Appeal by respondent from an order terminating respondent's
parental rights dated 10 March 2005 by Judge Regan A. Miller in
District Court, Mecklenburg County. Heard in the Court of Appeals
21 February 2006.
J. Edward Yeager, Jr. for petitioner-appellee, Mecklenburg
County Department of Social Services.
Hall & Hall Attorneys at Law, P.C., by Susan P. Hall, forrespondent-appellant.
Respondent was a dependent juvenile in foster care when she
gave birth to J.G.B. on 9 May 2003. Paternity of J.G.B. was never
established. J.G.B. was considered "medically fragile" because of
a seizure disorder. The seizure disorder resulted in seventeen
hospital visits and at least one extended hospitalization before
J.G.B. was two years old. The Mecklenburg County Department of
Social Services (DSS) obtained non-secure custody of J.G.B. by
order entered on 13 May 2003. The petition filed by DSS does not
appear in the record on appeal, so we are unable to discern the
precise basis for the custody request. In its non-secure custody
order, the trial court found there was a reasonable factual basis
to believe that J.G.B was "exposed to a substantial risk of
physical injury or sexual abuse because the parent, guardian, or
custodian . . . failed to provide, or is unable to provide,
adequate supervision or protection[.]" Although removed from
respondent's custody, J.G.B. was placed in the same foster home
with respondent. J.G.B. has continued in the custody of DSS since
his removal from respondent and has not at any time been returned
to respondent's custody.
From the time of J.G.B.'s removal in May 2003 until respondent
reached the age of eighteen years in February 2004, respondent
entered into three case plans with DSS. The goal of the first case
plan, dated 22 May 2003, was reunification. In this case plan, theobjectives for respondent were to: (1) provide appropriate
supervision and a safe environment for J.G.B., (2) learn additional
parenting skills, and (3) ensure J.G.B.'s medical needs were
appropriately met. The case plan noted that parenting classes for
respondent were not necessary at that time, and that respondent was
attending all of J.G.B.'s medical appointments.
J.G.B. was adjudicated dependent on 12 June 2003. Neither the
dependency petition nor the order of adjudication appears in the
record, so we cannot discern the particular allegations underlying
the adjudication or whether respondent was represented by a
guardian ad litem at the dependency proceeding. After the
adjudication of dependency, a second DSS case plan was developed
for respondent on 23 October 2003 with the continued goal of
reunification. The objectives for respondent under the second case
plan were to: (1) provide and maintain appropriate medical care for
J.G.B. and (2) be able to support herself and J.G.B. financially.
The DSS social worker noted on the case plan that while respondent
attended all of J.G.B.'s medical appointments, respondent had not
demonstrated an ability to save or budget her money.
At the request of respondent and her foster mother, respondent
was removed from her foster home and placed into another foster
home on 2 February 2004. J.G.B. remained at the original foster
home. DSS and respondent entered into a Voluntary Placement
Agreement (VPA) to allow respondent to stay in the second foster
home past her eighteenth birthday. Respondent was approved for
public housing on 5 February 2004. However, because respondentcould not maintain employment, she was unable to obtain the housing
for which she had been approved.
Respondent turned eighteen on 8 February 2004, and a third
case plan was developed for respondent on 16 February 2004. The
objectives for respondent were to: (1) maintain stable employment
in order to financially care for J.G.B., (2) maintain all medical
appointments for J.G.B., (3) obtain and maintain appropriate and
safe housing, (4) maintain consistent, weekly visitation, and (5)
learn and demonstrate appropriate parenting skills. In order to
fulfill these objectives, respondent was to obtain her GED by the
target date of 16 May 2004, maintain her employment at McDonald's
until she found another job, and attend and participate in
parenting classes, among other things.
Between March and April of 2004, respondent quit her job at
McDonald's. She sold magazines door-to-door for approximately two
weeks. At this time, respondent's VPA was "falling apart" because
respondent was not seeking employment, going to school, attending
parenting classes, or staying at the foster home, as required by
the VPA. As a result, respondent's VPA was terminated on 2 April
2004, and respondent moved out of the foster home. After moving
out of foster care, respondent lived with various people, including
respondent's aunt, the mother of respondent's boyfriend, and
respondent's mother, from whose custody respondent had previously
DSS filed a petition to terminate respondent's parental rights
dated 2 June 2004. DSS alleged that grounds for terminatingrespondent's rights existed under two subsections of N.C. Gen.
Stat. § 7B-1111(a): (1) neglect and (2) willfully leaving J.G.B. in
foster care for more than twelve months without showing reasonable
progress in correcting those conditions which led to the removal of
J.G.B. After a hearing on 24 February 2005, the trial court
determined that termination of parental rights was warranted
pursuant to the two grounds alleged by DSS. The trial court then
concluded that it was in J.G.B.'s best interest that respondent's
parental rights be terminated. Respondent appeals.
A termination of parental rights proceeding is conducted in
two phases: (1) adjudication and (2) disposition. In re Blackburn
142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). During the
adjudication phase, the petitioner has the burden of proving by
clear, cogent, and convincing evidence that one or more of the
statutory grounds for termination under N.C. Gen. Stat. § 7B-
1111(a) exists. Id.
If a petitioner meets its burden of proving
that one or more statutory grounds for termination exists, the
trial court then moves to the disposition phase where it must
consider if termination is in the child's best interests. Id.
standard of review of a termination of parental rights is whether
the trial court's findings of fact are supported by clear, cogent,
and convincing evidence and whether the 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. review denied
, 353 N.C. 374, 547
S.E.2d 9 (2001). The petition filed by DSS in this case alleged that
termination of respondent's parental rights was warranted pursuant
to N.C. Gen. Stat. § 7B-1111(a)(1) and (a)(2). The pertinent
portion of this statute provides:
(a) The court may terminate the parental
rights upon a finding of one or more of the
(1) The parent has . . . neglected
the juvenile. The juvenile shall be
deemed to be . . . neglected if the
court finds the juvenile to be . . .
a neglected juvenile within the
meaning of G.S. 7B-101.
(2) 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.
N.C. Gen. Stat. § 7B-1111(a)(1)(2) (2005).
The trial court made the following findings of fact to support
its conclusion that grounds for termination of parental rights
existed under N.C.G.S. § 7B-1111(a)(1) and (a)(2):
3. [J.G.B.] was placed in [DSS] custody on May
13, 2003. [J.G.B.] was placed in [DSS]
custody because his mother . . . was, at the
time of his birth, a minor also in [DSS]
custody. . . .
4. When [J.G.B.] was placed in [DSS] custody,
he was placed in a foster home with the
respondent mother. She moved on February 2,
2004 after she asked for a new foster home.
. . .
6. [DSS] entered into a case plan with the
respondent mother in which the respondentmother agreed to: obtain and maintain stable
employment; complete her GED; work with her
independent living social worker; attend Well
Baby and other medical appointments for
[J.G.B.]; obtain and maintain appropriate
housing such that she could care for [J.G.B.];
visit with [J.G.B.] on a regular basis; and
also complete parenting classes.
7. The respondent mother was employed when
[J.G.B.] was born. She quit that job and
began selling magazines, but she maintained
that employment for only about two weeks.
After she quit the job selling magazines, she
has not maintained additional employment.
. . .
10. Since leaving her foster care placement,
the respondent mother has resided with the
mothers of two different boyfriends. She also
lived with her mother and stepfather for a
period of time. It was from her mother's home
that she was removed as a juvenile.
11. At the hearing of this matter, the
[respondent] mother presented a lease that she
had signed to obtain an apartment beginning
February 24, 2005. She has not yet moved into
12. The respondent mother also, while working
with [DSS], never completed her GED.
. . .
14. The [respondent] mother attended many but
not all of her visits and some but not all
[J.G.B.]'s medical appointments. The
respondent mother gave birth to another child
in early February, 2005 and in fact, has
missed two visits with [J.G.B.] because of
having to care for her new baby.
15. Although the [respondent] mother has made
some progress toward her case plan goals, the
amount of progress she has made is not
reasonable under the circumstances and in
fact, she has not completed any of her case
16. Even the respondent mother hasacknowledged at this hearing that she is not
currently ready to have custody of [J.G.B.]
and cannot currently care for [J.G.B.].
17. [J.G.B.] currently has special needs in
the form of a seizure disorder and needs intense
medical supervision on an ongoing basis.
From these findings, the trial court concluded as a matter of
law that respondent: (1) neglected J.G.B. in that respondent failed
to provide proper care, supervision, and discipline for J.G.B. and
(2) willfully left J.G.B. in foster care for more than twelve
months without showing to the satisfaction of the trial court that
reasonable progress had been made in correcting those conditions
that led to the removal of J.G.B.
On appeal, respondent assigns error to the trial court's
determination that grounds existed to terminate her parental
rights. Respondent does not except to any of the trial court's
findings of fact, and they are therefore conclusive on appeal. In
re Caldwell, 75 N.C. App. 299, 301, 330 S.E.2d 513, 515 (1985). We
must determine solely whether the trial court's findings support
its conclusions of law. In re Huff, 140 N.C. Ap. 288, 291, 536
S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 547
S.E.2d 9 (2001).
 An adjudication of neglect warranting termination of
parental rights must be proved by clear, cogent, and convincing
evidence that the child is a neglected juvenile as defined by N.C.
Gen. Stat. § 7B-101(15). See
N.C.G.S. § 1111(a)(1); Blackburn
N.C. App. at 610, 543 S.E.2d at 908. N.C. Gen. Stat. § 7B-101(15)(2005) defines a neglected juvenile as one who, inter alia
, has not
received proper care, supervision, or discipline from the
juvenile's parent, or who has not been provided necessary medical
care. A determination of neglect 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) (citing In re
, 311 N.C. 708, 716, 319 S.E.2d 227, 232 (1984)) (emphasis
Where, as in the present case, "a child has not been in the
custody of a parent for a significant period of time prior to the
termination hearing, the trial court must employ a different kind
of analysis to determine whether the evidence supports a finding of
neglect." In re Pierce,
146 N.C. App. 641, 651, 554 S.E.2d 25, 31
, 356 N.C. 68, 565 S.E.2d 81 (2002). "This is because
requiring the petitioner in such circumstances to show that the
child is currently neglected by the parent would make termination
of parental rights impossible." Id
. (citing Ballard
, 311 N.C. at
714, 319 S.E.2d at 231); see In re Shermer
, 156 N.C. App. 281, 286,
576 S.E.2d 403, 407 (2003). "[E]vidence of neglect by a parent
prior to losing custody of a child _- including an adjudication of
such neglect -- is admissible in subsequent proceedings to
terminate parental rights." Ballard
, 311 N.C. at 715, 391 S.E.2d
at 232. Where evidence of prior neglect is considered, a trial
court must also consider evidence of changed circumstances and the
probability of a repetition of neglect. Id
In the present case, the trial court erred in concludingJ.G.B. was neglected by respondent at the time of the hearing.
There was no prior adjudication of neglect while J.G.B. was in
respondent's custody. There was a prior adjudication of
dependency, but respondent had already lost custody of J.G.B. prior
to the dependency adjudication. Therefore, there was no evidence
before the trial court that respondent had neglected J.G.B. while
J.G.B. was in her custody. While the trial court found that
respondent failed to attend all of J.G.B.'s medical visits,
respondent did not have custody of J.G.B. at that time. Without
evidence of any prior neglect while respondent had custody of
J.G.B., petitioner has failed to show neglect at the time of the
hearing. For this reason, in view of Ballard
and its progeny, we
hold that the trial court erred in concluding grounds existed under
N.C.G.S. § 7B-1111(a)(1) to terminate respondent's parental rights.
 Our Court recently clarified that, to find grounds to
terminate parental rights under N.C.G.S. § 1111(a)(2), a trial
court must perform a two-part analysis. In re O.C.
, 171 N.C. App.
457, 464, 615 S.E.2d 391, 396, disc. review denied
, 360 N.C. 64,
623 S.E.2d 587 (2005).
The trial court must determine by clear,
cogent and convincing evidence that a child
has been willfully left by the parent in
foster care or placement outside the home for
over twelve months, and, further
, that as of
the time of the hearing, as demonstrated by
clear, cogent and convincing evidence, the
parent has not made reasonable progress under
the circumstances to correct the conditions
which led to the removal of the child.
. (emphasis added).
In this two-part analysis, "[e]vidence andfindings which support a determination of 'reasonable progress' may
parallel or differ from that which supports the determination of
'willfulness' in leaving the child in placement outside the home"
for the statutory twelve-month period. Id
. Under N.C.G.S. § 7B-
1111(a)(2), the twelve-month period begins when a child is left in
foster care or placement outside the home pursuant to a court
order, and ends when the motion or petition for termination of
parental rights is filed. In re A.C.F.
, 176 N.C. App. 520, 525-27,
626 S.E.2d ___, ___ (2006). Where the twelve-month threshold does
not expire before the motion or petition is filed, a termination on
the basis of N.C.G.S. § 7B-1111(a)(2) cannot be sustained. Id
527, 626 S.E.2d at ___.
Respondent contends that since she was a minor for eight of
the twelve months prior to the filing of the termination petition,
she lacked the necessary capacity to have willfully left J.G.B. in
foster care for the statutory twelve-month period. Citing In re
, 149 N.C. App. 452, 562 S.E.2d 15 (2002), respondent
argues that evidence showing respondent's "ability, or capacity to
acquire the ability, to overcome factors which resulted in [J.G.B.]
being placed in foster care must be apparent for willfulness to
, 149 N.C. App at 455, 562 S.E.2d at 18.
, the trial court's order terminating parental
rights did not adequately address the minor parent's willfulness
under N.C.G.S. § 7B-1111(a)(2), and our Court remanded. Id
facts of Matherly
were that a child was removed from the mother's
custody when the mother was fifteen years old. Id
. at 452, 562S.E.2d at 16. When the mother turned sixteen, she began working
with DSS in an effort to reunify with the child. Id
. at 453, 562
S.E.2d at 16. The mother's objectives for reunification included
establishing her own residence. Id
. at 455, 562 S.E.2d at 18. A
petition to terminate the mother's parental rights was filed when
the mother was seventeen years old. Id
. at 454-55, 562 S.E.2d at
17. On appeal, this Court found the trial court's findings
inadequate as to the mother's willful leaving of the child in
foster care, in part because there was no finding that the mother
was legally competent to establish her own residence. Id
. at 455,
562 S.E.2d at 18. On remand, the trial court was instructed to
"make specific findings of fact showing that a minor parent's age-
related limitations as to willfulness have been adequately
In the present case, respondent was a seventeen-year-old
unemancipated minor when J.G.B. was placed in DSS custody.
Respondent was herself in DSS custody, living in foster care, and
J.G.B. was placed in the same foster home as respondent. J.G.B.
lived in the same foster home with respondent until 2 February
2004, when respondent moved to another foster home. Four months
later, on 2 June 2004, DSS filed a petition to terminate
respondent's parental rights. On the date the petition was filed,
respondent had been eighteen years old for just under four months,
and had been physically separated from J.G.B. for just under four
In light of Matherly
, we find that the trial court failed toadequately address respondent's age, in terms of whether respondent
willfully left J.G.B. in foster care for twelve months prior to the
filing of the petition. Where, as here, the parent is an
unemancipated minor, herself in the custody of DSS, the trial court
must make specific findings of the parent's "ability, or capacity
to acquire the ability, to overcome factors which resulted in [the
child] being placed in foster care[.]" Id
. We cannot agree with
the trial court's determination that, under the facts of the
present case, respondent's living in the same foster home as her
child necessarily constituted willfully leaving the child in foster
care. Accordingly, we remand to the trial court for sufficient
findings as to respondent's willful leaving of J.G.B. in foster
care for the statutory twelve-month period, given respondent's age.
 Although we remand to the trial court for findings as to
respondent's willful leaving of J.G.B. in foster care, we will
address respondent's next argument, which deals with the second
step of the N.C.G.S. § 7B-1111(a)(2) analysis, whether respondent
has shown reasonable progress.
Respondent argues the trial court
erred in terminating her parental rights because DSS failed to
provide respondent with adequate services upon respondent's
reaching the age of majority. Respondent argues the two-month
period DSS worked with respondent between her eighteenth birthday
and DSS's filing of the petition for termination was a "woefully
inadequate amount of time." Respondent's argument is without
Respondent's argument mistakenly relies only on the two-monthperiod between her eighteenth birthday and the date of the filing
of the petition for termination. Evidence supporting a
determination of reasonable progress under N.C.G.S. § 7B-1111(a)(2)
"is not limited to that which falls during the twelve month period
next preceding the filing of the motion or petition to terminate
parental rights." In re O.C.
, 171 N.C. App. at 465, 615 S.E.2d at
396. Rather, a trial court may consider evidence of reasonable
progress made by a respondent until the date of the termination
hearing. See In re Pierce
, 356 N.C. 68, 75 n.1, 565 S.E.2d 81, 86
n.1 (2002) (noting that, given a 2001 amendment to our juvenile
code, "[t]here is no specified time frame that limits the admission
of relevant evidence pertaining to a parent's 'reasonable progress'
or lack thereof."). In this case, respondent reached the age of
majority more than a year before the termination hearing. The
trial court properly considered evidence of respondent's progress
up until the time of the hearing
. Therefore, respondent's emphasis
on the period between her eighteenth birthday and the date DSS
filed the termination petition is misplaced. We find the trial
court did not err in concluding that respondent failed to make
reasonable progress under the circumstances.
 Respondent further argues that because she was a minor
when she entered into the first two case plans with DSS, and DSS
was standing in loco parentis
of respondent, DSS was responsible
for respondent's lack of compliance with her case plans. We do not
agree. Minor parents may be held responsible for caring for their
children, and the failure to do so may result in a termination oftheir parental rights. See
N.C. Gen. Stat. § 7B-1101.1 (2005)
(providing for the appointment of a guardian ad litem when a parent
is under eighteen years old). The intent of the General Assembly
to provide for the termination of parental rights of minor parents
is evidenced by the 2005 amendment of N.C. Gen. Stat. § 7B-1101 to
provide that "[t]he court shall have jurisdiction to terminate the
parental rights of any parent irrespective of the age of the
." N.C. Gen. Stat. § 7B-1101 (2005). Moreover, as discussed
above, the trial court was permitted to consider evidence of
respondent's reasonable progress since her eighteenth birthday,
when DSS no longer stood in loco parentis
Reversed in part; remanded in part.
Judges CALABRIA and GEER concur.
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