                  IN THE SUPREME COURT OF NORTH CAROLINA

                                         No. 110A19

                                   Filed 24 January 2020
IN THE MATTER OF: K.N.



      Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 7

January 2019 by Judge H. Thomas Jarrell in District Court, Guilford County. This

matter was calendared for argument in the Supreme Court on 17 January 2020 but

determined on the record and briefs without oral argument pursuant to Rule 30(f) of

the North Carolina Rules of Appellate Procedure.


      Mercedes O. Chut for petitioner-appellee Guilford County Department of Health
      and Human Services.

      K&L Gates, LLP, by Erica Hicks for Guardian ad Litem.

      Jeffrey William Gillette for respondent-appellant father.


      DAVIS, Justice.


      In this case, we consider whether the trial court erred by terminating the

parental rights of respondent-father (respondent) to K.N. (“Keith”)1 on the basis of

neglect. Because we conclude that the findings in the trial court’s order are

insufficient to support a determination that respondent had neglected Keith, we

vacate the termination order and remand this case to the District Court, Guilford

County, for further proceedings.


      1   Pseudonyms are used throughout this opinion to protect the identity of the juvenile.
                                          IN RE: K.N.

                                       Opinion of the Court



                         Factual and Procedural Background

      Respondent and “Maria”2 are the biological parents of Keith, who was born on

17 September 2016. On or about 26 December 2016, the Guilford County Department

of Health and Human Services (DHHS) received a report that Keith’s parents were

involved in a verbal dispute during which respondent claimed Maria was attempting

to suffocate the child. Maria accused respondent of being intoxicated and holding onto

Keith “too tightly” while they argued. Both Maria and Keith were taken to the

hospital, but no injuries were discovered to either of them. Maria reported that

respondent’s relatives had “jumped” her the previous night and also disclosed several

incidents of domestic violence between her and respondent.

      On 10 January 2017, a safety plan with DHHS was updated and, as part of

that plan, Maria agreed to keep Keith in a safe environment. However, on or about

29 January 2017, she violated the safety plan by returning to her mother’s residence,

which DHHS considered unsafe due to prior involvement with Child Protective

Services and a history of domestic violence between Maria, her mother, and her

brother. On 6 February 2017, DHHS obtained nonsecure custody of Keith and filed a

juvenile petition in District Court, Guilford County, alleging that Keith was a

neglected and dependent juvenile.




      2   Keith’s mother is not a party to this appeal.
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                                 Opinion of the Court



      On 28 August 2017, the trial court entered an order adjudicating Keith to be a

neglected and dependent juvenile. Pursuant to a case plan entered into with DHHS,

respondent was ordered to participate in an anger management evaluation and follow

all recommendations. He was allowed weekly visitations with Keith. Respondent was

also ordered to comply with his case plan, which required him, among other things,

to (1) secure and maintain appropriate housing suitable for Keith and to notify DHHS

accordingly; (2) provide verification of his Supplemental Security Income (SSI)

benefits; (3) participate in and successfully complete the Parent Assessment Training

and Education (PATE) program; (4) submit to a substance abuse assessment and

follow any recommendations; (5) participate in the Domestic Violence Intervention

Program (DVIP); (6) notify DHHS of any incidents of domestic violence; (7) comply

with the terms of his probation; and (8) refrain from incurring any new criminal

charges. Keith remained in DHHS custody.

      On 14 November 2017, the trial court entered a permanency planning hearing

order. The court found that respondent was living in a boarding house and was on

probation for thirty months, effective January 2017. He had completed a parenting

evaluation but refused to engage in individual counseling—despite having received a

recommendation to do so—due to the cost of the sessions. He had successfully

completed the Treatment Accountability for Safer Communities (TASC) substance

abuse program.


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                                      IN RE: K.N.

                                   Opinion of the Court



      The trial court further found that respondent had indicated that he would take

part in anger management classes, but then refused to participate in the DVIP

program because “he had not been . . . charged as an abuser.” As a result of his failure

to “actively engage in his case plan,” the court determined that respondent was

“acting in a manner inconsistent with the health and safety of the juvenile.” The trial

court ordered that the permanent plan be reunification with a concurrent secondary

plan of adoption.

      The trial court entered a subsequent permanency planning hearing order on 5

February 2018. The court found that respondent was living in a location unsuitable

for Keith and was continuing to refuse to participate in individual parenting

counseling due to cost. Although he completed anger management classes, he had

attended only one DVIP class and remained uninterested in the program. The trial

court changed the primary permanent plan to adoption with a concurrent secondary

permanent plan of reunification. DHHS was ordered to proceed with filing a petition

for termination of respondent’s parental rights within sixty days.

      On 15 March 2018, DHHS filed a petition to terminate respondent’s parental

rights pursuant to N.C.G.S. § 7B-1111(a)(1)–(2).3 The termination hearing was

conducted on 27 and 28 November 2018. On 7 January 2019, the trial court entered




      3 DHHS also sought to terminate Maria’s parental rights pursuant to N.C.G.S. § 7B-
1111(a)(1), (2), and (9).
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                                        IN RE: K.N.

                                     Opinion of the Court



an order finding that grounds existed to terminate respondent’s parental rights on

the basis that respondent had neglected Keith and that such neglect was likely to

recur if the juvenile was returned to respondent. See N.C.G.S. § 7B-1111(a)(1).4 The

trial court also determined that the termination of respondent’s parental rights was

in the best interests of Keith. See N.C.G.S. § 7B-1110(a). Respondent gave notice of

appeal to this Court pursuant to N.C.G.S. § 7B-1001(a1)(1).

                                         Analysis

       On appeal, respondent contends that (1) the trial court made various findings

of fact that were not supported by the evidence; and (2) the court’s findings were

insufficient to support its conclusion that Keith was neglected pursuant to N.C.G.S.

§ 7B-1111(a)(1). Our Juvenile Code provides for a two-step process for the

termination of parental rights—an adjudicatory stage and a dispositional stage.

N.C.G.S. §§ 7B-1109, -1110 (2017). During the adjudicatory stage, the petitioner

bears the burden of proving by “clear, cogent, and convincing evidence” the existence

of one or more grounds for termination pursuant to subsection 7B-1111(a) of the

General Statutes of North Carolina. N.C.G.S. § 7B-1109(e), (f) (2017). If a trial court

finds that a ground exists for termination, it then proceeds to the dispositional stage




       The trial court’s order also terminated Maria’s parental rights on the basis of neglect
       4

and additionally found that grounds existed to terminate her parental rights pursuant to
N.C.G.S. § 7B-1111(a)(2) and (9).
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                                      IN RE: K.N.

                                  Opinion of the Court



at which it must “determine whether terminating the parent’s rights is in the

juvenile’s best interest.” N.C.G.S. § 7B-1110(a).

      We review a trial court’s adjudicatory findings under N.C.G.S. § 7B-1109 “to

determine whether [they] are supported by clear, cogent and convincing evidence and

the findings support the conclusions of law.” In re Montgomery, 311 N.C. 101, 111,

316 S.E.2d 246, 253 (1984). “The trial court’s conclusions of law are reviewable de

novo on appeal.” In re C.B.C., 832 S.E.2d 692, 695 (N.C. 2019) (citing 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 its termination order, the trial court made the following pertinent findings

of fact in support of its conclusion that grounds existed to terminate respondent’s

parental rights pursuant to N.C.G.S. § 7B-1111(a)(1):

             12. [Respondent] entered into a case plan on April 3, 2017.
             The components of the plan, and his progress therewith,
             are as follows:

             A. Housing/Environment/Basic Physical Needs: The
             father was to secure and maintain appropriate,
             independent housing suitable for his child. Once the father
             secured housing he was to provide DHHS with a copy of his
             lease with his name on it within 72 hours. He was to
             cooperate with announced and unannounced visits to his
             home. [Respondent] did ultimately obtain suitable housing,
             after a period of residing in boarding houses. However, he
             is currently incarcerated at the Guilford County
             Department of Corrections, awaiting trial for charges of
             DUI, Assault with a Deadly Weapon on a Government
             Official, F[lee]ing to Elude Arrest, Unlawful Passing of an

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                          IN RE: K.N.

                       Opinion of the Court



Emergency Vehicle, and Failure to stop at a Red Light.
Although he has testified that he expects to make his
$28,000.00 bond next week, the Court finds that it is
uncertain when and if he will be released pending trial.

B. Employment: The father was to provide DHHS with
verification of his SSI benefits. [DHHS] did ultimately
independently receive verification of [respondent’s]
benefits. At that time [DHHS] sought, and obtained,
transfer of the juvenile’s portion of those benefits from
[Maria] (who had been receiving them throughout the case)
to [DHHS]. In addition to his SSI benefit, [respondent]
works odd jobs and has just started a cleaning business. He
has not provided financially for the juvenile, although the
juvenile now does receive a $190.00 per month benefit from
SSI.

C. Parenting Skills:

1) The father was to participate in a Parenting
Psychological Evaluation and follow all recommendations.
The father completed the Parenting Evaluation through
Dr. Michael McColloch. Dr. McColloch recommended that
[respondent] participate in individual counseling and
continue to work his case plan in an effort to be reunified
with his son. [Respondent] participated in individual
therapy through Family Service[ ] of the Piedmont. In April
of 2018 he was released from therapy with a determination
that he had achieved his treatment goals.

2) The father was to participate in the PATE Parenting
Classes or parenting classes through Family Service[ ] of
the Piedmont until successfully completed and a certificate
received. He was to visit with [Keith] once per week.
[Respondent] completed the PATE Program on 10/03/17.
He visited consistently with [Keith] and the visits were
appropriate and went well, with no concerns to note.

3) The father was to contact Child Support Enforcement
and enter into a voluntary child support agreement.

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                       IN RE: K.N.

                    Opinion of the Court



[Respondent] reported that he receives SSI and cannot be
pursued for Child Support.

D. Substance Abuse: The father was to submit to a
substance     abuse     assessment       and    follow all
recommendations. The father successfully completed the
TASC Program. However, [respondent] submitted three
drug screens which came back as “diluted,” on June 29,
2018, July 6, 2018, and August 27, 2018. [DHHS] regards
diluted samples as failed screens. He was asked thereafter
to take another screen, which he delayed taking by 36
hours. That test was negative for illicit substances.

E. Domestic Violence: The father was to participate in the
Domestic Violence Intervention Program through Family
Service[ ] of the Piedmont and . . . follow all
recommendations. The father was to notify DHHS of any
incidents of domestic violence between himself and any
intimate partner. Initially [respondent] indicated that he
did not understand why he had to participate in a domestic
violence class when he had not been . . . charged as an
abuser. Subsequently [respondent] did complete anger
management classes but did not enroll in the DVIP
program. Albert Linder, his individual therapist, testified
that some domestic violence issues were addressed in
individual counseling.

F. Probation: The father was to cooperate with the terms
of his probation. The father was to resolve his pending
criminal charges and not incur any new criminal charges.
[Respondent] has violated his probation and his case plan
by incurring new charges.

13. [DHHS] has failed to provide clear and convincing
evidence that [respondent] has not made reasonable
progress in his case plan.

....

15. The father and the mother both receive SSI income and

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                                      IN RE: K.N.

                                   Opinion of the Court



             are not required to pay child support. However, neither
             parent has provided any financial support for the juvenile
             since he came into the custody of [DHHS].

             16. Grounds exist to terminate the parental rights of . . .
             [respondent] pursuant to N.C.G.S.[ ]§[ ]7B-1111(a)(1): The
             parents have neglected the juvenile within the meaning of
             N.C.G.S.[ ]§[ ]7B-101, and such neglect is likely to recur if
             the juvenile is returned to the respondent[ ].

      We first address respondent’s argument that certain findings of fact by the

trial court were not supported by competent evidence. Respondent challenges the last

sentence in Finding of Fact 12(B), arguing that the trial court’s finding that he “has

not provided financially for the juvenile” contradicts the court’s following statement

that Keith receives $190.00 per month from respondent’s SSI benefits. Respondent

testified at the termination hearing that he received $885.00 per month in SSI

benefits, a portion of which was paid directly to DHHS for the care of Keith. He also

testified that in addition to receiving SSI benefits, he had started a cleaning business

with his son and did “odd jobs” to earn income. Thus, while the trial court noted that

Keith was receiving an allotment of SSI benefits each month, it also found that

respondent had not voluntarily contributed to the juvenile’s care from the income he

was earning through his business and odd jobs. Accordingly, we hold that the last

sentence of Finding of Fact 12(B) is supported by the evidence.

      Respondent also contends that Finding of Fact 12(E), which states that he “did

not enroll in the DVIP program,” was not supported by the evidence. We agree.


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                                     IN RE: K.N.

                                  Opinion of the Court



Testimony from a social worker at the termination hearing, as well as other evidence

in the record, reveals that respondent participated in and completed the DVIP

program through Family Service of the Piedmont on 14 August 2018. Although the

record suggests that respondent initially resisted participating in the program and

did not acknowledge that he engaged in domestic violence, there is nothing in the

record that contradicts the social worker’s testimony that respondent participated in

and completed the DVIP program. As such, we must disregard the trial court’s finding

that respondent did not enroll in the DVIP program.

      Finally, respondent challenges the last sentence of Finding of Fact 12(F),

claiming that there was no evidence that he violated the terms of his probation by

incurring new criminal charges. Although respondent concedes that the initiation of

new criminal charges against him constituted a breach of his DHHS case plan, we

disagree that there is nothing in the record indicating that the institution of the

charges actually violated the terms of his probation. At the termination hearing, the

social worker testified—without objection—that respondent had violated the

conditions of his probation by incurring the new criminal charges. As a result, we

hold that the last sentence of Finding of Fact 12(F) is supported by evidence in the

record.

      We next consider respondent’s argument that the trial court’s findings of fact

are insufficient to support its conclusion that grounds exist to terminate his parental


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                                   Opinion of the Court



rights on the basis of neglect. Subsection 7B-1111(a) allows for the termination of

parental rights if the trial court finds the parent has neglected his child to such an

extent that the child fits the definition of a “neglected juvenile” under N.C.G.S. § 7B-

101(15). N.C.G.S. § 7B-1111(a)(1). A neglected juvenile is statutorily defined, in

pertinent part, as a juvenile “whose parent, guardian, custodian, or caretaker does

not provide proper care, supervision, or discipline; . . . or who lives in an environment

injurious to the juvenile’s welfare.” N.C.G.S. § 7B-101(15) (2017). Generally,

“[t]ermination of parental rights based upon this statutory ground requires a showing

of neglect at the time of the termination hearing.” In re D.L.W., 368 N.C. 835, 843,

788 S.E.2d 162, 167 (2016) (citing In re Ballard, 311 N.C. 708, 713–15, 319 S.E.2d

227, 231–32 (1984)). However, “if the child has been separated from the parent for a

long period of time, there must be a showing of past neglect and a likelihood of future

neglect by the parent.” Id. at 843, 788 S.E.2d at 167. When determining whether

future neglect is likely, the trial court must consider evidence of relevant

circumstances or events that existed or occurred either before or after the prior

adjudication of neglect. In re Ballard, 311 N.C. at 715, 319 S.E.2d at 232. “The

determinative factors must be the best interests of the child and the fitness of the

parent to care for the child at the time of the termination proceeding.” Id. at 715, 319

S.E.2d at 232.




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                                       IN RE: K.N.

                                   Opinion of the Court



         Thus, in light of Keith’s prior adjudication as a neglected juvenile and his

resulting removal from the home, we must evaluate whether there are sufficient

findings of fact in the termination order to support the trial court’s ultimate

conclusion that there is a likelihood of future neglect by respondent. Respondent

asserts that absent the unsupported findings of fact in the trial court’s order, the

order lacks a sufficient factual basis to support the trial court’s finding of neglect. We

agree.

         The trial court’s findings reflect that DHHS had “failed to provide clear and

convincing evidence that [respondent] had not made reasonable progress on his case

plan” and that respondent had complied with the provisions of his case plan dealing

with housing, SSI benefits, and participation in and completion of a psychological

assessment,     parenting   education,   substance        abuse   treatment,   and   anger

management classes. The trial court made very few findings of fact that directly

relate to respondent’s ability to care for Keith or the extent to which respondent’s

behavior affected Keith’s welfare. See In re N.D.A., 833 S.E.2d 768, 775 (N.C. 2019).

The only factual finding that directly addresses respondent’s ability to care for Keith

is Finding of Fact 12(A), in which the trial court found that although respondent had

secured suitable housing, he was incarcerated at the time of the proceeding and

awaiting trial on a number of criminal charges. At the termination hearing,




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                                      IN RE: K.N.

                                   Opinion of the Court



respondent testified that he anticipated paying his bond the following week, but the

trial court found that “it is uncertain when and if he will be released pending trial.”

      A parent’s incarceration may be relevant to the determination of whether

parental rights should be terminated, but “[o]ur precedents are quite clear—and

remain in full force—that ‘[i]ncarceration, standing alone, is neither a sword nor a

shield in a termination of parental rights decision.’ ” In re M.A.W., 370 N.C. 149, 153,

804 S.E.2d 513, 517 (2017) (quoting In re P.L.P., 173 N.C. App. 1, 10, 618 S.E.2d 241,

247 (2005), aff’d per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006)). Thus, respondent’s

incarceration, by itself, cannot serve as clear, cogent, and convincing evidence of

neglect. Instead, the extent to which a parent’s incarceration or violation of the terms

and conditions of probation support a finding of neglect depends upon an analysis of

the relevant facts and circumstances, including the length of the parent’s

incarceration. The trial court’s findings do not contain any such analysis.

      DHHS contends that the trial court’s findings regarding respondent’s failure

to fully address the domestic violence component of his case plan by continuing to

engage in domestic violence and by being dilatory in addressing issues related to

domestic violence, his failure to make efforts to cooperate with DHHS regarding his

substance abuse issues, and his failure to contribute significant earnings from his

employment all support its ultimate conclusion that neglect is likely to recur if Keith

is returned to respondent’s care. We do not find this argument persuasive in light of


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                                  Opinion of the Court



an analysis of the trial court’s actual findings, which do not contain a considerable

amount of the information upon which DHHS relies.

      Finding of Fact 12(E) addressed concerns with respondent’s involvement in

incidents of domestic violence. Aside from the erroneous finding that respondent did

not complete DVIP, this portion of the trial court’s order does not establish that

respondent failed to comply with the domestic violence-related portions of his case

plan or engaged in continued acts of domestic violence against Maria or anyone else.

      In Finding of Fact 12(D), the trial court addressed the substance abuse

component of respondent’s case plan. The court found that respondent had submitted

three diluted drug screens in June, July, and August 2018 and that DHHS considered

diluted samples as “failed screens.” However, this finding—without greater

explanation—is insufficient to support a determination as to the likelihood of future

neglect. The trial court’s findings state that respondent delayed taking another drug

screen for thirty-six hours, but do not provide any further explanation concerning the

extent to which the thirty-six-hour delay enabled him to ultimately provide a “clean”

sample or even when the sample was requested and provided. In addition, the trial

court’s findings do not address the nature and extent of respondent’s earlier

substance abuse issues or whether the trial court, as compared to DHHS, deemed a

“diluted” sample to be tantamount to a positive test result.




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                                      IN RE: K.N.

                                   Opinion of the Court



      Finally, in Finding of Fact 12(B) and Finding of Fact 15, the trial court found

that respondent had not provided financially for Keith since he came into DHHS

custody. Yet, in Finding of Fact 15, the trial court also determined that respondent

received SSI benefits and was not required to pay child support. Absent further

findings by the trial court regarding respondent’s finances and ability to pay

additional support beyond the portion of SSI benefits going to Keith’s care, we are

unable to say that these portions of the trial court’s order supported a finding of

neglect.

      As a result, for these reasons, we conclude that the trial court’s findings are

insufficient to support the court’s ultimate determination that respondent’s parental

rights were subject to termination on the basis of neglect. We acknowledge, however,

that the trial court could have made additional findings of fact, based on other

evidence in the record, that might have been sufficient to support a finding of a future

likelihood of neglect, including: (1) respondent’s long history of drug abuse; (2)

respondent’s extensive criminal record which consists of drug convictions and

convictions for multiple violent crimes; (3) the effect of respondent’s serious criminal

charges pending at the time of the termination hearing, the absence of any clear

indication of when he would be released from custody or if he would be able to make

bond, and the ensuing effect on his future ability to care for Keith; (4) respondent’s

dilatory pace in completing the objectives of his case plan; (5) respondent’s hostility


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                                  Opinion of the Court



toward the people responsible for managing certain programs in which he had refused

to participate; and (6) the additional domestic violence incident involving respondent,

Maria, and another woman during which respondent was cut with a knife. Moreover,

as noted above, while the trial court stated in Finding of Fact 12(D) that respondent

waited thirty-six hours to take a new drug test after providing three diluted samples,

it appears from the record that the delay was actually three days, which could suggest

an attempt on his part to manipulate the results of the drug test.

      In In re N.D.A., we recently addressed a similar scenario in which the trial

court’s adjudicatory findings were insufficient to support its conclusion that

termination of the parent’s rights was warranted, but the record contained additional

evidence that could have potentially supported a conclusion that termination was

appropriate. There, we vacated the trial court’s termination order and remanded the

case for further proceedings, including the entry of a new order containing findings

of fact and conclusions of law addressing the issue of whether a ground for

termination existed. See In re N.D.A., 833 S.E.2d at 777.

      We believe that a similar result is appropriate here. Accordingly, we vacate the

trial court’s termination order and remand this case to the District Court, Guilford

County, for further proceedings not inconsistent with this opinion, including the

entry of a new order containing appropriate findings of fact and conclusions of law on

the issue of whether grounds exist to support the termination of respondent’s


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                                     IN RE: K.N.

                                  Opinion of the Court



parental rights. On remand, the trial court shall have the discretion to determine

whether the receipt of additional evidence is appropriate.

                                    Conclusion

      For the reasons stated above, we vacate the 7 January 2019 order of the trial

court and remand for further proceedings not inconsistent with this opinion.

      VACATED AND REMANDED.




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