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In re L.L.O.

Court of Appeals of North Carolina

April 4, 2017

IN THE MATTER OF: L.L.O.

          Heard in the Court of Appeals 20 March 2017.

         Appeal by respondents from order entered 9 August 2016 by Judge Mike Gentry in Person County No. 12 JT 84 District Court.

          No brief filed for Person County Department of Social Services petitioner-appellee.

          Mary McCullers Reece for respondent-appellant mother.

          J. Thomas Diepenbrock for respondent-appellant father.

          Alston & Bird, LLP, by Kendall L. Stensvad, for guardian ad litem.

          TYSON, Judge.

         Respondents appeal from an order terminating their parental rights to their minor child L.L.O. We vacate the district court's order and remand.

         I. Background

         In May 2012, L.L.O. was born at Duke University Hospital, twelve weeks premature, weighing one pound fourteen ounces. As the result of her premature birth, L.L.O. remained hospitalized for approximately six weeks. After L.L.O.'s weight increased, Respondents were allowed to take her home. Respondents lived in Durham at the time, but moved to Roxboro about a month later. L.L.O. continued to receive medical care in Durham.

         L.L.O. had an appointment at Duke Pediatrics on 4 December 2012, from where she was taken by ambulance to the hospital because she was in "respiratory distress." She was released the same day with a follow-up appointment scheduled for the next day. After L.L.O. missed that appointment, the Person County Department of Social Services ("DSS") received a report of purported medical neglect concerning L.L.O. On 6 December 2012, a DSS social worker spoke with Respondent-mother, encouraged her to reschedule the appointment for the following day, and offered to provide transportation to the appointment for Respondent-mother and L.L.O. At L.L.O.'s appointment the next day, she was determined to be in "respiratory distress." Her pulse oxygen levels were "dangerously low" and she was again transported to the hospital.

         When L.L.O. was discharged from the hospital on 10 December 2012, Respondent-mother was given a prescription for prednisone for L.L.O. She was instructed to fill the prescription and give L.L.O. a dose every twelve hours for the next forty-eight hours. According to Respondent-mother, she was unable to fill the prescription that day because her pharmacy was closed by the time she and L.L.O. had returned to Roxboro. On 11 December 2012, the following day, a social worker filled the prescription for Respondent-mother and delivered it to the home. Although the social worker brought the medication to Respondents' home at 4:45 p.m. that day, L.L.O. did not receive her first dose of prednisone until the following day, 12 December 2012. That same day, a social worker transported L.L.O. and Respondent-mother to a follow-up appointment, where she was again found to be in "respiratory distress."

         On 15 December 2012, a social worker transported L.L.O. and Respondent-mother to Duke Pediatrics. L.L.O. was again found to be in "respiratory distress" and was transported to the hospital by ambulance. Following L.L.O.'s discharge several hours later, Respondents were instructed to schedule a follow-up appointment, which Respondents did not do. Duke Pediatrics scheduled an appointment on L.L.O.'s behalf and notified Respondents of the 19 December appointment. Respondents did not appear with L.L.O. for the appointment.

         On 19 December 2012, DSS filed a petition alleging L.L.O. was neglected, because Respondents had failed to provide her necessary medical and remedial care. DSS obtained nonsecure custody of L.L.O. the same day. On 1 April 2013, the district court adjudicated L.L.O. to be neglected "as alleged in the Petition, " and ordered Respondents to submit to drug screens, relinquish L.L.O.'s WIC vouchers to DSS and develop a case plan with DSS.

         Respondents agreed and entered into case plans with DSS, which included the following goals: obtain and maintain employment and housing; participate in psychological and substance abuse evaluations and follow all recommendations; refrain from using drugs and alcohol and participate in drug testing; attend visitation with L.L.O.; and communicate respectfully with DSS, foster parents, and other staff regarding L.L.O.'s care and scheduled visits.

         Following a 2 December 2013 permanency planning hearing, the trial court ordered that DSS could cease reunification efforts. At the next permanency planning hearing on 9 June 2014, the court ordered the permanent plan be changed from reunification to adoption.

         On 30 September 2014, DSS filed its motion for termination of parental rights ("TPR") alleging L.L.O. was neglected as defined in N.C. Gen. Stat. § 7B-101. Without a statutory reference, the motion also alleged that "[t]wenty-one months have passed since the child was removed from the parents' custody and little likelihood exists that the parents will ever be able to resume custody of their child."

         On 9 September 2015, the court entered an order limiting the time for presentation of the parties' cases to five hours total for Petitioner and the guardian ad litem and five hours total for Respondents. In its order terminating Respondent's parental rights, Judge Gentry stated he "wants the Court of Appeals to decide if he is right or wrong on that issue." Respondents do not raise this time limitation issue on appeal and it is not before us.

         Petitioner's motion for TPR was heard on 5 November, 6 November, and 9 November 2015. The trial court entered an order on 9 August 2016 concluding that Respondents had neglected L.L.O. and willfully left L.L.O. in foster care or placement outside of the home for more than twelve months without showing reasonable progress in correcting the conditions that led to L.L.O.'s removal. The court concluded termination was in the juvenile's best interest and terminated Respondents' parental rights. Respondents appeal.

         II. Jurisdiction

         Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7B-1001(a)(6) (2015).

         III. Standard of Review

On appeal, our standard of review for the termination of parental rights is whether the trial court's findings of fact are based on clear, cogent and convincing evidence and whether the findings support the conclusions of law.
The trial court's conclusions of law are reviewable de novo on appeal.

In re J.S.L., 177 N.C.App. 151, 154, 628 S.E.2d 387, 389 (2006) (citations and internal quotation marks omitted).

         IV. Issues

         Respondents assert the trial court erred when it concluded they had neglected their daughter, L.L.O., without making any finding or conclusion of the likelihood of repetition of neglect, if L.L.O. was returned to their care. Respondents also argue the trial court erred by concluding they willfully left L.L.O. in foster care without showing reasonable progress to correct the conditions which led to her removal.

         V. Analysis

         A. Neglect

         A court may terminate parental rights upon a finding that the parents have neglected the juvenile within the meaning of N.C. Gen. Stat. § 7B-101(15). N.C. Gen. Stat. § 7B-1111(a)(1) (2015). In relevant part, N.C. Gen. Stat. § 7B-101(15) (2015) defines a neglected juvenile as one "who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care[.]"

         Where a child has not been in the custody of the parents for a significant period of time prior to the TPR hearing, "the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect." In re Pierce, 146 N.C.App. 641, 651, 554 S.E.2d 25, 31 (2001), aff'd, 356 N.C. 68, 565 S.E.2d 81 (2002). The court must consider "evidence of changed conditions in light of the history of neglect by the parent, and the probability of a repetition of neglect." Id. (citing In re Ballard, 311 N.C. 708, 714, 319 S.E.2d. 227, 231 (1984)). The trial court concluded grounds existed for terminating the parental rights of both Respondents because both had "neglected [their] minor child, [L.L.O.]."

         The trial court's order must reflect the process by which the court reasoned and adjudicated facts, based upon clear and convincing evidence, which compel the conclusion that Respondents were likely to neglect L.L.O. if she were returned to their custody. See Appalachian Poster Adver. Co. v. Harrington, 89 N.C.App. 476, 480, 366 S.E.2d 705, 707 (1988). Respondents argue the court's order lacks the requisite findings that they were likely to repeat the neglect which led to the initial adjudication, and no clear and convincing record evidence supports such finding. We agree.

         In In re E.L.E., ___ N.C.App. ___, ___, 778 S.E.2d 445, 447 (2015), the child, Emma, had been adjudicated neglected and removed from the respondent's care due to domestic violence and respondent's substance abuse. The trial court's TPR order contained no finding that "there was a probability of repetition of neglect if Emma were returned to respondent." Id. at, 778 S.E.2d 450. This Court held "thus, the ground of neglect is unsupported by necessary findings of fact." Id. at, 778 S.E.2d at 450. The court in In re E.L.E. recognized that "[a]rguably, competent evidence in the record exists to support such a finding, however, the absence of this necessary finding requires reversal." Id. at ___, 778 S.E.2d at 450-51.

         While DSS has not filed an appellant brief, the Guardian ad Litem ("GAL") argues the following are findings supporting a conclusion of Respondent-father's neglect.

48. That during the pendency of the neglect proceeding, the Respondent father failed to gain or maintain any employment or gainful activity to enable him to provide financial assistance to the child;
. . . .
50. During the course of the neglect proceeding, the Respondent father has not provided any financial support for ...

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