In re: E.L.E., 243 N.C. App. 301

Background

Infant "Emma" was removed from respondent-mother's care in 2010 after reports of domestic violence and maternal substance abuse; Emma was placed with maternal great-aunt and -uncle (petitioners) under a kinship arrangement.
Juvenile proceedings adjudicated Emma neglected (Oct. 2010); the court repeatedly supervised and adjusted respondent's visitation while requiring compliance with a family service plan addressing substance abuse and related issues.
Over 2011–2012 the court found some progress by respondent but also setbacks (e.g., expelled from treatment residence, missed drug tests, DUI); custody ultimately converted to a Chapter 50 civil order awarding petitioners legal and physical custody (June 2012).
Petitioners filed to terminate respondent's parental rights in Jan. 2013; after a three-day hearing the trial court (Nov. 6, 2014) terminated parental rights on grounds of neglect, failure to make reasonable progress, and willful failure to pay a reasonable portion of the child’s care.
On appeal, the Court of Appeals reviewed whether the trial court’s findings supported statutory grounds for termination and whether necessary findings were made as required by controlling precedent.

Issues

Issue	Petitioners' Argument	Respondent's Argument	Held
Whether parental rights could be terminated for willful failure to pay a reasonable portion of child’s care under G.S. 7B-1111(a)(3)	Petitioners asserted respondent willfully failed to pay for care in the six months prior to filing.	Respondent argued statute inapplicable because petitioners’ home is kinship custody, not a licensed foster placement.	Reversed as to this ground: petitioners’ home did not qualify as a "foster home," so (a)(3) did not apply.
Whether parental rights could be terminated for willfully leaving the child in placement >12 months and failing to make reasonable progress under G.S. 7B-1111(a)(2)	Petitioners contended Emma had been outside the home >12 months and respondent had not made reasonable progress.	Respondent pointed to evidence of substantial progress (18 months clean, therapy) and argued court failed to make required findings on the conditions (e.g., domestic violence) and progress.	Reversed as to this ground: trial court’s findings did not address all required elements (no findings about domestic violence; findings showed substantial substance-abuse progress), so (a)(2) not supported.
Whether parental rights could be terminated for neglect under G.S. 7B-1111(a)(1)	Petitioners argued past neglect justified termination and that evidence supported probability of repetition if child returned.	Respondent argued fitness improved and court failed to find a probability of repetition (required when child has not been in parent’s custody for significant time).	Reversed as to this ground: trial court failed to make the necessary finding of probability of repetition of neglect, so (a)(1) not supported.
Whether procedural errors (failure to appoint attorney advocate / best-interest findings) required reversal	Petitioners likely argued any such errors were harmless because statutory grounds were proven.	Respondent argued appointment and best-interest findings were required.	Court did not reach these issues because it reversed on lack of statutory grounds.

Key Cases Cited

In re T.D.P., 164 N.C. App. 287, 595 S.E.2d 735 (discussing adjudication stage in TPR proceedings)
In re Clark, 72 N.C. App. 118, 323 S.E.2d 754 (standard of review for findings and conclusions)
In re L.H., 210 N.C. App. 355, 708 S.E.2d 191 (binding effect of findings supported by competent evidence)
Koufman v. Koufman, 330 N.C. 93, 408 S.E.2d 729 (unchallenged findings are binding on appeal)
In re J.S.L., 177 N.C. App. 151, 628 S.E.2d 387 (conclusions of law reviewed de novo)
In re C.C., 173 N.C. App. 375, 618 S.E.2d 813 (trial court must find facts when adjudicating statutory TPR grounds)
In re O.C., 171 N.C. App. 457, 615 S.E.2d 391 (two-part analysis required under G.S. 7B-1111(a)(2))
In re L.O.K., 174 N.C. App. 426, 621 S.E.2d 236 (fitness evaluated at time of termination)
In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (parental fitness standard)
In re Shermer, 156 N.C. App. 281, 576 S.E.2d 403 (probability-of-repetition requirement when parent lacks recent custody)
In re Reyes, 136 N.C. App. 812, 526 S.E.2d 499 (use of prior neglect to show probability of repetition)
Evans v. Evans, 138 N.C. App. 135, 530 S.E.2d 576 (standard for modifying civil custody orders)