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In re A.B.

Court of Appeals of North Carolina

February 3, 2015

IN THE MATTER OF: A.B. and J.B

Heard in the Court of Appeals November 25, 2014

Mecklenburg County Department of Social Services, Youth and Family Services, by Senior Associate Attorney Keith S. Smith, for petitioner-appellee.

Appellate Defender Staples Hughes, by Assistant Appellate Defender J. Lee Gilliam, for respondent-appellant mother.

Parker Poe Adams & Bernstein LLP, by Deborah L. Edney, for guardian ad litem.

STROUD, Judge. Judges DILLON and DIETZ concur.

OPINION

Appeal by respondent-mother from order entered 27 January 2014 by Judge Elizabeth Trosch in Mecklenburg County District Court, Nos. 10 JA 548-49.

Page 574

STROUD, Judge.

Respondent-mother appeals from an order entered 27 January 2014 that terminated her parental rights to her minor children A.B. (" Alexis" ) and J.B. (" Jacob" ).[1] Because the trial court's order is internally inconsistent and thus unreviewable by this Court, we reverse the order and remand this matter to the trial court for the entry of a new order.

I. Background

The Mecklenburg County Department of Social Services, Youth and Family Services (" DSS" ) initiated the underlying juvenile case by filing a petition on 8 September 2010, alleging the juveniles were neglected and dependent. DSS asserted that respondent had an extensive history of taking Jacob to the emergency room for unnecessary treatment and that she was beginning to show a similar pattern with Alexis. DSS further stated that Alexis had recently been hospitalized because she had consumed some of Jacob's seizure medicine, suggesting that respondent had given the medicine to Alexis. Additionally, DSS reported that respondent was overwhelmed and overly stressed from parenting the juveniles, missed numerous appointments to address Jacob's behavioral issues, was unemployed and struggled financially, and had difficulty following doctors' instructions when providing routine treatments to the children at home. DSS took non-secure custody of the juveniles that same day.

On or about 5 November 2010, DSS entered into a mediated agreement with respondent, establishing a case plan for reunification with the juveniles. Respondent's case plan required her to: (1) continue participating in an anger management program and demonstrate the skills learned; (2) complete parenting classes and demonstrate the skills learned; (3) maintain legal and stable employment providing sufficient income to meet the juveniles' basic needs; (4) maintain an appropriate, safe, and stable home for herself and the juveniles; (5) maintain weekly contact with her social worker; (6) cooperate with the guardian ad litem; and (7) attend the juveniles' medical and therapy appointments when able to do so. DSS and respondent also agreed to supervised visitation with the juveniles three times per week and a tentative holiday visitation plan.

After hearings on or about 7 January and 17 February 2011, the trial court entered an adjudication and disposition order holding that Alexis and Jacob were neglected juveniles. The court adopted concurrent goals of reunification and guardianship and set forth a case plan for respondent. The trial court adopted the mediated case plan developed by the parties and specifically directed respondent to undergo a complete psychological evaluation, obtain a domestic violence evaluation, and participate in counseling services or therapy.

DSS worked towards reunification of the juveniles with respondent, but in review and permanency planning orders entered 13 May and 31 August 2011, the trial court found respondent needed to further address her mental health and anger management problems. In a permanency planning order entered 19 January 2012, the court found that respondent had made some positive changes in that she was managing her anger, was " emotionally balanced" around the juveniles, and had realized that she needed " batterer's intervention treatment." But the court found that respondent still needed to complete her parenting capacity evaluation, show she could manage her mental health problems, and complete her domestic violence program. The court further found that there were no likely prospects for guardianship or permanent custody of the juveniles and set the permanent plan for the juveniles as reunification or adoption.

On 25 April 2012, the trial court entered a permanency planning order that ceased further efforts towards reunification of the juveniles with respondent, concluding respondent had failed to alleviate the conditions that caused the juveniles to be placed in the care and custody of DSS. The court directed that a Child Family Team (" CFT" ) meeting be held within thirty days of the order to develop recommendations for a permanent placement for the juveniles, and that DSS refrain from moving to terminate respondent's parental

Page 575

rights until after the court received the recommendations from the CFT. The trial court entered an order on 27 June 2012, directing DSS to proceed with an action terminating respondent's parental rights to the juveniles.

DSS filed petitions to terminate respondent's parental rights to the juveniles on 25 July 2012. DSS alleged grounds existed to terminate respondent's parental rights based on neglect, abandonment, failure to make reasonable progress to correct the conditions that led to the juveniles' removal from her care and custody, and willful failure to pay a reasonable portion of the cost of care for the juveniles while they were placed outside of her home. See N.C. Gen. Stat. § 7B-1111(a)(1)-(3), (7) (2013). The trial court heard the petitions on 25 March and 11 April 2013. At the conclusion of the hearing, the court found one ground to terminate respondent's parental rights: failure to make reasonable progress to correct the conditions that led to the juveniles' removal from her care and custody. However, the court concluded that terminating respondent's parental rights was not in the best interests of the juveniles and directed respondent's counsel to prepare a proposed order for the court and circulate the order to all parties.

On 23 September 2013, before the trial court had entered an order on the termination petitions, DSS filed a " Motion for Relief from Order and Motion to Consider Additional Evidence" pursuant to North Carolina Rule of Civil Procedure 60. See id. § 1A-1, Rule 60 (2013). DSS asked that the trial court reconsider its best interests conclusion based on allegations that respondent had misled the court by providing inaccurate information and testimony at the termination hearing, and that she had failed to comply with her case plan since the termination hearing. The trial court allowed the motion and held an additional hearing on 1 October and 4 November 2013 in which it allowed DSS to present additional dispositional evidence as to the best interests of the juveniles.

By order entered 27 January 2014, the trial court terminated respondent's parental rights to the juveniles. The Court found that respondent had failed to make reasonable progress to correct the conditions that led to the juveniles' removal from her care and custody, and concluded that it was in the juveniles' best interests to terminate her parental rights. Respondent filed timely notice of appeal.

II. Termination Order

A. Standard of Review

Termination of parental rights proceedings are conducted in two stages: adjudication and disposition. In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). " In the adjudication stage, the trial court must determine whether there exists one or more grounds for termination of parental rights under N.C. Gen. Stat. § 7B-1111(a)." In re D.H., __ N.C.App. __, __, 753 S.E.2d 732, 734 (2014); see also N.C. Gen. Stat. § 7B-1109(e) (2013). This Court reviews a trial court's conclusion that grounds exist to terminate parental rights to determine whether clear, cogent, and convincing evidence exists to support the court's findings of fact, and whether the findings of fact support the court's conclusions of law. In re Huff, 140 N.C.App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed and disc. rev. denied, 353 N.C. 374, 547 S.E.2d 9 (2001). " If the trial court's findings of fact are supported by ample, competent evidence, they are binding on appeal, even though there may be evidence to the contrary." In re S.C.R., 198 N.C.App. 525, 531, 679 S.E.2d 905, 909 (quotation marks omitted), appeal dismissed, 363 N.C. 654, 686 S.E.2d 676 (2009). However, " [t]he trial court's conclusions of law are fully reviewable de novo by the appellate court." In re S.N., X.Z., 194 N.C.App. 142, 146, 669 S.E.2d 55, 59 (2008) (quotation marks omitted), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).

" If the trial court determines that at least one ground for termination exists, it then proceeds to the disposition stage where it must determine whether terminating the rights of the parent is in the best interest of the child, in accordance with N.C. Gen. Stat. § 7B-1110(a)." D.H., __ N.C.App. at __, 753 S.E.2d at 734. The trial court's determination of the child's best interests is reviewed

Page 576

only for an abuse of discretion. In re Anderson, 151 N.C.App. 94, 98, 564 S.E.2d 599, 602 (2002). " Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).

B. Analysis

Respondent argues that the trial court erred in concluding that she had not made reasonable progress towards correcting the conditions that led to the removal of the juveniles from her care. Respondent contends that the trial court's findings of fact are contradictory and do not support its conclusions of law. Respondent further argues that the trial court's conclusion of law that it is in the juveniles' best interests to terminate respondent's parental rights is internally contradictory. We agree and remand this matter to the trial court for the entry of a new order.

The trial court concluded that respondent willfully left the juveniles in foster care for more than twelve months without showing the court that she made reasonable progress toward correcting the conditions that led to the removal of the juveniles from her home. See N.C. Gen. Stat. § 7B-1111(a)(2). In working toward reunification with the juveniles, respondent was directed to: (1) complete a parenting education program and demonstrate the skills learned; (2) complete a domestic violence counseling and batterer's intervention program; (3) obtain a psychological evaluation and fully engage in therapy; (4) maintain appropriate visitations with the juveniles; (5) maintain appropriate and safe housing; (6) maintain employment; and (7) maintain contact with DSS. The court's order is silent regarding respondent's history of contact with DSS during the case and indicates that the court is satisfied with respondent's progress in the area of parenting education, but the court's findings on respondent's progress in the areas of visitation and employment are contradictory. The court identified mental health and domestic violence as its primary concerns regarding respondent's progress towards correcting the conditions that led to the removal of the juveniles from her care, but it made contradictory findings regarding her progress in those areas as well.

The court made the following findings that support its conclusion that respondent failed to make reasonable progress toward addressing her mental health problems:

20. The respondent mother has engaged in therapy; however, the respondent mother's participation in therapy has not been consistent.
. . . .
26. . . . [That during therapy that started in October 2010, respondent] was not completely forthcoming about the circumstances that brought the children into custody or the issues of violence in her relationships with [Mr. P.] or [Mr. C.] and that [respondent's therapist, Ms. Linda Avery,] concluded that [respondent] had ...

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