An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-475
Filed 3 December 2025
Moore County, Nos. 21JT000025-620, 21JT000026-620, 21JT000027-620
In the matter of: Z.R.B., M.B., M.B., Jr.
Appeal by Respondent-mother from orders entered 27 December 2024 by Judge
Warren McSweeney in Moore County District Court. Heard in the Court of Appeals
30 October 2025.
Administrative Office of the Courts, by GAL Staff Attorney Brittany T. McKinney, for the Guardian ad Litem; and Sharlene Gilmer Anderson for Moore County Department of Social Services.
BJK Legal, by Benjamin J. Kull, for respondent-appellant mother.
WOOD, Judge.
Respondent-Mother (“Mother”) appeals from the trial court’s orders
terminating her parental rights to her minor children: Z.R.B. (“Zachary”), M.B. IN RE: Z.R.B., M.B., M.B., JR.
Opinion of the Court
(“Michelle”), and M.B., Jr. (“Marcus”).1 Mother argues the trial court erred by (1)
violating N.C. Gen. Stat. § 7B-906.2(b) during the reunification process thereby
necessitating the termination order be vacated; (2) allowing the children to testify in
chambers without notifying the parties on the record; and (3) acting beyond the scope
of its statutory authority by declaring that Marcus’ consent, a teen-aged minor, would
be irrelevant in any future adoption proceeding.
After careful review of the record, we agree the trial court erred by violating
N.C. Gen. Stat. § 7B-906.2(b) during the reunification process by ceasing
reunification efforts while maintaining reunification as a permanent plan for an
extended period of time. Therefore, we reverse the trial court’s orders and remand
for further proceedings.
I. Factual and Procedural Background
On 11 March 2021, Moore County Department of Social Services (“DSS”)
received a report containing allegations that Mother and her boyfriend were
constantly drunk around the children, the children were not properly fed or bathed,
and the children were not going to school. Further reports against Mother alleged
that she had slapped Zachary “on the face hard enough that she [injured] him and
caused bleeding.” Another report alleged that she gave the children her prescription
1 Pseudonyms are used to protect the identity of the juveniles pursuant to N.C. R. App. P.
42(b).
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medication, Seroquel, causing them “to sleep all day.” The report also contained
general allegations of domestic violence in the presence of the children and improper
discipline.
On 15 March 2021, the children were tested for the presence of illegal
substances. Marcus’ hair follicle screening yielded a positive result for crack cocaine
and indicated the presence of hydroxydopamine metabolites, consistent with the
ingestion of cocaine. On 22 March 2021, Mother’s hair follicle screening tested
positive for cocaine, marijuana, cocaethylene, benzoylecgonine, norcocaine, and
CarboxyTHC.
On 24 March 2021, DSS filed petitions alleging that Michelle and Zachary were
neglected and dependent juveniles and that Marcus was a neglected, dependent, and
abused juvenile. That same day, DSS obtained non-secure custody of all three
children. DSS specifically alleged in the petition that Marcus was an abused juvenile
because “his parent, guardian, custodian, or caretaker, created or allowed to be
created a substantial risk of serious physical injury to [Marcus] by other than
accidental means,” in part due to his positive hair follicle screening.
On 26 April 2021, Mother entered into a case plan with DSS, whereby she
agreed to “complete a comprehensive clinical assessment to address substance abuse
and domestic violence, participate in a psychological evaluation, [take] parenting
classes, [submit to] random drug screens (hair and oral), obtain stable income and
continue to have stable housing.”
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On 3 June 2021, the trial court held an adjudication and disposition hearing
pursuant to N.C. Gen. Stat. §§ 7B-801 and 7B-901. In its 6 July 2021 order following
the hearing, the trial court concluded that Michelle and Zachary were neglected
juveniles and that Marcus was a neglected and abused juvenile. The trial court made
findings as to Mother’s and Marcus’ positive hair follicle screenings, noting Michelle’s
hair drug screen came back twice as contaminated and unsuitable because “the
presence of illegal substances [were] coating the hair to such a degree that the
laboratory was unable to clear the sample and take any reliable measurements.”
The trial court also found that Mother: had entered into a case plan with DSS
on 26 April 2021; completed a comprehensive clinical assessment and received
recommendations to engage in therapy; took both an oral and hair drug screen on 13
May 2021 and was negative for all substances; was employed and had been employed
since April 2021; was actively and appropriately engaged in visitation with the
children and no concerns were noted; and was diagnosed with cannabis disorder,
mild/unspecified bipolar, and related disorder and was in treatment.
At disposition, the trial court continued the juveniles in the custody of DSS and
ordered Mother to comply with all recommendations from the comprehensive clinical
assessment and her case plan. The trial court awarded Mother with up to four hours
of supervised visitation per week, requiring that visitation be scheduled and
supervised by DSS and approved by certain parties.
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On 15 September 2021, Mother began the assessments for her “Parental
Competency/Psychological Evaluation.” Assessments continued for nine sessions,
lasting until 18 January 2021 when an assessment report was completed. The report
indicated Mother had a full-scale IQ of 71, in the “borderline” range. The report
stated Mother is “not viewed as capable of parenting her children independently due
to her history of serious neglect, a severe mental illness, and cognitive limitations.”
On 18 November 2021, the trial court held its first permanency planning
hearing. In its 8 December 2021 order following that hearing, the trial court found
that Mother was doing “very well” on her case plan. Specifically, Mother was
maintaining housing, working at a grocery store where she was to receive a promotion
and a raise, testing negative on her drug screens, and complying with the
recommendations of her assessment. However, the trial court noted that Mother had
been recently charged with driving while intoxicated and other related charges, for
which she faced possible incarceration. The trial court noted DSS’s concerns as to
these charges; continued concern regarding Mother’s involvement with her
boyfriend—who was previously convicted of murder and had repeated domestic
violence incidents with Mother; and 911 reports that demonstrated several “domestic
calls” and a “psychiatric/suicide call” at Mother’s residence. Nevertheless, it is
undisputed Mother was making progress on her case plan. The trial court ordered
reunification to be the primary plan with guardianship with a relative as the
secondary plan.
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On 24 February 2022, the trial court held a second permanency planning
hearing. In its 24 March 2022 order following that hearing, the trial court found that,
while Mother was “doing very well on her case plan,” Mother had admitted to a “slip”
in her sobriety over the holidays. The trial court also found that the parental capacity
assessment was conducted and Mother had already identified and put a “support
person” in place as recommended and that “[DSS] remain[ed] cautious but hopeful as
to reunification with [Mother] and would like to go slow with efforts due to continued
concerns” with Mother’s sobriety, mental health issues and treatment, and criminal
charges resulting from her DWI. The trial court then ordered unsupervised visits
with Mother and the children and ordered that the primary plan continue to be
reunification with Mother, with guardianship with a relative or appropriate person
as the secondary plan.
On 12 May 2022, the trial court held a third permanency planning hearing. In
its 13 June 2022 order following that hearing, the trial court found that Mother had
admitted to another relapse in her sobriety in February 2022; declined to go to a
recommended 120-day inpatient program for treatment stating her “inability to
maintain her employment and housing” but engaged in a Substance Abuse Intensive
Outpatient Program three times a week for three hours; was unable to arrange for
transportation needs for the unsupervised visit with Zachary but did have positive
unsupervised visits with Michelle and Marcus; and her original support person would
be less available however she identified another support person through work. The
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trial court further found that there were “concerns with [Mother’s] ability to
understand the needs of her children and her own needs,” but DSS “remains cautious
but hopeful as to reunification with [Mother].” However, even after stating that they
remained hopeful and only four months after the completion of the parenting
assessment which found Mother needs support with parenting skills, DSS
recommended “[t]hat reasonable efforts towards any plan for Reunification per N.C.
[Gen. Stat.] § 7B-906.2(b) be ceased at this time with [Mother] . . . [as] [r]eunification
would be inappropriate and not likely [ ] successful.” The conflict regarding the
assessment and recommendation was not explained. The trial court accepted DSS’
recommendation and ceased reunification efforts with Mother without explanation.
However, the trial court continued unsupervised visitation with Mother and
continued a secondary plan of reunification with “guardianship with a concurrent
plan of adoption with a relative or appropriate person(s)” as the primary plan.
Mother did not appeal this order.
On 16 June 2022, the trial court held a fourth permanency planning hearing.
In its 18 July 2022 order following that hearing, the trial court found that Mother’s
criminal matters had been resolved and that she had been placed on community
service and would not serve active time as long as she complied with the conditions
of her probation. The trial court further found that Mother is “doing well with her
services and is appropriate during her visitation.” It further found she had continued
unsupervised visitation and had maintained housing and employment. However, the
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trial court ordered that DSS reunification efforts with Mother would remain ceased,
“to allow [Mother] to show ability and independence in working her case plan,
arranging unsupervised visitation, complying with her probation, and effectively
utilizing her support persons.” The trial court then continued guardianship as the
primary plan and reunification with Mother as the secondary plan.
On 2 March 2023, the trial court held a fifth permanency planning hearing. In
its 5 April 2023 order following that hearing, the trial court found that Mother still
continued to see her boyfriend; had relapsed since the last hearing; and had been
visibly intoxicated on 6 June 2022 when Marcus was present for an unsupervised
visit and had subsequently lost unsupervised visitation. Mother subsequently
entered a 3-day detox program at First Health, then completed a continuation
program at Old Vineyard Treatment center from 7 July until 15 July 2022. On 28
July 2022, she entered a 30-day recovery program at Anuvia Prevention and Recovery
Services which she completed successfully on 26 August 2022. She had been awaiting
a bed at Hope Haven, a therapeutic recovery home, but then had elected to restart
outpatient classes with Daymark and was doing well. She had completed the intake
paperwork for mental health support with Bradford and Associates, but she had not
begun sessions as her schedule had been full of medical appointments resulting from
her recent breast cancer diagnosis. Mother voluntarily left her previous employment
to enter rehab but was now employed with First Health. However, she had not yet
identified a new support person at the new job. The trial court ordered that DSS
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reunification efforts with Mother remain ceased and continued guardianship as the
primary plan with a secondary plan of reunification with Mother.
On 26 October 2023, the trial court held a sixth permanency planning hearing.
In its 21 November 2023 order following that hearing, the trial court found that
Mother’s first unsupervised visit with Zachary was disrupted due to her “being
publicly intoxicated while she had him in her care,” although no date was given and
it is unclear as to when unsupervised visitation had resumed. She had told DSS that
she was going into treatment but denied DSS access to any of her records. DSS
obtained her records through subpoena. DSS expressed concern that the records
reflect that she had denied history for alcohol use “despite having a diagnosis of
severe alcohol use disorder;” that “concerns remain regarding her ability to
independently parent all three high needs children without extensive support;” she
had listed her boyfriend as her primary contact person in her medical records despite
their history of domestic violence and him having an extensive past criminal history
including manslaughter involving a child; and that she stopped engaging with DSS
and refused to provide updates about her health and case plan progress although DSS
was aware Mother was in treatment for breast cancer and will be undergoing a
mastectomy. The trial court then ordered that reunification efforts with Mother
remain ceased and ordered that guardianship be the primary plan with adoption as
the secondary plan.
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On 2 February 2024, DSS filed motions for termination of Mother’s parental
rights. In the motions, DSS stated there existed “clear and convincing facts sufficient
to terminate” Mother’s parental rights under section 7B-1111(a)(1), (a)(2), and (a)(6).
Specifically, DSS alleged that Mother had neglected the children within the meaning
of subsection 7B-1111(a)(1); that Mother failed to make reasonable progress within
the meaning of subsection 7B-1111(a)(2); and that the children were dependent
within the meaning of subsection 7B-1111(a)(6). On 4 April 2024, the trial court
appointed a Rule 17 guardian ad litem for Mother due to her cognitive limitations
based on the previous assessments which indicated she “is limited in her ability to
appreciate and understand the nature of the proceedings and her involvement with
the children in this matter.”
On 18 July 2024, the trial court held an adjudication hearing to terminate
parental rights. At the hearing, the trial court received testimony from DSS social
worker, Charles Craven, and Mother’s “offered support person”, Cynthia Stringfield.
The trial court admitted and incorporated into the record exhibits, including in part,
a timeline of Mother’s compliance, Mother’s psychological evaluation, Mother’s
medical records, and comprehensive clinical assessments of the children. The trial
court found that grounds existed to terminate Mother’s parental rights. Specifically,
the trial court concluded that Mother had neglected the children and there was a
likelihood of future neglect under section 7B-1111(a)(1); “willfully left the children in
foster care without showing to the satisfaction of [the trial court] reasonable progress
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under the circumstances” under section 7B-1111(a)(2); and that she was incapable of
providing for the proper care and supervision of the children, and there existed “a
reasonable probability that such incapacity would continue for the foreseeable
future,” under section 7B-1111(a)(6).
On 12 September 2024 and 7 November 2024, the trial court held the
disposition hearing. The trial court received testimony from DSS social worker,
Ze’Tonya McMillan; the prospective adoptive parents of the children; GAL Supervisor
April Ferrell; and Mother. At the hearing on 12 September 2024, the following
exchange occurred:
The Court: [I] think there was some talk at the last hearing about me meeting with the children prior to the hearing today. And the Court, just for the record, just put it on the record – the Court did meet in chambers with [Marcus and Michelle], with Ms. April Ferrell on behalf of GAL that was present in conference. We did that for about 15, 20, 30 minutes or so.
And as I instructed them, and as I instruct everybody here, as I always do anytime that I speak with children, whether it’s in a Chapter 50 custody action or in this – these type of proceedings, I want everybody on notice that if I catch wind of anybody asking the kids – I don’t care who it is, whether it’s an attorney, foster parent, whoever it is, friend relative . . . if I find out that there is some conversations about, “[w]hat did you tell the Judge?” Or “[w]hat did the Judge say?” I will guarantee you that you’re going to jail. I told those kids, “[w]hatever you tell me is to be held in confidence.” It will go towards me making a decision on what to do as far as what is in their best interests.
But unfortunately, in Chapter 50 proceedings – and the reason I make that bold of a statement, saying that you will
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go to jail – I have locked up people for doing that in a custody case where I found out somebody talked to the child. And I’ve got zero tolerance for that.
There were no objections at trial regarding the testimony of the children in chambers
without attorneys present. The trial court concluded it was in the children’s bests
interests to terminate Mother’s parental rights and ordered that Mother’s parental
rights be terminated. At issue on appeal, the trial court found in its 27 December
2024 order that:
it is in [Marcus’] best interest that he be adopted whether or not he, at the age of 13, himself consents to the adoption. The [trial court] believes that Marcus may be unable to fully appreciate his own limitations and needs and that of his biological mother. Therefore, the adoption should proceed with or without the juvenile’s specific consent in accordance with N.C.G.S. 48-3-601.
Mother timely appealed each 27 December 2024 order terminating her
parental rights to Zachary, Michelle, and Marcus. (T p 597, 610, 625). Mother also
filed a petition on 16 June 2025 for a writ of certiorari in the event this Court does
not find jurisdiction to review all the issues she raises on appeal.
II. Analysis
This Court has jurisdiction to review “[a]ny order that terminates parental
rights or denies a petition or motion to terminate parental rights.” N.C. Gen. Stat. §
7B-1001(a)(7) (2023). In conducting our thorough review, we consider the underlying
circumstances and proceedings leading up to the filing of the termination of parental
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rights petitions. Therefore, a writ of certiorari is not necessary. We dismiss Mother’s
petition for writ of certiorari as moot.
On appeal Mother argues the trial court erred by: (1) violating N.C. Gen. Stat.
§ 7B-906.2(b) during the reunification process thereby necessitating that the
termination order be vacated; (2) allowing the children to testify in chambers without
notifying the parties on the record; and, (3) acting beyond the scope of its statutory
authority by declaring that Marcus’ consent would be irrelevant in any future
adoption proceeding.
A. N.C. Gen. Stat. § 7B-906.2(b)
“When an appellant argues the trial court failed to follow a statutory mandate,
the error is preserved, and the issue is a question of law and reviewed de novo.” In re
S.D.H., 296 N.C. App. 392, 399, 908 S.E.2d 868, 876 (2024) (quotation omitted). Our
Supreme Court has clarified “there [is] a statutory mandate that automatically
preserve[s] an issue for appellate review when the mandate [is] directed to the trial
court either: (1) by requiring a specific act by the trial judge, or (2) by requiring
specific courtroom proceedings that the trial judge has authority to direct[.]” In re
E.D., 372 N.C. 111, 119, 827 S.E.2d 450, 455–56 (2019) (internal citation omitted).
Mother asserts the trial court failed to follow N.C. Gen. Stat. § 7B-906.2(b) during the
reunification process. We agree.
N.C. Gen. Stat. § 7B-906.2(b) states, in pertinent part, “[u]nless permanence
has been achieved, the court shall order the county department of social services to
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make efforts toward finalizing the primary and secondary permanent plans and may
specify efforts that are reasonable to timely achieve permanence for the juvenile.”
N.C. Gen. Stat. § 7B-906.2 (2023) (emphasis added). “This Court has held that use of
the language ‘shall’ is a mandate to trial judges, and that failure to comply with the
statutory mandate is reversible error.” In re Watson, 209 N.C. App. 507, 513, 706
S.E.2d 296, 300 (2011) (quoting In re Eades, 142 N.C. App. 712, 713, 547 S.E.2d 146,
147 (2011)). Clearly N.C. Gen. Stat. § 7B-906.2(b) specifically requires the trial judge
to order DSS to provide reasonable services. This meets the Supreme Courts test for
a statutory mandate requiring a specific act by a trial judge. In re E.D., 372 N.C. at
119, 827 S.E.2d at 455–56.
The mandatory requirement for the trial court to order reunification efforts is
consistent with the legislative purpose behind the Abuse, Neglect, Dependency
subchapter of our Juvenile Code and is supported by our Courts’ reading of those
statutes.
The purpose of the Subchapter on Abuse, Neglect, Dependency reads, in
pertinent part,
“This Subchapter shall be interpreted and construed so as to implement the following purposes and policies:
(1) To provide procedures for the hearing of juvenile cases that assure fairness and equity and that protect the constitutional rights of juveniles and parents; ... (4) To provide standards for removal, when necessary, of juveniles from their homes and for the return of juveniles to
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their homes consistent with preventing the unnecessary or inappropriate separation of juveniles from their parents.
N.C. Gen. Stat. § 7B-100 (2023) (emphasis added). Additionally, the statutes lay out
that reasonable efforts by DSS include, “[t]he diligent use of preventive or
reunification services by a department of social services when a juvenile’s remaining
at home or returning home is consistent with achieving a safe, permanent home for
the juvenile within a reasonable period of time.” N.C. Gen. Stat. § 7B-101(18) (2023).
Clearly, when the trial court determines that reunification is part of the permanent
plan, the statute imposes a duty on the court to ensure DSS employs diligent services
to aid in reunification. As our Courts have stated, “[u]nder our statutes, reunification
whenever possible is the goal of juvenile court.” In re S.D., 276 N.C. App. 309, 323,
857 S.E.2d 332, 343 (2021) (cleaned up). The stated purposes of “fairness and equity”
and prevention of unnecessary separation cannot be achieved when the trial court
fails to follow statute and prematurely and in error excuses DSS from providing a
family the reasonable efforts to support the family in achieving their court ordered
plans. It is prejudicial when a parent’s ability to make progress towards
reunification, the yard stick by which the trial court considers grounds for
termination of parental rights, is undermined by the wrongful elimination of
reunification efforts. See N.C. Gen. Stat. § 7B-1111 (2023). Our General Assembly
clearly considered the importance of reunification efforts in N.C. Gen. Stat. § 7B-
1001(a2) when it determined that if reunification efforts were improperly eliminated
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then the termination order could not stand. N.C. Gen. Stat. § 7B-1001(a2) (2023).
Although the issue sub judice presents during review of the termination order rather
than the more traditional appeal of the order eliminating reunification as the
permanent plan, a review of the findings in the termination order reveals that the
trial court’s failure to follow a critical statutory mandate clearly prejudiced Mother.
For example, the following findings demonstrate the trial court’s failure to
comply with the statutory mandate in N.C. Gen. Stat. § 7B-906.2:
30. That the Court takes judicial notice of all prior orders entered in the pending juvenile proceeding and notes that the orders were continuing in nature.
...
38. . . . That on May 12, 2022 this court ceased reasonable efforts toward reunification with the respondent mother. The court changed the permanent plan for the juvenile to a concurrent primary permanent plan of adoption and guardianship with a secondary plan of reunification with the respondent mother. On June 16, 2022 the plan again changed to a primary plan of guardianship with a secondary plan of reunification and efforts toward reunification with the parents remained ceased. On October 26, 2023 the Court changed the primary permanent plan to guardianship with a secondary plan of adoption.
Finding of fact 31 clearly demonstrates reunification efforts for Mother were
ceased on 12 May 2022 while reunification as a permanent plan was not removed
until 26 October 2023, nearly eighteen months later. Irrespective of the strength or
weakness of the additional findings in the termination order, we cannot now
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determine whether Mother made adequate progress or could have had the ability to
improve conditions that led to removal because the trial court erroneously allowed
DSS to remove all support from Mother for well over half the time her case plan was
in place, despite its acknowledgment of Mother’s assessment determining she has a
full-scale IQ of 71 and needed support with her parenting skills. Additionally, the
trial court summarized its determination of Mother’s progress finding, Mother “has
not proven over the course of the proceedings that she has the capability to overcome
the reunification barriers present due to her mental health, physical health, and
cognitive limitations.” However, the court’s references to “mental health” and
“physical health” are not thereafter explained with any further detail anywhere
within the termination orders, and although cognitive limitations were noted early
in the proceedings, a Guardian ad litem was not appointed until 4 April 2024, well
after reunification had been removed as a permanent plan and DSS had filed for
termination of parental rights. Consequently, Mother did not receive any support
from DSS or a Guardian ad litem for the majority of the life of this case and during
which time she was actively engaged in reunification efforts. DSS made reasonable
efforts towards reunification for only fourteen of the forty-five months of the life of
this case. This falls far short of “assur[ing] fairness and equity and [protecting] the
constitutional rights of juveniles and parents” as contemplated and mandated by our
General Assembly. N.C. Gen. Stat. § 7B-100 (2023).
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DSS argues our Supreme Court has already determined a trial court may cease
reunification efforts without eliminating reunification as a permanent plan based on
its ruling in In re C.H., 381 N.C. 745, 754, 874 S.E.2d 537, 545 (2022). However, this
argument is inapposite. In In re C.H. the respondent-father demonstrated “volatile
and hostile behavior” towards DSS staff during visitation, in person, and via phone
calls. Id. at 747, 874 S.E.2d at 541. DSS was forced to suspend visitation with the
children due to his combative behavior and purported insistence on using corporal
punishment during visitation. He used vulgar and threatening language with
multiple DSS staff members and responded to DSS attempts to assist him with
“opposition, combativeness, and verbal aggression.” Id. at 752, 874 S.E.2d at 544.
Our Supreme Court held that “[b]ased on this behavior the trial court did not
err in determining that it was reasonable for DSS to cease efforts toward reunification
with respondent. Id. at 754, 874 S.E.2d at 545. The Court also noted “at that time
[the trial court] could also have eliminated reunification as a permanent plan but
chose instead to provide respondent additional time to demonstrate his ability to
make progress on his case plan” and when he failed to make progress, reunification
was removed from the plan in less than two months. Id.
In contrast, Mother never displayed vulgar or aggressive behavior toward DSS,
and her visitation was going “very well.” In the order terminating reunification
efforts, the trial court found DSS “remains cautious but hopeful as to reunification
with [Mother].” However, even after stating that it remained hopeful of reunification
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and only four months after the completion of the parenting assessment requested by
DSS which found Mother needs support with parenting skills, DSS inexplicably
recommended “[t]hat reasonable efforts towards any plan for Reunification per N.C.
[Gen. Stat.] § 7B-906.2(b) be ceased at this time with [Mother] . . . [as] [r]eunification
would be inappropriate and not likely [ ] successful.” The trial court then ceased
reunification efforts with Mother without explanation. Furthermore, the trial court
continued unsupervised visitation with Mother and had no concern for the safety of
the children or DSS personnel. These conditions continued for 526 days, during
which time it appears Mother was expected to make progress without any assistance
or reasonable efforts from DSS. The facts of this case are distinguishable from the
exceptional case presented in In re C.H. where our Supreme Court reasoned that the
serious safety concerns for both DSS staff and the children warranted the suspension
of visitation as well as reunification efforts. There, the trial court had the findings
necessary to remove reunification as a permanent plan at that time but allowed
respondent-father a small amount of extra time to demonstrate improvement before
completely removing reunification. In stark contrast, the trial court here acted in
direct, explicit, and erroneous contravention of the statutory mandate in N.C. Gen.
Stat. § 7B-906.2, and in doing so, completely undermined the legislative purpose of
our Abuse, Neglect, Dependency statutes. This violation of the statutory mandate
deprived Mother of the opportunity to continue to make the necessary progress
towards reunification. Because the trial court failed to follow the statutory mandate
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in N.C. Gen. Stat. § 7B-906.2(b), the termination of parental rights orders are vacated
and these matters are remanded to the trial court for further proceedings. Because
we vacate the termination orders, we need not address Mother’s additional
arguments.
III. Conclusion
For the foregoing reasons, we hold the trial court violated the statutory
mandate in N.C. Gen. Stat. § 7B-906.2(b) for reunification efforts and Mother was
prejudiced thereby. The termination of parental rights orders are vacated and this
cause is remanded to the trial court for further proceedings. It is so ordered.
VACATED AND REMANDED.
Judge TYSON concurs.
Judge FREEMAN dissents by separate opinion.
Report per Rule 30(e).
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FREEMAN, Judge, dissenting.
I respectfully dissent from the majority’s holding reversing and remanding the
trial court’s orders. Because respondent-mother cannot show extraordinary
circumstances in her petition for writ of certiorari, and prejudice on the merits if we
were to grant the writ, I would deny respondent-mother’s petition and affirm the trial
court’s 27 December 2024 order. I would also affirm the order of the trial court on
respondent-mother’s third issue relating to consent for adoption.
I. Petition for Writ of Certiorari
Here, respondent-mother asks this Court to review seven past permanency
planning orders that were not previously appealed through a petition for writ of
certiorari. Respondent-mother argues in her petition for writ of certiorari that the
trial court erred by including reunification in the permanency plan while eliminating
reunification efforts in previous permanency planning orders. Respondent-mother
further petitions this court to review in chambers testimony of Marcus and Michelle
without the presence of counsel.
“The writ of certiorari is one of the ‘prerogative’ writs that the Court of Appeals
may issue in aid of its own jurisdiction.” Cryan v. Nat’l Council of Young Men’s
Christian Ass’ns of U.S., 384 N.C. 569, 572 (2023) (citing N.C.G.S. § 7A-32(c) (2021)).
“When contemplating whether to issue a writ of certiorari, our state’s appellate courts IN RE: Z.R.B., M.B., M.B., JR.
FREEMAN, J., dissenting
must consider a two-factor test. That test examines (1) the likelihood that the case
has merit or that error was committed below and (2) whether there are extraordinary
circumstances that justify issuing the writ.” Id. at 570. The first step “weighs the
likelihood that there was some error of law in the case.” Id. at 572. The second step
requires “extraordinary circumstances” to justify the issuing of the writ. Id.
Extraordinary circumstances are required “because a writ of certiorari is not intended
as a substitute for a notice of appeal.” Id. at 573 (cleaned up). While there is no “fixed
list” of extraordinary circumstances, this factor “generally requires a showing of
substantial harm, considerable waste of judicial resources, or ‘wide-reaching issues
of justice and liberty at stake.’ ” Id. (citation omitted). The ultimate decision on
whether or not to issue the writ of certiorari “rests in the sound discretion of the
presiding court.” Id.
First, a writ of certiorari is required in the present case and without it, this
Court does not have jurisdiction to review the past permanency planning orders. See
generally In re K.R., No. COA25-105, 920 S.E.2d 556, 2025 WL 2924808 (2025)
(denying the respondent’s petition for writ of certiorari to review a permanency
planning order because the respondent failed to dispute the order for over a year, and
concluding that the delay was unreasonable). The present appeal is from a
disposition order terminating respondent-mother’s parental rights, entered 27
December 2024. Because plaintiff did not timely appeal any of the seven permanency
planning orders, the writ of certiorari is needed for this court to have jurisdiction and
2 IN RE: Z.R.B., M.B., M.B., JR.
to review those issues on appeal. Recognizing this, plaintiff submitted a petition for
writ of certiorari requesting this Court to review seven permanency planning orders
that date back to 2022. Therefore, issuing the writ of certiorari is necessary for our
review of the permanency planning orders and the only order jurisdictionally and
properly before us on appeal is the order terminating parental rights entered on 27
December 2024. Thus, the majority errs by concluding that issuing the writ of
certiorari is not necessary to review these issues.
Second, I would deny respondent-mothers petition for writ of certiorari.
Respondent-mother fails to show extraordinary circumstances to justify issuance of
the writ. See Cryan, 384 N.C. at 573. Respondent-mother contends our General
Statutes, Chapter 7B’s goal of “reunifying families”; “the tradition in our country of
respecting and safeguarding family integrity”; and the fact that although respondent-
mother has limitations, she “has consistently made efforts to improve her
circumstances” and that “she is a well-intentioned parent who was making the effort”
amount to extraordinary circumstances to grant the writ. These are not
extraordinary circumstances. Further, the orders in question could have been
properly appealed in their own right had respondent-mother appealed at the
appropriate juncture, but she failed to dispute these permanency planning orders for
almost three years. Accordingly, in my discretion, I would deny respondent-mother’s
petition for writ of certiorari on this issue.
Respondent-mother also asks this court to issue its writ of certiorari to review
3 IN RE: Z.R.B., M.B., M.B., JR.
certain testimony by two of the children, in-chambers and without the presence of
attorneys. On this issue, respondent-mother contends that the trial court was
“proactively gathering its own evidence in secret, and then relying on that evidence
without sharing it with the parties.” Counsel failed to object to this testimony during
the hearing. Respondent-mother asserts that the reason there was no objection was
because:
the court’s threat to jail anyone who dared ask the children about the private proceeding, along with the court’s concurrent comment that it had done such a thing before, inevitably cast a chill that would have given great pause to any attorney who, in that moment, may have otherwise been inclined to openly question the court’s action.
Respondent-mother does not show extraordinary circumstances to justify issuing the
writ—beyond the failure to object to the testimony because of the “[trial] court’s
threat to jail” and the “chill” that was cast over the courtroom. Upon review of the
transcript, it appears that the hearing continued as normal after this exchange with
no “great pause.” Accordingly, I would deny respondent-mother’s petition for writ of
certiorari on this issue.2
II. Reunification Efforts
2 If I were to reach the merits of this argument, I would conclude that respondent-mother
does not argue prejudicial error, and would accordingly hold that the trial court did not prejudicially err. See In re C.H., 381 N.C. 745, 754 (2022) (stating that “[t]o obtain relief on appeal, an appellant must not only show error, but that . . . the error was material and prejudicial, amounting to denial of a substantial right that will likely affect the outcome of an action.” (quoting In re B.S.O., 234 N.C. App. 706, 713 (2014)) (omission in original)).
4 IN RE: Z.R.B., M.B., M.B., JR.
If the petition for writ of certiorari was granted, I would nevertheless affirm
the permanency planning orders of the trial court.
Here, the majority’s opinion concludes “the trial court’s failure to follow a
critical statutory mandate clearly prejudiced [respondent-mother]”; however,
respondent-mother only uses hypotheticals, if argued at all, in her argument for
prejudicial error. See In re C.H., 381 N.C. 745, 753 (2022) (concluding that
“respondent has not argued that his lack of progress . . . was due to DSS’s failure to
provide further reunification efforts,” and denying relief, in part, on that basis.). 3 In
her brief, respondent-mother states that “given the central relevance of [respondent-
mother’s] cognitive limitations and their resulting impact on her ability to
understand her children’s needs, the question would be hypothetically speaking, just
how much further [respondent-mother’s] understanding could have progressed if
reunification efforts [had not been eliminated].” (emphasis added). “To obtain relief
on appeal, an appellant must not only show error, but that . . . the error was material
and prejudicial, amounting to denial of a substantial right that will likely affect the
outcome of an action.” In re C.H., 381 N.C. 745, 754 (2022) (quoting In re B.S.O., 234
N.C. App. 706, 713 (2014)) (omission in original).
3 In their joint brief, appellees rely on In re C.H., 381 N.C. 745 (2022) and contend that the
present case is analogous. Because I would conclude that respondent-mother has not shown prejudicial error, I do not reach that argument.
5 IN RE: Z.R.B., M.B., M.B., JR.
Respondent-mother does not show the alleged error likely affected the outcome
of this action. Even after ceasing reunification efforts, the trial court gave
respondent-mother opportunities “to show ability and independence in working her
case plan, arrang[e] unsupervised visitation, comply[ ] with her probation, and
effectively utilize[e] her support persons” and respondent-mother showed she was
unable to comply.
It is undisputed after reunification efforts were ceased, among other things,
respondent-mother: (1) maintained involvement with her boyfriend, who was named
in the original DSS petition, was previously convicted of manslaughter involving a
child, and is not the children’s biological father; (2) had several relapses in sobriety,
which were difficult to detect because alcohol is her drug of choice; (3) failed to
schedule any mental health appointments; (4) had her first unsupervised visit with
Zachary disrupted because she was publicly intoxicated while he was in her care; (5)
listed her boyfriend as her primary contact months after being cautioned to cease
contact; (6) denied any history of alcohol “despite having a diagnosis of severe alcohol
use disorder”; and (7) stopped engaging with DSS and refused to provide updates
about her health and case plan progress.
Finally, at the seventh and final permanency planning hearing, the trial court
found respondent-mother made no attempts to understand or even take part in the
children’s educational progress and still continued to see her boyfriend. Respondent-
mother does not contend the above failures are a result of the ceasing of reunification
6 IN RE: Z.R.B., M.B., M.B., JR.
efforts. Based on the foregoing, among other things, I would conclude that
respondent-mother has not shown prejudicial error.
III. Consent to Adoption
Because I would not dispose of this case on the first issue, I would reach the
merits of respondent-mother’s third argument. Respondent-mother asserts the trial
court “acted beyond the scope of its statutory authority by proactively declaring that
Marcus’ consent would be irrelevant in any future adoption proceeding.” Specifically,
respondent-mother argues “[t]he only dispute is whether to needlessly risk causing
confusion at that hypothetical future adoption proceeding by letting [the] consent
determination remain in the termination order.” Respondent-mother concedes that
“there is no actual disagreement as to this issue.” Respondent-mother further states
she hopes “that, at that hypothetical future adoption proceeding, the adoption court
will realize that it must treat that unlawful consent determination as a legal nullity
and therefore ignore it completely.” Finally, respondent-mother “has not argued that
this legal nullity warrants full reversal,” instead respondent-mother solely requests
that this finding “be stricken from the order in which it appears, if that order is
otherwise affirmed.”
After an adjudication by the trial court that one or more grounds exist to
terminate the parent’s rights, see N.C.G.S. § 7B-1111(a) (2023), the trial court
progresses to the dispositional stage when terminating parental rights, see id.
§ 7B-1110(a) (2023). At the dispositional stage, the trial court, must “determine
7 IN RE: Z.R.B., M.B., M.B., JR.
whether terminating the parent’s rights is in the juvenile’s best interest.” Id. § 7B-
1110(a).
In each case, the 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. In other words, the trial court is required to “consider all of the factors and make
written findings regarding those that are relevant.” In re Z.A.M., 374 N.C. 88, 99
(2020).
Further, “[o]ur adoption statutes require the child’s consent to an adoption if
[the child] is at least twelve years of age.” In re B.E., 375 N.C. 730, 745 (2020) (citing
N.C.G.S. § 48-3-601(1) (2019)). “Under N.C.G.S. § 48-3-603(b)(2) (2019), however, the
trial court is authorized to ‘issue an order dispensing with the [child’s] consent . . .
upon a finding that it is not in the best interest of the [child] to require the consent.’
” Id. (omission and alterations in original).
8 IN RE: Z.R.B., M.B., M.B., JR.
In In re B.E., our Supreme Court addressed a similar scenario involving the
trial court’s determination of a child over the age of twelve’s consent to adoption in
the trial court’s termination order. Three children—Justin, Billy, and Chaz—had
been adjudicated neglected and dependent. Id. at 732–33. The trial court held a
dispositional hearing and concluded that terminating respondents’ parental rights
were in the best interests of Justin and Billy but not in the best interests of Chaz. Id.
at 734. The respondent-father did not challenge the trial court’s adjudication to
terminate his parental rights; rather, the respondent-father argued on appeal that
“the trial court abused its discretion at the dispositional stage of the proceeding by
concluding it was in Billy’s bests interests to terminate [his] parental rights, thereby
ignoring Billy’s expressed wishes not to be adopted.” Id. at 744 (cleaned up).
The trial court found that Billy, fifteen-years-old at the time of the
dispositional hearing, did not consent to the adoption, but found that “[b]ased on the
evidence and testimony heard throughout the case, pursuant to [N.C.G.S. §] 48-3-
603(b)(2), it [was] not in [Billy’s] best interest for his consent to be required for
adoption.” Id. at 746. Our Supreme Court held that “by finding that it was not in
Billy’s best interests to require his consent to adoption, and by citing the applicable
adoption statute, N.C.G.S. § 48-3-603(b)(2), the [trial] court demonstrated its
consideration of Billy’s stated preference for guardianship in lieu of adoption.” Id. at
749. The Supreme Court clarified that “[a]lthough respondent-father does not
challenge the trial court’s finding on [the consent basis], we note the finding was not
9 IN RE: Z.R.B., M.B., M.B., JR.
made in the context of a pending adoption proceeding under Chapter 48 and is not
binding in any future action for Billy’s adoption.” Id. at 749 n.10 (emphasis added).
I would reach the same conclusion. Like In re B.E., Marcus was over the age
of twelve at the time of the filing of the termination order; the trial court found the
adoption should proceed, with or without Marcus’ specific consent in accordance with
section 48-3-601; this finding was not made in the context of a pending adoption
proceeding under Chapter 48; and respondent-mother does not challenge the trial
court’s finding on the consent basis. Further, this finding is not binding in any future
action for Marcus’ adoption and the trial court properly addressed the other statutory
factors. Accordingly, I would conclude the trial court did not abuse its discretion.
IV. Conclusion
Based on the foregoing, I therefore respectfully dissent from the majority’s
decision reversing and remanding the trial court’s orders. Because respondent-
mother cannot show extraordinary circumstances in her writ, and prejudice on the
merits if the writ were to issue, I would deny respondent-mother’s petition for writ of
certiorari and affirm the trial court’s 27 December 2024 order. I would also affirm
the order of the trial court on respondent-mother’s third issue relating to consent for
adoption.