266 N.C. App. 463
N.C. Ct. App.2019Background
- In June 2016 two young children (Carrie, age 11 months; Anne, age 2) were removed after Carrie suffered chemical burns and DSS found poor home conditions (needles, prior reports of wandering). DSS obtained nonsecure custody and placed the children with maternal relatives, later with foster parents.
- Respondent-mother stipulated to neglect at adjudication (Aug. 2016). The court adopted a case plan requiring stable income/housing, mental health and substance-abuse assessments and treatment, random drug screens, parenting classes, and supervised visitation.
- Over 2016–2018 mother had an uneven engagement with services: completed a parenting class and a comprehensive clinical assessment, re-engaged in some treatment and obtained housing and employment, but missed many drug screens and therapy appointments and had inconsistent communication with DSS.
- DSS changed permanency goals from reunification to guardianship and then to adoption with concurrent reunification; DSS filed a petition to terminate parental rights in Feb. 2018 asserting neglect and willful failure to make reasonable progress.
- The trial court found grounds of neglect and willful failure to make reasonable progress and terminated mother’s parental rights in a July 2018 order. Mother appealed; the Court of Appeals reversed as to mother.
Issues
| Issue | Plaintiff's Argument (DSS) | Defendant's Argument (Mother) | Held |
|---|---|---|---|
| Whether neglect under G.S. § 7B-1111(a)(1) supported termination | Mother remained unable/unwilling to provide proper care and lived in an environment injurious to the children; neglect is ongoing and likely to be repeated | Mother had completed parenting classes and a CCA, re-engaged in treatment, obtained housing and employment, and there was insufficient evidence of ongoing neglect or a probability of repetition | Reversed — the court held insufficient evidence that neglect was ongoing or that there was a probability of repetition |
| Whether willful failure to make reasonable progress under G.S. § 7B-1111(a)(2) supported termination | Mother failed to make reasonable progress for >12 months and was inconsistent with the case plan and services | Mother made demonstrable progress (employment, housing, parenting class, some therapy and re-enrollment in treatment); missed sessions and reliance on a boyfriend for housing/transportation did not establish willful refusal or that progress was unreasonable under her circumstances | Reversed — the court held DSS failed to prove willful failure to make reasonable progress by clear, cogent, and convincing evidence |
Key Cases Cited
- In re Ballard, 311 N.C. 708 (describing requirement to consider changed conditions and probability of repetition when juvenile was removed)
- In re Young, 346 N.C. 244 (holding finding of neglect must be based on evidence of neglect at time of the termination proceeding)
- In re McMillon, 143 N.C. App. 402 (willfulness established when parent had ability to show reasonable progress but was unwilling)
- In re O.C., 171 N.C. App. 457 (trial court must determine by clear, cogent and convincing evidence that parent willfully left child in placement >12 months and has not made reasonable progress)
- In re S.D., 243 N.C. App. 65 (clarifying that reasonable progress does not require perfection but extremely limited progress is insufficient)
- In re W.V., 204 N.C. App. 290 (trial court may not impose requirements unrelated to conditions that led to removal)