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In re Z.D.

Court of Appeals of North Carolina

March 20, 2018

IN THE MATTER OF: Z.D.

          Heard in the Court of Appeals 22 February 2018.

         Appeal by Respondent-Mother from order entered 11 May 2017 by Judge Joseph M. Buckner in District Court, Orange County. No. 11 JT 6

          Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for Petitioner-Appellees.

          Peter Wood for Respondent-Appellant Mother.

         No brief for Guardian ad Litem.

          MCGEE, CHIEF JUDGE.

         Where the evidence and findings of fact do not support the trial court's conclusion of law that grounds existed for termination of Respondent-Mother's parental rights, we reverse the trial court's order. Respondent-Mother ("Respondent") appeals from the trial court's order terminating her parental rights as to her son ("her son, " "the son, " or "the child") in this private termination action. Grounds for the termination were neglect, failure to make reasonable progress to correct the conditions that led to the removal of the son from Respondent's care, and dependency.

         I. Facts and Procedural History

         The Orange County Department of Social Services ("DSS") received a report on 4 October 2010 alleging that (1) Respondent was neglecting her son due to Respondent's mental health issues and drug use, (2) Respondent was leaving her son in unsafe situations in the home, and (3) Respondent was choosing unsafe childcare arrangements. Three days later, on 7 October 2010, Respondent left her son with a woman while she went to the grocery store. Respondent had just met the woman earlier that day. Respondent did not return to the woman's home to pick up her son, and later that evening family members located the son at the woman's home and he was placed with caretakers. Respondent was involuntarily committed to the hospital the next day. Respondent was later released from the hospital, and Child Protective Services provided in-home services.

         Respondent was admitted to the UNC psychiatric clinic in January 2011 and was diagnosed with bipolar 1 disorder. DSS filed a juvenile petition on 25 January 2011, alleging that the child was a dependent and neglected juvenile. In an order entered 22 March 2011, the trial court adjudicated the child dependent but did not consider or rule upon the petition's neglect allegations. The trial court granted temporary custody to the child's "initial kinship" caregivers. Respondent received outpatient mental health services from February 2011 to March 2012. Respondent was then referred to the UNC Chatham Assertive Community Treatment ("ACT") Team, and has continued to work with the ACT Team.

         After a review hearing on 2 June 2011, the trial court found that the caregivers were no longer able to care for the child and placed him in DSS custody. DSS subsequently placed the child in a kinship placement with Mr. and Mrs. J ("Petitioners"), who were friends of Respondent. The trial court granted legal custody of the child to Petitioners on 8 August 2012 and he has remained in their care since that time. The trial court granted Respondent a minimum of one hour of supervised visitation every two weeks and relieved DSS and the guardian ad litem of further responsibility in the case.

         Petitioners moved to Pennsylvania in 2014 and Respondent's visitation was changed to one week of visitation every three months at Petitioners' home. Respondent's visits went well, but she continued to struggle with mental health issues. From 2011 to 2015, Respondent was admitted for multiple psychiatric hospitalizations, both voluntary and involuntary. Despite Respondent's hospitalizations, Petitioners were committed to returning the child to Respondent's care.

         However, on 17 July 2015, Petitioners filed a motion to modify visitation, alleging that the visitation schedule at the time was not in the child's best interest. In an order entered 7 October 2015, the trial court modified visitation to no longer require that Petitioners allow Respondent to stay in their home during visits, but continued the visitation schedule in all other respects.

         Respondent was last hospitalized due to her mental illness in November 2015 and, since her release in December 2015, Respondent has remained symptom free from her bipolar disorder. However, Petitioners filed a petition to terminate Respondent's parental rights as to her son on 21 June 2016. The petition alleged the grounds of (1) neglect, (2) failure to make reasonable progress to correct the conditions that led to the son's removal from Respondent's care, and (3) dependency. N.C. Gen. Stat. § 7B-1111(a)(1)-(2), (6) (2017). After a hearing on 17 April 2017, the trial court entered an order on 11 May 2017 terminating Respondent's parental rights on all three alleged grounds. Respondent appeals.

         II. Analysis

         "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 C.J.H., 240 N.C.App. 489, 497, 772 S.E.2d 82, 88 (2015). "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." Id. (citation and quotation marks omitted). We review de novo whether a trial court's findings support its conclusions. See In re S.N., X.Z., 194 N.C.App. 142, 146, 669 S.E.2d 55, 59 (2008) (citation omitted), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).

         The trial court must make "specific findings of the ultimate facts established by the evidence, admissions and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached." Quick v. Quick, 305 N.C. 446, 452, 290 S.E.2d 653, 658 (1982). The trial court's ultimate findings "must arise 'by processes of logical reasoning from the evidentiary facts' found by the court." In re A.B., ___ N.C. App. ___, ___, 799 S.E.2d 445, 450 (2017) (quoting In re Anderson, 151 N.C.App. 94, 97, 564 S.E.2d 599, 602 (2002)); see also In re D.M.O., ___ N.C. App. ___, ___, 794 S.E.2d 858, 861 (2016) ("[A] trial court must make adequate evidentiary findings to support its ultimate finding of willful intent." (citation omitted)).

         In the present case, the trial court made the following evidentiary findings of fact in support of its conclusion that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (2), and (6) to terminate Respondent's parental rights:

7. Petitioners have known Respondent since she was a teenager and are intimately familiar with Respondent's mental health issues and treatment. Respondent has a bipolar diagnosis. Since the [child] was placed with the caregivers in 2010, Respondent has had multiple episodes related to her mental illness that have left her incapable of properly caring for the [child]. Petitioners have had intimate knowledge of these episodes.
. . . .
10. However, Respondent's behavior during visits in Pennsylvania was consistently concerning and demonstrated an ongoing and continuing inability to provide proper care. In 2015, this [c]ourt changed the visitation order to no longer require Petitioners to house Respondent during her quarterly visits. Respondent's behavior in their home was disturbing and was adversely impacting the [child]. Respondent has not always acted in the [child's] best interest during visits. By way of example, during one visit, Respondent indicated she was hungry. Petitioners allowed Respondent to take the [child] to a restaurant. Respondent bought and ate food, but Respondent did not buy anything for the [child]. By way of further example, the [child] has directed Respondent to end a visit early so that she might rest. While Petitioners have felt comfortable leaving the [child] with Respondent in their home for short unsupervised periods of time during visits, Petitioners have never felt Respondent was capable of supervising the [child] for any extended period of time.
11. Respondent has been working with the UNC ACT ("Assertive Community Treatment") team for several years, since at least before Petitioners attempted to reunite the [child] with Respondent in 2013. ACT provides "wraparound" services for individuals with significant mental health concerns. Even with the provision of these intense services, Respondent is unable to provide proper care for the [child]. Dr. VanderZwaag testified Respondent would be capable of parenting the [child] with assistance, but Dr. VanderZwaag has never observed Respondent with the [child]. Dr. VanderZwaag acknowledged Respondent was last hospitalized due to her mental health illness in December 2015, more than five years after this case began due to similar mental health concerns.
12. Petitioners have observed Respondent over the course of many years, and Petitioners have an intimate familiarity with Respondent's parenting abilities. Petitioners are convinced Respondent lacks the ability to properly care for the [child]. Petitioners would not hesitate to reunite the [child] with Respondent if they thought otherwise. Petitioners have allowed Respondent to have "extra" visitation outside of the court-ordered schedule. Petitioners did not file the termination petition lightly. The [c]ourt believes Petitioners and accepts their testimony as true.

         The trial court then made the ultimate findings of fact that:

13. Respondent has neglected the [child] and there is a reasonable probability Respondent would neglect the [child] if he were returned to her care.
14. Respondent has willfully left the [child] in placement outside the home for more than twelve months without showing to the satisfaction of this [c]ourt that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the [child].
15. Respondent is incapable of providing for the proper care and supervision of the [child], such that the [child] is a dependent juvenile within the meaning of [ N.C. ]G.S. 7B-101, and there is a reasonable probability that such incapability will continue for the foreseeable future. Respondent lacks an appropriate alternative child care

         A. Reasonable Progress

         Respondent first asserts the trial court erred in terminating her parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), which provides that the court may terminate parental rights upon a finding that a parent has "willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile." N.C. Gen. Stat. § 7B-1111(a)(2) (2017).

         Respondent contends the trial court's findings of fact are insufficient to support its ultimate finding that she failed to make reasonable progress in correcting the conditions that led to her son's removal in that the findings are vague and incomplete and do not address her progress or lack of progress leading up to the termination hearing. Therefore, Respondent contends the findings of fact are insufficient to support the trial court's conclusion that grounds existed to terminate her parental rights pursuant to N.C. G.S. § 7B-1111(a)(2). We agree.

         The trial court must perform a two-part analysis to terminate parental rights under N.C. Gen. Stat. § 7B-1111(a)(2). In re O.C. & O.B., 171 N.C.App. 457, 464, 615 S.E.2d 391, 396, disc. review denied, 360 N.C. 64, 623 S.E.2d 587 (2005).

The trial court must determine by clear, cogent and convincing evidence that a child has been willfully left by the parent in foster care or placement outside the home for over twelve months, and, further, that as of the time of the hearing, as demonstrated by clear, cogent and convincing evidence, the parent has not made reasonable progress under the circumstances to correct the conditions which led to the removal of the child.

Id. at 464-65, 615 S.E.2d at 396.

         A parent's reasonable progress "is evaluated for the duration leading up to the hearing on the motion or petition to terminate parental rights." In re A.C.F., 176 N.C.App. 520, 528, 626 S.E.2d 729, 735 (2006). In the present case, however, the trial court did not make any findings regarding Respondent's conduct or circumstances over the fifteen months prior to the termination hearing.

         According to unchallenged finding of fact 3, the child was removed from Respondent's care due to Respondent's mental health issues and drug use, and DSS's concern for the child's care and well-being. However, a review of the record and transcript shows that the trial court based its termination of Respondent's parental rights primarily on the issue of her mental health. Indeed, the trial court did not make any findings regarding Respondent's progress or lack of progress in correcting her past drug use or the condition of her home at the time of the hearing. The trial court essentially relied on three findings of fact in order to support its ultimate finding and conclusion that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) to terminate Respondent's parental rights. These findings, however, are insufficiently specific to support the ultimate finding that Respondent failed to make reasonable progress.

         In finding of fact 7, although the trial court found that Respondent had multiple episodes relating to her mental illness since her diagnosis in 2011, the finding fails to include any information pertaining to what constituted an "episode" and the nature of the "episodes, " including Respondent's condition and behavior during an episode. The finding also lacks any details regarding how many or how often Respondent had episodes, when the last episode occurred, or how the episodes "left her incapable of properly caring for [her son]."

         In finding of fact 10, the trial court found that Respondent's behavior during her visits with Petitioners was "consistently concerning" and "disturbing." However, the trial court failed to find with any particularity what behavior it found to be "concerning" and "disturbing[, ]" and whether this behavior related in any manner to Respondent's mental health and her ability to care for her son.

         In finding of fact 11, the trial court found that "[e]ven with the provision of [the ACT] intense services, Respondent is unable to provide proper care for [her son]." However, the trial court made no finding as to why or how, despite these services, Respondent was not able to provide proper care for her son or what specifically she was doing or not doing to address her mental health issues.

         The trial court's findings demonstrate only that Respondent has had multiple "episodes" since 2010 due to her mental health issues, that her last hospitalization was in December 2015, that Respondent has been working with the UNC ACT team for several years, and that she had exhibited some form of "concerning" and "disturbing" behavior during visits. We conclude that these findings are insufficient to support the trial court's ultimate finding that, at the time of the termination hearing in April 2017, Respondent willfully left her son in Petitioners' care without making reasonable progress to correct the conditions that led to his removal from her care. The findings fail to address ...


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