In re N.M.W., _ N.C. _ (March 20, 2026)

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Held:

Reversed

Facts and procedural history: This case arises on petition of the guardian ad litem for the child and DSS for discretionary review of the decision of the court of appeals as to Respondent-Mother. See 299 N.C. App. 20 (2025). The two siblings at issue were separately adjudicated neglected and dependent based on domestic violence, mental health, and housing concerns. In each child’s proceeding, custody was continued with DSS and the court adopted primary and secondary plans of reunification and adoption. The parents made progress on their case plans such that the children were in a trial home placement. The trial home placement was ultimately suspended along with visitation due to new domestic violence incidents and an eviction after live marijuana plants were found. The children’s primary plans were subsequently changed to adoption with secondary plans of reunification, and DSS filed to terminate both parents’ parental rights. The court eliminated reunification and ceased reunification efforts at a later permanency planning hearing, and Mother preserved her right to appeal the PPO. Mother’s rights were terminated as to both children, and Mother appealed the PPO and TPR orders. The court of appeals vacated the orders as to Mother, holding the trial court failed to make the statutory findings to eliminate reunification, including findings under G.S. 7B-906.2(d) that demonstrate the degree of success or failure toward reunification, whether Mother remained available to DSS and the GAL, whether Mother was acting inconsistent with her parental rights, and whether Mother was acting inconsistent with the health or safety of the juvenile. (Father appealed the TPR order which was affirmed by the court of appeals and not considered by the supreme court in their decision).
G.S. 7B-906.2(d) requires the court make written findings at each permanency planning hearing of factors “which shall demonstrate the degree of success or failure toward reunification.” “[O]nly those factors which demonstrate the degree of success or failure toward reunification require written findings.” 299 N.C. App. at 28 (court of appeals majority opinion), citing In re L.L., 386 N.C. 706, 716 (2024). G.S. 7B-906.2(d) factors include whether the parent is (1) making reasonable progress on their case plan; (2) actively participating and cooperating with DSS and the GAL; (3) available to the court, DSS and the GAL; and (4) their actions are inconsistent with the health or safety of the child.
The supreme court reversed the court of appeals for the reasons stated in the concurring in part and dissenting in part opinion, holding the trial court’s findings of fact in the PPO are sufficient to satisfy the requirements of G.S. 7B-906.2(d) under In re L.L., 386 N.C. 706 (2024). See Concurrence in part and dissent in part, Stroud, J., 299 N.C. App. at 29-35, summarized here. In its opinion, the supreme court “remind[ed] the Court of Appeals that it is bound to apply properly the precedent of [the Supreme Court].” Sl. Op. at 1-2. The court of appeals dissenting opinion pointed to supreme court precedent that states “incomplete findings of fact in the cease reunification order may be cured by findings of fact in the termination order.” 299 N.C. App. at 30. The trial court’s detailed findings in the PPO and TPR order taken together show that the trial court properly considered all of the factors required under G.S. 7B-906.2 to support a conclusion to cease reunification efforts with Mother. The supreme court has continuously held that findings are not required to track the statutory language verbatim. Findings in the PPO and TPR orders addressed Mother’s availability to DSS, the GAL, and the court throughout the case; Mother’s engagement in services over the years; that Mother had prior involvement with DSS in two other states to address the same recurring domestic violence and mental health concerns; and Mother had failed to demonstrate any benefit from the near continuous services provided over the life of the case.
The supreme court additionally held the dissent in part’s discussion of remand as the proper remedy was unnecessary given the conclusion that the trial court’s findings sufficiently supported the order.
Concurring, Berger, J.: There is a possible need for the supreme court to revisit In re Civil Penalty, 324 N.C. 373 (1989), which “solidified the principle of horizontal stare decisis for the Court of Appeals decisions[,]” and instead “consider whether decisions of the court of appeals should be persuasive authority unless that court sits en banc [pursuant to Rule 31.1].” Sl. Op.at 4. Citing to In re L.L., 386 N.C. 706 and In re L.R.L.B., 377 N.C. 311 (2021) as examples, the court of appeals has published opinions directly conflicting with supreme court precedent, causing practicing attorneys and lower courts to apply the law contrary to what has been established by the supreme court pursuant to N.C. Const. art IV, sec. 12. Horizontal stare decisis has relegated “[t]he resolution of important issues of first impression . . . to the luck of the three-judge-panel draw . . .[allowing] first-in-time decisions [to] set a baseline from which future panels cannot deviate.” Sl. Op. at 5.