In re K.L.T.

IN THE SUPREME COURT OF NORTH CAROLINA

No. 329A19

Filed 17 July 2020

IN THE MATTER OF: K.L.T.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 8 May

2019 by Judge Betty J. Brown in District Court, Guilford County. This matter was

calendared for argument in the Supreme Court on 19 June 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.

Rosenwood, Rose & Litwak, PLLC, by Nancy S. Litwak, for appellee Guardian
ad Litem.

David A. Perez for respondent-appellant mother.

DAVIS, Justice.

Respondent-mother appeals from the trial court’s order terminating her

parental rights in her son K.L.T. (Kirk),1 who was born in March 2011. Although the

trial court’s order also terminates the parental rights of Kirk’s father (respondent-

father), he is not a party to this appeal. Based on our determination that the trial

1 We use pseudonyms and initials throughout this opinion in order to protect the
privacy of the juveniles referenced herein.
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court erred in concluding that grounds existed to terminate respondent-mother’s

parental rights, we reverse.

Factual and Procedural Background

Respondent-mother, who is legally blind, has five children. Kirk is her

youngest child and the sole offspring of her marriage to respondent-father, who was

her third husband and whom she divorced in April 2018. Mr. L., respondent-mother’s

second husband, is the father of her four eldest children, Jack, Brooke, Becky, and

Justin. Jack and Brooke were no longer minors when these proceedings commenced,

and Becky attained the age of majority in May 2017.

On 26 August 2016, the Guilford County Department of Health and Human

Services (GCDHHS) obtained nonsecure custody of Becky, Justin, and Kirk and filed

juvenile petitions alleging that they were abused, neglected, and dependent juveniles.

The juvenile petition filed by GCDHHS regarding Kirk summarized the family’s

“extensive” Child Protective Services (CPS) history in Orange County dating back to

2004, which included “numerous substantiated neglect reports against [respondent-

father] for inappropriate discipline of . . . [Becky] and [Justin]” and against

respondent-mother “because she was complicit in [respondent-father’s] inappropriate

discipline of her children.”

The juvenile petition first summarized three CPS reports made about the

family in March and April of 2016, each of which was investigated and substantiated

by GCDHHS. These reports described the physical abuse of Brooke, Becky, Justin,

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and Kirk by respondent-father. One report alleged that respondent-father “beats

four-year-old [Kirk] with items such as hangers, a broom, and a wooden back

scratcher,” leaving visible bruises on the child. Another report alleged that

respondent-father had physically and sexually assaulted respondent-mother’s

cognitively-impaired adult daughter, Brooke. Respondent-father admitted to a

GCDHHS social worker in March of 2016 that he had engaged in oral sex with

Brooke. When the social worker questioned respondent-mother about the incident,

she acknowledged that respondent-father’s sexual abuse of Brooke was “wrong” but

also blamed Brooke for “sitting on [respondent-father’s] lap and moving around.”

The juvenile petition next recounted GCDHHS’s efforts to work with the family

before taking the minor children into custody in 2016. For example, when respondent-

father refused to leave the home, GCDHHS provided a hotel room for respondent-

mother and the children. In addition, the juvenile petition alleged that respondent-

mother had refused to seek a domestic violence protective order (DVPO) against

respondent-father, violated her GCDHHS safety plan by allowing respondent-father

to drive her to one of Becky’s medical appointments, and “coached [Becky] on what to

say to the CPS Investigator.”

The juvenile petition also alleged that GCDHHS received a report that

respondent-father had confined the family to a bedroom in the residence and

demanded to know who had made the CPS reports. The episode was overheard by

Brooke’s therapist, who was on speakerphone with Brooke as it happened.

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Respondent-mother initially denied the report during a family meeting with

GCDHHS but later admitted she was “intimidated by [respondent-father] and did not

tell the truth during the meeting.”

The juvenile petition further detailed an incident occurring at a Child and

Family Team Meeting on 23 August 2016 in which respondent-father denied any

abuse of the children and physically assaulted a social worker in the presence of

Justin, Kirk, and respondent-mother. The juvenile petition accused respondent-

father of abusing the children and of “perpetrat[ing] domestic violence against

[respondent-mother], in particular by exerting power and control over her, isolating

her, and physically assaulting her.” Respondent-mother was depicted as contributing

to an injurious home environment “due to [her] enabling of [respondent-father’s]

behavior, her repeated refusal to leave him, and her failure to protect the children.”

After the children were taken into GCDHHS custody, respondent-mother

entered into a case plan with GCDHHS on 3 October 2016, requiring her to address

the issues of domestic violence, mental and emotional health, and parenting skills,

and requiring her to maintain suitable housing. At a hearing on 19 October 2016,

respondent-mother, respondent-father, and Mr. L. stipulated to facts consistent with

the allegations contained in the juvenile petitions and consented to the children being

adjudicated as neglected and dependent juveniles. At the hearing, GCDHHS

dismissed the allegations of abuse. By order entered 14 November 2016, the trial

court adjudicated Becky, Justin, and Kirk to be neglected and dependent juveniles

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and ordered that the children remain in GCDHHS custody. The trial court awarded

respondent-mother one hour per week of supervised visitation with each of the

children and ordered her to comply with the requirements of her case plan.

In its adjudication and disposition order, the trial court noted that Kirk had

been suspended from kindergarten for violent behavior and was hospitalized in

September 2016 after “reporting that he was hearing voices.” At the time of the

adjudication and disposition hearing on 19 October 2016, Kirk had begun trauma-

based therapy and was diagnosed with attention deficit hyperactivity disorder and

oppositional defiant disorder. The trial court found that Kirk “require[d] continued

redirection and constant supervision” from his foster parents and that GCDHHS was

“exploring a higher level of care for [Kirk] due to his placement and mental health

needs.” In order to meet his need for a higher level of care, Kirk was moved to a new

therapeutic foster home on 14 November 2016.

The trial court held seven permanency planning review hearings between

14 December 2016 and 6 February 2019. During this interval, Becky aged out of

juvenile court jurisdiction, and the court granted Mr. L. full custody of Justin and

terminated its jurisdiction over him pursuant to N.C.G.S. § 7B-911. In addition,

respondent-mother separated from respondent-father in October 2016 and obtained

a divorce judgment on 2 April 2018. Respondent-mother also successfully sought a

DVPO against respondent-father on 22 February 2017 and renewed the DVPO

through February 2021.

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With regard to Kirk, the trial court initially established a primary permanent

plan of reunification with a concurrent secondary plan of adoption. After concluding

that further reunification efforts with respondent-father would be futile, the trial

court changed Kirk’s primary permanent plan to reunification with respondent-

mother on 29 August 2017. At the next permanency planning review hearing on 10

January 2018, however, the trial court found that respondent-mother “has not made

adequate progress within a reasonable period of time under [her case] plan.” The trial

court changed Kirk’s primary permanent plan to adoption with a concurrent

secondary plan of reunification with respondent-mother and ordered GCDHHS to

initiate termination of parental rights proceedings as to both parents.

GCDHHS filed a petition seeking the termination of both respondents’

parental rights with regard to Kirk on 25 June 2018 on the grounds of neglect and

dependency. The trial court held a hearing on 26 and 27 March 2019 and entered an

order terminating respondents’ parental rights on 8 May 2019. The trial court found

that although respondent-mother had complied with the formal requirements of her

case plan, a likelihood of future neglect existed due to: (1) her history of domestic

violence and abusive partners; (2) her questionable new online relationship; (3) her

failure to meaningfully engage in therapy; and (4) her failure to exercise control over

her household environment. The trial court also concluded that termination of

respondent-mother’s parental rights was proper based on the ground of dependency.

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Finally, the trial court determined that the termination of her parental rights was in

Kirk’s best interests. Respondent-mother filed a notice of appeal.

Analysis

On appeal, respondent-mother argues that the trial court erred in finding the

existence of grounds to terminate her parental rights to Kirk based on neglect and

dependency. She further asserts that the trial court erred in concluding that it was

in Kirk’s best interests that her parental rights be terminated. See N.C.G.S. § 7B-

1110(a) (2019).

A proceeding to terminate parental rights is comprised of an adjudicatory

phase and a dispositional phase. “We review a trial court’s adjudication under

N.C.G.S. § 7B-1111 ‘to determine whether the findings are supported by clear, cogent

and convincing evidence and the findings support the conclusions of law.’ ” In re

E.H.P., 372 N.C. 388, 392, 831 S.E.2d 49, 52 (2019) (quoting In re Montgomery, 311

N.C. 101, 111, 316 S.E.2d 246, 253 (1984)). It is well established that “[f]indings of

fact not challenged by respondent are deemed supported by competent evidence and

are binding on appeal. Moreover, we review only those findings necessary to support

the trial court’s determination that grounds existed to terminate respondent’s

parental rights.” In re T.N.H., 372 N.C. 403, 407, 831 S.E.2d 54, 58–59 (2019). We

review the trial court’s conclusions of law de novo. In re C.B.C., 373 N.C. 16, 19, 832

S.E.2d 692, 695 (2019). With regard to the dispositional phase, the trial court’s

determination of whether termination of parental rights is in the juvenile’s best

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interests is reviewed under an abuse of discretion standard. In re E.H.P., 372 N.C. at

392, 831 S.E.2d at 52.

I. Adjudication of Neglect

Under subsection 7B-1111(a)(1), the trial court may terminate the parental

rights of a parent if “[t]he parent has . . . neglected the juvenile.” N.C.G.S. § 7B-

1111(a)(1) (2019). The Juvenile Code defines “[n]eglected juvenile” as a minor child

“whose parent . . . 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)

(2019). In order to constitute actionable neglect, the conditions at issue must result

in “some physical, mental, or emotional impairment of the juvenile or a substantial

risk of such impairment.” In re Stumbo, 357 N.C. 279, 283, 582 S.E.2d 255, 258 (2003)

(citations omitted).

“The petitioner seeking termination [under N.C.G.S. § 7B-1111(a)(1)] bears the

burden of showing by clear, cogent and convincing evidence that such neglect exists

at the time of the termination proceeding.” In re Ballard, 311 N.C. 708, 716, 319

S.E.2d 227, 232 (1984). Our case law makes clear that “if the child has been separated

from the parent for a long period of time [at the time of the termination hearing],

there must be a showing of past neglect and a likelihood of future neglect by the

parent.” In re D.L.W., 368 N.C. 835, 843, 788 S.E.2d 162, 167 (2016). “The

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

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parent to care for the child at the time of the termination proceeding.” In re K.N., 373

N.C. 274, 282, 837 S.E.2d 861, 867 (2020) (citation omitted).

The trial court found that Kirk was adjudicated to be neglected in 2016 and

that there was a “strong likelihood of the repetition of neglect” if Kirk was returned

to respondent-mother’s care due to her “inability to demonstrate an ability to correct

the conditions that led to removal.” Specifically, the trial court found that respondent-

mother’s behavior indicated a likelihood of future neglect due to: (1) her history of

domestic violence and abusive partners; (2) her questionable new online relationship;

(3) her failure to meaningfully engage in therapy; and (4) her failure to exercise

control over her household environment.

Respondent-mother concedes Kirk’s prior adjudication of neglect but

challenges the trial court’s finding as to the likelihood of a repetition of neglect.

Respondent-mother also takes exception to many of the trial court’s evidentiary

findings in support of the adjudication of neglect. We review her arguments in turn.

A. Findings of Fact

1. Completion of Case Plan

Respondent-mother first challenges the trial court’s finding that she did not

fully comply with the requirements of her case plan. Respondent-mother’s 2016 case

plan required her to address deficiencies in her parenting skills, housing and

employment, mental and emotional health, and domestic violence issues. We agree

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with respondent-mother that the record demonstrates that she completed each of

these requirements.

Specifically, she (1) successfully completed a twelve-session domestic violence

support group on 30 January 2017; (2) obtained a psychological evaluation and

parenting assessment on 3 November 2016 by a clinical psychologist, Michael A.

McColloch, Ph.D., who did not recommend any additional treatment; (3) completed

the Parent Assessment Training and Education (PATE) program; (4) completed

outpatient therapy with Tabitha McGeachy at Peculiar Counseling & Consulting,

PLLC, on 2 March 2017, accomplishing all treatment goals with no additional

treatment recommended; (5) completed two courses of outpatient psychotherapy from

May to September of 2017 and from May to November of 2018 with Joanna Hudson,

LCSW, at Family Service of the Piedmont, Inc., who did not recommend any further

therapy; (6) separated from respondent-father and obtained a judgment of divorce on

2 April 2018; (7) obtained a DVPO against respondent-father on 22 February 2017

and renewed the DVPO through February 2021; (8) maintained stable income

through monthly disability benefits and part-time employment as a musician at her

church; (9) moved into a three-bedroom townhouse appropriate for Kirk on 29 May

2017; (10) consistently attended visitation, engaged in appropriate interactions with

Kirk, complied with suggestions made by her visitation supervisor, and demonstrated

no significant defects in her parenting techniques; (11) attended Kirk’s school

meetings and otherwise participated in shared parenting with his foster parents; and

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(12) remained current on her monthly child support obligation of $291.08, which

began on 1 July 2018. Thus, the record shows respondent-mother’s compliance with

each requirement set out in her case plan.

2. Domestic Violence and Personal Relationships

Respondent-mother next contests the trial court’s findings of fact regarding her

tendency to fall victim to abusive and unsafe relationships. Specifically, she

challenges findings of fact 31, 32, 37, and 42 in which, in part, the trial court voiced

its concerns regarding a new online relationship into which she had recently entered.

The trial court made the following findings regarding respondent-mother’s online

relationship with a former high school classmate, Milton Leon Westray, who lived in

Philadelphia, Pennsylvania:

31. . . . In December 2017, GCDHHS confirmed
with the Mother that the Mother was in a new relationship.
The Mother explained she was involved in an online
relationship with a former high school classmate by the
name of Milton Leon Westray. When GCDHHS researched
Mr. Westray using the name, date of birth and place of
birth provided by the Mother, GCDHHS received a report
indicating that Milton Leon Westray was deceased. After
receiving this information, the Mother conducted an
independent search and obtained the same result. The
Mother ultimately decided that the deceased was her
classmate’s father. However, Mr. Westray and his father
do not share the same birth date. The Mother could not
account for this discrepancy and continues to pursue this
online relationship.

32. The Mother cannot account for the
discrepancy in birth dates because she has not demanded
an explanation from Mr. Westray. The Mother’s actions are
singularly focused on her romantic pursuits. She married

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her third husband [, respondent-father,] eighteen months
after divorcing her second husband. She entered into th[e]
relationship [with Mr. Westray] prior to ending the
marriage with [respondent-father] and describes her
current relationship as “developing.” Perhaps, the Mother
has not questioned Mr. Westray because she would then be
required to make a decision. The Mother is deserving of a
logical and verifiable response. If such a response is not
forthcoming, the Mother should end the relationship,
period. The Mother does not appear motivated to forego
romantic liaisons until her circumstances are stable.

....

37. . . . The Mother has shown a selfish
preoccupation with her romantic attachments even when
those attachments are unhealthy and harmful to the
Mother and her children. The Mother’s mindless
attachments will in all likelihood subject [Kirk] to repeated
harm and result in [his] eventual removal. . . .

....

42. . . . Although the Mother initiated divorce
proceedings, obtained a 50-B Domestic Violence Protective
Order and renewed the protective order twice, the [c]ourt
is concerned about the Mother’s involvement in yet another
relationship since the juvenile’s removal in 2016 without
addressing adverse issues from her prior relationships. The
concerns and red flags raised in this new relationship
causes the Court to question the Mother’s judgment. . . .

The trial court relied heavily on the existence of this online relationship as a

basis for its determination that respondent-mother was likely to repeat her prior

neglect of Kirk. Respondent-mother objects to these findings of fact, arguing that they

are unsupported by the evidence of record, insofar as they (1) depict her response to

the concerns raised by GCDHHS about Mr. Westray, and (2) extrapolate more

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broadly about her judgment and priorities. We agree with respondent-mother that

key portions of the trial court’s findings of fact concerning Mr. Westray—and the

inferences drawn by the trial court therefrom—are unsupported by the evidence.

Because of the great weight placed by the trial court on this relationship, we deem it

appropriate to discuss this issue in some detail.

The evidence shows that, upon being informed of respondent-mother’s new

online relationship, GCDHHS obtained from her the man’s full name, Milton Leon

Westray, and date of birth, which was in August 1966. Using this information,

GCDHHS requested a nationwide criminal record check and received a report

indicating that a Milton Westray, a/k/a, inter alia, “Westray, Milton L Jr.,” died on

19 May 2012. We note, however, that the report lists two different dates of birth for

the deceased Milton Westray: “08/XX/1966” and “03/1959.” Moreover, the report

purports to be based on information derived from credit reporting services, such as

Experian, as well as e-mail and phone records and an obituary—rather than from

any official government source.2

2 Despite GCDHHS’s repeated references during the termination hearing to a “death
certificate,” there is no evidence suggesting that GCDHHS ever obtained the deceased
Mr. Westray’s death certificate or any other official record to confirm its belief that
respondent-mother had fallen victim to an online impostor. Aside from the results of the
criminal record search, which are based on unofficial sources and list two different birthdates
for the deceased Mr. Westray, the record contains only a two-line death notice for “Milton
Westray” published on Philly.com. This notice makes no reference to the decedent’s date of
birth or any other identifying information.

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When respondent-mother was presented with GCDHHS’ concerns, she

“conducted an independent search” into the death of Milton Westray but did not

obtain the same result as GCDHHS. To the contrary, respondent-mother’s research

led her to conclude that the Milton Westray who died in May 2012 was her friend’s

father—Milton L. Westray, Sr. Her search revealed that although the two men “[had]

the same name,” they were two different individuals with different birthdates.3

In addition, she testified that she did, in fact, confront her online correspondent

with GCDHHS’s concerns. In response, he provided her with copies of his driver’s

license and birth certificate, and she provided these items to GCDHHS. Respondent-

mother also stated that she asked Mr. Westray to appear at the termination hearing

in order to prove his identity but that he could not afford to travel to North Carolina.

Her counsel also offered to have Mr. Westray testify by telephone from a local

department of social services office in Philadelphia, but both GCDHHS and the

guardian ad litem objected to the use of this procedure.

In addition to the lack of any official record that would have enabled the trial

court to definitively conclude that respondent-mother’s online correspondent was an

impostor, we are of the view that the larger inferences drawn by the trial court about

3The trial court was, of course, not required to accept respondent-mother’s testimony
as credible. However, the termination order does not contain any indication that the trial
court chose to disbelieve her testimony on this issue or as to the other issues relied upon by
the trial court in concluding that termination was warranted. Instead, at times, the
termination order either ignores respondent-mother’s testimony altogether or fails to
characterize it accurately.

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respondent-mother’s character, motivations, and judgment do not flow from the

evidence in the record. The record is devoid of any indication that respondent-

mother’s online communications with Mr. Westray posed any risk to Kirk.

Respondent-mother testified that Mr. Westray has not asked her to provide any

financial or other private information, Mr. Westray has never tried to take advantage

of her in any way, and that the two have no current plans to meet in person. GCDHHS

lacks the authority to prohibit respondent-mother from engaging in social interaction

in the absence of any legitimate basis for believing that such interaction was likely

to cause harm to Kirk, and such evidence was absent here. Moreover, the evidence

shows that respondent-mother did, in fact, take steps to address the concerns that

GCDHHS had about Mr. Westray. Accordingly, we agree with respondent-mother

that the evidence regarding this issue does not support the trial court’s conclusion

that there was a likelihood of future neglect.

3. Mental and Emotional Health

Respondent-mother also challenges certain findings of fact by the trial court

related to the mental and emotional health component of her case plan. After

acknowledging respondent-mother’s successful completion of an initial course of

psychotherapy with Ms. Hudson in September 2017, the trial court found as follows:

29. The Mother returned to out-patient therapy
with Ms. Hudson on May 5, 2018 and was discharged on
November 4, 2018 after nine additional sessions. During
these sessions, the Mother addressed parenting in the
wake of domestic violence and verbalized her
understanding of potential issues that might arise for her

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children due to their exposure to domestic violence.
However, the Mother did not discuss with her therapist,
Ms. Hudson, that at a prior hearing, in the underlying case,
the Mother defended her beliefs about the culpability of her
cognitively impaired daughter’s actions regarding the
sexual assault by [respondent-father] and concluded her
cognitively impaired daughter was partly responsible for
the sexual assault. The Mother also failed to discuss her
three failed marriages, two of which[ ] were with men who
exhibited aggression and subjected the Mother and her
children to physical and emotional abuse. The Mother
married [respondent-father] just eighteen months after she
divorced her second husband. The Mother’s involvement in
her current relationship [with Mr. Westray] began prior to
her divorce from [respondent-father]. The Mother’s choice
in partners and hurried attachments are issues requiring
in-depth therapy to avoid repeated mistakes.

(Emphases added.) Respondent-mother takes exception to the italicized portions of

this finding of fact.

In her report dated 16 October 2018, respondent-mother’s therapist,

Ms. Hudson, stated that “[i]t is my assessment that [respondent-mother] has engaged

in meaningful conversations about the effect that domestic violence has had on her

family, as well as the initial concern that she somehow held her then-teenage

daughter responsible for the sexual abuse perpetrated by an adult in the home.”

Similarly, Ms. Hudson testified at the termination hearing as follows:

Q. . . . Did [respondent-mother] tell you that she
had come to court and testified that originally she blamed
her daughter as part of the reason why her husband,
[respondent-father], sexually assaulted her daughter?

A. I don’t recall if I learned about that from her
or from the [GCDHHS] referral or where I got that
information.

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Q. Did you all talk about it?

A. That [it] was a concern, yes.

Q. And what did she say?

A. That she does not hold her daughter
responsible for what happened to her.

Q. Did you ask her then why did she testify to
that in court?

A. We did not discuss her testimony. We were
just discussing [the] issue.

Respondent-mother testified that she believed with “99 percent” certainty she

had, in fact, discussed this issue in therapy with Ms. Hudson and she recalled

explaining to Ms. Hudson that she had been “scared at the time just by the nature of

the type of person [respondent-father] was.” In any event, even if there was evidence

to support the trial court’s findings of fact concerning whether respondent-mother

and Ms. Hudson specifically discussed her prior testimony regarding the culpability

of her daughter for the abuse committed by respondent-father, the undisputed

testimony of both respondent-mother and Ms. Hudson demonstrates that they did

discuss the key underlying issue that respondent-mother’s daughter was not

responsible for the sexual abuse.

Respondent-mother next contends that there is no evidence to support the trial

court’s finding that her “choice in partners and hurried attachments are issues

requiring in-depth therapy to avoid repeated mistakes.” We agree. To be sure, the

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evidence shows that respondent-mother has been divorced three times and that her

two most recent husbands, Mr. L. and respondent-father, were abusive. However,

none of the treatment professionals who worked with respondent-mother on the

subjects of domestic violence, mental and emotional health, or parenting believed she

needed additional treatment in order to avoid such abusive relationships in the

future. Moreover, the evidence concerning respondent-mother’s actions since

separating from respondent-father in October 2016 does not support a finding that

she is in danger of repeating her past mistakes in tolerating domestic violence or

abuse. To the contrary, the evidence showed that she took appropriate action by

divorcing respondent-father and obtaining a DVPO against him.

Respondent-mother also challenges the following finding of fact regarding her

therapy:

42. . . . Although the Mother has participated in
individual therapy, there is no clear, convincing evidence
that the Mother has incorporated the knowledge or
techniques obtained through therapy into her everyday
life. It is concerning to this [c]ourt that Ms. Hudson, the
therapist, indicated that there were pertinent issues that
were not discussed during the course of the therapeutic
relationship between the Mother and the therapist. The
[c]ourt expressed its concern that if the therapist were not
given a full, true and complete picture of the issues that led
to the juvenile’s removal from the home, those issues and
concerns were not addressed and still exist. . . .

Once again, we find merit in respondent-mother’s arguments. A faulty premise

underlies the trial court’s finding that “there is no clear, convincing evidence” of

respondent-mother’s successful integration of the lessons she learned during therapy

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into her daily life. Under N.C.G.S. § 7B-1109(f), it was GCDHHS’s burden—as

petitioner—to prove by clear, cogent, and convincing evidence the existence of facts

establishing grounds for the termination of respondent-mother’s parental rights

under N.C.G.S. § 7B-1111(a). It was not respondent-mother’s burden to prove that

such grounds did not exist.

Moreover, evidence was presented that respondent-mother (1) divorced and

ceased all contact with respondent-father; (2) relocated from an isolated rural area in

Brown Summit, North Carolina, to the city of Greensboro, where she has ready access

to transportation (via the city bus system); and (3) cultivated an additional social

support network by joining the board of directors of a local disability rights

organization. Respondent-mother also devoted many hours—with the assistance of

Ms. Hudson—to developing a detailed safety plan for Kirk in anticipation of regaining

custody of the child.

We discern no evidence in the record supporting the trial court’s assertion that

respondent-mother’s progress in therapy was hindered by her failure to discuss with

her therapist specific aspects of her CPS history or her past relationships in the

precise manner referenced by the trial court. None of respondent-mother’s treatment

providers believed she required additional therapy, and their testimony and reports

indicate that they addressed with her the issues that led to Kirk’s removal from her

custody.

4. Parenting Skills

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Respondent-mother next challenges the trial court’s findings of fact concerning

her parenting skills. The trial court made the following findings of fact with regard

to this issue:

30. Prior to a hearing in October 2018, GCDHHS
informed the Mother that [respondent-father] had notified
GCDHHS that he was going to attend the hearing.
GCDHHS recommended to the Mother that she advise her
daughter [, Brooke,] of [respondent-father’s] intentions and
encourage the daughter to stay away since the daughter
had been sexually assaulted by [respondent-father]. The
Mother did not elect to act on the recommendation of
[GCDHHS]. The Mother’s explanation as to why she did
not act on [GCDHHS’s] recommendation caused the [c]ourt
grave concerns as to the Mother’s ability to protect any
juvenile.

....

37. The Mother has not demonstrated the ability
to care for the juvenile without GCDHHS’[s] involvement.
The Mother has shown a selfish preoccupation with her
romantic attachments even when those attachments are
unhealthy and harmful to the Mother and her children.
The Mother’s mindless attachments will in all likelihood
subject the juvenile to repeated harm and result in the
juvenile’s eventual removal. . . .

38. The juvenile has been in the custody of
GCDHHS since August 26, 2016 and the Mother has only
progressed to supervised visitation.

Respondent-mother challenges the trial court’s finding that she disregarded

GCDHHS’s recommendation to discourage Brooke from attending the hearing in

October 2018, which respondent-father was expected to attend. Respondent-mother

testified that she “told [Brooke and Becky] not to come” to the hearing, “but they

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insisted on coming.” Neither GCDHHS nor the guardian ad litem has identified any

evidence in the record contradicting respondent-mother’s testimony on this issue, nor

have we located any such evidence.

The record does support the trial court’s finding that respondent-mother was

never allowed unsupervised visitation with Kirk during the pendency of this case.

But, as respondent-mother observes, she “could not force the trial court to give her

unsupervised visits with her child” despite having complied with her case plan and

having displayed appropriate parenting techniques in her supervised visitations with

Kirk.

The record shows that the trial court temporarily suspended Kirk’s visitations

with respondent-mother and his siblings in 2017 on the recommendation of Kirk’s

therapist. The therapist sought to avoid Kirk’s “re-traumatization” through contact

with his family members pending his adjustment to foster care. As acknowledged by

the GCDHHS supervisor, the suspension of respondent-mother’s visitation with Kirk

did not result from any inappropriate action by respondent-mother during the visits.

The record also includes a letter from Kirk’s therapist dated 9 January 2018

recommending that Kirk’s supervised visits with respondent-mother and his siblings

resume. Once again, there is no indication that this recommendation was based on

concerns about respondent-mother’s parenting ability.

The record demonstrates that respondent-mother resolved all of the apparent

risks posed to her minor children by divorcing and obtaining a DVPO against

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respondent-father, avoiding any subsequent abusive romantic relationships,

completing therapy, obtaining suitable housing, cultivating greater independence

and additional social support, and otherwise fully complying with her case plan. Dr.

McColloch, who performed respondent-mother’s psychological evaluation and

parenting assessment in November 2016, concluded that “it is appropriate to return

the children to this mother in the near future—if [respondent-father] or another

abuser is not in the home. The current interventions appear appropriate for this

mother’s needs.” Respondent-mother’s March 2017 discharge summary from Peculiar

Counseling & Consulting, PLLC, reported that she “has made tremendous progress”

and “has met all [treatment] goals.” Ms. Hudson likewise reported that she did “not

recommend[] any further treatment” for respondent-mother, that respondent-mother

“has made a great deal of progress,” and that respondent-mother “presents as more

confident, more knowledgeable about the issues that brought her children into foster

care, and more prepared to resume full-time care of her youngest son.” Respondent-

mother’s treatment providers were thus consistent in their assessment of her positive

response to treatment and her prospects for resuming a parental relationship with

Kirk.

5. Housing and Home Environment

Respondent-mother also contests several of the trial court’s findings of fact

related to her housing and home environment. Although the trial court acknowledged

that the physical structure of respondent-mother’s three-bedroom townhouse

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“provides an appropriate environment for the juvenile[,]” the trial court’s findings of

fact refer to several episodes reflecting respondent-mother’s alleged inability to

maintain a suitable home environment for Kirk.

The trial court found that respondent-mother currently shared her residence

with her adult daughters Brooke and Becky. The trial court then recounted a series

of incidents arising from this living arrangement, stating as follows:

26. On December 18, 201[8], a GCDHHS social
worker made an unannounced visit and noted the following
concerns regarding the cleanliness of the home:
overflowing trash can, kitchen sink full of dirty dishes,
unkempt floors and grimy bathroom fixtures. The Mother
utilizes a cleaning service that had just cleaned the home
the day before on December 17, 2018. The GCDHHS social
worker voiced concerns regarding the condition of the home
since the service had just been at the home twenty-four
hours prior. The social worker also expressed concerns that
the other adult occupants of the home were not
contributing to home maintenance. The Mother informed
the social worker that her two adult daughters were only
responsible for cleaning their individual rooms. The
Mother was responsible for the other areas of the house.

....

33. . . . The daughters brought dogs into the home
against the Mother’s preference and her expressed dislike of
dogs. The dogs eventually had to be given away because her
daughters did not adequately care for the animals. It was
reported that one of the daughters had allowed a boyfriend
to move in. The Mother denies that the boyfriend resided
there. Upon further research, GCDHHS was able to verify
the boyfriend’s criminal record which was not favorable.
Until the unannounced home visit [on 18 December 2018],
the daughters were not required to assist in home
maintenance and apparently were not required to clean
behind themselves. The Mother has since discussed home

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maintenance with her daughters and has divided
housekeeping tasks among the three of them.

34. Within the last few months, one of the
daughters was attacked [at] the Mother’s residence by a
neighbor for whom the daughter had babysat.
Notwithstanding that the Mother is not currently permitted
to have minor children in her home, the Mother did nothing
to protect her daughter or stop the attack from occurring.
The identity and behavior of occupants, potential
occupants and visitors in the Mother’s home is pertinent
and necessary to [e]nsure the safety of everyone in the
household. It is essential that the Mother exercise dominion
and authority over her household. Thus far, the Mother
considers the needs and preferences of everyone else superior
to her own. The Mother cannot maintain a safe, stable
environment for the juvenile if she retains this conciliatory
attitude. The Mother needs to know and understand who is
in her home as well as the individual’s stated purpose there.
The Mother cannot ensure and has not demonstrated that
her home functions according to the Mother’s desires. Until
the Mother is able to demonstrate that, the juvenile would
be subject to danger and harm if the juvenile were returned
to the Mother’s care.

(Emphases added). Respondent-mother takes issue with the italicized portions of

these findings.

With regard to Brooke’s and Becky’s cleaning responsibilities in the home

before the GCDHHS home visit on 18 December 2018, the evidence as to this issue

was that respondent-mother did, in fact, require her daughters to keep their own

rooms clean. As to the presence of dogs in the home, respondent-mother points to

evidence demonstrating that she mandated that Brooke and Becky keep the two dogs

caged and out of her way while she was downstairs. Moreover, when her daughters

failed to take care of the dogs to her satisfaction, she required them to give the dogs

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away. Furthermore, it is not apparent from the trial court’s order how the presence

of the dogs gave rise to a likelihood that Kirk would be neglected.

With regard to the findings of fact concerning Brooke’s boyfriend, respondent-

mother testified that the boyfriend never actually moved into the residence and was

not allowed to visit after she learned of his criminal record. A report submitted by

social worker Cynthia Johnson indicated that Brooke’s boyfriend was “living on and

off at the home” during December 2017 and that respondent-mother initially “didn’t

really have knowledge that he had been staying on and off in the home.” Respondent-

mother testified that she forbade him from visiting the home once she found out about

his background. There is no evidence in the record suggesting that he continued to

visit after she forbade him from doing so.

Respondent-mother also objects to finding of fact 34’s depiction of an incident

in July 2018 during which Brooke was assaulted outside of respondent-mother’s

residence by the mother of a child that Brooke had been babysitting. The GCDHHS

supervisor testified that the child’s mother came to the residence after the child told

her that Brooke had struck her with a shoe. During the incident, the mother punched

Brooke in the face and hit her with a shoe several times before being restrained by

Becky. Respondent-mother subsequently reported the incident to GCDHHS,

informing GCDHHS that she encouraged Brooke to file criminal charges but that

Brooke refused.

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Respondent-mother testified she had been upstairs with her door open while

Brooke was babysitting the child downstairs. She was unaware that the child’s

mother had come to the residence until she “heard major commotion outside [her]

window,” at which time she “went downstairs and outside.” By the time respondent-

mother reached the scene of the incident, the child’s mother was gone. We are unable

to find any evidence in the record to support the trial court’s statement in finding of

fact 34 that respondent-mother was not permitted to have minor children in her

home. Furthermore, it is unclear what respondent-mother could have done to prevent

this incident from occurring.

The remainder of finding of fact 34 consists of a series of generalizations or

inferences drawn by the trial court. It is the province of the trial court when sitting

as the fact-finder to assign weight to particular evidence and to draw reasonable

inferences therefrom. In re D.L.W., 368 N.C. at 843, 788 S.E.2d at 167–68. Such

inferences, however, “cannot rest on conjecture or surmise. This is necessarily so

because an inference is a permissible conclusion drawn by reason from a premise

established by proof.” Sowers v. Marley, 235 N.C. 607, 609, 70 S.E.2d 670, 672 (1952)

(citations omitted). Accordingly, an appellate court may review the reasonableness of

the inferences drawn by the trial court from the evidence.

We conclude that the majority of the trial court’s inferences in finding of fact

34 are based merely on conjecture. The incidents described in the trial court’s findings

of fact do not give rise to a reasonable inference that respondent-mother’s

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“conciliatory attitude” renders her unable to “maintain a safe, stable environment for

[Kirk],” or that “[Kirk] would be subject to danger and harm if . . . returned to the

Mother’s care.”

As for the cleanliness issues identified by the trial court, we do not believe that

they are sufficiently indicative of respondent-mother’s inability to control her

household as to support a conclusion that a likelihood of future neglect exists.

Although the GCDHHS social worker found respondent-mother’s residence cluttered

and dirty on one occasion, the evidence also shows that respondent-mother promptly

addressed the issue by assigning Brooke and Becky additional cleaning

responsibilities. The trial court’s findings of fact show that respondent-mother was

employing a cleaning service for her residence prior to this incident, and there is no

evidence that the cleanliness of the home remained a problem at the time of the

termination hearing in March 2019. Although the trial court noted that cleanliness

concerns were the subject of several CPS reports filed about the family in Orange

County between 2003 and 2012, no such concerns were raised in any of the CPS

reports received by GCDHHS between 2014 and 2016. Moreover, a lack of cleanliness

in the home was not a cause of Kirk’s adjudication as a neglected and dependent

juvenile in 2016.

The remaining incidents cited in the trial court’s findings of fact do not support

the larger inferences drawn by the trial court about respondent-mother’s ability to

protect Kirk or provide him with a safe home environment. The findings of fact show

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that respondent-mother tried to accommodate Brooke’s and Becky’s desires to have

dogs but then required the dogs to be given away when her daughters proved unable

to care for them. Respondent-mother also barred Brooke’s boyfriend from the

residence upon learning of his criminal history. Neither of these events is sufficient

to support the trial court’s conclusion that respondent-mother is unwilling or unable

to control her household so as to prevent harm to Kirk. Likewise, the attack on Brooke

in 2018 was an isolated incident occurring eight months prior to the termination

hearing. We see nothing inherently dangerous in respondent-mother’s decision to

permit her adult daughter to babysit a nine-year-old girl. Nor does the record contain

any evidence that respondent-mother possessed any ability to predict or prevent the

incident involving Brooke and the child’s mother.

B. Conclusions of Law/Ultimate Findings

The trial court made the following ultimate findings in support of its conclusion

of law that “[g]rounds exist to terminate the parental rights of [respondent-mother]

pursuant to N.C.G.S. §[ ]7B-1111(a)(1),” all of which are contested by respondent-

mother:

36. The Mother’s [CPS] history alone, which
dates back to 2000, supports the likelihood of repeat[ed]
neglect. . . .

37. The Mother has not demonstrated the ability
to care for the juvenile without GCDHHS’[s] involvement.
The Mother has shown a selfish preoccupation with her
romantic attachments even when those attachments are
unhealthy and harmful to the Mother and her children.
The Mother’s mindless attachments will in all likelihood

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subject the juvenile to repeated harm and result in the
juvenile’s eventual removal. The juvenile has dealt with
enough instability already in his young life.

....

40. Based on the Mother’s . . . inability to
demonstrate an ability to correct the conditions that led to
removal the probability of repetition of neglect is high. . . .
[T]he neglect continues to date and there is a strong
likelihood of the repetition of neglect if the juvenile is
returned to [the Mother].

We agree with respondent-mother that the findings of fact in the trial court’s

termination order that are actually supported by evidence of record are insufficient

to support the trial court’s ultimate finding that there was a likelihood of repetition

of neglect. Accordingly, we hold that the trial court erred in determining that grounds

existed for termination under N.C.G.S. § 7B-1111(a)(1).

We note that the above-quoted portion of finding of fact 36 represents a

misunderstanding of the applicable legal standard for establishing future neglect for

purposes of N.C.G.S. § 7B-1111(a)(1). “Termination of parental rights for neglect may

not be based solely on past conditions which no longer exist.” In re Young, 346 N.C.

244, 248, 485 S.E.2d 612, 615 (1997). The trial court may not rely upon a parent’s

history alone to find a likelihood of future neglect but “must also consider any

evidence of changed conditions in light of the evidence of prior neglect and the

probability of a repetition of neglect. [One] determinative factor[ ] must be . . . the

fitness of the parent to care for the child at the time of the termination proceeding.”

In re Ballard, 311 N.C. at 715, 319 S.E.2d at 232 (citation omitted). “If past neglect

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is shown, the trial court also must then consider evidence of changed circumstances.”

In re M.A.W., 370 N.C. 149, 152, 804 S.E.2d 513, 516 (2017).

In past cases involving families with a history of domestic violence, this Court

has determined that a continued likelihood of future neglect is present when the

parent continues to participate in domestic violence, fails to truly engage with her

counseling or therapy requirements, or fails to break off the relationship with the

abusive partner. For example, in In re D.L.W., we considered whether the trial court

erred by terminating the parental rights of a mother on the basis of neglect where

the family had a history of “significant domestic violence between the parents.” 368

N.C. at 836–37, 788 S.E.2d at 164. After the initial neglect adjudication and the

removal of the juveniles from the mother’s care, the mother’s case plan required her

to participate in counseling and remedy the domestic violence issues that were

endangering her children. Id. at 838, 788 S.E.2d at 164.

The Court ultimately held that a likelihood of future neglect existed because

(1) the trial court “received police reports and heard testimony regarding [the

mother’s] participation in multiple incidents involving domestic violence since the

2013 adjudication and removal of the juveniles”; (2) the mother “had not articulated

an understanding of what she learned in her domestic violence counseling sessions”;

and (3) the mother “continued in a relationship with the Respondent Father” despite

the “ongoing domestic violence” between them. Id. at 843–44, 788 S.E.2d at 167–68;

see also In re D.W.P., 373 N.C. 327, 334, 838 S.E.2d 396, 402 (2020) (finding a

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likelihood of future neglect based on the mother’s failure to complete all required

therapy and counseling, as well as her decision to “maintain[ ] a relationship with

[her partner] despite domestic violence incidents”).

In contrast to those cases, respondent-mother here has not been involved in

any reported incidents of domestic violence since her separation from respondent-

father. As discussed above, following the removal of Kirk from her care in 2016,

respondent-mother moved out, separated from respondent-father, and ultimately

divorced him in April 2018. She also obtained a DVPO against respondent-father on

22 February 2017 and renewed the DVPO through February 2021. In addition,

respondent-mother fully completed all of the therapy and counseling courses required

by her case plan. Respondent-mother also devoted hours to writing up a detailed

safety plan for Kirk in anticipation of regaining custody of him. In this safety plan,

she acknowledged her role in failing to protect the children from the prior abuse by

respondent-father and stated that she found her children “IN NO WAY responsible

for what they experienced.” She articulately detailed the lessons she learned during

counseling, and her safety plan for Kirk included high levels of supervision and

structure, educational and extracurricular activities, and steps for avoiding “triggers”

that may remind Kirk of prior trauma, including ensuring that respondent-father

remains “blocked on all avenues” of potential contact with Kirk or other family

members. In addition, each of her care providers stated that respondent-mother had

satisfactorily addressed all concerns about her ability to safely and effectively parent

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her children and required no further counseling.

The trial court’s finding of a likelihood of repetition of neglect in the future

crosses the line separating a reasonable inference from mere speculation.

Accordingly, we hold that the trial court erred in concluding that respondent-mother’s

parental rights should be terminated on the basis of neglect under N.C.G.S. § 7B-

1111(a)(1).

II. Adjudication of Dependency

Respondent-mother also challenges the trial court’s adjudication of

dependency under N.C.G.S. § 7B-1111(a)(6) as an additional ground for termination.

Subsection 7B-1111(a)(6) authorizes the termination of parental rights in cases where

the parent is incapable of providing for the proper care and
supervision of the juvenile, such that the juvenile is a
dependent juvenile within the meaning of [N.C.]G.S. [§]
7B-101, and that there is a reasonable probability that the
incapability will continue for the foreseeable future.
Incapability under this subdivision may be the result of
substance abuse, intellectual disability, mental illness,
organic brain syndrome, or any other cause or condition
that renders the parent unable or unavailable to parent the
juvenile and the parent lacks an appropriate alternative
child care arrangement.

N.C.G.S. § 7B-1111(a)(6); see also N.C.G.S. § 7B-101(9). As the Court of Appeals has

held, in order to sustain an adjudication of dependency, the trial court’s findings of

fact must establish “both (1) the parent’s [in]ability to provide care or supervision,

and (2) the [un]availability to the parent of alternative child care arrangements.”

In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005).

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Respondent-mother contests the trial court’s ultimate conclusion of law in

support of its adjudication under N.C.G.S. § 7B-1111(a)(6), which was based on the

following findings of fact:

42. [The Mother] is incapable of providing a safe,
permanent home for the juvenile. Although the Mother has
participated in individual therapy, there is no clear,
convincing evidence that the Mother has incorporated the
knowledge or techniques obtained through therapy into her
everyday life. It is concerning to this [c]ourt that Ms.
Hudson, the therapist, indicated that there were pertinent
issues that were not discussed during the course of the
therapeutic relationship between the Mother and the
therapist. . . . Although the Mother initiated divorce
proceedings, obtained a 50-B Domestic Violence Protective
Order and renewed the protective order twice, the [c]ourt
is concerned about the Mother’s involvement in yet another
relationship [i.e., with Mr. Westray] since the juvenile’s
removal in 2016 without addressing adverse issues from
her prior relationships. The concerns and red flags raised
in this new relationship causes the [c]ourt to question the
Mother’s judgment. The Mother has not recommended
anyone else to provide appropriate alternative care for the
juvenile.

....

46. Grounds exist to terminate the parental
rights of [the Mother] pursuant to . . . [N.C.G.S.] §[ ]7B-
1111(a)(6) of the North Carolina General Statutes.

Based on our thorough review of the record, we conclude that the trial court

erred by determining that respondent-mother was incapable of providing a safe,

permanent home for Kirk. As set out above, the record shows that respondent-

mother—among other things—eliminated the threat posed to Kirk by respondent-

father, confronted her own history of violent domestic relationships to the satisfaction

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of her multiple treatment providers, displayed appropriate parenting techniques

during her visits with Kirk, and obtained a suitable residence with ready access to

transportation and social support.

We are unable to agree with the trial court that the isolated incidents

referenced in its termination order are sufficient to satisfy the requirements of

N.C.G.S. § 7B-1111(a)(6). Accordingly, based on our careful review of the record, we

hold that the trial court erred by terminating respondent-mother’s parental rights on

the ground of dependency.4

Conclusion

For the reasons set out above, we reverse the trial court’s 8 May 2019 order

terminating respondent-mother’s parental rights.

REVERSED.

4 Respondent-mother also asserts that the trial court abused its discretion by
determining that it is in Kirk’s best interests for her parental rights to be terminated. Having
concluded that the trial court erred by finding the existence of grounds to terminate
respondent-mother’s parental rights under N.C.G.S. § 7B-1111(a), however, we need not
address this issue. See In re Young, 346 N.C. 244, 252, 485 S.E.2d 612, 617 (1997).

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