                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                         No. COA17-198

                                    Filed: 17 October 2017

Rockingham County, No. 14 JT 182-84

IN THE MATTER OF: E.B., M.B., A.B.

       Appeal by respondent-father from orders entered 22 November 2016 by Judge

Frederick Wilkins in Rockingham County District Court. Heard in the Court of

Appeals 10 August 2017.

       Beverley A. Smith, for Petitioner-Appellee Rockingham County Department of
       Social Services.

       Lauren Golden, for guardian ad litem.

       Peter Wood, for Respondent-Appellant father.


       MURPHY, Judge.

       “Harvey”1 the father of juveniles E.B., M.B., and A.B. (“Ernie,” “Molly,” and

“Annie,”2), appeals from an order terminating his parental rights. The trial court

declared that Harvey had willfully abandoned his children and that he made no

reasonable progress on the case plan, thus rendering them neglected. After careful

review, we reverse and remand for additional findings of fact and conclusions of law.

                                          Background




       1 The father will be referred to by a pseudonym to protect the identities of the children.
       2 The children will be referred to by pseudonyms to protect their identities. E.B. is “Ernie,”
M.B. is “Molly,” and A.B. is “Annie.”
                                     IN RE: E.B., M.B., & A.B.

                                          Opinion of the Court



      On 10 December 2014, the Rockingham County Department of Social Services

(“DSS”) filed a petition alleging that Ernie, Molly, and Annie were neglected and

dependent juveniles due to “severe and ongoing domestic violence” in their home.

DSS stated that the family came to its attention after Harvey assaulted a child who

was in his home. That child, who is not one of the juveniles who is the subject of this

action, entered DSS’s care and informed DSS that there was domestic violence in

Harvey’s home. DSS learned that on 5 June 2013, Ernie was injured when his mother

(“Gert”3) threw a metal cup which hit Ernie in the face. Harvey and Gert gave

differing stories as to whether Gert intended to throw the cup at Eddie or at Harvey.

Harvey’s family was referred for in-home services.

      On 8 December 2014, a social worker went to Harvey’s home for a scheduled

visit to provide services. During a check of the home, the DSS worker heard an

altercation taking place inside of the home and decided to call the police. On arrival,

the social worker observed a lamp, and then wooden pieces from a broken table

thrown from a window in the residence. The social worker called the police. Harvey

and Gert later acknowledged to the social worker that they had been in an altercation.

All three juveniles were present during the incident. Harvey and the juveniles were

transported to the paternal grandmother’s home with, according to DSS, “the




      3   Gert will be referred to by a pseudonym in order to protect the identities of the children.

                                                  -2-
                              IN RE: E.B., M.B., & A.B.

                                 Opinion of the Court



understanding that they were to remain there for the time being while new

arrangements were made to address the ongoing domestic violence.”

      On 10 December 2014, DSS social worker Jordan Houchins went to the

residence to discuss the 8 December 2014 incident with Gert. The social worker found

their home in ruins. There were multiple holes in walls in the residence; all of the

tables in the house had been destroyed; and there were broken dishes on the floor of

the juveniles’ bedrooms. These conditions resulted from numerous domestic violence

incidences. Gert told the social worker that she and Harvey had hit each other during

these altercations. Gert, however, refused to seek a domestic violence protection

order and did not want to go to a shelter. When the social worker examined the

juveniles’ bedrooms, she found Harvey hiding under a blanket in one of the beds.

Harvey claimed to be sleeping, and denied that he was hiding from the social worker.

He became belligerent when confronted by the social worker. The social worker

attempted to assume emergency custody of the children. Harvey then picked up

Molly, an infant, and left the residence. Molly was not appropriately dressed as she

was wearing only a “onesie” and it was a “bitterly cold morning.” Law enforcement

subsequently located Harvey and Molly several blocks from the residence. DSS

subsequently obtained non-secure custody of all the juveniles.

      On 10 November 2015, the trial court adjudicated the juveniles to be neglected

and dependent after Harvey and Gert admitted to the altercations alleged in the



                                        -3-
                               IN RE: E.B., M.B., & A.B.

                                  Opinion of the Court



petition. The trial court ordered Harvey to comply with a case plan, which included:

(1) complete a domestic violence offender treatment/education and counseling; (2)

complete an approved parenting class; (3) submit to a mental health assessment and

comply with all recommendations; (4) obtain and maintain suitable housing for the

juveniles; (5) obtain employment with income sufficient to provide for the basic needs

of the juveniles; and (6) obtain transportation sufficient to provide for Harvey’s and

the juveniles’ basic needs.

      The trial court initially ordered a permanent plan of reunification for the

juveniles. The trial court later changed the primary permanent plan to adoption

because Harvey and Gert “continue[d] to engage in domestic violence.” The secondary

plan remained reunification.     On 28 September 2016, DSS filed a petition to

terminate Harvey’s and Gert’s parental rights pursuant to N.C.G.S. § 7b-1111(a)(1)

(neglect) and (2) (failure to make reasonable progress) (2015).


                                      Analysis


      N.C.G.S. § 7B-1111 sets out the statutory grounds for terminating parental

rights. A finding of any one of the separately enumerated grounds is sufficient to

support termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990).

“The standard of appellate review is whether the trial court’s findings of fact are

supported by clear, cogent, and convincing evidence and whether the findings of fact

support the conclusions of law.” In re D.J.D., 171 N.C. App. 230, 238, 615 S.E.2d 26,

                                         -4-
                               IN RE: E.B., M.B., & A.B.

                                   Opinion of the Court



32 (2005) (citing In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal

dismissed, disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001)). We review the

trial court’s conclusions of law de novo. In re S.N., 194 N.C. App. 142, 146, 669 S.E.2d

55, 59 (2008), aff’d per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).


      In the instant case, the trial court concluded that grounds existed to terminate

Harvey’s parental rights pursuant to N.C.G.S. § 7B-1111(a)(1) and (2).            First,

regarding N.C.G.S. § 7B-1111(a)(1), where termination is based on neglect, our

General Statutes define a “[n]eglected juvenile” as:

             [a] juvenile who does not receive proper care, supervision,
             or discipline from the juvenile’s parent, guardian,
             custodian, or caretaker; 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; . . . or who
             has been placed for care or adoption in violation of law.

N.C.G.S. § 7B-101(15) (2015). Generally, “[i]n deciding whether a child is neglected

for purposes of terminating parental rights, the dispositive question is the fitness of

the parent to care for the child at the time of the termination proceeding.” In re

L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d 236, 242 (2005) (citations and quotations

omitted).


      Second, to terminate a parent’s rights under N.C.G.S. § 7B-1111(a)(2), the trial

court must perform a two-part analysis. The trial court must determine by clear,

cogent and convincing evidence that: (1) a child has been willfully left by the parent

                                          -5-
                               IN RE: E.B., M.B., & A.B.

                                  Opinion of the Court



in foster care or placement outside the home for over twelve months; and (2) the

parent has not made reasonable progress under the circumstances to correct the

conditions which led to the removal of the child. In re O.C., 171 N.C. App. 457, 464-

65, 615 S.E.2d 391, 396 (2005) (internal citations omitted), disc. review denied, 360

N.C. 64, 623 S.E.2d 587 (2005).


        Here, in support of its conclusion that grounds existed pursuant to N.C.G.S §

7B-1111(a)(1) and (2) to terminate Harvey’s parental rights, the trial court found as

fact:

              7. The minor children were adjudicated to be neglected and
              dependent juveniles on February 5 2015 . . . .
              ....
              12. Both parents entered counseling at Hope Services in
              February and March of 2016 following an incident of
              domestic violence in January of 2016.
              13. After attending weekly sessions of counseling at Hope
              Services, another incident of domestic violence occurred on
              July 5, 2016.
              14. All three minor children were placed in the nonsecure
              custody of the Department due to severe domestic violence
              between the parents. The domestic violence was also a
              finding of fact in the adjudication order from February of
              2015.

Based on these findings, the trial court concluded:


              17. The respondent-father . . . neglected the juveniles
              within the meaning of N.C.G.S. §§ 7B-101 and 7B-
              1111(a)(1), in that: The minor children were adjudicated
              neglected and dependent on February 5, 2015 based on
              their exposure to domestic violence by the respondent
              parents. There is no evidence of changed circumstances

                                         -6-
                               IN RE: E.B., M.B., & A.B.

                                   Opinion of the Court



             related to the respondent as he continues to engage in
             domestic violence with the respondent-mother. It is likely
             that the respondent-father’s neglect would be repeated in
             the future if the children were returned to his care.

             18. Pursuant to N.C.G.S. § 7B-1111(a)(2), the respondent-
             father . . . left the minor children in foster care 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. The
             children have been placed in foster care since December 10,
             2014, and the respondent-father has not taken corrective
             action to alleviate those conditions that led to the children’s
             removal as there is the continuation of domestic violence
             between the respondent parents.

(Emphasis added).

      Harvey contends that the trial court’s findings concerning domestic violence

were insufficient to support the court’s conclusions of law. We agree.


      Our Supreme Court has stated:

             Effective appellate review of an order entered by a trial
             court sitting without a jury is largely dependent upon the
             specificity by which the order’s rationale is articulated.
             Evidence must support findings; findings must support
             conclusions; conclusions must support the judgment. Each
             . . . link in the chain of reasoning must appear in the order
             itself. Where there is a gap, it cannot be determined on
             appeal whether the trial court correctly exercised its
             function to find the facts and apply the law thereto.

Coble v. Coble, 300 N.C. 708, 714, 268 S.E.2d 185, 190 (1980).




                                          -7-
                               IN RE: E.B., M.B., & A.B.

                                   Opinion of the Court



      Here, it is apparent from the court’s conclusions of law 17 and 18 that the sole

basis for termination of Harvey’s parental rights was the alleged continuation of

domestic violence between Harvey and Gert. However, the only findings made by the

trial court concerning continuing incidents of domestic violence were findings 12 and

13, in which the court merely found that the “incident[s]” of domestic violence

“occurred” in January and July of 2016. The trial court’s succinct findings shed little

light on the circumstances of the domestic violence, its severity, or the impact on the

juveniles. Most importantly, entirely absent from the findings are facts showing

Harvey was engaged in the domestic violence incident involving Gert. Instead, the

evidence clearly demonstrated that Gert was the aggressor and was the only one

involved in domestic violence. Thus, there is insufficient evidence to support the trial

court’s conclusion that Harvey continued to engage in domestic violence. We conclude

that the trial court’s vague findings regarding domestic violence lack the required

specificity necessary “to enable an appellate court to review the decision and test the

correctness of the judgment.” Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657

(1982); see also In re Gleisner, 141 N.C. App. 475, 481, 539 S.E.2d 362, 366 (2000) (the

trial court’s “vague and apparently inaccurate” finding of fact could not be used as a

basis for the trial court’s determination that the juvenile was neglected because it

“impedes our ability to determine whether the trial court’s conclusions are supported

by the findings.”).



                                          -8-
                               IN RE: E.B., M.B., & A.B.

                                   Opinion of the Court



      Consequently, we hold the trial court’s findings do not support the trial court’s

determination that there was a continuation of domestic violence, as well as its

conclusion that grounds existed to terminate Harvey’s parental rights based on

neglect and willful failure to correct the conditions which led to the juveniles’ removal

from Harvey’s care.


      However, there remains an issue concerning Harvey’s living situation. As was

found during the original adjudication of neglect of the children, Harvey appears to

live with Gert. The trial court terminated her parental rights, but she did not appeal

that order. On remand, the trial court must make additional findings of fact and

conclusions of law concerning where the children will live if they are to return to

Harvey’s care. It should inquire into the effect that living with Gert will have on the

children, including the possibility of future domestic violence.       Accordingly, we

reverse the trial court’s order terminating Harvey’s parental rights and remand for

further findings of fact.




      REVERSED AND REMANDED.

      Judge BRYANT concurs in the result only.

      Judge HUNTER, JR. concurs in a separate opinion.




                                          -9-
 No. COA17-198 – In re: E.B., M.B., A.B.


      HUNTER, JR., Robert N., Judge, concurring in separate opinion.


      I concur with the majority opinion. The trial court’s findings do not support

the conclusion that grounds existed to terminate the father’s parental rights. The

trial court seems to base this conclusion on two incidents of domestic violence which

occurred in 2016. However, as a result of these incidents the mother was charged

with assault and resisting an officer. There is nothing in the record indicating the

role, if any, the father played in these incidents.

   Furthermore, there is evidence in the record tending to show the father has made

progress on his case plan. Specifically, he completed a parenting class, submitted to

a mental health assessment, obtained employment as a truck driver, obtained and

maintained transportation, and obtained stable housing. He has complied with the

child support order and interacted appropriately with the children during visits, in

addition to attending weekly domestic violence counseling services.

      On remand the trial court needs to address these issues to determine whether

this and other evidence support a finding that the father did or did not make sufficient

progress on his case plan during the time the children were in the custody of the

Department of Social Services. I would leave to the trial court the decision whether

or not to take additional evidence on remand.
