in the Court of Appeals 22 February 2018.
by Respondent-Mother from order entered 11 May 2017 by Judge
Joseph M. Buckner in District Court, Orange County. No. 11 JT
Eldred, Attorney at Law, PLLC, by Edward Eldred, for
Wood for Respondent-Appellant Mother.
brief for Guardian ad Litem.
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.
Facts and Procedural History
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.
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.
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.
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.
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.
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
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).
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
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.
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
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).
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.
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.
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.
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.
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]."
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
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.
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 ...