

juvenile were returned to [his or] her parents.” In re E.L.E., 243 N.C. App. 301, 308

(2015) (cleaned up) (emphasis added).

¶ 13 Because it lacks a crystal ball, a trial court may consider many past and

present factors to make this forward-looking determination. See In re L.H., ¶ 17

(“[W]hile any determination of a likelihood of future neglect is inevitably predictive

in nature, the trial court’s findings were not based on pure speculation.”). For

instance, a trial court “must consider evidence of changed circumstances occurring

between the period of past neglect and the time of the termination hearing.” In re

Z.V.A., 373 N.C. 207, 212 (2019). Likewise, a trial court may consider “whether the

parent has made any meaningful progress in eliminating the conditions that led to

the removal of the children.” In re O.W.D.A., 375 N.C. 645, 654 (2020) (quoting In re

J.H.K., 215 N.C. App. 364, 369 (2011)). When these factors evidence “a likelihood of

repetition of neglect, the trial court may reach a conclusion of neglect under

[N.C.G.S.] § 7B-1111(a)(1).” In re J.H.K., 215 N.C. App. at 368. IN RE M.B., J.B., J.S.

¶ 14 However, these are only factors within the trial court’s ultimate determination

of a likelihood of future neglect; noting the factors alone does not amount to making

the determination itself. After noting these factors, the trial court must then

distinctly determine a parent’s likelihood of neglecting a child in the future. See, e.g.,

In re L.H., ¶ 11 (affirming a trial court’s termination of parental rights under

N.C.G.S. § 7B-1111(a)(1) because the trial court “ultimately determined there was a

substantial likelihood that the children would again be neglected if returned to

respondent’s care based on [various factual] findings” (emphasis added)); In re Reyes,

136 N.C. App. 812, 815 (2000) (“[P]arental rights may . . . be terminated if there is a

showing of a past adjudication of neglect and the trial court finds by clear and

convincing evidence a probability of repetition of neglect if the juvenile were returned

to [his or] her parents.” (emphasis added)). When the trial court fails to distinctly

determine that there is a likelihood of future neglect, “the ground of neglect is

unsupported by necessary findings of fact.” In re E.L.E., 243 N.C. App. at 308. Even

when “competent evidence in the record exists to support such a finding, . . . the

absence of this necessary finding [still] requires reversal.” Id.

¶ 15 Here, the trial court found the component factors but did not make the ultimate

determination. While the trial court made extensive unchallenged findings in the

adjudication order regarding respondent’s lack of progress on her case plan, the trial

court’s order is devoid of any distinct determination of whether there was a likelihood IN RE M.B., J.B., J.S.

of future neglect should the children be returned to respondent’s care. Because the

children had been outside of respondent’s care for an extended period of time, such a

determination “was necessary to sustain the conclusion that respondent’s parental

rights were subject to termination based on neglect.” In re B.R.L., 379 N.C. 15, 2021-

NCSC-119, ¶ 23.

¶ 16 To be sure, the trial court’s findings of fact regarding respondent’s lack of

progress could have been sufficient to support a determination of a likelihood of

future neglect. See, e.g., In re O.W.D.A., 375 N.C. at 654. For instance, the trial court’s

unchallenged findings of fact demonstrated that respondent “ha[d] not obtained or

maintained safe, suitable, and stable housing” and “ha[d] no visible means to support

herself.” But as written, the trial court’s order fails to make the necessary and distinct

determination of a likelihood of future neglect. This failure constitutes reversible

error. Accordingly, we vacate this portion of the trial court’s orders and remand the

matter to the trial court for consideration of whether there was a likelihood of

repetition of neglect.

¶ 17 Because we conclude that termination of respondent’s parental rights cannot

be upheld under N.C.G.S. § 7B-1111(a)(1), we next turn to the trial court’s conclusion

that grounds existed for termination under N.C.G.S. § 7B-1111(a)(2).

B. Adjudication Under N.C.G.S. § 7B-1111(a)(2)

¶ 18 Second, respondent argues that the trial court erred in concluding that grounds IN RE M.B., J.B., J.S.

existed under N.C.G.S. § 7B-1111(a)(2) to terminate her parental rights because it

failed to make any determination that her lack of progress was willful. We agree, and

therefore vacate this portion of the trial court’s orders as well.

¶ 19 Subsection 7B-1111(a)(2) provides that parental rights may be terminated if

“[t]he parent has willfully left the juvenile in foster care or placement outside the

home for more than 12 months without showing to the satisfaction of the court that

reasonable progress under the circumstances has been made in correcting those

conditions which led to the removal of the juvenile.” N.C.G.S. § 7B-1111(a)(2).

Termination under this ground requires the trial court to perform a two-step analysis where it must determine by clear, cogent, and convincing evidence whether (1) a child has been willfully left by the parent in foster care or placement outside the home for over twelve months, and (2) the parent has not made reasonable progress under the circumstances to correct the conditions which led to the removal of the child.

In re Z.A.M., 374 N.C. at 95. “The willfulness of a parent’s failure to make reasonable

progress toward correcting the conditions that led to a child’s removal from the family

home is established when the parent had the ability to show reasonable progress, but

was unwilling to make the effort.” In re A.S.D., 378 N.C. 425, 2021-NCSC-94, ¶ 10

(cleaned up).

¶ 20 This Court has previously determined that a trial court must make a finding

of a parent’s willfulness in relation to termination of parental rights pursuant to

N.C.G.S. § 7B-1111(a)(7) for willful abandonment. See In re K.N.K., 374 N.C. 50, 53 IN RE M.B., J.B., J.S.

(2020) (“The willfulness of a parent’s actions is a question of fact for the trial court”);

In re N.D.A., 373 N.C. 71, 81 (2019) (concluding that a trial court’s “fail[ure] to

adequately address the . . . willfulness of [respondent’s] conduct” rendered the

findings insufficient to support termination based on willful abandonment); cf. In re

N.M.H., 375 N.C. 637, 643–44 (2020) (affirming an adjudication of willful

abandonment as a ground for termination despite the trial court’s failure to use the

statutory language because the findings “ultimately support[ed] the conclusion that

respondent’s conduct met the statutory criterion of willful abandonment[,]” and

“when read in context, the trial court’s order makes clear that the court applied the

proper willfulness standard to determine that respondent willfully abandoned the

child under N.C.G.S. § 7B-1111(a)(7)”). Likewise, the Court of Appeals has reversed

a trial court’s termination of parental rights on the ground of willful failure to make

reasonable progress because the trial court’s order did “not contain adequate findings

of fact that respondent acted ‘willfully[,]’ ” In re C.C., 173 N.C. App. 375, 384 (2005),

when the order was “devoid of any finding that respondent was ‘unwilling to make

the effort’ to make reasonable progress in remedying the situation that led to the

adjudication of neglect[,]” id. at 383.

¶ 21 Based on these precedents, we are persuaded that the trial court was required

to make a finding of willfulness to support its termination of respondent’s parental

rights under N.C.G.S. § 7B-1111(a)(2) in this case. IN RE M.B., J.B., J.S.

¶ 22 As above, the trial court’s orders here falls short of this requirement: they lack

any determination that respondent’s conduct was willful. Although the trial court

made extensive findings regarding respondent’s lack of progress on her case plan, it

neither found nor concluded that respondent willfully left the children in foster care

without making reasonable progress or that respondent’s lack of progress met the

statutory criteria under N.C.G.S. § 7B-1111(a)(2). Accordingly, we hold that the trial

court’s findings are insufficient to support its conclusion that grounds existed to

terminate respondent’s parental rights pursuant to N.C.G.S. § 7B-1111(a)(2) and

vacate this portion of the trial court’s orders. However, we note that evidence was

presented during the adjudicatory stage from which the trial court could have made

additional findings of fact addressing the willfulness of respondent’s failure to make

progress on her case plan. We therefore remand the matter back to the trial court for

further factual findings on this ground.

III. Conclusion

¶ 23 Because the trial court failed to make necessary determinations on

adjudication under N.C.G.S. § 7B-1111(a)(1) and (2), we vacate the court’s orders

terminating respondent’s parental rights and remand the matter for further

proceedings not inconsistent with this opinion, including the entry of a new order

determining whether respondent’s parental rights were subject to termination based

on neglect and willful failure to make reasonable progress. See In re C.L.H., 376 N.C. IN RE M.B., J.B., J.S.

614, 2021-NCSC-1, ¶ 17 (vacating and remanding for further proceedings “[w]here . .

. the trial court’s adjudicatory findings were insufficient to support its conclusion that

termination of the parent’s rights was warranted, but the record contained additional

evidence that could have potentially supported a conclusion that termination was

appropriate” (cleaned up)). The trial court may, in the exercise of its discretion,

receive additional evidence on remand if it elects to do so. See In re N.D.A., 373 N.C.

at 84.

VACATED AND REMANDED. Justice BERGER dissenting.

¶ 24 The majority’s elevation of form over substance only serves to delay final

resolution of this matter. Because the trial court entered a detailed order sufficient

to terminate respondent’s parental rights under N.C.G.S. § 7B-1111(a)(1) and (2), I

respectfully dissent.

¶ 25 Here, the trial court’s unchallenged findings of fact demonstrate respondent’s

inability to provide “safe, suitable, and stable housing” for the children at the time of

the termination hearing. Additionally, the trial court found that respondent had

reported “no stable employment” and “has no visible means of support” to provide for

her children going forward. The trial court indicated that at the time of the hearing,

respondent “ha[d] failed to achieve stability for herself and her children.”

¶ 26 Moreover, the trial court made extensive unchallenged findings in the

adjudication order regarding respondent’s lack of progress on her case plan. The

juveniles had been in the custody of DSS for two years, and the trial court outlined

respondent’s failure to complete the substance abuse treatment and parenting

programs, pointing to her excessive absences, “lack of engagement,” and continued

“narcotic usage.” Notably, the trial court found respondent “still has ongoing

substance abuse problems and she has not completed any in-patient treatment.”

(Emphasis added.) Accordingly, the trial court found that respondent had not

demonstrated progress in resolving the issues her case plan attempted to address. IN RE: M.B., J.B., J.S.

Berger, J., dissenting

¶ 27 These findings demonstrate that respondent lacked the ability to provide

proper care to Mary, James, and Joy at the time of the termination hearing and are

indicative of a likelihood of future neglect if the children were returned to

respondent’s care. See In re M.A., 374 N.C. 865, 870, 844 S.E.2d 916, 920–21 (2020);

see also Matter of L.E.W., 375 N.C. 124, 136, 846 S.E.2d 460, 469 (2020) (“the

willfulness of a parent’s failure to make reasonable progress toward correcting the

conditions that led to a child’s removal from the family home ‘is established when the

[parent] had the ability to show reasonable progress, but was unwilling to make the

effort.’ ”) Though the trial court could have provided additional findings in its order,

those it did include support its conclusion to terminate respondent’s parental rights.

Chief Justice NEWBY joins in this dissenting opinion.