In re C.N., 266 N.C. App. 463 (2019)

  • Facts: In 2016 DSS filed a petition after law enforcement and EMTs responded to an incident involving injuries to an infant who spilled Mr. Clean on herself. They observed a dirty home that had needles in it, mother’s reported use of marijuana, past incidents of domestic violence, and concerns about mother’s mental health. Based on mother’s stipulations, the children were adjudicated neglected due to improper care, supervision, or discipline and living in an environment injurious to the children’s welfare. Mother’s court ordered case plan included obtain and maintain stable income and housing, complete a mental health assessment and comply with all recommendations, sign releases for DSS and the GAL, submit to random drug screens, and successfully complete parenting classes and substance abuse treatment. The court ordered weekly supervised visitation for mother. In 2018, the court ultimately changed the permanent plans to a primary plan of adoption and concurrent plan of reunification. DSS filed a TPR petition alleging neglect and willful failure to make reasonable progress under G.S. 7B-1111(a)(1) & (2). The court ordered the TPR based on both grounds and mother appealed. DSS did not file a response or brief in the appeal.
  • Standard of review:  Whether clear, cogent, and convincing evidence exists to support the court’s findings of fact and whether the findings support the conclusions of law. Conclusions of law are reviewed de novo.
  • Neglect: Where the juvenile has been removed from the parent’s custody, the court must consider evidence of changed conditions in light of the prior neglect and the probability of the repetition of neglect. The court made specific findings that included mother completed the assessments but has not been consistent with treatment, is not compliant with her case plan, lives with and is dependent on her boyfriend, was late to some and did not attend some visits with the children but when she did visit she was appropriate, took 13 of 38 drug screens with mixed results, and just started to re-engage with services on the day of the TPR hearing. DSS has the burden of overcoming the presumption of parental fitness by clear, cogent, and convincing evidence that a ground exists to terminate parental rights. Failure to make reasonable progress on a case plan may indicate a likelihood of future neglect but such failure must be viewed by considering the abilities and means of the parent including their resources and priority for securing basic life necessities. Mother made some progress on her case plan to reduce the likelihood of future neglect by completing parenting classes, the assessments, re-engaging in services, recently submitting to drug testing, being employed, and obtaining stable housing and transportation. “Here, the juveniles were removed from Respondent-mother’s care after the youngest child spilled Mr. Clean onto herself and Respondent-mother called for medical assistance. No evidence shows and the trial court made no findings indicated such actions were likely to be repeated.” Sl. Op. at 10.
  • Failure to Make Reasonable Progress: Mother completed her assessment and sought mental health services. “While evidence tending to show missed therapy sessions may support the trial court’s finding that her attending treatment was inconsistent, a parent’s inconsistent attendance at therapy sessions does not alone show a lack of reasonable progress, particularly when a parent is working or seeking to comply with other provisions of her plan to meet her and her children’s needs.” Sl. Op. 12. Reasonable progress does not require perfection but does require more than extremely limited progress. Undisputed evidence shows mother made reasonable progress by reenrolling in substance abuse treatment, continuing therapy, taking medication for her mental health issues, completed parenting classes, improved her housing and transportation, was employed, and maintained better contact with DSS.  Although mother’s stable housing and transportation were partly attributable to her boyfriend, her “case plan does not and cannot require that she alone be responsible for providing her housing and transportation.” Sl. Op. at 14. Additionally, housing and transportation do not relate to the causes or conditions for the children’s removal. See G.S. 7B-904 (court’s authority). DSS has not met its burden against the parental presumption of fitness.
Termination of Parental Rights
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