In re M.B., 382 N.C. 82 (2022)

Vacated and Remanded
There is a dissent
by Berger, J.; joined by Newby, J.
  • In 2019, the juveniles were adjudicated neglected based on circumstances created by mother’s substance use, unsanitary home conditions, and improper supervision. Mother was ordered to comply with her case plan, which included a substance use assessment and follow up with recommendations including drug screening, parenting classes, obtaining and maintaining suitable housing, and maintaining employment. Mother was not following the case plan recommendations or regularly attending visits. The primary permanent plan was changed to adoption, and DSS filed a TPR motion in 2020. The motion alleged the grounds of neglect and failure to make reasonable progress. After the TPR was granted on both grounds, mother appealed.
  • G.S. 7B-1111(a)(1) authorizes a TPR when a parent neglects their child, including failing to provide proper care, supervision, or discipline or creating an injurious living environment. When a parent and child have been separated for a long period of time there must be prior neglect and the likelihood of future neglect. The court looks to past and present factors, including changed circumstances and the parent’s progress toward eliminating the conditions that caused the children’s removal. “[T]he factors alone does not amount to making the determination itself” of a likelihood of future neglect. 382 N.C. at 86. The court must “distinctly determine a parent’s likelihood of neglecting a child in the future. Id. “Even when ‘competent evidence in the record exists to support such a finding, . . . the absence of this necessary finding [still] requires reversal.’ ” Id.
    • Although the court found the relevant factors, the court did not make the ultimate determination by clear and convincing evidence of the likelihood of a repetition of neglect.
  • G.S. 7B-1111(a)(2) authorizes a TPR when the parent has willfully left the juvenile in foster care for more than 12 months without making reasonable progress under the circumstances to correct the conditions that led to the juvenile’s removal. Willfulness of a parent’s failure to make reasonable progress is when the parent has the ability to make the progress but is unwilling to make the effort to do so. There must be adequate findings that the parent acted willfully.
    • The order does not address whether mother acted willfully when leaving the children in foster care without making reasonable progress.
  • Dissent: Unchallenged findings were sufficient to show neglect and failure to make reasonable progress. The majority places form over substance.
Termination of Parental Rights
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