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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF: C.C., J.C., minor children
Filed: 20 September 2005
1. Appeal and Error; Termination of Parental Rights-appealability--death of child--
Although one of respondent mother's minor children took his own life after the filing of
respondent's notice of appeal in this termination of parental rights case, his death does not render
this appeal moot with regard to this child because respondent continues to have parental rights of
the child which continue after his death including inheritance rights. Further, an order
terminating parental rights can form the basis of a subsequent proceeding to terminate the
parental rights of another child under N.C.G.S. § 7B-1111(a)(9).
2. Termination of Parental Rights--neglect--sufficiency of evidence
The trial court erred in a termination of parental rights case by concluding that there was
sufficient evidence to find that respondent mother neglected her children under N.C.G.S. § 7B-
1111(a)(1), because: (1) a prior adjudication of neglect alone cannot justify termination of
parental rights; (2) DSS presented no evidence that respondent could not, at the time of the
hearing, adequately parent her children; and (3) no evidence was presented and no finding was
made that a probability of repetition of neglect existed at the time of the termination hearing.
3. Termination of Parental Rights--willfully leaving child in DSS custody--sufficiency
The trial court erred in a termination of parental rights case by concluding that respondent
mother willfully left her children in DSS's custody for more than twelve months without
showing reasonable progress in correcting those conditions which led to the removal of the
children, because: (1) the trial court failed to find that respondent acted willfully as required
under N.C.G.S. § 7B-1111(a)(2); and (2) the trial court failed to make adequate findings of fact
on respondent's progress.
Appeal by respondent mother from order entered 9 June 2004 by
Judge Lisa C. Bell in Mecklenburg County District Court. Heard in
the Court of Appeals 17 August 2005.
Mecklenburg County Attorney's Office, by J. Edward Yeager,
Jr., for petitioner-appellee Mecklenburg County Department of
Klein & Freeman, PLLC, by Katherine Freeman, for petitioner
Guardian Ad Litem.
Mercedes O. Chut, for respondent-appellant.
T.C.W. (respondent) appeals from order terminating her
parental rights to her two minor children, C.C. and J.C.
(collectively, the children). We reverse.
J.C. was born on 26 February 1993 and C.C. was born on 27
April 1995. In May 2000, the two children were referred to the
Mecklenburg County Department of Social Services (DSS).
Respondent agreed to a case plan designed to improve the children's
living conditions. This case plan addressed three areas of
concern: (1) lack of supervision for the children; (2) the mental
health of respondent; and (3) living conditions in the home.
Respondent agreed to provide better supervision of the children,
attend parenting classes, continue mental health counseling, and
provide sanitary living conditions for the children. She also
agreed to monthly meetings with a social worker monitoring their
Giovanna Wilson (Ms. Wilson) was the social worker assigned
to the children from December 2000 to May 2001. Ms. Wilson
visited the home regularly during that time and testified it
[t]ypically . . . was straightened up. In May 2001, Ms. Wilson
found the house in a very dirty condition with dirty dishes all
over the kitchen, [t]he trash can was full and trash was coming
out of the trash can, a full trash bag sitting on the kitchen
floor, clothes strewn about on the steps, no sheets on the bed, and
roaches in empty soda cans in respondent's room. During that time period, respondent did not attend all of her
mental health appointments. Ms. Wilson received a lot of calls
from the school that the children were not attending. These calls
made Ms. Wilson suspect respondent was not properly supervising the
children. On occasion, Ms. Wilson found the children outside
playing while respondent was in bed upstairs. Ms. Wilson also
received reports the children were having behavioral problems at
school. She encouraged respondent to address these issues, but was
unaware of any attempt by respondent to do so.
In May 2001, Ms. Wilson picked up the children from school one
day after she could not reach respondent. When Ms. Wilson arrived
at respondent's home, respondent was upstairs and offered no
explanation where she had been. Upon returning home, six-year-old
C.C. put a pan on the stove and he was attempting to open up a can
On 3 May 2001, Ms. Wilson filed a juvenile petition. The
petition alleged the children lacked proper parental supervision,
did not attend school regularly, and lived in an unkempt and
unsanitary home. Respondent did not contest the facts alleged in
the petition. On 2 July 2001, the trial court accepted the facts
as alleged in the petition with minor modifications and adjudicated
the children to be neglected.
After assuming custody of the children, DSS continued to work
with respondent to reunite the family. Starting in August 2001,
social worker Kate Koebel (Ms. Koebel) was assigned to the
family. She augmented respondent's previous case plan after thechildren were found to be neglected. Under the amended case plan,
respondent was also encouraged to: (1) obtain a job or some other
means of legal income; (2) stay in contact with the children's
therapist; (3) regularly attend therapy; (4) participate in Family
Preservation Services and in-home education services; (5) pay all
of her bills in a timely manner; and (6) to maintain housing.
Respondent was unemployed when the children were initially
taken into DSS custody. She obtained stable employment with the
Charlotte Observer almost two years later, in April 2003, earning
$6.50 per hour selling newspaper subscriptions by telephone and
worked approximately seventeen hours per week. She voluntarily
resigned from this job in early 2004. Prior to the Charlotte
Observer job, she worked as a cashier for Jack-In-The-Box in
Pineville, North Carolina where she worked for only two weeks
earning approximately $100.00. Previous to the Jack-In-The-Box
job, she worked on and off for her pastor [f]iling, answering
the phone, and cleaning and earned approximately $150.00 per
Respondent began to receive Supplemental Security Income in
January 2004. She received disability income due to her [s]leep
apnea, severe back pain and depression. Initially, she received
$389.50 per month. However, by 30 April 2004, she was receiving
$564.00 per month. Respondent testified she was still looking for
work as of April 2004. When asked what work she was seeking,
respondent replied she had an internet marketing business going
on. Between August 2001 and May 2003, respondent was in danger ofeviction on a couple of occasions. Her monthly rent ranged
between $25.00 and $40.00 per month.
Ms. Koebel characterized respondent's contact with the
children's therapists as not always consistent. After March
2003, the children's therapist requested respondent not be present
at the children's counseling sessions. Respondent's attendance at
her own counseling sessions was likewise sporadic until June 2003.
Respondent participated in the Family Intervention Program and
complied with the in-home education services.
Initially, the children had very limited visitation with
respondent. They were allowed to visit for one hour each week at
Walton Plaza. Soon after Ms. Koebel was assigned to the case, the
family enjoyed visitation in respondent's home. The visits became
progressively longer. Two hours each week unsupervised visitation
became overnight visits, and finally evolved to weekend visitation.
On at least one occasion, respondent elected not to have weekend
visitation with the children because they had been especially rowdy
the previous weekend. Respondent seemed to have an especially
conflicted relationship with J.C. The visitation periods
culminated in a month-long visitation with C.C. in January 2003.
However, C.C. was removed from the home again because he was not
consistently getting his medication, missed some school, exhibited
behavior problems at school, and was not consistently finishing his
After June 2003, respondent attended all of her counseling
sessions with her therapist Ms. Linda Lee Woodburn and showedprogress. Ms. Koebel testified that in the year and one-half
leading up to the hearing, respondent stabilized her housing
situation and appropriately maintained it for the children.
Respondent completed family education sessions with Ms. Angela
Howard in September 2002 and completed another set of parenting
classes on her own in February 2004.
In the court summary dated 20 May 2003, DSS recommended the
goal be changed to termination of parental rights and adoption
regarding both children. On 28 October 2003, DSS filed petitions
to terminate respondent's parental rights to J.C. and C.C. The
petitions alleged the following grounds for termination of
respondent's parental rights: (1) neglect; and (2) willfully
leaving the children in foster care for more than twelve months
without showing reasonable progress under the circumstances in
correcting the conditions which led to the removal of the children.
The termination hearing was conducted over three days in March
and April 2004. On 9 June 2004, the trial court entered an order
terminating respondent's parental rights on both grounds alleged in
the petitions. Respondent appeals.
 J.C. took his own life on 29 August 2004 after the
filing of respondent's notice of appeal in this matter. DSS
argues J.C.'s death renders this appeal moot with regard to him.
Respondent continues to have parental rights of J.C. which
continues after his death. Respondent may also have inheritancerights. N.C. Gen. Stat. § 29-15 (2003). Also, pursuant to N.C.
Gen. Stat. § 7B-1111(a)(9)(2003), an order terminating parental
rights can form the basis of a subsequent proceeding to terminate
the parental rights of another child:
(a) The Court may terminate parental rights
upon a finding of one or more of the
. . . .
(9) The parental rights of a parent with
respect to another child of the parent have
been terminated involuntarily by a court of
competent jurisdiction and the parent lacks
the ability or willingness to establish a safe
N.C. Gen. Stat. § 7B-1111(a)(9) (2003).
Respondent's parental rights of J.C. survive his death. The
termination of parental rights can form the basis of a subsequent
proceeding to terminate the rights of another child of respondent.
We decline to dismiss this appeal as moot with respect to J.C.
The issues on appeal are whether: (1) respondent and the
children were properly served; (2) sufficient evidence exists to
support various findings of fact; (3) the findings of fact and
evidence in the record support the statutory ground to terminate
parental rights due to neglect; (4) the trial court committed
reversible error in concluding as a matter of law that respondent
willfully left her children in foster care for more than twelve
months without showing reasonable progress; (5) the trial court
erred in taking judicial notice of various materials; (6) the trial
court committed reversible error in terminating respondent'sparental rights without specific reference to the statutory grounds
for doing so; (7) findings of fact and evidence in the record
support the finding that it is in the best interest of the children
to terminate parental rights; and (8) the trial court committed
reversible error in failing to conduct a separate dispositional
hearing during the best interests phase of the proceedings.
IV. Termination of Parental Rights
A. Standard of Review
A proceeding to terminate parental rights is a two step
process with an adjudicatory stage and a dispositional stage. In
re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).
A different standard of review applies to each stage. Id. 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. Id. 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 conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536
S.E.2d 838, 840 (2000), disc. rev. denied, 353 N.C. 374, 547 S.E.2d
9 (2001). Clear, cogent, and convincing describes an evidentiary
standard stricter than a preponderance of the evidence, but less
stringent than proof beyond a reasonable doubt. N.C. State Bar v.
Sheffield, 73 N.C. App. 349, 354, 326 S.E.2d 320, 323 (1985)
(citation omitted). 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. In re Nesbitt, 147 N.C.
App. 349, 352, 555 S.E.2d 659, 662 (2001).
 Respondent argues insufficient evidence supports findings
of fact to conclude respondent neglected her children. We agree.
N.C. Gen. Stat. § 7B-1111(a)(1) (2003) provides a ground to
terminate parental rights where the parent has abused or neglected
the juvenile. A neglected juvenile is defined as follows:
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 has been placed for care or
adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15)(2003).
It is well-established that [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) (emphasis supplied).
[A] prior adjudication of neglect may be admitted and considered
by the trial court in ruling upon a later petition to terminateparental rights on the ground of neglect. In re Ballard, 311 N.C.
708, 713-14, 319 S.E.2d 227, 231 (1984).
If the child is removed from the parent before the termination
hearing, as in this case, then the 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. Id.
at 715, 319 S.E.2d at 232 (emphasis supplied). In those
circumstances, 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]
parents. In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501
(2000) (emphasis supplied). A prior adjudication of neglect alone
cannot justify termination of parental rights.
DSS presented no evidence that respondent could not, at the
time of the hearing, adequately parent her children. In re Young,
346 N.C. at 248, 485 S.E.2d 612 at 615. Likewise, no evidence was
presented and no finding was made that a probability of repetition
of neglect existed at the time of the termination hearing. In re
Ballard, 311 N.C. at 713-14, 319 S.E.2d at 231.
The hearing to terminate respondent's parental rights was held
in March and April 2004. Petitioner called three witnesses to
testify: Ms. Wilson, Angela Howard, and Ms. Koebel. Ms. Wilson
worked as the social worker for the children between December 2000
and May 2001. Ms. Wilson testified that during the time she was
involved with the family, there were concerns regarding thesupervision of the children, the cleanliness of the house, and
respondent's attendance at her counseling appointments. Ms.
Wilson's involvement with respondent ended almost three years
before the hearing to terminate respondent's parental rights.
Because Ms. Wilson had no involvement with the family for almost
three years before the termination proceeding, she was unable to
testify whether neglect existed at that time and whether it was
likely to occur in the future.
Ms. Howard provided family education services to respondent
from June 2001 through September 2002. Respondent periodically
contacted Ms. Howard after her family education sessions ended to
ask for advice and to review the parenting videos. The most recent
contact between respondent and Ms. Howard occurred the day before
the hearing. Ms. Howard's testimony presents no evidence of
events or circumstances in the time period between September 2002,
when the family education sessions ended, and Spring 2004, when the
hearing was held, to show respondent neglected the children. Ms.
Howard could not testify whether neglect existed at the time of the
hearing and did not offer any evidence of the probability of
neglect in the future.
Ms. Koebel became the social worker for the children on 20
August 2001 and was their social worker at the time of the hearing.
Even though Ms. Koebel's relationship with the family continued
until the hearing, she presented no evidence that respondent was
unfit as a parent at the time of the hearing. None of DSS's three
witnesses testified to a probability of repetition of neglect. The trial court erred in concluding as a matter of law that
respondent willfully neglected the children. DSS failed to present
any evidence showing neglect at the time of the termination hearing
or the probability of repetition of neglect if the children were
returned to respondent.
C. Reasonable Progress
 Respondent next argues that the trial court erred in
concluding that she willfully left the children in DSS's custody
for more than twelve months without showing reasonable progress in
correcting those conditions which led to the removal of the
children. We agree.
N.C. Gen. Stat. § 7B-1111(a)(2) (2003) provides that the court
has grounds to terminate parental rights where:
The 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. Provided,
however, 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.
It is undisputed that the children had been in foster care for more
than twelve months at the time DSS filed the petitions to terminate
respondent's parental rights.
During the adjudicatory stage, [t]he court shall take
evidence, find the facts, and shall adjudicate the existence or
nonexistence of any of the circumstances set forth G.S. 7B-1111
which authorize the termination of parental rights of therespondent. N.C. Gen. Stat. § 7B-1109(e) (2003). Here, the trial
court failed to find that respondent acted willfully as required
under N.C. Gen. Stat. § 7B-1111(a)(2).
A finding of willfulness does not require a showing that the
parent was at fault. In re Oghenekevebe, 123 N.C. App. 434, 439,
473 S.E.2d 393, 398 (1996). 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 (2001).
The trial court's order is devoid of any finding that
respondent was unwilling to make the effort to make reasonable
progress in remedying the situation that led to the adjudication of
neglect. Id. The evidence presented at the hearing is directly
Respondent attended family education sessions with Ms. Howard
and continued to contact Ms. Howard after the sessions ended to ask
for advice and to review parenting videos. In February 2004,
respondent completed another set of parenting classes on her own
volition that she paid for herself. Ms. Koebel testified that
respondent acquired appropriate housing, improved the conditions of
her home so that they were appropriate, and maintained the
conditions of her home. Respondent also attended therapy. Ms.
Linda Lee Woodburn was respondent's therapist from July 2001 until
February 2004. Ms. Woodburn testified that when she began seeing
respondent, respondent's attendance at the therapy sessions was
sporadic. Beginning 6 June 2003, respondent attended all therapysessions. Ms. Woodburn testified that respondent had made progress
Because the trial court's order does not contain adequate
findings of fact that respondent acted willfully or made adequate
findings on respondent's progress, the trial court erred in
concluding that respondent willfully left the children in foster
care for a period exceeding twelve months without making reasonable
progress under the circumstances.
The trial court erred in concluding that respondent neglected
the children and willfully left the children in foster care for a
period exceeding twelve months without making reasonable progress
under the circumstances. In light of our decision, we do not
address respondent's remaining assignments of error. The trial
court's order terminating respondent's parental rights is reversed.
Judges MCCULLOUGH and BRYANT concur.
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