In re: L.L.O.Â, 252 N.C. App. 447

Background

Infant L.L.O., born extremely premature in May 2012, required ongoing medical care; missed/late treatment and missed follow-ups in December 2012 prompted DSS involvement and nonsecure custody on 19 Dec 2012.
District court adjudicated L.L.O. neglected on 1 Apr 2013; respondents entered case plans (employment, housing, substance-abuse evaluation/treatment, drug testing, visitation).
Reunification efforts ceased in Dec 2013 and permanency plan changed to adoption in Jun 2014; DSS moved to terminate parental rights on 30 Sep 2014 alleging neglect and that child had been out of parents’ custody >21 months.
TPR hearing occurred Nov 2015; trial court entered an order 9 Aug 2016 terminating both parents’ rights under § 7B-1111(a)(1) (neglect) and (a)(2) (willfully left child in foster care >12 months without reasonable progress).
On appeal, Court of Appeals vacated and remanded because the TPR order lacked necessary, clear findings (particularly: probability of repetition of neglect and adequate findings on willfulness/reasonable progress) and contained inconsistent, "stream-of-consciousness" findings; also noted statutory timing violations for entry of the order.

Issues

Issue	Petitioner’s Argument	Respondents’ Argument	Held
Whether trial court properly found neglect under § 7B-101(15) given child had been out of parents’ custody for a long period	DSS argued parents neglected child (failure to provide necessary medical care) and prior adjudication/record supported finding	Parents argued trial court failed to find probability of repetition of neglect if child returned; order lacked required findings	Reversed in part — vacated and remanded: order lacked the necessary finding on probability of repetition of neglect and thus cannot support termination on neglect ground
Whether court properly found parents "willfully left" child in foster care >12 months without showing reasonable progress under § 7B-1111(a)(2)	DSS argued parents failed to make reasonable progress on case-plan conditions (drug tests, employment, housing, visitation)	Parents pointed to efforts (substance treatment, GED, applications for housing, claim of transportation/poverty barriers) and argued findings were inconsistent and inadequate to show willfulness or lack of reasonable progress	Reversed in part — vacated and remanded: findings were inconsistent and insufficient to support conclusion of willful leaving and lack of reasonable progress; court may take further evidence and must enter clarified findings
Whether omission of statutory language and specific allegations in DSS’s TPR motion prejudiced respondents	GAL/DSS relied on hearing evidence to prove statutory grounds despite motion wording	Respondents argued lack of specificity in motion (no statutory citations or wording) could disadvantage preparation	Court reviewed on merits (respondents did not raise motion-defect issue) but emphasized motions should give notice; primary basis for reversal was inadequate findings, not motion wording
Whether delay in entering written orders violated statutory timing requirements (§§ 7B-1109(e), 7B-1110(a))	DSS did not defend delay; trial court’s written order entered ~9 months after hearing	Respondents noted statutory deadlines for reduction to writing and entry	Court noted the statutory violation but because it vacated order for inadequate findings, it did not need to decide remedial effect beyond noting the violation; remand allows correction

Key Cases Cited

In re J.S.L., 177 N.C. App. 151 (N.C. Ct. App. 2006) (standard of review for TPR: findings must be supported by clear, cogent, convincing evidence)
In re Pierce, 146 N.C. App. 641 (N.C. Ct. App. 2001) (when child removed long-term, court must consider changed conditions and probability of repetition of neglect)
In re Ballard, 311 N.C. 708 (N.C. 1984) (importance of assessing probability of repetition of neglect after removal)
Appalachian Poster Advertising Co. v. Harrington, 89 N.C. App. 476 (N.C. Ct. App. 1988) (trial court order must show reasoning and facts supporting judgment)
In re E.L.E., N.C. App. , 778 S.E.2d 445 (N.C. Ct. App. 2015) (vacating TPR where order omitted necessary finding on probability of repetition of neglect)
In re D.R.B., 182 N.C. App. 733 (N.C. Ct. App. 2007) (failure to articulate necessary grounds for termination is not harmless error)
In re D.M.O., N.C. App. , 794 S.E.2d 858 (N.C. Ct. App. 2016) (vacatur/remand where findings were inadequate or inconsistent to support willfulness/abandonment conclusion)
In re O.C., 171 N.C. App. 457 (N.C. Ct. App. 2005) (two-part test for § 7B-1111(a)(2): willful leaving >12 months and lack of reasonable progress)
In re McMillon, 143 N.C. App. 402 (N.C. Ct. App. 2001) (willfulness shown when parent had ability but was unwilling to make effort)
Peltzer v. Peltzer, 222 N.C. App. 784 (N.C. Ct. App. 2012) (criticizing "stream of consciousness" findings; orders must have clear adjudicated findings)