260 N.C. App. 365
N.C. Ct. App.2018Background
- DSS obtained nonsecure custody of Bev (infant) on Aug 10, 2015 after a domestic violence incident between respondent-mother and the father; Bev had a bruise on her arm and another sibling had prior alleged injury charges.
- On Jan 19, 2016 Bev was adjudicated neglected; she was placed with the paternal grandmother and remained there throughout the case.
- Respondent signed an Out of Home Service Agreement requiring domestic-violence, mental-health, substance-abuse, parenting and related compliance; visitation was supervised and limited.
- Review hearings: May 2016 court continued reunification despite concerns about respondent’s amphetamine-positive test and inconsistent reporting; Jan 12, 2017 court ceased reunification and changed plan to adoption after respondent hadn’t completed required services and had not visited since Sept 2016.
- DSS filed to terminate parental rights on Jan 24, 2017 under N.C. Gen. Stat. § 7B-1111(a)(1) (neglect) and (a)(2) (failure to make reasonable progress); the trial court terminated rights solely under (a)(2) on Sept 8, 2017.
- On appeal, the Court of Appeals reversed, holding DSS failed to prove by clear, cogent and convincing evidence that respondent willfully failed to make reasonable progress correcting the specific conditions that led to Bev’s removal (domestic violence and unexplained infant bruise).
Issues
| Issue | DSS/Appellee Argument | Respondent/Appellant Argument | Held |
|---|---|---|---|
| Whether termination under N.C. Gen. Stat. § 7B-1111(a)(2) is supported by findings that respondent willfully failed to make reasonable progress correcting the conditions that led to removal | Trial court found respondent remained hostile, failed to complete case plan elements, did not demonstrate learned domestic-violence or parenting skills, and called police on a live-in boyfriend — supporting willful failure to make reasonable progress | Respondent argued Bev’s removal was based on domestic violence and a bruise; evidence does not show she failed to correct those conditions (calling police was not domestic violence; she obtained protective order against father; DSS did not prove inability to protect child) | Reversed: findings insufficient. Calling police to remove a boyfriend was not evidence of continued domestic violence; DSS bore burden to prove grounds and did not establish failure to correct the specific conditions alleged. |
| Whether the trial court could rely on unpled conditions (substance abuse, mental health, income) as "conditions which led to removal" under § 7B-1111(a)(2) | DSS argued the case plan’s broader concerns were the real drivers of removal and supported termination | Respondent argued only the conditions alleged in the custody order/petition (domestic violence and infant bruise) may be used to assess reasonable progress | Held: statutory language requires proof of failure to correct the conditions that actually led to removal; unalleged case-plan concerns cannot be used as the basis for termination under (a)(2). |
Key Cases Cited
- In re J.S.L., 177 N.C. App. 151 (standard of review for termination of parental rights)
- In re C.C., 173 N.C. App. 375 (trial court must find willfulness and lack of reasonable progress for § 7B-1111(a)(2))
- In re Nolen, 117 N.C. App. 693 (no reasonable progress when conditions persist with little or no improvement)
- In re McMillon, 143 N.C. App. 402 (petitioner bears burden to prove statutory grounds by clear, cogent and convincing evidence)
- Lanvale Properties, LLC v. Cty. of Cabarrus, 366 N.C. 142 (statutory language should be applied according to its plain meaning)