              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
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                                   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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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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                    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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                                  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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                                  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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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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                                   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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                                   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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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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