in the Court of Appeals 20 March 2017.
by respondents from order entered 9 August 2016 by Judge Mike
Gentry in Person County No. 12 JT 84 District Court.
brief filed for Person County Department of Social Services
McCullers Reece for respondent-appellant mother.
Thomas Diepenbrock for respondent-appellant father.
& Bird, LLP, by Kendall L. Stensvad, for guardian ad
appeal from an order terminating their parental rights to
their minor child L.L.O. We vacate the district court's
order and remand.
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
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.
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
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
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.
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.
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.
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."
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.
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.
lies in this Court pursuant to N.C. Gen. Stat. §
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).
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.
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
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.]."
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
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.
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