258 N.C. App. 422
N.C. Ct. App.2018Background
- Parents (Respondent-Mother and Respondent-Father) moved to NC in June 2015; incidents of domestic violence and observed child abuse led DSS to remove two children (A.A.A.T. and J.A.W.) on June 10, 2015; a third child (A.A.S.) was born Dec. 30, 2015 and removed the next day.
- Both parents underwent psychological evaluations showing extremely low intellectual functioning; Mother had major depressive disorder and IQ of 57.
- DSS implemented case plans, supervised visitation, drug screens, parenting classes, and other services; parents had sporadic participation, repeated positive/ diluted drug screens (Mother), missed visits, and demonstrated unsafe parenting during visits.
- Permanency order (Aug. 2, 2016) set adoption as primary plan with concurrent reunification; Respondent-Mother appealed that order’s alleged implicit cessation of reunification efforts.
- DSS filed petitions to terminate parental rights (Aug. 15, 2016); after hearings, the trial court terminated both parents’ rights as to all three children on Apr. 25, 2017. Court of Appeals affirmed termination; preserved issues about appealability of the Aug. 2 order under the amended concurrent-planning statute.
Issues
| Issue | Respondent's Argument | DSS/State's Argument | Held |
|---|---|---|---|
| Whether Aug. 2, 2016 permanency order implicitly eliminated reunification and required findings under former law | Mother: court implicitly ceased reunification efforts and failed to make required findings under §7B-901(c) / §7B-906.2(b) | DSS: reunification remained a concurrent plan; under revised §7B-906.2 concurrent planning contemplates simultaneous adoption/reunification and the Aug. 2 order was not appealable separately | Held: Aug. 2 order did not implicitly eliminate reunification under the new statute; mother cannot appeal that order here because it does not meet §7B-1001(a) criteria |
| Whether grounds existed to terminate Father’s parental rights | Father (via no-merit counsel): no non-frivolous argument; asked court to review record for overlooked errors | DSS: ample evidence supported statutory grounds and best-interest findings | Held: Termination of Father’s rights affirmed; trial court’s findings supported termination under §7B-1111(a)(1) and best-interest conclusions upheld |
| Whether Mother’s rights to A.A.A.T. and J.A.W. should be terminated under §7B-1111(a)(2) (willful leave + lack of reasonable progress) | Mother: she made reasonable progress and lacked adequate reunification services tailored to her needs; willfulness not shown | DSS: parents made only sporadic efforts; long custody period, missed visits, unsafe parenting, positive drug tests show willfulness and insufficient progress | Held: Sufficient clear, cogent, convincing evidence supported willfulness and lack of reasonable progress; termination under (a)(2) affirmed |
| Whether Mother’s rights to A.A.S. should be terminated under §7B-1111(a)(1) (neglect / likelihood of repetition) | Mother: argued inadequate services and challenged sufficiency of evidence showing present neglect or probability of repetition | DSS: prior adjudication of neglect for A.A.S., parents’ cognitive/mental-health limitations, instability, unsafe parenting, and failure to remedy conditions support probability of repetition | Held: Trial court’s findings supported neglect and a probability of repetition; termination under (a)(1) affirmed |
Key Cases Cited
- In re Taylor, 97 N.C. App. 57 (affirming that a single statutory ground suffices for termination) (court used to frame standard for sufficiency of grounds)
- In re S.R., 207 N.C. App. 102 (discussing best-interest dispositional factors under §7B-1110) (used to evaluate court’s discretion on best interests)
- In re A.E.C., 239 N.C. App. 36 (prior rule that an order directing DSS to file termination implicitly directed cessation of reunification when reasonable-efforts findings were absent) (distinguished due to subsequent statutory change)
- In re O.C., 171 N.C. App. 457 (defining willfulness and reasonable progress under §7B-1111(a)(2)) (guides analysis of willful leaving and progress)
- In re Nolen, 117 N.C. App. 693 (limited progress is not reasonable progress) (supports terminating for insufficient progress)
- In re Young, 346 N.C. 244 (neglect must be shown as of termination proceeding) (framework for neglect analysis at termination)
- In re Pierce, 146 N.C. App. 641 (probability of repetition standard where child not recently in parent’s custody) (applied to A.A.S. termination)
- In re D.M.W., 173 N.C. App. 679 (failure to make case-plan progress indicates likelihood of future neglect) (supports finding of probability of repetition)