In re A.B., 253 N.C. App. 29 (2017)

Vacated and Remanded
  • Facts: The children had been adjudicated neglected and dependent, in part based on an injurious environment and improper supervision created by the parents’ substance abuse and domestic violence. Respondent mother’s case plan involved obtaining a substance abuse evaluation and following any recommendations, random drug screens, completing a court-approved parenting course and demonstrating learned skills during visitations, attend visitation and the child’s medical and school appointments, maintain suitable housing for at least 6 months, and maintain employment to be able to financially provide for the children for 4-6 months. After two years, the concurrent permanent plan was changed from reunification with mother and adoption to adoption and guardianship. A TPR was granted on the grounds of neglect and willful failure to make reasonable progress to correct the conditions that led to the children’s removal 3 years earlier.
  • The findings of fact do not support either ground.
    • GS 7B-1111(a)(1) Neglect. When the child has been placed outside of the home for a significant period of time, a TPR based on neglect must be based on findings and evidence of prior neglect and the probability of repetition of neglect. The court must consider any evidence of changed conditions since the prior neglect adjudication and determine the parent’s fitness to care for the child at the time of the termination hearing. See In re Ballard, 311 N.C. 708 (1984).
    • GS 7B-1111(a)(2) Willfully failing to correct conditions. Willfulness does not require a finding of fault but requires a failure to exhibit reasonable progress or a positive response toward DSS efforts, and failure to fully satisfy all elements of the case plan is not the equivalent of a lack of reasonable progress. Citing In re A.C.F., 176 N.C. App. 520, 528 (2006), “the nature and extent of the parent’s reasonable progress must be evaluated for the duration leading up to the hearing on the motion or petition to terminate parental rights.” (emphasis in original)
    • The court made findings that summarize the respondent mother’s progress or lack thereof on specific dates in the past (based on past hearings) and did not merely find certain findings were made at prior hearings. But, the court made no findings of the mother’s conduct or circumstances after the prior review hearing and up to the termination of parental rights hearing.
    • An ultimate finding of fact that supports the ground must be supported by a process of a logical reasoning from adequate evidentiary facts found by the court. The facts found by the court do not support the ultimate finding. Evidence shows the respondent mother’s progress improved over time with (1) negative drug screen after her 3rd round of treatment, (2) her eventual separation from respondent father and obtaining a DVPO that remains in effect, (2) working full-time and being current on child support, (4) completing the only ordered parenting classes from 2 years before, and (5) regularly attending visits and being appropriate with 3 of the 4 children. There is conflicting material evidence on willfulness and reasonable progress (from DSS and respondent) that were not resolved by the court’s order, such as her willingness to share her availability for random drug screens and the reason for not having utilities or providing information for a background check on an adult who lives in her home.  
Termination of Parental Rights
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