In re S.M., 375 N.C. 673

Background

DSS received reports in Feb 2018 alleging poor hygiene, lack of school enrollment, substance abuse, and sexual abuse by father; children were placed in protective care and adjudicated neglected in May–June 2018.
DSS case plan required parents to obtain stable housing and employment, complete substance‑abuse and mental‑health assessments and follow recommendations, submit to drug screens, complete domestic‑violence counseling, and comply with other directives; parents had recurring noncompliance.
Permanency planning (Jan–Feb 2019) changed the plan from reunification to adoption, suspended visitation, relieved DSS of further reunification efforts, and directed DSS to file TPR petitions.
DSS filed TPR petitions (Feb 28, 2019) alleging neglect and willful failure to make reasonable progress under N.C.G.S. § 7B‑1111(a)(1)–(2); termination hearing was held May 28, 2019.
Father moved at the hearing for a continuance because his psychosexual evaluation was received by counsel the day before; the trial court denied the motion as the delay was caused by father’s own procrastination.
The trial court found neglect and (for mother) willful failure to make reasonable progress, concluded termination was in each child’s best interests (including Jimmy), and entered TPR orders on Aug 8, 2019; parents appealed.

Issues

Issue	DSS / Petitioner Argument	Respondents' Argument	Held
1) Denial of father’s motion to continue hearing	No extraordinary cause; continuance beyond 90 days unwarranted; father delayed completing evaluation	Denial violated due process/right to prepare and subpoena witnesses because evaluation arrived one day before trial	Denial affirmed: father waived constitutional claim at trial; no abuse of discretion under §7B‑1109(d) because father caused delay and extraordinary circumstances not shown
2) Mother’s willful failure to make reasonable progress (§7B‑1111(a)(2))	Mother failed to secure stable housing, employment, provide documentation, complete ordered assessments/treatment, and had positive drug tests and drug‑screen refusals	Mother made some progress (parenting class, one negative screen, assessment with no recommendations) and lacked proof of willfulness or ability to overcome barriers	Affirmed: findings supported by clear, cogent, convincing evidence; willfulness established by prolonged noncompliance and limited progress
3) Neglect ground for mother	DSS alleged continuing risk of neglect based on original removal conditions and ongoing noncompliance	Mother argued record insufficient to show risk of future neglect	Court did not decide because one valid ground (§7B‑1111(a)(2)) was sufficient to support termination
4) Best interests of Jimmy	Adoption likely; pre‑adoptive family identified and bonded with children; child thriving in placement; termination removes barrier to permanency	Parents argued court failed to address some statutory factors, overlooked Jimmy’s behavioral needs and unique circumstances	Affirmed: court erred in some subsidiary findings (e.g., GAL report, placement details) but remaining competent evidence showed termination served Jimmy’s best interests; no abuse of discretion

Key Cases Cited

In re A.L.S., 374 N.C. 515, 843 S.E.2d 89 (N.C. 2020) (continuance reviewed for abuse of discretion in juvenile context)
State v. Branch, 306 N.C. 101, 291 S.E.2d 653 (N.C. 1982) (due‑process right to reasonable time to prepare)
In re T.L.H., 368 N.C. 101, 772 S.E.2d 451 (N.C. 2015) (definition of abuse of discretion standard)
In re D.W., 202 N.C. App. 624, 693 S.E.2d 357 (N.C. Ct. App. 2010) (continuances in juvenile cases and §7B‑1109(d) guidance)
In re J.S., 374 N.C. 811, 845 S.E.2d 66 (N.C. 2020) (willfulness under §7B‑1111(a)(2) does not require fault; defined by capacity but unwillingness to make effort)
In re B.O.A., 372 N.C. 372, 831 S.E.2d 305 (N.C. 2019) (limited case‑plan compliance may still be insufficient for reasonable progress)
In re L.E.W., 375 N.C. 124, 846 S.E.2d 460 (N.C. 2020) (termination may be appropriate despite some progress)
In re N.G., 374 N.C. 891, 845 S.E.2d 16 (N.C. 2020) (court must disregard findings not supported by clear, cogent, convincing evidence)
In re J.A.O., 166 N.C. App. 222, 601 S.E.2d 226 (N.C. Ct. App. 2004) (best‑interests inquiry where child’s severe needs made adoption unlikely; distinguishable)