              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-1031

                                Filed: 6 August 2019

New Hanover County, Nos. 16 JT 174-75

IN THE MATTER OF: C.N., A.N.


      Appeal by respondent-mother from order entered 3 July 2018 by Judge J.H.

Corpening II in New Hanover County District Court. Heard in the Court of Appeals

27 June 2019.


      No brief filed for petitioner-appellee New Hanover County Department of Social
      Services.

      Mary McCullers Reece for respondent-appellant mother.

      Womble Bond Dickenson (US) LLP, by Jessica Gorczynski, for guardian ad
      litem.


      TYSON, Judge.


      Respondent-mother appeals from an order terminating her parental rights to

her minor daughters, C.N. (“Carrie”) and A.N. (“Anne”). See N.C. R. App. P. 42(b)

(pseudonyms are used to protect the identity of the juveniles).       The order also

terminates the parental rights of the legal father of A.N. and putative father of C.N.

and the unknown father of C.N. No father is a party to this appeal. We reverse the

trial court’s order as it relates to Respondent-mother.

                                    I. Background
                                 IN RE: C.N., A.N.

                                 Opinion of the Court



      On or about 28 June 2016, EMS and law enforcement responded to a 911 call

regarding a child who had suffered chemical burns. Carrie was treated for corneal

abrasions and chemical burns on her tongue in the New Hanover Regional Medical

Center Emergency Department and was kept overnight for observation.

      Respondent-mother reported 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 that conditions inside the home were dirty

and in poor shape.    Needles were found inside the home.       Respondent-mother

admitted to using marijuana within the previous week and had reported past

incidents of domestic violence. Concerns were also expressed about Respondent-

mother’s mental health.

      Prior to the this incident, the New Hanover County Department of Social

Services (“DSS”) had received a report in May 2016 that Anne was found wandering

alone behind a Roses retail store off of Carolina Beach Road. DSS obtained nonsecure

custody of eleven-month-old Carrie and two-year-old Anne and filed a juvenile

petition alleging they were neglected juveniles. Nonsecure custody with DSS was

continued and the juveniles were placed with Respondent-mother’s sister.

      Respondent-mother stipulated at the adjudication hearing to the allegations in

the juvenile petition that Carrie and Anne were neglected, as they did not receive




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proper care, supervision or discipline and lived in an environment injurious to their

welfare.

      The trial court adjudicated Carrie and Anne to be neglected juveniles based

upon Respondent-mother’s stipulation.        The trial court determined their best

interests were served for legal custody and placement authority to remain with DSS

and to continue their placement in the Respondent-mother’s sister’s home.

      The trial court also adopted the recommendations of DSS and the guardian ad

litem (“GAL”) for Respondent-mother’s case plan and ordered Respondent-mother to:

(1) obtain and maintain stable income; (2) obtain and maintain stable housing; (3)

complete a mental health assessment; (4) comply with all recommendations; (5) sign

releases for DSS and GAL; (6) submit to random drug screens; (7) successfully

complete substance abuse treatment; and (8) successfully complete parenting classes.

Respondent-mother was scheduled for weekly supervised visitation.

      A permanency planning hearing was held on 3 May 2017, after which the trial

court entered its order on 23 June 2017. DSS asserted Respondent-mother was “not

actively participating in her treatment plan,” had not obtained stable housing, and

had not shown up for the majority of the requested drug screens. Respondent-mother

responded that she had completed her comprehensive clinical assessment (“CCA”)

and parenting classes, but had difficulties with a cell phone. The trial court changed

the primary permanent plan for Carrie and Anne from reunification to legal



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                                 Opinion of the Court



guardianship with Respondent-mother’s sister with a concurrent plan of

reunification.

      Another permanency planning hearing was held on 26 September 2017, after

which the trial court entered an order on 13 November 2017, followed by an amended

permanency planning order on 16 January 2018. The trial court found that the

juveniles were “currently placed in foster care after their kinship placement with

[their] maternal aunt [was] disrupted[,]” and that “Respondent-[m]other is not

actively participating in her treatment plan[,]” “has not consistently engaged in

services[,]” and “does not show up for the majority of the requested drug screens.”

The order reflects Respondent-mother had submitted proof of employment, secured

housing, and asserted that transportation was an issue and requested bus passes.

      The trial court ordered DSS to provide bus passes to Respondent-mother and

ordered a home study on Respondent-mother’s home. The court changed the primary

permanent plan for Carrie and Anne to adoption with a concurrent plan for

reunification.

      On 8 February 2018, DSS filed a petition to terminate Respondent-mother’s

and the putative fathers’ 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. See N.C. Gen. Stat. § 7B-1111(a)(1)-

(2) (Supp. 2018). The petition was heard on 23 and 26 April 2018.



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                                   Opinion of the Court



      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. See N.C. Gen. Stat. § 7B-

1110(a) (2017). The fathers are not parties to this appeal. The trial court’s order is

final concerning termination of the fathers’ parental rights. Respondent-mother

timely appealed. DSS filed no response or brief to Respondent-mother’s appeal.

                                    II. Jurisdiction

      Jurisdiction lies in this Court from a final order of the district court entered 3

July 2018 pursuant to N.C. Gen. Stat. § 7B-1001(a)(6) (2017).

                                       III. Issues

      Respondent-mother argues the trial court erred by finding and concluding the

grounds of neglect and willful failure to make reasonable progress existed to

terminate her parental rights.

                                 IV. Standard of Review

      “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 A.B., 239 N.C. App. 157, 160, 768 S.E.2d 573, 575




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                                  Opinion of the Court



(2015). “We review conclusions of law de novo.” In re B.S.O., 234 N.C. App. 706, 708,

760 S.E.2d 59, 62 (2014).

                                     V. Analysis

                                      A. Neglect

      A neglected juvenile is one whose parent does not “provide proper care,

supervision, or discipline . . . or who has been abandoned; or who is not provided

necessary medical care; or who is not provided necessary remedial care; or who lives

in an environment injurious to the juvenile’s welfare[.]” N.C. Gen. Stat. § 7B-101 (15)

(Supp. 2018).

      A parent has neglected a juvenile if the court finds the juvenile to be neglected

within the meaning of N.C. Gen. Stat. § 7B-101. N.C. Gen. Stat. § 7B-1111(a)(1). “A

finding of neglect sufficient to terminate parental rights must be based on evidence

showing neglect at the time of the termination proceeding.” In re Young, 346 N.C.

244, 248, 485 S.E.2d 612, 615 (1997) (citation omitted).

      Respondent-mother argues the trial court erred by finding and concluding that

the ground of neglect under N.C. Gen. Stat. § 7B-1111(a)(1) existed to terminate her

parental rights to Carrie and Anne. Where, as here, the juvenile has been removed

from the parent’s custody, “[t]he trial court must also consider any evidence of

changed conditions in light of the evidence of prior neglect and the probability of a

repetition of neglect.” In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984)



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                                    Opinion of the Court



(citation omitted) (emphasis supplied). See also In re M.J.S.M., __N.C. App. __, __,

810 S.E.2d 370, 373 (2018) (“where there is no evidence of neglect at the time of the

termination proceeding . . . parental rights may nonetheless be terminated if there is

a showing of a past adjudication of neglect and the trial court finds by clear and

convincing evidence a probability of repetition of neglect if the juvenile were returned

to [his or] her parents.” (citation omitted)).

       With respect to Respondent-mother, 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


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                    Opinion of the Court



earns income by cleaning houses and selling things on
eBay. For the past year, Respondent-Mother has primarily
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


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                                   Opinion of the Court



              any treatment, is not compliant with her case plan and re-
              engaged in some services at lunch time on the first day of
              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.

       Based upon these findings, the trial court concluded that Respondent-mother

had “neglected the children, that the neglect is ongoing, and that there is a probability

of repetition of neglect.”

       “Our courts cannot presume a parent to be unfit or to have acted inconsistently

with his constitutional rights as a parent without clear, cogent, and convincing

evidence to demonstrate why the parent cannot care for his child.” In re S.J.T.H., __

N.C. App. __, __, 811 S.E.2d 723, 725 (2018) (citations omitted). DSS must overcome

this presumption of parental fitness and meet and carry its burden of proof by clear,

cogent and convincing evidence to show grounds exist to terminate parental rights.

Id.

       A parent’s failure to make reasonable progress in completing a case plan may

indicate a likelihood of future neglect. In re D.M.W., 173 N.C. App. 679, 688-89, 619

S.E.2d 910, 917 (2005), rev’d per curiam per the dissent, 360 N.C. 583, 635 S.E.2d 50

(2006). Failure to make progress must be viewed by the actions and attempts of

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                                   Opinion of the Court



parents within their abilities and means, considering their resources or lack thereof

and the priority for their securing their basic necessities of life. See N.C. Gen. Stat. §

7B-1111(a)(2) (“No parental rights, however, shall be terminated for the sole reason

that the parents are unable to care for the juvenile on account of their poverty.”).

      Here, the juveniles were removed from Respondent-mother’s care after the

youngest child spilled Mr. Clean onto herself and Respondent-mother called for

medical assistance.     No evidence shows and the trial court made no findings

indicating such actions were likely to be repeated. As progress on her case plan, to

become a better parent, and to reduce or remove the likelihood of future neglect,

Respondent-mother had completed parenting class, completed a CCA, had re-engaged

in treatment, was employed, had recently submitted to drug testing and had obtained

stable housing and transportation. The social worker testified Respondent-mother’s

recent drug test results were inconclusive and DSS was awaiting new results at the

time of the hearing.

      The evidence presented and the trial court’s findings are insufficient to support

the conclusion that “neglect is ongoing, and there is a probability of repetition of

neglect.” We reverse the conclusion that Respondent-mother’s neglect is ongoing and

the probability exists of her future neglect of her daughters. See In re Ballard, 311

N.C. at 715, 319 S.E.2d at 232.

                           B. Failure to Make Reasonable Progress



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      Respondent-mother argues the trial court erred in concluding grounds for

termination of her parental rights existed “[b]ecause [she had] made reasonable

efforts and progress in addressing the conditions that led to her children’s removal.”

      The trial court may terminate parental rights if “[t]he 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).

      “Willfulness is established when the respondent had the ability to show

reasonable progress, but was unwilling to make the effort.” In re McMillon, 143 N.C.

App. 402, 410, 546 S.E.2d 169, 175, disc. review denied, 354 N.C. 218, 554 S.E.2d 341

(2001). “A finding of willfulness does not require a showing of fault by the parent.”

In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996) (citation

omitted).

      The undisputed evidence shows Respondent-mother completed a CCA in

January 2017. The CCA recommended substance abuse treatment and individual

therapy sessions to address her mental health. Respondent-mother sought mental

health services beginning in August 2017. Evidence was presented that from then

until February 2018, Respondent-mother presented to and attended nine sessions for

therapy and five appointments for medication management.              She missed 10



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                                  Opinion of the Court



scheduled sessions during the same time frame. Following a break from therapy after

one session in February 2018, Respondent-mother attended one additional therapy

session at the end of March 2018. The trial court found Respondent-mother had

ceased attending sessions because “she ‘thought they were a joke’ and [she] would

have enrolled in substance abuse treatment if she thought it was important.”

      While evidence tending to show missed therapy sessions may support the trial

court’s finding that her attendance at treatment was inconsistent, a parent’s

inconsistent attendance at therapy sessions does not alone show a lack of reasonable

progress, particularly when a parent is working or seeking to comply with other

provisions of her plan to meet her and her children’s needs. “While extremely limited

progress is not reasonable progress, certainly perfection is not required to reach the

reasonable standard.” In re S.D., 243 N.C. App. 65, 73, 776 S.E.2d 862, 867 (2015)

(citations and quotations omitted).

      Respondent-mother argues the trial court’s findings are misleading and do not

reflect evidence of her progress and situation at the time of the hearing. Respondent-

mother points to undisputed evidence of her activities and accomplishments to show

reasonable progress in her case plan: (1) she re-enrolled in substance abuse

treatment; (2) she continued therapy; (3) she was taking medications to address her

mental health issues; (4) she had fully completed a parenting class; (5) she had




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improved her housing; (6) she was employed; (7) she had improved transportation;

and (8) she had maintained better contact with DSS.

      Respondent-mother also specifically challenges the portion of finding of fact

number eleven, which states she “has not provided an email address.” Testimony at

the termination hearing tended to show DSS did not have a valid telephone number

for Respondent-mother, and had recently resorted to email to communicate with

Respondent-mother when they were unable to reach her by telephone. Evidence

shows Respondent-mother had, in fact, provided an email address to DSS to remain

in contact with her social worker as directed by her case plan.

      When the evidence and the trial court’s findings are viewed against the

parental presumption favorable to Respondent-mother, DSS has failed to meet its

burden to prove she had failed to make reasonable progress to support the conclusion

to terminate her parental rights on this ground.

      Respondent-mother’s efforts and the facts before us sharply contrast to those

where this Court has held that “[e]xtremely limited progress is not reasonable

progress.” See In re Nolen, 117 N.C. App. at 700, 453 S.E.2d at 224-25; see also In re

Bishop, 92 N.C. App. 662, 670, 375 S.E.2d 676, 681 (1989) (upholding termination of

parental rights where, “although respondent has made some progress in the areas of

job and parenting skills, such progress has been extremely limited”).




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                                   Opinion of the Court



      DSS recognized Respondent-mother had engaged with service providers and

that her substance abuse recommendations were intertwined with her mental health

treatment.     While Respondent-mother had completed her substance abuse

assessment, the social worker opined Respondent-mother’s progress was minimal

and she was not participating “with any real consistency that you could make some

change.”

      Other areas of progress in Respondent-mother’s case plan, such as stable

housing and transportation were partly attributable to Respondent-mother’s

relationship with a new boyfriend, upon whom she was financially dependent.

Respondent-mother’s case plan does not and cannot require that she alone be

responsible for providing her housing and transportation. Evidence in the record also

shows Respondent-mother was employed at the time of the hearing. Respondent-

mother also engaged in appropriate visits with her daughters.

      N.C. Gen Stat. § 7B-904 provides that a court may order a parent to “[t]ake

appropriate steps to remedy conditions in the home that led to or contributed to the

juvenile’s adjudication or to the court’s decision to remove custody of the juvenile from

the parent.” N.C. Gen. Stat. § 7B-904(d1)(3) (2017). In the case of In re W.V., 204

N.C. App. 290, 297, 693 S.E.2d 383, 388-89 (2010), this Court vacated the trial court’s

order requiring the respondent to obtain housing or employment where those

requirements were unrelated to the causes of the conditions in the home which



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contributed to the juvenile’s adjudication or the court’s decision to remove the juvenile

from the home. Id. Nothing in the record suggests or supports the finding that the

Respondent-mother’s     dependence     on    her    present   boyfriend   for   housing,

transportation, and for providing her a cell phone bears any relation to the causes of

the conditions of the removal of Carrie and Anne from their mother’s home. See id.

      The trial court found Respondent-mother had not been consistent in her

treatment, was not fully compliant with her case plan, and had only recently re-

engaged in some services. These findings do not support the trial court’s conclusion

that Respondent-mother had not made reasonable progress in her case plan to

address the reasons that led to the removal of her children, or that her failure to make

reasonable progress was willful to support termination of her parental rights to both

of her daughters. See In re O.C., 171 N.C. App. 457, 464-65, 615 S.E.2d 391, 396 (2005)

(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.) and In re McMillon, 143 N.C. App. 402, 410, 546 S.E.2d 169, 175 (2001)

(“Willfulness is established when the respondent had the ability to show reasonable

progress, but was unwilling to make the effort.” (citation omitted)).



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                                  Opinion of the Court



                                   VI. Conclusion

      The public policy of North Carolina, as is statutorily expressed by the General

Assembly, mandates every court-ordered plan to include a concurrent goal of

reunification of children with their parent(s). N.C. Gen. Stat. § 7B-906.2 (2017). This

policy necessarily requires that DSS’s relationships and dealings with the parent(s)

must continue as cooperative, rather than adversarial, until termination of the

parent’s rights by the court and through exhaustion of appeals. Id. The trial court’s

adjudication of the evidence and findings of fact fail to support the conclusions that

grounds existed under N.C. Gen. Stat. § 7B-1111(a)(1) or (a)(2) to terminate

Respondent-mother’s parental rights. We reverse the trial court’s termination of

Respondent-mother’s parental rights to Carrie and Anne. It is so ordered.

      REVERSED.

      Judges DILLON and BERGER concur.




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