In re: C.N. & A.N. ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1031-2
Filed: 21 April 2020
New Hanover County, No. 16 JT 174-75
IN THE MATTER OF C.N., A.N.
Appeal by respondent from order entered 3 July 2018 by Judge J. H. Corpening
II in New Hanover County District Court. This case was originally heard in the Court
of Appeals 27 June 2019. In re C.N., A.N., ___ N.C. App. ___, 831 S.E.2d 878 (2019).
Upon remand from the Supreme Court of North Carolina.
No brief filed for petitioner-appellee New Hanover County Department of Social
Services.
Mary McCullers Reece for respondent-appellant mother.
Womble Bond Dickinson (US) LLP, by Jessica Gorczynski, for guardian ad
litem.
TYSON, Judge.
The Supreme Court of North Carolina remanded this case for this Court “to
reconsider its holding in light of In re B.O.A., 372 N.C. 372, 831 S.E.2d 305 (2019)
and In re D.W.P. and B.A.L.P., ___ N.C. ___, ___ S.E.2d. ___ (2020).” We have
reviewed both decisions as analyzed herein, and hold these opinions, together or
individually, do not change or affect this Court’s the earlier mandate.
I. Factual and Procedural Background
IN RE C.N., A.N.
Opinion of the Court
The facts underlying the petition and adjudication to terminate Respondent-
mother’s parental rights are fully set forth in this Court’s opinion in In re C.N., A.N.,
___ N.C. App. ___, 831 S.E.2d 878 (2019). The pertinent facts and procedural
background are set out below.
During May 2016, the New Hanover County Department of Social Services
(“DSS”) received a report that Respondent-mother’s minor daughter “Anne” was
found wandering alone behind a store on Carolina Beach Road in New Hanover
County. See N.C. R. App. P. 42(b) (pseudonyms are used to protect the identity of the
juveniles).
On or about 28 June 2016, Respondent-mother called 911. Respondent-mother
reported her other minor daughter, “Carrie,” had pulled up on a table and spilled an
open bottle of Mr. Clean liquid detergent onto herself. EMS and law enforcement,
who responded to the 911 call, reported conditions inside the home were dirty and in
poor shape. Carrie was treated for corneal abrasions and chemical burns on her
tongue.
DSS obtained nonsecure custody of eleven-month-old Carrie and two-year-old
Anne and filed a juvenile petition alleging they were neglected juveniles.
Respondent-mother stipulated to the allegations that Carrie and Anne were
neglected, on the basis they did not receive proper care, supervision, or discipline,
and lived in an environment injurious to their welfare, in the juvenile petition at the
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Opinion of the Court
adjudication hearing. The trial court adjudicated Carrie and Anne to be neglected
juveniles based upon Respondent-mother’s stipulation.
On 8 February 2018, DSS filed a petition to terminate Respondent-mother’s
parental rights to Carrie and Anne. DSS alleged the following grounds for
termination of Respondent-mother’s parental rights: neglect and willful failure to
make reasonable progress. The petition was heard on 23 and 26 April 2018.
The trial court made the following findings of fact:
3. . . . Both children have been in the legal custody of [DSS]
since June 28, 2016, were residing in a kinship placement
with a maternal aunt and have currently been residing
with licensed foster parents since being placed in an out of
home placement.
....
10. That [Carrie] and [Anne] were adjudicated neglected
Juveniles within the meaning of G.S. 7B-101(15) at a
hearing held on August 24, 2016 where Respondent-
Parents stipulated to the allegations in the petition.
Respondent-Mother was ordered to comply with her Case
Plan; obtain and maintain stable income and housing;
submit to a substance abuse assessment and to comply
with all recommendations; complete a mental health
assessment and comply with all recommendations;
successfully complete parenting classes; and participate in
random drug screens. . . .
11. That from June 2016 through February 2018
Respondent-Mother demonstrated a pattern of instability
in housing and income. She has lived with several different
boyfriends within New Hanover and Bladen County and
earns income by cleaning houses and selling things on
eBay. For the past year, Respondent-Mother has primarily
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IN RE C.N., A.N.
Opinion of the Court
resided with a boyfriend in Carolina Beach. She is
financially dependent on her boyfriend for transportation,
income and housing. Respondent-Mother has been
inconsistent with her communication with [DSS], has not
provided a current, working telephone number, has not
provided an email address, does not return phone calls, has
missed appointments and was not engaged when she did
attend. [DSS] has provided her with bus passes and offered
individual transportation. Respondent-Mother completed
her substance abuse assessment but not the recommended
treatment consisting of intensive out-patient, community
support, 12 step program, individual therapy, skill set,
SAIOP, after care and relapse prevention. Respondent-
Mother started to participate in her treatment plan then
elected to detox at home in August 2016. She disengaged
with services, moved from her service area, and then
sporadically re-engaged with services in early 2018. She
accessed mental health treatment in August 2017 and out-
patient therapy was recommended to help her cope with
her depressive order, ADHD, alcohol and Opioid use.
Respondent-Mother self-reports that she “has so much
going on”, that she has depression and runs from or ignores
her problems, copes with it by sleeping for days and not
eating. She stopped attending classes at Coastal Horizons
because she “thought they were a joke” and would have
enrolled in substance abuse treatment if she thought it was
important. Respondent-Mother completed her parenting
classes and participated in 13 out of 38 drug screen
requests with mixed negative and positive results for
benzodiazepines and amphetamines. During a home visit,
Respondent-Mother was unable to account for her missing
medication and thought she may have taken extra.
Respondent-Mother had multiple phone issues during the
underlying matter. Her boyfriend pays for her phone and
has taken it from her when she texted someone else.
Respondent-Mother and her boyfriend have broken up a
few times over the past year when she texts other people.
To date, Respondent-Mother has not been consistent with
any treatment, is not compliant with her case plan and re-
engaged in some services at lunch time on the first day of
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IN RE C.N., A.N.
Opinion of the Court
this hearing.
....
15. . . . Respondent-Mother was late to visits in November
2017 and December 2017 and did not notify anyone when
she did not attend visits in August 2017, September 2017,
January 2018, and March 2018. When visits with
Respondent-Mother occurred, she would bring snacks and
gifts for the children and interact appropriately with the
children.
The trial court found grounds of neglect and willful failure to make reasonable
progress existed to terminate Respondent-mother’s parental rights. The trial court
concluded Carrie and Anne’s best interests required termination of Respondent-
mother’s parental rights in an order entered 3 July 2018. Respondent-mother timely
appealed.
When initially reviewed on appeal, this Court unanimously held the evidence
presented and the trial court’s findings were insufficient to support the conclusion
that Respondent-mother’s “neglect is ongoing, and there is a probability of repetition
of neglect.” We further concluded DSS’ evidence failed to show Respondent-mother
had failed to make reasonable progress to support the conclusion to terminate her
parental rights on this ground.
II. In re B.O.A.
In the case of In re B.O.A., the Supreme Court of North Carolina held that the
respondent-mother’s parental rights were subject to termination on the ground that
she had failed to make reasonable progress in correcting the conditions that led to
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IN RE C.N., A.N.
Opinion of the Court
her daughter’s removal from her home pursuant to N.C. Gen. Stat. §7B-1111(a)(2).
In re B.O.A., 372 N.C. at 373, 831 S.E.2d at 306.
In that case, “Bev” had been removed from her mother’s home after local law
enforcement had responded to the respondent-mother’s call for assistance due to
assaultive behavior by Bev’s father and a “lengthy bruise” was discovered on Bev’s
arm. Id. at 373, 831 S.E.2d at 307. After a hearing, Bev was adjudicated neglected
and the respondent-mother was required to comply with a case plan. Id. at 374, 831
S.E.2d at 307.
The case plan included requirements that respondent-mother: “obtain a
mental health assessment; complete domestic violence counseling and avoid
situations involving domestic violence; complete a parenting class and utilize the
skills learned in the class during visits with the child; remain drug-free; submit to
random drug screenings; participate in weekly substance abuse group therapy
meetings; continue to attend medication management sessions; refrain from
engaging in criminal activity; and maintain stable income for at least three months.”
Id. at 373-74, 831 S.E.2d 307.
Eventually, DSS petitioned to terminate the respondent-mother’s parental
rights. In the termination order, the trial court made findings, which included that
the respondent-mother had not demonstrated the skills she was to learn in her
domestic violence class. The trial court found “[i]n the last six months, [respondent-
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Opinion of the Court
mother] has called the police on her live-in boyfriend and father of her new born
child,” and that she had “not remained free of controlled substances, and has
continued to test positive for controlled substances (even during her recent
pregnancy).” Id. at 374-75, 831 S.E.2d 307. The trial court further found the
respondent-mother had declined a visit with her child, was hostile towards her social
worker, revoked her consent to allow DSS access to her mental health records, and
told the trial court that she “could pass the Bar today.” Id. at 375-76, 831 S.E.2d 308.
Here, the evidence and the findings support the conclusion that Respondent-
mother made progress on her case plan. Respondent-mother’s progress is in contrast
the respondent-mother’s behaviors and lack of progress in In re B.O.A. Further, our
Supreme Court held in In re B.O.A. that this Court had adopted a restrictive
construction of N.C. Gen. Stat. § 7B-1111(a)(2) in defining the conditions which led
to a juvenile’s removal. Id. at 385, 831 S.E.2d at 314.
In the present case, the panel of this Court reviewing the trial court’s order
properly reviewed the facts as found on the evidence presented and determined they
were insufficient to support conclusions to satisfy the statutory definitions of neglect
and failure to make reasonable progress to terminate Respondent-mother’s parental
rights. This Court’s prior decision contained no “restricted” reading of the conditions
which led to Carrie and Anne’s removal. Id. The background, analysis, and
conclusions in In re B.O.A. are distinct from and not controlling of the present case.
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IN RE C.N., A.N.
Opinion of the Court
III. In re D.W.P.
This Court was also directed to review and reconsider our holding in light of In
re D.W.P., ___ N.C. ___, ___ S.E.2d ___, 2020 WL 967615 (2020). In this recent case,
our Supreme Court affirmed the trial court’s termination of a respondent-mother’s
parental rights based upon her lack of reasonable progress to remedy the conditions
that led to the removal of her children. ___ N.C. at ___, ___ S.E.2d at ___, 2020 WL
967615, at *1.
In In re D.W.P., our Supreme Court recognized that the trial court’s order
relied upon the following:
past abuse and neglect; failure to provide a credible
explanation for [the child’s] injuries; respondent-mother’s
discontinuance of therapy; respondent-mother’s failure to
complete a psychiatric evaluation; respondent-mother’s
violation of the conditions of her probation; the home
environment of domestic violence; respondent-mother’s
concealment of her marriage from GCDHHS; and
respondent-mother’s refusal to provide an explanation for
or accept responsibility for [the child’s] injuries.
___ N.C.at ___, ___ S.E.2d at ___, 2020 WL 967615, at *8.
The Supreme Court also recognized the respondent-mother had made some
progress in completing her plan, but indicated the findings showed she had been
“unable to recognize and break patterns of abuse that put her children at risk.” Id.
The Court stated it was “troubled by [the respondent-mother’s] continued failure to
acknowledge the likely cause of [the child’s] injuries.” Id.
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IN RE C.N., A.N.
Opinion of the Court
The facts of the present case are inapposite to those of In re D.W.P. Nothing
indicates Respondent-mother has continued to place her children at risk or failed to
acknowledge her neglect was the cause of the initial injury to Carrie and the instance
of lack of supervision of Anne. Respondent-mother stipulated to the allegations that
Carrie and Anne were neglected, in that they did not receive proper care, supervision,
or discipline, and lived in an environment injurious to their welfare, in the juvenile
petition at adjudication.
In the order remanding this case for further consideration, our Supreme Court
cited In re D.W.P., and noted “the need for a court to review all applicable evidence,
including historical facts and evidence of changed conditions to evaluate the
probability of future neglect.” We conclude no evidence or findings show the “neglect
is ongoing, and there is a probability of repetition of neglect,” or Respondent-mother’s
failure to make “reasonable progress.” We reaffirm the analysis and reasoning, as
extended herein, and result reached in our earlier opinion to reverse and remand.
IV. Conclusion
Respondent-mother completed a parenting class, completed her substance
abuse assessment, participated in individual therapy sessions to address her mental
health, had re-engaged in treatment, was employed, submitted to drug testing, had
established more reliable communications with DSS, had obtained stable housing
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Opinion of the Court
and transportation to become a better parent, and showed reasonable progress to
reduce or remove the likelihood of future neglect.
Respondent-mother’s minor daughters were removed from her care after the
youngest child had spilled Mr. Clean onto herself and Respondent-mother had
immediately sought medical assistance. No evidence shows and the trial court made
no finding indicating either Respondent-mother had denied responsibility or a
probability that her actions were likely to be repeated. See In re D.W.P., ___ N.C. at
___, ___ S.E.2d at ___, 2020 WL 967615, at *8; In re B.O.A., 372 N.C. at 373, 831
S.E.2d at 306. The evidence and the trial court’s findings support the opposite
conclusion.
The trial court’s order terminating Respondent-mother’s parental rights is
reversed and remanded to the trial court for disposition in accordance with the
opinion and mandate of this Court filed 6 August 2019. It is so ordered.
REVERSED AND REMANDED.
Judges DILLON and BERGER concur.
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