In re A.N.H. ( 2022 )

IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-47
No. 123A21
Filed 6 May 2022
IN THE MATTER OF: A.N.H.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from order entered on 19
January 2021 by Judge Emily Cowan in District Court, Henderson County. This
matter was calendared in the Supreme Court on 18 March 2022 but determined on
the record and briefs without oral argument pursuant to Rule 30(f) of the North
Carolina Rules of Appellate Procedure.
Assistant County Attorney Susan F. Davis for petitioner-appellee Henderson
County Department of Social Services.
Ryan H. Niland and John R. Still for Guardian ad Litem.
Edward Eldred for respondent-appellant father.
EARLS, Justice.
¶1 Respondent-father appeals from a trial court order terminating his parental
rights in his daughter, A.N.H. (Annie).1 Respondent was found by the trial court to
have completed a required substance abuse assessment, completed 20 hours of
substance abuse treatment, completed a parenting program, attended 78 of 80
possible visits with Annie, paid child support in an amount consistent with the child
1 We use a pseudonym to protect the juvenile’s identity and for ease of reading.
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support guidelines, resided in a home safe and appropriate for Annie, attended court
regularly, and maintained requested contact with the social worker. Petitioners
sought to terminate respondent’s parental rights based on the fact that respondent
failed some of the many drug screens he submitted to between 2018 and 2020 and
failed to submit to others.
¶2 We find that some of the trial court’s findings of fact are not supported by the
record, while others are. Thus, the issue here is whether the findings of fact that are
supported by clear, cogent, and convincing evidence in the record are sufficient to
support the trial court’s conclusion that grounds existed to terminate respondent’s
parental rights for neglect and failure to make reasonable progress under the
circumstances to correct the conditions that led to Annie’s placement in foster care.
We conclude that the findings of fact supported by clear, cogent, and convincing
evidence in the record are insufficient to support the trial court’s conclusion that
respondent’s parental rights in Annie were subject to termination. Accordingly,
consistent with our precedents, we remand this matter for further proceedings rather
than reversing the judgment and remanding for dismissal of the petition. See In re
N.D.A., 373 N.C. 71, 84 (2019) (vacating and remanding for further proceedings
where factual findings were insufficient to support grounds for termination).
I. Background
¶3 When Annie was born on 9 April 2018, her cord blood tested positive for
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cocaine, and she experienced suboxone withdrawal. Annie spent two weeks in the
hospital being treated with methadone before being discharged to the custody of her
mother. On 24 April 2018, the mother entered into a safety plan with Henderson
County Department of Social Services (HCDSS) in which she agreed to continue with
her substance abuse treatment and to reside with Annie at the maternal
grandmother’s home.
¶4 Around 13 May 2018, the mother moved with Annie to temporary housing with
a friend after being kicked out of the maternal grandmother’s home. The mother
missed multiple substance abuse group therapy sessions throughout May 2018 and
was discharged from her suboxone treatment on 4 June 2018 after failing to attend
her treatment
¶5 On 5 June 2018, HCDSS filed a petition alleging Annie to be a neglected
juvenile. The petition alleged that the mother did not have stable income, was
unemployed, and was not attending treatment for her substance abuse or mental
health issues. Respondent was not listed on Annie’s birth certificate. He was listed as
the putative father on the petition, in which it was alleged that respondent provided
no care or support for Annie, was unemployed, and had a history of criminal activity,
drug use, and domestic violence with Annie’s mother.
¶6 In early July 2018, the mother could no longer stay with her friend. On 10 July
2018, she and Annie spent the night at respondent’s home; they spent the next two
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nights at the Rescue Mission. On 13 July 2018, HCDSS was unable to locate the
mother or Annie. The social worker contacted respondent looking for the mother, but
respondent did not have any information regarding her whereabouts. HCDSS located
Annie later that day in the care of respondent and his family. At this point paternity
had not yet been established.
¶7 HCDSS obtained nonsecure custody of Annie on 13 July 2018 and filed a
supplemental petition alleging neglect. The petition alleged that the mother
expressed concern about respondent being left alone with Annie because of his
domestic violence history. Respondent submitted to paternity testing on 30 July 2018
and was found to have a 99.99% probability of being Annie’s father. In a child support
order filed on 28 September 2018, respondent acknowledged that he was Annie’s
father.
¶8 Following a hearing, the trial court entered a Consent Adjudication Order on
13 September 2018 concluding that Annie was a neglected juvenile based on the
parents’ stipulated facts. In a separate disposition order entered 17 January 2019,
the trial court ordered respondent to do the following in order to achieve reunification
with Annie: obtain a comprehensive clinical assessment (CCA) from a certified
provider and provide the assessor with truthful and accurate information; follow and
successfully complete all the recommendations of the CCA; submit to random drug
screens; complete an anger management/domestic violence prevention program;
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successfully complete a parenting class that addresses the ability to identify age-
appropriate behaviors, needs, and discipline for the juvenile; cooperate and pay child
support; attend visitations and demonstrate the ability to provide appropriate care
for the juvenile; obtain stable income sufficient to meet the family’s basic needs;
obtain and maintain an appropriate and safe residence; maintain face-to-face contact
with HCDSS; and provide HCDSS with updated information and sign any releases of
information necessary to allow the exchange of information between HCDSS and the
providers. The court granted respondent one hour of supervised visitation per week.
¶9 The trial court held a permanency planning hearing on 11 April 2019. In an
order entered 17 May 2019, the court set the permanent plan for Annie as
reunification with a secondary plan of adoption. The court found that respondent
obtained a CCA, completed a parenting class, obtained sufficient income, and began
mental health treatment on 7 November 2018. From July 2018 to the date of the
hearing, respondent submitted to nine drug screens, seven of which were negative.
However, respondent tested positive for marijuana on 18 July and 23 October 2018
and did not take requested drug screens on 28 August 2018 and 8 January 2019. The
court ordered respondent to comply with the components of his case plan and allowed
him six hours of unsupervised visitation per week.
¶ 10 On 3 June 2019, HCDSS filed a Motion for Review requesting respondent’s
visitation be changed back to supervised visits after respondent’s 21 May 2019 hair
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follicle test came back positive for amphetamines, methamphetamines, and cocaine.
Following a hearing on 11 July 2019, the trial court entered an order on 3 September
2019 continuing the permanent plans.
¶ 11 Respondent himself requested additional hair follicle tests on 25 and 26
September and 2 October 2019. However, respondent testified that he could not
submit samples for these tests because he was working two hours away in Maggie
Valley and could not get to the testing site before it closed. On 10 October 2019, a
second hair follicle test came back positive for methamphetamine, cocaine, and
benzoylecgonine, the main metabolite of cocaine. Respondent’s unsupervised
visitation was suspended on 15 October 2019 due to his positive hair follicle screens.
¶ 12 In a review order entered 14 February 2020, the trial court changed the
permanent plan to adoption with a secondary plan of guardianship, finding that
respondent had not made adequate progress within a reasonable time under the plan.
The court found that respondent had not engaged with individual therapy to comply
with his substance abuse requirements, and that he was extremely dependent on his
grandmother for assistance in caring for Annie. The court also found that respondent
had threatened family members who offered to help with Annie or provide
information to HCDSS about Annie. The court allowed respondent a minimum of one
hour of supervised visitation per week.
¶ 13 On 12 March 2020, HCDSS filed a motion to terminate respondent’s parental
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rights on the grounds of neglect and willful failure to make reasonable progress to
correct the conditions that led to Annie’s removal from the home.2 N.C.G.S. § 7B-
1111(a)(1)–(2) (2021). Following multiple continuances, the trial court held a
termination of parental rights hearing on 15 October, 12 November, and 10 December
2020. On 19 January 2021, the trial court entered an order concluding that HCDSS
had proven both alleged grounds to terminate respondent’s parental rights and that
termination of respondent’s parental rights was in Annie’s best interests.
Accordingly, the trial court terminated respondent’s parental rights. Respondent
appealed.
II. Analysis
¶ 14 On appeal, respondent challenges the trial court’s adjudication of grounds for
termination of his parental rights under N.C.G.S. § 7B-1111(a)(1) and (2). He
contends that of the twenty-seven findings of fact relied upon by the trial court, the
entirety of finding of fact 38 and significant portions of eleven others are not
supported by the evidence and that the remaining findings do not support the trial
court’s conclusions that grounds existed to terminate his rights.
¶ 15 We review a trial court’s adjudication that grounds exist to terminate parental
rights “to determine whether the findings are supported by clear, cogent and
2 HCDSS also sought to terminate the parental rights of Annie’s mother, but she did
not appeal and is not a party to this appeal.
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convincing evidence and the findings support the conclusions of law.” In re E.H.P.,
372 N.C. 388, 392, (2019) (quoting In re Montgomery, 311 N.C. 101, 111 (1984)). “A
trial court’s finding of fact that is supported by clear, cogent, and convincing evidence
is deemed conclusive even if the record contains evidence that would support a
contrary finding.” In re R.G.L., 2021-NCSC-155, ¶ 12. “Findings of fact not challenged
by respondent are deemed supported by competent evidence and are binding on
appeal.” In re T.N.H., 372 N.C. 403, 407, (2019) (citing Koufman v. Koufman, 330 N.C.
93, 97 (1991)). “Moreover, we review only those findings necessary to support the trial
court’s determination that grounds existed to terminate respondent’s parental
rights.” Id. “The trial court’s conclusions of law are reviewable de novo on appeal.” In
re C.B.C., 373 N.C. 16, 19 (2019).
¶ 16 A trial court may terminate parental rights if it concludes that the parent has
neglected the juvenile within the meaning of N.C.G.S. § 7B-101. N.C.G.S. § 7B-
1111(a)(1). A neglected juvenile is defined, in pertinent part, as one “whose parent,
guardian, custodian, or caretaker . . . does not provide proper care, supervision, or
discipline . . . [or whose parent, guardian, custodian, or caretaker] allows to be created
a living environment that is injurious to the juvenile’s welfare.” N.C.G.S. § 7B-101(15)
(2021).
Termination of parental rights based upon this statutory
ground requires a showing of neglect at the time of the
termination hearing or, if the child has been separated
from the parent for a long period of time, there must be a
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showing of a likelihood of future neglect by the parent.
When determining whether such future neglect is likely,
the district court must consider evidence of changed
circumstances occurring between the period of past neglect
and the time of the termination hearing.
In re R.L.D., 375 N.C. 838, 841 (2020) (cleaned up).
¶ 17 A trial court also may terminate parental rights if it concludes that a parent
has willfully left his or her child in foster care or in a placement outside the home for
more than twelve 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.G.S. § 7B-1111(a)(2). In order
for a respondent’s noncompliance with a case plan to support termination of parental
rights, there must be a nexus between the components of the court-approved case
plan allegedly not met and the conditions which led to the child’s removal from the
home. In re B.O.A., 372 N.C. 372, 387 (2019). The “reasonable progress” standard
does not require respondent “to completely remediate the conditions that led to” the
child’s removal. In re J.S., 374 N.C. 811, 819 (2020).
¶ 18 Respondent contends that the trial court’s findings that are supported by the
record evidence do not support its determination that there was a likelihood of future
neglect and do not support the determination that he failed to make reasonable
progress to correct the conditions that led to Annie’s removal. Because the trial court’s
legal conclusions regarding both grounds for termination were based on the same
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facts, we will first examine respondent’s contentions regarding the trial court’s
findings and then analyze the two grounds for termination found by the trial court.
A. Findings of Fact
¶ 19 In support of its determination that respondent’s parental rights were subject
to termination based on neglect and failure to make reasonable progress, the court
made the following pertinent findings of fact:
29. Father has failed to make reasonable progress under
the circumstances in correcting those conditions which led
to the removal of the juvenile or on the requirements to
obtain placement and custody of the juvenile. Specifically,
father has not made significant or reasonable progress on
his case plan in the past two and one-half years as shown
by the following:
a. Father completed his [CCA] through Family
Preservation Services on 4 June 2019 and was
recommended to successfully complete substance abuse
treatment and individual therapy. Father was also
recommended to abstain from all illicit substances.
b. Father was referred to Highland Medical, but Highland
Medical would not accept his insurance. Therefore, HCDSS
referred father back to Family Preservation Services to
obtain a Substance Abuse assessment. Instead of obtaining
a substance abuse assessment at Family Preservation
Services, Father indicated he would pay for half of the cost
if HCDSS would pay for half the cost, and HCDSS agreed.
c. Father obtained a substance abuse assessment with A
New Day on 15 October 2019 was to provide the assessor
with truthful and accurate information and was to
complete all recommendations of the Substance Abuse
assessment. Father denied use of illegal substances and
did not disclose that he submitted to a random hair follicle
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test on 21 May 2019 that was positive for amphetamines,
methamphetamines, and cocaine.
d. Father was recommended to complete sixteen (16) hours
of a short term substance abuse program. Father
completed twenty (20) hours of Substance Abuse
Treatment on 10 December 2019. Father was also
recommended to abstain from all illicit substances. Father
was sent to Blue Ridge Community Health Services, Inc.
and was seen by Barry Beavers for individual counseling
and left in good standing in the fall of 2019, to be seen on
an “as needed” basis.
e. Father contacted HCDSS on 21 July 2020 asking for a
referral for another CCA. The social worker referred father
to DC Wellness and Behavioral Health. Father did not go
to DC Wellness and Behavioral Health and texted the
social worker on 3 August 2020 to tell HCDSS he had
obtained a SAA at October Road in Asheville. Father’s new
SAA has been delivered to HCDSS, and Father testified the
S[A]A had no recommendations for needed services.
....
g. Although there were numerous positive tests for illegal
substances and the main metabolite for cocaine was found
in father’s results, father, in each substance abuse
assessment, in the CCA, and in testimony at the TPR
hearing, denied ever using illegal substances while
providing no other evidence as to how such positive results
were returned multiple times.
h. Father has completed the domestic violence intervention
program at Safelight, a provider acceptable to HCDSS.
i. Father completed a parenting program with Safelight, a
provider acceptable to HCDSS.
j. Father is paying Child Support through the Child
Support Enforcement Agency in an amount consistent with
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the guidelines. Father’s last payment was 14 September
2020, and Father is in arrears One Hundred and Nineteen
Dollars and eight cents ($119.08).
....
l. Father has attended seventy eight (78) visits with the
juvenile out of a possible eighty (80) visits. The two visits
father missed were in 2018. Father was on time for his
visits with the juvenile, and father’s visits with the juvenile
were never cut short. From 17 May 2019 to 14 February
2020, the Court had ordered father to have unsupervised
visitation with the juvenile which went well until the
unsupervised visitation ended on 15 October 2019 with
father’s positive hair follicle screen. A motion to address
the change in visitation was not filed due to the next
Permanency Planning and Review Hearing being already
scheduled within thirty (30) days. Father never attended a
single visit alone as the juvenile’s grandmother . . . was
always present at the visitations. [The grandmother] is
part of father’s support network, and her time with the
juvenile was appropriate. However, father has never cared
for or attempted to care for the juvenile on his own without
the presence of a third party. Therefore, the father has not
demonstrated the ability to provide appropriate care for
the juvenile.
m. Father was employed at JB’s Heating and Cooling, but
father was laid off in September of 2019 and stated he
started back working there three weeks later. On 17
December 2019, father stated he had been laid off from JB’s
Heating and Cooling and was looking for a job. Father was
unemployed from 17 December 2019 to July of 2020.
Father states he has now gone back to work at JB’s Heating
and Cooling and provided the social worker a check stub on
30 July 2020. Social Worker called and verified that Father
is employed at JB’s Heating and Cooling on 5 October 2020.
Father testified at the TPR Hearing that he was employed
but was waiting for a call to go to work. Therefore, father’s
employment has been sporadic over the time this case has
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been in Court, and said employment has not been
consistent. Father cannot say he is working full time as he
is waiting for a call from JB’s Heating and Cooling for him
to come into work.
n. Father is residing with his Aunt, and the Aunt’s home is
safe and appropriate. . . .
....
30. Father did not have a driver’s license when the matter
was filed but has since obtained a driver’s license.
31. Mother and father are not currently in a relationship
with each other.
32. The father told the assessor for the New Day CCA that
father had never used illegal substances, and that CCA
returned no recommendations for father. Father admitted
to substance abuse use in the consent Adjudication Order
and has multiple positive drug screens for Marijuana,
Amphetamines, Methamphetamines, Cocaine, and
benzoylecgonine, the main metabolite of cocaine, during
the course of this case. The Court finds the CCA at New
Day and the others where father denied use of illegal
substances to be invalid as truthful and accurate
information was not given to the assessor.
33. Father did not complete intensive out-patient
substance abuse treatment which was ordered in the
original CCA. Father’s 16-hour classes does not qualify as
intensive out-patient substance abuse treatment, and
father has not completed this recommendation of the CCA.
....
35. The adjudication order found father to have admitted
to drug use as an issue leading to the juvenile being
declared a neglected juvenile as defined under N.C.G.S. §
7B-101(15). The disposition order documents and found
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that, with regard to the father, . . . there were issues of the
use of alcohol and/or controlled or illegal substances and/or
mental health issues by a parent and that part of the case
plan father had to successfully complete to obtain return of
the juvenile was to obtain a [CCA], provide truthful
information to the assessor, submit to random drug
screens, and follow all recommendations of the
comprehensive clinical assessment-which included
remaining free of illicit substances.
36. Father did not complete individual therapy, did not
complete intensive out-patient substance abuse therapy,
and denied any illicit drug use in court and to the assessor
performing the CCA while testing positive for
Amphetamines, Methamphetamines, Cocaine, and
benzoylecgonine, the main metabolite of Cocaine.
37. Father has not addressed the issues of the use of alcohol
and/or controlled or illegal substances and/or mental
health issues by a parent as he has not shown substantial
progress in a reasonable amount of time and has not
completed, to the satisfaction of the court, the first three
requirements of his case plan:
i. Father shall obtain a [CCA] from a certified provider
acceptable to HCDSS and provide the assessor with
truthful and accurate information;
ii. Father shall follow and successfully complete all the
recommendations of the [CCA]; or
iii. Father shall submit to random drug screens.
The court also found that respondent tested positive for marijuana on 18 July and 23
October 2018; tested positive for amphetamines, methamphetamines, and cocaine on
21 May and 10 October 2019, and 1 September 2020; and tested positive for
benzoylecgonine, the main metabolite of cocaine, on 10 October 2019 and 1 September
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2020. Respondent also failed to submit to three urine drug screens requested by
HCDSS and did not submit samples for three hair follicle screens that he had
requested on 25 and 26 September and 2 October 2019. The trial court further
documented the ten drug screens respondent completed during this period that
showed a negative result.
¶ 20 Respondent first challenges the trial court’s findings that he denied illegal
substance use during his assessments and failed to provide truthful and accurate
information to the assessors. Specifically, respondent challenges the portions of
finding of fact 29(c) stating that he denied use of illegal substances during his
substance abuse assessment with A New Day on 15 October 2019 and failed to
disclose to New Day that he submitted to a random hair follicle test on 21 May 2019
that was positive for amphetamines, methamphetamines, and cocaine. Respondent
also challenges the portions of findings of fact 29(g) and 36 stating that “in each
substance abuse assessment, [and] in the CCA” respondent “denied ever using illegal
substances” and denied any illicit drug use “to the assessor performing the CCA.”
Respondent argues the evidence and testimony about New Day’s recommendation for
basic substance abuse treatment contradicts the finding that he denied illegal
substance use during the assessment. He also contends that there is no evidence he
did not disclose the 21 May 2019 hair follicle test to New Day, or that he denied illegal
substance use in the CCA and his assessments with New Day and October Road.
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Respondent argues that although the social worker testified October Road did not
know about a hair follicle test respondent took after completing the assessment, there
is no testimony regarding anything respondent “said or did not say to the assessor
during the assessment.”
¶ 21 The social worker testified that respondent completed a substance abuse
assessment with New Day on 15 October 2019, which recommended respondent
complete sixteen hours of a short-term substance abuse program. She further
testified that respondent completed the New Day twenty-hour substance abuse
program on 10 December 2019. Respondent also testified that the New Day
assessment recommended basic substance abuse treatment and that his assessment
with October Road had no recommendations.
¶ 22 Because the undisputed evidence shows New Day recommended basic
substance abuse treatment, it would be unreasonable to infer that respondent denied
the use of illegal substances to New Day. See In re N.P., 374 N.C. 61, 65 (2020) (“The
[trial] court has the responsibility of making all reasonable inferences from the
evidence presented.”). Additionally, there is no evidence or testimony regarding
respondent’s disclosures to New Day or any other assessment, and thus no evidence
that respondent failed to disclose the positive results of his 21 May 2019 hair follicle
test during the New Day assessment, or that he denied using illegal substances
during each substance abuse assessment and CCA.
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¶ 23 HCDSS cites to the GAL report as support for the trial court’s findings.
However, the GAL report was admitted into evidence during the dispositional
hearing “to support best interest[s]” after the trial court had already rendered its
adjudicatory decision. As a result, the report cannot be used as competent evidence
to support the trial court’s adjudicatory findings. See In re Z.G.J., 378 N.C. 500, 2021-
NCSC-102, ¶ 28 (“[W]e have previously held that dispositional evidence cannot be
used to support the trial court’s adjudicatory determinations.” (citing In re Z.J.W.,
2021-NCSC-13, ¶ 17)).3 Thus, we must disregard the challenged portions of findings
29(c), (g), and 36. See In re S.M., 375 N.C. 673, 691 (2020).
¶ 24 The second sentence of finding of fact 29(j) finds that respondent last made a
child support payment on 14 September 2020 and that he was in arrears in the
amount of $119.08. Respondent is correct that there was no testimony or other
evidence in the record that respondent had any arrearage. The social worker testified
that respondent “pays his child support” and that respondent “satisfied that part of
his case plan on paying child support.” HCDSS concedes that the only evidence in
this case is that respondent paid his child support. Thus, the second sentence of this
finding must be disregarded as unsupported by the evidence.
¶ 25 Respondent challenges the portion of finding of fact 29(l) stating that he has
3 HCDSS’s court report was not admitted into evidence at the hearing and is not
included in the record on appeal.
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“not demonstrated the ability to provide appropriate care” for Annie. Respondent
asserts that the evidence shows he was appropriate during every visit with Annie and
that no visits were cut short due to any problematic behavior. He contends that he
demonstrated he could take care of Annie because the trial court allowed him
unsupervised visits in May 2019.
¶ 26 The fact that respondent was approved for unsupervised visitation at a prior
hearing did not preclude the trial court from later finding that he has not
demonstrated the ability to provide appropriate care. Respondent’s supervised
visitation was suspended after he twice tested positive for amphetamines,
methamphetamines, and cocaine, but there is no evidence in the record that he was
ever in Annie’s presence while under the influence of any drug. The social worker
testified that respondent’s visits went well and that he played with age-appropriate
toys with Annie. The evidentiary support for the trial court’s conclusion that
respondent had not shown the ability to care for Annie is thin at best and falls short
of the clear, cogent, and convincing evidence standard that we must apply.
¶ 27 Findings of fact 29(n) and 29(q) relate to whether respondent appropriately
sought help with housing. Respondent correctly notes that there was no evidence in
the record concerning respondent’s contacts with Thrive, WCCA, or Hendersonville
Housing Authority regarding housing assistance. HCDSS concedes this point and
argues that it is in any event irrelevant because of the uncontradicted record
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testimony from the social worker that the residence where respondent was currently
living was appropriate for Annie. Therefore, we must disregard any implication that
respondent failed to make reasonable efforts to find suitable housing for Annie. To
the extent that it relates to whether the conditions that led to Annie’s removal have
been addressed, the record evidence indicates that respondent had obtained a safe
and suitable living situation.
¶ 28 Respondent challenges the portion of finding of fact 32 stating that he told the
assessor for the New Day CCA that he had never used illegal substances and the CCA
returned no recommendations. The evidence and unchallenged findings show that
respondent obtained CCAs from Family Preservation Services and October Road and
obtained a substance abuse assessment through New Day. Both the social worker
and respondent testified that the CCA from October Road had no substance abuse
recommendations for respondent. Thus, we disregard this finding insomuch as it
suggests the CCA without recommendations was obtained from New Day.
¶ 29 Respondent also challenges the portion of finding of fact 32 in which the court
found that the CCAs where respondent denied use of illegal substances were invalid
“as truthful and accurate information was not given to the assessor.” Respondent
argues the evidence does not support the finding that he did not give “truthful and
accurate” information during any assessment. We agree. As stated previously, there
is no adjudicatory evidence or testimony about respondent’s disclosures during his
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assessments. Although both the social worker and respondent testified that the
October Road CCA did not have any recommendations, it does not necessarily follow
that respondent did not provide truthful information to the assessor. As a result, we
disregard this portion of finding of fact 32.
¶ 30 Respondent challenges the portion of finding of fact 33 stating that intensive
outpatient substance abuse treatment was ordered in the original CCA, and that
respondent failed to complete this recommendation. Respondent argues that there is
conflicting evidence regarding the recommendations from the first CCA, and that
“while there is some evidence, in the form of the social worker’s testimony, that
[respondent] was recommended to complete intensive outpatient at some point during
this case, the clear and convincing evidence is that [respondent] was recommended
to complete ‘basic’ substance abuse treatment.”
¶ 31 The social worker testified that respondent completed a CCA through Family
Preservation Services on 4 June 2019, and “another one” with October Road in August
2020 which “did not have any recommendations.” During direct examination, the
social worker testified that the 4 June 2019 CCA recommended “basic substance
abuse treatment and individual therapy.” However, during later questioning from the
trial court, the social worker testified that respondent “originally was recommended
to go through the intensive outpatient program[,]” but completed the New Day
substance abuse classes instead, and that those classes were not equivalent to
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intensive outpatient treatment. Based on this testimony, there is evidence
respondent was “originally” recommended to go to intensive outpatient treatment and
did not do so. Thus, we uphold that portion of the finding. However, the evidence does
not show that the recommendation was necessarily from the CCAs respondent
completed on 4 June 2019 or August 2020. As there is no other evidence of any
additional CCA’s completed by respondent, we disregard the finding to the extent
that it indicates the recommendation for intensive outpatient therapy was from a
CCA.
¶ 32 Respondent also challenges the part of finding of fact 36 stating that
respondent “did not complete individual therapy[.]” Respondent asserts that this
finding is contradicted by finding of fact 29(d), which found that respondent left
individual counseling “in good standing in the fall of 2019, to be seen on an ‘as needed’
basis.” We agree. The social worker acknowledged during cross-examination that the
therapist’s letter recommended respondent continue with individual therapy “as
needed.” Because the record reflects that respondent completed individual therapy
“in good standing” and there was no evidence respondent required further “as needed”
therapy, we disregard the portion of finding of fact 36 finding that respondent did not
complete individual therapy.
¶ 33 Respondent next challenges finding of fact 37. He first takes exception to the
portion of the finding stating that he did not address the issues of alcohol use or
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mental health. Respondent argues there is no evidence that alcohol use was an issue
for respondent. The social worker testified that the issues respondent needed to
address before reunification could occur included “substance abuse and mental health
of a parent.” There is no testimony or evidence that respondent had any issues with
alcohol during the case. Therefore, we disregard the portion of finding of fact 37 to
the extent it suggests respondent had issues with alcohol use and failed to address
those issues.
¶ 34 Respondent also challenges the portion of finding of fact 37 stating that he did
not complete the first three requirements of his case plan. Respondent argues that
the evidence establishes he completed a CCA with an acceptable provider and that
the CCA recommended “basic substance abuse treatment and individual therapy.”
Respondent again argues there is no evidence to support a finding that he did not
provide truthful information during his CCA. He further argues that he completed
twenty hours of substance abuse treatment, left individual counseling in good
standing, and failed to submit to only three of the eighteen requested drug screens.
¶ 35 The unchallenged findings show that respondent completed a CCA with
Family Preservation Services on 4 June 2019, which recommended respondent
complete substance abuse treatment and individual therapy and abstain from using
illicit substances. However, respondent tested positive for amphetamines,
methamphetamines, and cocaine on three occasions. Respondent also failed to submit
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to three drug screens requested by HCDSS and to three hair follicle screens that he
requested. The social worker testified that respondent initially was ordered to
complete intensive outpatient substance abuse treatment and failed to do so. Thus,
the evidence and other findings support the finding that respondent did not follow
and successfully complete all of the recommendations from his CCA and failed to
submit to all random drug screens. But, as stated previously, there is no evidence
regarding what disclosures respondent may or may not have made to the assessors.
Accordingly, we disregard the portion of the finding specifying that respondent did
not complete the requirement that he provide the assessor with truthful and accurate
information.
¶ 36 Respondent contends that there is no evidentiary support whatsoever in the
record for the entirety of finding of fact 38, which finds that he failed to participate
in most permanency planning action team (PPAT) meetings between 2018 and 2020.
Respondent is correct that there was no testimony about PPAT meetings at any point
during the hearing. Indeed, finding of fact 29 states that respondent “has maintained
face to face visits with the social worker as may have been limited by the COVID-19
pandemic. As limited by the pandemic, father has maintained other contact, as
requested and has attended court regularly.” Additionally, the trial court made the
following finding of fact in every permanency planning order: “[f]ather maintains
face-to-face contact with the Social Worker as requested, including but not limited to
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Child & Family Team Meetings and Permanency Planning Meetings.” Neither
HCDSS nor the Guardian ad litem makes any response to this contention.
Respondent is correct that there is no factual basis for finding of fact 38 and it must
be disregarded.
¶ 37 In sum, we uphold as supported by the evidence the findings that respondent
failed to go to intensive outpatient treatment as ordered and failed to successfully
complete all recommendations from his CCA. We disregard as unsupported by the
evidence the court’s findings that respondent denied use of illegal substances during
his New Day assessment, failed to complete individual therapy, failed to provide
“truthful and accurate” information to the assessors, failed to attend PPAT meetings,
failed to demonstrate the ability to provide appropriate care for Annie, was in arrears
in child support payments, and failed to seek assistance to find appropriate housing.
¶ 38 Having reviewed respondent’s challenges to the trial court’s relevant findings
of fact, we next consider the trial court’s adjudication of grounds for termination.
B. Grounds for Termination
¶ 39 Respondent argues the trial court erred in concluding grounds existed to
terminate his parental rights under N.C.G.S. § 7B-1111(a)(1) because the trial court’s
remaining findings of fact do not support its determination of a likelihood of repetition
of neglect if Annie were placed in respondent’s care. Respondent contends that the
court’s conclusions that grounds existed “are based almost entirely on a finding not
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supported by any evidence: that [respondent] gave untruthful information in the CCA
and in the substance use assessments.” We agree.
¶ 40 “A parent’s failure to make progress in completing a case plan is indicative of
a likelihood of future neglect.” In re M.A., 374 N.C. 865, 870 (2020) (quoting In re
M.J.S.M., 257 N.C. App. 633, 637 (2018)). At the same time, “a parent’s compliance
with his or her case plan does not preclude a finding of neglect.” In re J.J.H., 376 N.C.
161, 185 (2020) (citing In re D.W.P., 373 N.C. 327, 339–40 (2020) (noting the
respondent’s progress in satisfying the requirements of her case plan while upholding
the trial court’s determination of a likelihood of future neglect because the respondent
had failed “to recognize and break patterns of abuse that put her children at risk”));
see also In re Y.Y.E.T., 205 N.C. App. 120, 131 (explaining that a “case plan is not just
a check list” and that “parents must demonstrate acknowledgment and
understanding of why the juvenile entered DSS custody as well as changed
behaviors”), disc. review denied, 364 N.C. 434 (2010). In this case, however,
respondent actually complied with almost all of the requirements of his case plan. At
the time Annie was removed from respondent’s custody, he had not yet established
paternity and the consent adjudication of neglect identified the mother’s drug use,
not his, as the condition needing remediation. By the time the termination petition
was filed, respondent had visited with Annie on 78 occasions, was paying child
support, had a home she could live in, had completed substance abuse, domestic
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violence, and parenting programs, and had addressed the conditions that led to
Annie’s placement in HCDSS’s custody.
¶ 41 To be sure, respondent’s substance abuse was recognized as a concern from the
initiation of the case, and he was required to address it as part of his case plan.
Respondent completed twenty hours of basic substance abuse treatment (four hours
more than required by the assessment), but he also continued to test positive for
amphetamines, methamphetamines, and cocaine on occasion after completing that
treatment, and he denied using methamphetamine or any other drug at the
termination hearing despite those positive test results. Respondent’s denial of drug
use despite the positive drug screens is some support for the trial court’s finding that
he failed to completely address his substance abuse issues. But given the trial court’s
other findings of fact that are supported by the evidence, this says very little about
his ability to parent his daughter. There are no findings to support the conclusion
that respondent’s drug use will result in “some physical, mental, or emotional
impairment of the juvenile or a substantial risk of such impairment . . . .” In re
Stumbo, 357 N.C. 279, 283 (2003); cf. In re K.B., 378 N.C. 601, 2021-NCSC-108, ¶ 22
(affirming termination order on ground of neglect where “the trial court made express
findings that [the juveniles] were impaired or at a substantial risk of impairment as
a result of respondent mother's neglect”). Thus, disregarding the trial court’s findings
that were not supported by evidence in the record, the trial court’s conclusion that
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Annie would likely be neglected if returned to her father’s care is not supported by
the remaining findings of fact. As a result, the trial court’s order adjudicating neglect
as a ground for termination of respondent’s parental rights under N.C.G.S. § 7B-
1111(a)(1) must be vacated.
¶ 42 Similarly, given the remaining findings of fact, we cannot conclude that a
ground exists for termination under N.C.G.S. § 7B-1111(a)(2). The remaining findings
indicate some positive drug screens but also reflect respondent’s completion of most
of the other requirements of respondent’s case plan, including having employment
and suitable housing; paying child support; attending almost all visitations; and
completing substance abuse, domestic violence, and parenting programs. On these
undisturbed findings, we cannot conclude that respondent failed to make reasonable
progress towards correcting the conditions that led to Annie’s removal. Cf. In re J.M,
373 N.C. 352, 356 (2020) (affirming order terminating parental rights where “[t]he
record is clear that at the time of the termination hearing . . . [respondent-mother]
had failed to comply with the services outlined for her to complete”).
¶ 43 Therefore, we hold that the trial court’s findings of fact are insufficient to
support its determination that respondent’s parental rights in Annie were subject to
termination on the grounds of neglect and failure to make reasonable progress in
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correcting the conditions that led to her removal from his custody.4 We vacate the
trial court’s termination order and remand this case to the District Court, Henderson
County for further proceedings consistent with this opinion. In its discretion, the trial
court may receive additional evidence on remand. See In re T.M.H., 186 N.C. App.
451, 456 (2007).
VACATED AND REMANDED.
4 As a prudential matter, a remand under these circumstances is appropriate because
adjudicating the asserted grounds requires making various fact-intensive subjective
judgments, such as whether respondent exhibited “reasonable progress under the
circumstances” and whether there existed a “substantial probability of the repetition of such
neglect.” Because we cannot say with certainty whether the erroneous factual findings were
central or incidental to the trial court’s ultimate resolution of these questions, a remand
ensures that these questions are answered by the trial court, the tribunal tasked with
“assign[ing] weight to particular evidence and . . . draw[ing] reasonable inferences
therefrom.” In re K.L.T., 374 N.C. 826, 843 (2020).