               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                       No. COA 15-122

                                  Filed: 1 September 2015

Wake County, No. 13 JT 81

IN THE MATTER OF: S.D.


        Appeal by respondent from order entered 8 October 2014 by Judge Monica

Bousman in District Court, Wake County. Heard in the Court of Appeals 17 August

2015.


        Roger A. Askew, for petitioner-appellee Wake County Human Services.

        Deana K. Fleming, for guardian ad litem.

        Miller & Audino, LLP, by Jay Anthony Audino, for respondent-appellant.


        STROUD, Judge.


        Respondent appeals from an order terminating her parental rights to her child.

For the following reasons, we reverse and remand.

                                         I.      Background

        In September of 2012, while incarcerated on drug-related charges, respondent

gave birth to Sam.1 On 14 March 2013, Wake County Human Services, “WCHS,”

filed a petition alleging Sam was a neglected and dependent juvenile and also

received non-secure custody of Sam. On 9 April 2013, after a hearing, the trial court

entered a consent adjudication and disposition order determining Sam was a



        1Pseudonyms will be used for both the children and parents to protect the identity of the
minors involved.
                                             IN RE: S.D.

                                        Opinion of the Court



neglected and dependent juvenile. The order contained various requirements for

respondent to complete in order to be reunified with Sam, including that she

consistently visit with Sam, obtain sufficient income and housing, obtain a substance

abuse assessment, resolve her pending legal issues, and complete a psychological

evaluation and parenting class. On 23 July 2014, WCHS filed a motion to terminate

respondent’s parental rights. On 8 October 2014, after a hearing, the trial court

entered an order terminating respondent’s parental rights for failure to make

reasonable progress regarding the conditions which led to Sam’s removal from

respondent.2 Respondent appeals.

                                       II.     Standard of Review

                       A proceeding to terminate parental rights is a
                       two step process with an adjudicatory stage
                       and a dispositional stage. A different
                       standard of review applies to each stage. In
                       the adjudicatory stage, the burden is on the
                       petitioner to prove by clear, cogent, and
                       convincing evidence that one of the grounds
                       for termination of parental rights set forth in
                       N.C. Gen. Stat. § 7B–1111(a) exists. The
                       standard for appellate review is whether the
                       trial court’s findings of fact are supported by
                       clear, cogent, and convincing evidence and
                       whether those findings of fact support its


       2  WCHS’s brief does not properly note the disposition by the trial court. WCHS’s brief states,
“The court ultimately concluded that both parents neglected the minor child and were incapable of
providing appropriate care for the child in the future[,]” and then cites to DSS’s motion to terminate
as its evidence. However, the trial court did not find that respondent had neglected Sam. The trial
court specifically stated when rendering the order that it did not conclude there were grounds for
termination based on respondent’s neglect, and the written order only finds grounds for the
termination of respondent’s rights due to failure to make reasonable progress.

                                                -2-
                                        IN RE: S.D.

                                     Opinion of the Court



                   conclusions of law. Clear, cogent, and
                   convincing describes an evidentiary standard
                   that is stricter than a preponderance of the
                   evidence, but less stringent than proof beyond
                   a reasonable doubt. If the petitioner meets its
                   burden of proving at least one ground for
                   termination of parental rights exists under
                   N.C. Gen. Stat. § 7B–1111(a), the court
                   proceeds to the dispositional phase and
                   determines whether termination of parental
                   rights is in the best interests of the child. The
                   standard of review of the dispositional stage
                   is whether the trial court abused its discretion
                   in terminating parental rights.
                   The trial court's conclusions of law are reviewable de
             novo on appeal.

In re T.J.D.W., 182 N.C. App. 394, 400-01, 642 S.E.2d 471, 475 (emphasis added)

(citations, quotation marks, and brackets omitted), aff’d per curiam, 362 N.C. 84, 653

S.E.2d 143 (2007). “Clear, cogent, and convincing evidence is evidence which should

fully convince.” North Carolina State Bar v. Talford, 147 N.C. App. 581, 587, 556

S.E.2d 344, 349 (2001) (citation and quotation marks omitted), aff’d and modified,

356 N.C. 626, 576 S.E.2d 305 (2003).

                              III.    Reasonable Progress

      Respondent contends that the trial court’s findings of fact do not support the

conclusion that she failed to make reasonable progress. We will address each of the

requirements set by the trial court’s prior orders and the trial court’s findings of fact

as to respondent’s compliance with each item. The trial court had ordered respondent

to (1) “consistently visit the child in accordance with a written visitation plan[,]” and


                                            -3-
                                       IN RE: S.D.

                                   Opinion of the Court



the trial court found that “[s]ince her release from jail, the mother has consistently

visited with the child. . . . Since June 2014 when her visits were changed to bi-weekly

instead of weekly visits, . . . [respondent] has been consistent in attendance and in

punctuality.”

      The trial court had ordered respondent to (2) “obtain and maintain suitable

housing, sufficient for herself and the child[].” The trial court found respondent “has

been living in a friend’s home where she does not pay rent, is not on the lease, and

where she helps out the with groceries.          She has [resided in that] home for

approximately 9 months.” The trial court did not address in the order whether the

housing was “suitable” or “sufficient for herself and the [child.]”        However, the

findings of fact seem to indicate that the residence was stable, since she had resided

in the same location for the 9 months since her release from jail. When rendering the

ruling, the trial court addressed respondent’s living arrangements in more detail:

             I will be honest with you, the housing is concerning to me.
             It appears that she’s been there for some time. I don't know
             anything about the financial arrangements. I don't know
             anything about how long she can stay. And apparently, she
             has no legal basis for being there, but [the social worker]
             says that the home appears to be appropriate. There are
             no concerns with the roommate. So I'm not going to find
             that she can't -- that she doesn't have suitable housing.

(Emphasis added.) We note that despite the absence of a direct finding as to

“suitability” of respondent’s housing in the written order, the trial court did state that

respondent’s housing was suitable, although by use of a double negative.


                                          -4-
                                      IN RE: S.D.

                                  Opinion of the Court



      The trial court had ordered respondent to (3) “obtain and maintain legal

employment sufficient to meet the needs of herself and the children” and found that

             [t]he Court found at the June 2014 hearing that the mother
             had not been able to obtain employment, partially because
             of her pending criminal charges. At this hearing on the
             motion to terminate her parental rights, she testified that
             she secured a job with a cleaning service in May 2014, and
             has been working there 5 nights per week for 4 hours per
             night and receiving cash payment of about $435.00 per
             month. She is not keeping records of her wages, and has
             not offered proof of employment or her wages. Regardless
             of the truth of her assertions, the worker has indicated to
             the mother that the wages are not adequate to meet the
             needs of she and [Sam]. The mother offered no evidence
             that she receives or will receive any other supports, except
             that she was waiting on . . . the appeal decision to receive
             SSI which she was receiving prior to her arrest.

Thus, the trial court found that respondent had found “legal employment,” despite

the impediment of pending criminal charges, and that she had applied for SSI. We

would agree with the social worker that $435.00 per month might not be sufficient

income to support a mother and a child, but North Carolina General Statute § 7B-

1111(a)(2) provides that “no parental rights shall be terminated for the sole reason

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

Gen. Stat. § 7B-1111(a)(2) (2013).

      The trial court had ordered respondent to (4) “submit to a substance abuse

assessment and follow all recommendations[.]” Despite respondent’s arrest for drug

charges, all of the evidence in our record seems to indicate that her criminal charges



                                         -5-
                                     IN RE: S.D.

                                  Opinion of the Court



were a result of Sam’s father, Mr. Carl Smith’s, involvement in drug abuse and

trafficking of drugs. Other than noting that respondent smoked marijuana in the

past, respondent’s psychological evaluation did not note any involvement with illegal

drugs and did not recommend any treatment for substance abuse. The trial court did

not make a written finding of fact regarding the substance abuse assessment. During

rendition, the trial court stated, “I have no concerns about the substance abuse

assessment. She had one drug screen, and that’s apparently all that the County

required of her, and that screen was negative.”

      The trial court had ordered respondent to (5) “resolve all legal issues regarding

her criminal charges” and found that respondent “is waiting for the disposition of the

father’s criminal case before proceeding with the disposition of her case. The Court

was not given any indication of when this would occur. It is still possible that the

mother may be incarcerated if convicted of the pending charges.”         Respondent’s

unresolved criminal charges seem to be the primary reason for the trial court’s

conclusion that respondent failed to make reasonable progress, but the trial court’s

portion of the finding regarding the resolution of Mr. Smith’s criminal charges which

stated, “The Court was not given any indication of when this would occur[,]” is not

supported by the evidence.

      All of the evidence tended to show an expectation that Mr. Smith would be

pleading guilty and that as a result of his plea, respondent would then plead and not



                                         -6-
                                       IN RE: S.D.

                                    Opinion of the Court



have to serve additional time in jail. The WCHS social worker testified that she had

been in contact with respondent’s attorney for the criminal matter, and he had

“basically confirmed everything” respondent told her regarding a possible plea for

time served and also testified that respondent’s attorney “reiterated . . . that he would

not intend on putting [respondent’s] case on the calendar until [Mr. Smith’s] case had

gone on the calendar first.” The WCHS social worker further testified that Mr. Smith

had a court date the following week, on September 24, so the evidence did provide

some “indication” of when respondent’s criminal issues would be addressed. Even the

trial court stated, when rendering the order, “I understand, from her standpoint, why

she would want to wait to see what is going to happen with Mr. Smith, if there might

not be any further significant jail time for her[.]”

      We realize that even if Mr. Smith’s criminal charges were on the court calendar

for the next week, there is always uncertainty about whether the case will be reached

or if the intended resolution will actually happen; however, we are concerned that the

respondent’s parental rights seem to have been terminated in large part because of

the “possibility” that she may be incarcerated. The trial court may not have found

the evidence from the social worker or respondent to be credible, but there was an

“indication” of when the criminal matters would be resolved, and it was expected to

happen very soon. Certainly, we agree that it is not reasonable to wait for years for

the criminal process to conclude, but the evidence here shows that respondent’s



                                           -7-
                                            IN RE: S.D.

                                        Opinion of the Court



criminal matters might be resolved the very next week.3 We cannot discern based

upon the record why the trial court did not wait for Mr. Smith’s court date to find out

if respondent would actually be subject to further incarceration or if she would be

able to resolve the criminal charges as anticipated. In any event, no evidence shows

that respondent had acted in any way to delay the criminal matters or done anything

other than follow her attorney’s instructions.

       The trial court had ordered respondent to (6) “complete a psychological

evaluation and follow all recommendations” and found:

                      16.   The mother completed a psychological
               evaluation while she was in jail, and when she was
               released in December 2013, she met with the worker to go
               over the evaluation and the expectations regarding
               recommendations.       The mother is diagnosed with
               depression, ADD, and psychosis which requires her to take
               and manage medicines. The psychological [evaluation]
               recommended strongly that the mother have intensive
               individual counseling, develop a support group to assist her
               in parenting the child and making some important
               decisions, and that intensive in-home services would have
               to be implemented prior to any placement of the child in

       3  We realize that hindsight is 20/20, and this information was not before the trial court, but
we can take judicial notice of the fact that the official records of the North Carolina Department of
Public Safety, Division of Adult Correction show that Carl Smith is currently serving active time in
prison for the crimes for which he was charged at the inception of this WCHS proceeding, committed
on the same date that WCHS received an investigative assessment regarding Mr. Smith’s arrest. See
N.C. Gen. Stat. § 8C-1, Rule 201 (2013) (regarding judicial notice); see also State v. Black, 197 N.C.
App. 373, 375, 677 S.E.2d 199, 201 (2009) (“Although not included in the record on appeal, we take
judicial notice that defendant has completed this sentence[.]”) Mr. Smith was sentenced for his crimes
on 9 October 2014, within a month after the hearing on termination of parental rights, which is
consistent with the evidence provided by respondent and the social worker of the expected timing for
resolution of the criminal matters. The official records also show that respondent has never been
committed to the Division of Adult Correction to serve any active sentence for any crime, which is
consistent with the social worker’s testimony that respondent expected not to serve any additional
active sentence upon entering a plea.

                                                -8-
                                     IN RE: S.D.

                                  Opinion of the Court



             her home.
                   ....

                     17. The mother was referred to Monarch for mental
             health services, but she has not sufficiently engaged in
             mental health counseling through Monarch. Prior to the
             June 2014 hearing, she had attended some sessions, but
             had missed at least 5 sessions, and was not making
             progress toward her treatment goals.           The mother
             discovered during therapy that she was having a difficult
             time perceiving reality. She was prescribed medication for
             this schizophrenic-like symptom, which caused an allergic
             reaction and which had to be reviewed by a psychiatrist.
             She was attending therapy only one time per month, which
             she said was all her therapist is requiring. The Court
             found at the June 2014 hearing, more than 15 months from
             the filing of the petition and 21 months since her child was
             placed outside of her home, that . . . [respondent] did not
             seem to understand the importance of her engaging in
             intensive therapy to be able to safely parent her child.
             Counseled by her social worker that her current therapy
             regime did not meet the recommendation for intensive
             therapy made in her psychological evaluation, the mother
             did arrange with her therapist to have a session every
             three weeks, and she attended sessions under this schedule
             between June 2014 and this hearing on September 18,
             2014. No evidence was offered by the mother to show any
             progress in her therapy. The social worker testified that
             the mother was not meeting the requirement of intensive
             therapy in light of her serious mental health problems and
             the recommendations of the psychological [evaluation].

Thus, the trial court’s findings acknowledge that respondent submitted to the

psychological evaluation and took medications as recommended.

      Respondent’s psychological evaluation actually did not recommend “intensive

individual counseling[,]” and in that regard, the trial court’s finding of fact is not



                                         -9-
                                        IN RE: S.D.

                                    Opinion of the Court



supported by the evidence.       The psychological evaluation actually recommended

“individual counseling services[,]” and the trial court noted that respondent attended

therapy, and although she had missed some sessions, once a month was the frequency

required by her therapist. Furthermore, when respondent was informed that she

would benefit from further therapy, she increased her sessions to once every three

weeks and had regularly attended those sessions. It was also recommended that

respondent take medication for her mental well-being, and according to the evidence,

respondent took her medications as prescribed.

       It seems that the trial court would have preferred that respondent receive more

frequent therapy than she had, but our record does not support a finding that

respondent failed to comply with the therapy as recommended by her therapist or

required by the trial court’s prior orders. Other than missing a few sessions,

respondent complied with her therapist’s initial recommendations regarding the

frequency of therapy, and upon being informed she needed more therapy, she fully

complied with her social worker’s instructions in both having more therapy and

faithfully attending her sessions. We also recognize that attending therapy and

actually benefitting from it are two different things, but it is difficult to say that there

was clear, cogent, and convincing evidence in this case that respondent was not

making progress. While respondent may benefit from more frequent treatment, the

evidence showed that she complied with the frequency of treatment required of her.



                                           - 10 -
                                           IN RE: S.D.

                                       Opinion of the Court



       The trial court ordered respondent to (7) “complete a positive parenting class

and demonstrate knowledge learned in her interactions with the children in her life

choices[.]” The trial court found that respondent “attended the MOVE program with

SAFEChild to learn more about the impact of domestic violence on children” and

during rendition stated, “while I applaud the fact that she has completed the

parenting class, again, I note she did not complete it within 12 months[.]” As to

respondent’s parenting skills, we also note that respondent had another child, Sue,

who was seven years old at the time respondent was arrested. Our record indicates

that respondent had never had any prior social services involvement regarding Sue.4

       The trial court ordered respondent to (8) “maintain regular contact with the

assigned social worker, notifying WCHS of any change in situation or circumstances

within 5 business days.” The trial court did not make a finding as to this requirement

in its order, but all of the evidence, including the WCHS social worker’s testimony,

indicated that respondent did maintain contact with her social worker throughout

the case.

       After addressing each of the requirements of respondent’s case plan, it appears

that the possibility of respondent’s incarceration was the primary factor supporting



       4  Our record indicates that Sue was a well-behaved and well-adjusted child with no apparent
issues that needed to be addressed at the time of WCHS’s intervention. While our record as to
termination deals only with Sam, the initial order for adjudication did include Sue so our record
includes information regarding her as well. Based upon our record, the permanent plan for Sue was
custody with her maternal grandmother, and respondent’s parental rights to Sue would not be
terminated.

                                              - 11 -
                                      IN RE: S.D.

                                   Opinion of the Court



the trial court’s conclusion that she had failed to make reasonable progress. Our

concern about this factor is that it was only a possibility of incarceration which may

not even come to pass, and the evidence indicated that respondent’s criminal matter

would be disposed of quite soon. A secondary factor was respondent’s failure to make

adequate progress in addressing her mental health issues, but in this regard

respondent did essentially all that the trial court or her therapist had required. The

only other factor which could support the trial court’s conclusion was respondent’s

meager income, but again, poverty alone cannot be a basis for termination of parental

rights. See N.C. Gen. Stat. § 7B-1111(a)(2). While “[e]xtremely limited progress is

not reasonable progress[,]” In re Baker, 158 N.C. App. 491, 496-97, 581 S.E.2d 144,

148 (2003) (citations and quotation marks omitted), certainly perfection is not

required to reach the “reasonable” standard. As noted above, some portions of the

trial court’s findings of fact are not supported by the evidence, and although they are

just portions of the findings, they are findings on the pivotal issues. In addition, when

we consider the failures as addressed by the trial court in tandem with the numerous

ways respondent did comply with her parenting plan, the findings of fact do not

support the conclusion of law that respondent has failed to make reasonable progress.

While we fully appreciate the importance of resolving this termination case as quickly

as possible so that Sam may have a stable and safe home, we must reverse the order

terminating respondent’s parental rights.



                                          - 12 -
                                    IN RE: S.D.

                                 Opinion of the Court



                                    IV.     Conclusion

      For the foregoing reasons, we reverse and remand; for this reason, we need not

address respondent’s other issues raised on appeal.

      REVERSED and REMANDED.

      Judges GEER and TYSON concur.




                                        - 13 -
