IN THE SUPREME COURT OF NORTH CAROLINA

No. 429A19

Filed 25 September 2020

IN THE MATTER OF: E.B.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of 

the Court of Appeals, 834 S.E.2d 169 (N.C. Ct. App. 2019), affirming an order 

terminating respondent-father’s parental rights entered on 30 November 2018 by 

Judge Kevin Eddinger, in District Court, Rowan County. Heard in the Supreme 

Court on 17 June 2020.

Jane R. Thompson for petitioner-appellee Rowan County Department of Social 

Services.

Jeffrey L. Miller, for respondent-appellant father.

EARLS, Justice.

Respondent-father appeals from the Court of Appeals’ affirmance of the trial 

court’s order terminating parental rights to his minor child, E.B. (Ella).

1 Between 12 

May 2016 and 25 January 2018, the trial court conducted six permanency planning 

and review hearings and entered six orders imposing numerous conditions that 

respondent was required to satisfy prior to obtaining custody of Ella. However, as 

petitioners conceded before the Court of Appeals, the trial court lacked jurisdiction to 

conduct the permanency planning and review hearings under N.C.G.S. § 7B-200 

 

1 We will refer to E.B. throughout the remainder of this opinion by the pseudonym 

“Ella” for ease of reading and to protect the privacy of the juvenile.
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because the Rowan County Department of Social Services (DSS) “failed to file a 

proper juvenile petition consistent with the requirements of N.C.[G.S.] §§ 7B-402(a) 

and 403(a), and thus no juvenile abuse, neglect, or dependency action was ever 

commenced.” In re E.B., 834 S.E.2d 169, 172 (N.C. Ct. App. 2019). Indeed, Ella was 

never adjudicated to be an abused, neglected or dependent child. Her father indicated 

his desire to have custody of her and to care for her from the day he learned of her 

birth.

On 30 November 2018, the trial court entered an order terminating 

respondent’s parental rights on the grounds of neglect, failure to make reasonable 

progress, and willful abandonment. The Court of Appeals affirmed the trial court’s 

termination order on the willful abandonment ground. Id. at 175. Judge Hampson 

dissented. Judge Hampson would have held that because the facts supporting the 

grounds for termination as adjudicated by the trial court were “inextricably 

intertwined” with the concededly invalid permanency planning and review hearings, 

the trial court failed to prove grounds for termination by “clear, cogent, and 

convincing evidence.” Id. (Hampson, J., dissenting). 

We substantially agree with Judge Hampson and hold today that petitioners 

have failed to prove by clear, cogent, and convincing evidence that respondent 

willfully abandoned his child. We also hold that petitioners have failed to prove that 

any other ground existed to terminate respondent’s parental rights. Accordingly, we 

reverse.
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Standard of Review

“A trial court is authorized to order the termination of parental rights based 

on an adjudication of one or more statutory grounds.” In re J.A.E.W., 846 S.E.2d 268, 

271 (N.C. 2020). “At the adjudicatory stage, the petitioner bears the burden of proving 

by ‘clear, cogent, and convincing evidence’ the existence of one or more grounds for 

termination under section 7B-1111(a) of the General Statutes. N.C.G.S. § 7B-1109(e), 

(f) (2019).” Id.

The trial court found three separate grounds for terminating respondent’s 

parental rights: (1) neglect, pursuant to N.C.G.S. § 7B-1111(a)(1); (2) failure to make 

reasonable progress, pursuant to N.C.G.S. § 7B-1111(a)(2); and (3) willful 

abandonment, pursuant to N.C.G.S. § 7B-1111(a)(7). We review a trial court's 

adjudication under N.C.G.S. § 7B-1109 “to determine whether the findings are 

supported by clear, cogent and convincing evidence and the findings support the 

conclusion of law.” In re Montgomery, 311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984).

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).

Background

Ella was born on 18 February 2016. The next day, Ella’s mother relinquished 

her parental rights, placing Ella in nonsecure custody with DSS. By relinquishing 

her parental rights, Ella’s mother agreed to the “transfer of legal and physical custody 
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of the minor to the agency for the purposes of adoption.” N.C.G.S. § 48-3-703(a)(5)

(2019). As an exercise of that custodial authority, DSS placed Ella in foster care.

Ella’s mother informed DSS that she believed respondent was Ella’s biological 

father. Sometime thereafter, DSS informed respondent that he had been named by 

Ella’s mother as the putative biological father of a newborn. When DSS contacted 

respondent, he reported that he was “excited” to be Ella’s father. He agreed to submit 

to a paternity test. Even before paternity was confirmed, respondent expressed his 

desire to be a parent to Ella. However, until respondent was confirmed as Ella’s 

biological parent, DSS possessed sole legal custody of Ella. See N.C.G.S. § 48-3-601, -

705.

On 23 March 2016, before the results of the paternity tests were known, 

respondent voluntarily entered into an out-of-home family services agreement with 

DSS. Respondent stated that he wanted to do “whatever [DSS said] was necessary.”

Because he was working and had his own home, he believed the reunification process 

“would just go over smoothly and my daughter would be released.” On 19 April 2016, 

a paternity test confirmed that respondent was Ella’s biological father.

Between 12 May 2016 and 25 January 2018, the trial court conducted six 

permanency planning and review hearings. After each hearing, the court entered an 

order imposing numerous requirements on respondent before he could be reunified 

with Ella. These requirements incorporated the recommendations DSS made in the 

out-of-home family services agreement. After the first five hearings, the trial court 
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concluded that Ella’s “primary permanent plan shall be reunification with 

[respondent], with a secondary plan of guardianship to a relative or a court approved

caretaker.” After the final hearing, the trial court changed the primary plan to 

“adoption, with a secondary plan of reunification.”

DSS never filed a petition seeking to have the trial court adjudicate Ella an 

abused, neglected, or dependent juvenile pursuant to N.C.G.S. §§ 7B-402(a) and 

- 403(a). Thus, the trial court lacked subject-matter jurisdiction to conduct 

permanency planning and review hearings, and its orders lacked the force of law. See 

In re T.R.P., 360 N.C. 588, 593, 636 S.E.2d 787, 792 (2006) (“A trial court's subject 

matter jurisdiction over all stages of a juvenile case is established when the action is 

initiated with the filing of a properly verified petition.”).

When Ella was born, respondent was helping to raise three of his own juvenile 

children. Within months, respondent became his children’s sole caregiver. Still, as 

soon as he learned about Ella, respondent expressed his desire to eventually take Ella 

into his custody and care. Respondent immediately began visitation with Ella. He 

brought her age-appropriate snacks, cleaned her, and bonded healthily with his 

daughter. After DSS raised concerns about his living situation, respondent relocated 

to a new apartment. He submitted to three drug screens, two of which were negative

and one inconclusive. He completed parenting classes to improve his ability to care 

for an infant.
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Respondent also named his sister, who lived in California, as a potential 

relative placement option, although he was initially reluctant to request that DSS

place Ella with her because she lived so far away. In April 2016, respondent asked 

DSS to initiate an Interstate Compact on the Placement of Children (ICPC) review 

process, and respondent’s sister agreed to serve as Ella’s guardian. After the North 

Carolina ICPC office misplaced the initial request, causing a months-long delay, 

respondent’s sister called DSS to request an expedited home study to facilitate 

quicker ICPC approval. She visited with Ella on three occasions during her trips to 

North Carolina. Anticipating that she would promptly begin caring for Ella, 

respondent’s sister purchased a crib; when the ICPC process was delayed, 

respondent’s sister removed the crib and replaced it with a “princess bed.” 

Ultimately, respondent’s sister became a licensed foster parent and was assessed and 

approved to assume custody of Ella through the ICPC review process. In order to 

meet the ICPC’s requirements, respondent’s sister completed parenting courses, 

became CPR certified, and moved her entire family out of their home into one that 

would be safer for Ella because it did not have a pool. The ICPC report noted that 

respondent’s sister possessed “considerable insight into the effects that separation 

and loss can have on children from her own experiences” in the foster care system.

Although respondent never disclaimed his intent to eventually assume custody 

of Ella, he also struggled to fully address the issues that he and DSS had identified 

in the voluntary out-of-home family services agreement. Respondent did not complete 
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the recommended domestic violence or substance abuse counseling. Respondent 

refused to consent to ongoing drug screens, and his social media history suggested 

that he may have been continuing to use marijuana. He was assaulted by three men 

who broke into his home while his children were present, causing him to be 

hospitalized for a dislocated jaw and stab wounds. He was evicted and lost his job.

DSS reported that his home was cluttered and dirty. He had extended periods of 

inconsistent visitation with Ella, which respondent attributed to his lack of a driver’s 

license, his injuries, and a death in the family. Eventually, respondent informed DSS

that he was not interested in continuing to engage in parenting services and that he 

only wanted to maintain visitation with Ella. It is undisputed that respondent did 

not fully comply with all of the terms of the trial court’s orders.

Respondent’s final in-person visit with Ella occurred on 5 September 2017. On 

22 January 2018, respondent moved to California. Respondent did not inform DSS of 

his impending move and did not immediately provide them with an address where he 

could be reached. On 10 April 2018, DSS filed a petition to terminate respondent’s 

parental rights, alleging grounds of neglect, failure to make reasonable progress, 

willful abandonment, and failure to pay child support. Respondent did not 

communicate with Ella following his move to California until after DSS initiated

termination proceedings.
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Analysis

We begin by noting that DSS’s and the trial court’s actions repeatedly infringed 

upon respondent’s constitutional parental rights. “[T]he government may take a child 

away from his or her natural parent only upon a showing that the parent is unfit to 

have custody or where the parent's conduct is inconsistent with his or her 

constitutionally protected status.” Adams v. Tessener, 354 N.C. 57, 62, 550 S.E.2d 

499, 503 (2001) (citations omitted). Immediately upon learning that he was Ella’s 

biological father, respondent expressed his intent to parent Ella, an intent that he 

never disavowed. Until DSS filed a petition to terminate respondent’s parental rights, 

DSS did not seek a judicial order establishing that respondent was “unfit to have 

custody” of Ella or that his “conduct [was] inconsistent with his . . . constitutionally 

protected status” as a parent. Id. Thus, as a biological father who had “seize[d] the 

opportunity to become involved as a parent in his child’s life,” Owenby v. Young, 357 

N.C. 142, 146, 579 S.E.2d 264, 267 (2003), respondent enjoyed a constitutionally 

protected right to the “custody, care, and nurture” of his child. Petersen v. Rogers, 337 

N.C. 397, 402, 445 S.E.2d 901, 904 (1994). The constitutional parental right is, of 

course, not absolute. See, e.g., In re C.B.C., 373 N.C. 16, 19, 832 S.E.2d 692, 695 

(2019). It is, however, a “ ‘fundamental liberty interest’ which warrants due process 

protection.” In re Montgomery, 311 N.C. 101, 106, 316 S.E.2d 246, 250 (1984) (quoting 

Santosky v. Kramer, 455 U.S. 745, 758–59 (1982)). 
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The trial court substantially interfered with respondent’s “constitutionally 

protected paramount right” to the “custody, care, and control” of his child. Owenby v. 

Young, 357 N.C. at 148, 579 S.E.2d at 268. On 17 May 2017, respondent, through 

counsel, informed the trial court that he “loves his daughter [Ella] and desires for her 

to be placed with him, or, alternatively . . . if the child is not placed with Respondent 

Father, he respectfully requests the child to be placed with his sister . . . 

immediately.” At that point in time, neither the trial court nor DSS possessed the

legal authority to thwart respondent’s wishes. If DSS had concerns about releasing 

Ella into respondent’s custody, the way to address those concerns was by filing a 

petition to adjudicate Ella an abused, neglected, or dependent child, or by filling a 

petition to terminate respondent’s parental rights. See N.C.G.S. § 7B-200, -904, -

906.1. DSS’s failure to file such a petition deprived the trial court of the legal 

authority to demand that respondent demonstrate his parenting abilities to the trial 

court’s own satisfaction prior to taking Ella into his own custody, care, and control. It 

also deprived the trial court of the legal authority to dictate when, where, and how 

frequently respondent would be permitted to interact with his child. These 

requirements and restrictions had no binding legal effect, but the trial court treated 

them as preconditions respondent needed to satisfy, and parameters he needed to 

comply with, in order to exercise his constitutional parental rights.

The trial court ultimately concluded that the conditions imposed upon 

respondent’s relationship with Ella served Ella’s best interests, and its decision to 
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reject respondent’s demand to assume custody of his child or have her placed with his 

sister flowed from a commitment to ensuring a safe, nurturing, and loving 

environment for Ella. However, the trial court did not have the authority to act on 

its own views of what served Ella’s best interests without first finding grounds to 

displace respondent’s constitutional parental rights to make such decisions. See 

Owenby v. Young, 357 N.C. at 144, 579 S.E.2d at 266 (The “Due Process Clause of the 

Fourteenth Amendment ensures that the government does not impermissibly 

infringe upon a natural parent's paramount right to custody solely to obtain a better 

result for the child”); see also Troxel v. Granville, 530 U.S. 57, 73–74 (2000) (“[T]he 

Due Process Clause does not permit a State to infringe on the fundamental right of 

parents to make child rearing decisions simply because a state judge believes a 

‘better’ decision could be made.”).

2 Until the trial court entered an order granting 

custody of Ella to DSS and taking custody away from her father on some legally 

cognizable ground, DSS and the trial court’s desire to further Ella’s best interests, 

 

2 Restrictions on the State’s authority to interfere with a fit parent’s exercise of their 

parental rights are not merely technical requirements. In the child welfare context, these 

statutory and constitutional protections help mitigate the risk that parents will lose custody 

of their children if public officials disagree with their approach to childrearing or because of 

racial, religious, gender, sexual orientation, or other biases. In cases such as this one, the 

potential for these biases, whether explicit or unconscious, to interfere with the proper 

disposition of a custody dispute underscores the importance of according due respect to a 

parent’s constitutional and statutory rights. See, e.g., Santosky v. Kramer, 455 U.S. 745, 762–

63 (1982) (explaining that “[b]ecause parents subject to termination proceedings are often 

poor, uneducated, or members of minority groups, such proceedings are often vulnerable to 

judgments based on cultural or class bias”).
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however well-intentioned, provided no justification for interfering with respondent’s 

exercise of his constitutional prerogatives as Ella’s parent.

Notwithstanding its prior lack of jurisdiction to conduct permanency planning 

and review hearings, the trial court did possess jurisdiction over DSS’s petition to 

terminate respondent’s parental rights under N.C.G.S. § 7B-1101. A court’s 

jurisdiction to adjudicate a termination petition does not depend on the existence of

an underlying abuse, neglect, and dependency proceeding. N.C.G.S. § 7B-1101 (“The 

court shall have exclusive original jurisdiction to hear and determine any petition or 

motion relating to termination of parental rights to any juvenile who resides in, is 

found in, or is in the legal or actual custody of a county department of social services 

or licensed child-placing agency in the district at the time of filing of the petition or 

motion.”). DSS had standing to seek termination of respondent’s parental rights 

because Ella’s mother had relinquished her own parental rights and transferred legal 

custody of Ella to the agency. N.C.G.S. § 7B-1103(a)(4).

Still, the trial court’s errors in conducting unauthorized permanency planning 

and review hearings are significant in examining its subsequent order terminating 

respondent’s parental rights. Because the trial court acted without subject matter 

jurisdiction during the permanency planning process, the hearings it conducted and 

orders it entered were “void ab initio.” In re T.R.P., 360 N.C. 588, 588, 636 S.E.2d 787, 

789 (2006). A trial court cannot determine a party’s rights based on facts established 

in or arising from a legally void judicial proceeding. See Hart v. Thomasville Motors, 
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Inc., 244 N.C. 84, 90, 92 S.E.2d 673, 678 (1956) (“A void judgment is, in legal effect,

no judgment. No rights are acquired or divested by it. It neither binds nor bars any 

one, and all proceedings founded upon it are worthless.”). 

If the trial court made findings sufficient to prove grounds for termination 

based on facts that were independent from the invalid permanency planning and 

review hearings, then the mere fact that those invalid proceedings occurred would 

not preclude the trial court from also concluding that termination was warranted. 

However, facts inextricably intertwined with a legally void proceeding are necessarily 

insufficient to prove grounds for termination by clear, cogent, and convincing 

evidence. Reviewing the record against this backdrop and evidentiary standard, we 

hold that the trial court failed to find sufficient facts independent from the legally 

void permanency planning and review hearings to prove any of the three alleged 

grounds for terminating respondent’s parental rights.

a. Willful Abandonment

The Court of Appeals affirmed the trial court’s termination order by concluding 

that DSS had supplied sufficient evidence to prove willful abandonment. Accordingly, 

we address this ground first. 

N.C.G.S. § 7B-1111(a)(7) provides for termination of parental rights where 

“[t]he parent has willfully abandoned the juvenile for at least six consecutive months 

immediately preceding the filing of the petition or motion.” “[A]lthough the trial court 

may consider a parent’s conduct outside the six-month window in evaluating a 
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parent’s credibility and intentions, the determinative period for adjudicating willful 

abandonment is the six consecutive months preceding the filing of the petition.” In re

N.D.A., 373 N.C. 71, 77, 833 S.E.2d 768, 773 (2019) (internal quotations omitted). 

“[W]hether a biological parent has a willful intent to abandon his child is a question 

of fact to be determined from the evidence.” Id (quoting In re Adoption of Searle, 82 

N.C. App. 273, 276, 346 S.E.2d 511, 514 (1986)). At the adjudicatory stage, the 

petitioner bears the burden of proving willful abandonment by clear, cogent, and 

convincing evidence. In re N.D.A., 373 N.C. at 74, 833 S.E.2d at 771.

To establish willful abandonment, the trial court must find evidence of conduct 

that is more serious than inconsistent attention to parental duties or less than ideal 

parenting practices. The trial court must instead find evidence that the parent 

deliberately eschewed his or her parental responsibilities in their entirety. See In re 

Young, 346 N.C. 244, 251, 485 S.E.2d 612, 617 (1997). Abandonment requires 

“purposeful, deliberative and manifest willful determination to forego all parental 

duties and relinquish all parental claims to the child.” In re A.G.D., 374 N.C. 317, 

319, 841 S.E.2d 238, 240 (2020) (cleaned up).

Almost all of the trial court’s findings of fact in this case directly relate to the 

legally void permanency planning and review hearings, focusing mostly on 

respondent’s alleged failures to comply with all of the conditions imposed by the trial 

court’s orders. The Court of Appeals appropriately jettisons these facts, but then 

relies almost exclusively upon respondent’s failure to attend permanency planning 
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hearings and scheduled visitations with Ella, mostly after his relocation to California, 

in finding that respondent willfully abandoned his child.

3 In re E.B., 834 S.E.2d 169, 

174–75 (N.C. Ct. App. 2019). 

Respondent’s decision to relocate to California must be assessed in the context 

of his ongoing efforts to take custody of Ella and bring her to California or to place 

Ella in the custody of his sister who lived in that state. As respondent stated at trial, 

his plan “was always for reunification. Once I had my daughter back home with me, 

I had plans to move to California and . . . she was supposed to come with us.” In light 

of this express intent, respondent’s actions do not “manifest a willful determination” 

to abandon his parental duties. When respondent relocated, his sister was awaiting

 

3 The Court of Appeals also cited respondent’s failure to personally attend a single 

child support hearing in January 2018. While failure to pay appropriate child support may 

be a ground for termination that is independent of an invalid underlying juvenile proceeding, 

the trial court did not find sufficient evidence proving that ground in the instant case. 

Further, a single missed child support hearing is, standing alone, insufficient to prove willful 

abandonment. See Pratt v. Bishop, 257 N.C. 486, 501–02, 126 S.E.2d 597, 608 (1962).
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approval under the ICPC to take custody of Ella.4 Respondent had already informed 

DSS that he intended “to allow [his] sister to handle the situation,” which the trial 

court recognized “refer[ed] to Ella’s care and placement.” In this context, respondent’s 

actions indicated an intent to let his sister complete the ICPC process and assume

custody of Ella, not an intent to abandon Ella to DSS. The Court of Appeals has 

previously held, and we agree, that conduct that is “subject to other explanations”—

in this case, the explanation that respondent had long planned to relocate to 

California with Ella, based on his belief that he would be able to take Ella with him 

or place her with his sister—“do[es] not inherently suggest a willful intent to 

abandon.” In re S.R.G., 195 N.C. App. 79, 86, 671 S.E.2d 47, 52 (2009). 

Respondent’s actions before the “determinative” six-month window are also 

relevant in interpreting whether his conduct during the window signified willful 

abandonment. See In re K.N.K., 374 N.C. 50, 55, 839 S.E.2d 735, 739 (2020) (relying 

 

4 Because the ICPC review of respondent’s sister was not completed until after DSS 

had filed the termination petition, DSS possessed legal authority to refuse to transfer Ella 

into respondent’s sister’s custody. We do not today reach the question of whether, after the 

trial court found grounds to terminate respondent’s parental rights at the adjudicatory stage, 

the trial court’s decision to terminate rather than permit respondent to transfer custody to 

his sister was an appropriate exercise of its discretion at the dispositional stage. N.C.G.S. § 

7B-1110. However, we note that some of the trial court’s apparent reasons for disregarding 

respondent’s wish to place Ella in his sister’s custody may not be sufficient, standing alone, 

to justify a refusal to place a child with a parent’s desired relative. In particular, the trial 

court’s findings that she possessed “negative attitudes” and made “negative posts on social 

media . . . towards the DSS and [petitioners],” her frustrations with the delayed ICPC process, 

and the fact that she authored a blog with a title that contained a sexual innuendo may not 

have been legally relevant in determining whether placement with respondent’s sister was 

in Ella’s best interests.
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on evidence of a parent’s “actions both prior to and during the determinative sixmonth period [to] support a reasonable inference of willfulness for purposes of 

N.C.G.S. § 7B-1111(a)(7)”). Respondent’s ongoing efforts to obtain custody of Ella both 

before and during the determinative six-month window are simply inconsistent with 

a finding that he willfully intended to forgo all parental claims and responsibilities. 

Other findings that the trial court relies upon cannot support willful 

abandonment because they are the direct result of the trial court’s own interference 

with respondent’s parental rights. The fact that respondent stopped attending 

permanency planning and review hearings and the fact that he communicated 

inconsistently with DSS after his move to California both arise directly from the trial 

court’s legally invalid proceedings. Any purported obligation respondent had to 

attend the trial court’s hearings and communicate regularly with DSS was created 

by proceedings that the trial court lacked subject-matter jurisdiction to conduct.

Similarly, respondent’s failure to attend visitations with Ella is inextricably 

intertwined with the fact that the trial court impermissibly precluded him from 

interacting with Ella in the time and manner that he saw fit, as was his right as her 

parent. The trial court lacked authority to control respondent’s access to his child, 

and respondent’s failure to comport with the trial court’s restrictions is insufficient

to prove willful abandonment. Further, it is relevant that respondent ceased 

visitation during the determinative six-month period immediately after a breakdown 

in his relationship with petitioners, in that there was another possible cause for 
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respondent’s inconsistent visitation apart from a willful intent to abandon his child. 

Cf. In re Young, 346 N.C. at 252, 485 S.E.2d at 617 (1997) (considering finding of “the 

probable hostile relationship between respondent and petitioner's family members 

who cared for [respondent’s child]” relevant in willful abandonment analysis). 

Respondent’s actions, viewed in their appropriate context, do not clear the high 

threshold necessary to support a finding of willful abandonment. See id. at 251, 485 

S.E.2d at 617 (“Abandonment implies conduct on the part of the parent which 

manifests a willful determination to forego all parental duties and relinquish all

parental claims to the child.”) (emphasis added) (citations omitted). 

The Court of Appeals makes an unpersuasive distinction between respondent’s 

“failures to comply with the terms of the void Permanency Planning Orders” and his 

alleged “failure to attend those proceedings [which] is nevertheless illustrative of 

Respondent-Father having willfully determined to forgo his parental duties.” In re 

E.B., 834 S.E.2d at 174 n.5. Regardless, respondent’s failure to personally appear at 

the trial court’s hearings did not forfeit his ongoing claim that he should be reunified 

with his child. Nor did it withdraw his request to place Ella with his sister. In these 

circumstances, and given that respondent never disavowed his intent to assume 

custody of Ella or place her with his sister, his failure to attend permanency planning 

and review hearings is insufficient to prove a willful intent to abandon his child.

Petitioners’ reliance on In re A.L., 245 N.C. App. 55, 781 S.E.2d 860 (2016), is 

similarly misplaced. While the mere existence of legally void proceedings does not 
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preclude a trial court from subsequently entering an order terminating parental 

rights, a trial court may only terminate a parent’s rights when the petitioners have 

proven grounds for termination based on facts that are independent from the 

circumstances created by the legally void underlying proceedings. We hold that in 

this case, petitioners have failed to meet their burden to prove willful abandonment 

by clear, cogent, and convincing evidence that is not inextricably intertwined with 

the legally void permanency planning and review hearings. 

Because petitioners need only prove a single ground for termination under 

N.C.G.S. § 7B-1111, we address the other two grounds the trial court found in 

terminating respondent’s parental rights.5

b. Neglect

A trial court may terminate the parental rights of a parent who “has abused or 

neglected the juvenile.” N.C.G.S § 7B-1111(a)(1) (2019). A neglected juvenile is 

statutorily defined, in pertinent part, as a juvenile "whose parent, guardian, 

custodian, or caretaker does not provide proper care, supervision, or discipline; . . . or 

 

5 This case is not appropriate for remand for further factual findings because our 

responsibility under all three grounds for removal is to determine first, whether the evidence 

in the case supports the trial court’s findings of fact, and then second, whether those findings 

support the trial court’s conclusions of law. In re Montgomery, 311 N.C. 101, 111, 316 S.E.2d 

246, 253 (1984). Where, as here, we conclude that the record evidence cannot support the 

necessary findings, there is no justification for a remand for further factual findings. 

Reversal is also appropriate because there are no material factual disputes relevant to this 

Court's holding that the evidence does not support termination on any of the grounds alleged 

by petitioners. Cf, IMT, Inc. v. City of Lumberton, 366 N.C. 456, 463, 738 S.E.2d 156, 160 

(2013) (appropriate to resolve the substantive claim rather than remand the case where the 

facts are undisputed).
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who lives in an environment injurious to the juvenile's welfare." N.C.G.S. § 7B101(15) (2019). When, as in this case, the juvenile “has been separated from the 

parent for a long period of time, there must be a showing of past neglect and a 

likelihood of future neglect by the parent.” In re D.L.W., 368 N.C. 835, 843, 788 S.E.2d 

162, 167 (2016).

Petitioners have failed to prove either that respondent previously neglected 

Ella or that there is a likelihood that he will neglect her in the future. Respondent 

has never had physical custody of Ella, and she has never been adjudicated a 

neglected child. Since shortly after Ella’s birth, respondent has continuously been the 

sole caretaker for his three other minor children, none of whom have been adjudicated 

neglected. While these facts are not necessarily dispositive, together they impose 

upon the petitioners a burden that they have failed to carry. See In re Ballard, 311 

N.C. 708, 715, 319 S.E.2d 227, 232 (1984) (holding that even a prior adjudication of 

neglect is not enough, on its own, to prove neglect in a termination proceeding). 

The trial court’s relevant findings of fact pertaining to this ground all relate to 

evidence developed during the legally invalid permanency planning and review 

hearings and flow from the assessments, recommendations and requirements 

imposed as part of that process. There is no evidence that respondent actually

neglected Ella, and no basis to infer that he would have done so if Ella had been in 

his care, especially given that respondent was, at that same time, successfully caring 

for three other minor children.
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The record was also devoid of any facts supporting a conclusion that 

respondent was likely to neglect Ella in the future. The only relevant findings 

pertaining to likelihood of future neglect are that “[t]he history of [respondent] since 

[Ella] was born suggests that marijuana use, unstable housing, changing 

employment and conflicts raised by his lifestyle will continue to be issues for him,” 

that respondent “is not in a position to care for [Ella] due to his lack of responsible 

decision making, substance abuse issues, parenting struggles, and lack of overall 

stability,” and that those issues are “barriers to a safe reunification with” Ella. From 

these facts, the trial court draws its conclusion that respondent “has not corrected the 

risk factors within his life that would allow him to appropriately and successfully 

parent [Ella], pursuant to N.C.G.S. § 7B-1111(a)(1).”

These findings are insufficient to support the conclusion that respondent is 

likely to neglect Ella in the future. Cf. In re K.N., 373 N.C. 274, 282, 837 S.E.2d 861, 

867 (insufficient evidence to prove likelihood of future neglect where juvenile had 

previously been adjudicated neglected and removed from home, parent was 

incarcerated, and evidence indicated parent had not fully complied with legally valid 

case plan). The trial court fails to analyze how these facts6 connect with the specific

 

6 Some of the facts relied upon by the trial court are contested (for example, respondent 

denies marijuana use during the relevant time period), some are subjective value judgments 

(the assertion of “conflicts raised by his lifestyle”), and some are circumstances that 

respondent shares with many other parents nationwide who will never neglect their children 

(“unstable housing” and “changing employment”). Hence, their probative value is 

questionable in any event.
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Opinion of the Court

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determinative question of respondent’s future likelihood of neglecting Ella. Id. at 283, 

837 S.E.2d at 867–68 (holding that the “extent to which a parent's incarceration or 

violation of the terms and conditions of probation support a finding of neglect depends 

upon an analysis of the relevant facts and circumstances”) (emphasis added). Further, 

the trial court fails to examine the “considerable change in conditions” in respondent’s 

life that “had occurred by the time of the termination proceeding.” In re Young, 346 

N.C. at 250, 485 S.E.2d at 616. Notably, in addition to respondent’s progress 

addressing at least some of the “risk factors” he had previously identified to DSS, 

respondent had also identified his sister as an appropriate alternative guardian for 

Ella.

Because petitioners have failed to prove that respondent previously neglected 

Ella and that he was likely to neglect Ella again in the future, Section 7B-1111(a)(1) 

does not support termination of respondent’s parental rights.

c. Failure to Make Reasonable Progress

A trial court may terminate the parental rights of a parent who “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.G.S.§ 7B-1111(a)(2) (2019). Here, there must be a “nexus 

between the components of the court-approved case plan with which [respondent] 

failed to comply and the conditions which led to [the juvenile’s] removal from the 
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Opinion of the Court

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parental home.” In re B.O.A., 372 N.C. 372, 385, 831 S.E.2d 305, 314 (2019). A parent 

is required to make “reasonable progress . . . in correcting those conditions which led 

to the removal of the juvenile.” N.C.G.S.§ 7B-1111(a)(2) (2019). Petitioners essentially 

contend that respondent’s voluntary out-of-home family services agreement both 

identifies the “conditions” which “led to the removal” of Ella from his home (e.g., DSS’s 

refusal to allow respondent to assume custody of Ella) and the benchmark against 

which the trial court could evaluate his “progress.” They argue that respondent’s 

failure to make reasonable progress towards addressing the risk factors outlined in 

his voluntary out-of-home family services agreement provides sufficient factual 

evidence to terminate his parental rights.

We reject the argument that failure to comply with a voluntary out-of-home 

family services agreement constitutes grounds for termination under § 7B-1111(a)(2).

It is settled law that “removal” as used within § 7B-1111(a)(2) only occurs when a 

court acting with appropriate jurisdiction enters an order placing a child into the 

custody of someone other than the child’s parents. In re J.S., 374 N.C. 811, 845 S.E.2d 

66, 71 (2020) (“[A]n adjudication under N.C.G.S. § 7B-1111(a)(2) requires that a child 

be left in foster care or placement outside the home pursuant to a court order for more 

than a year at the time the petition to terminate parental rights is filed.”) (emphasis 

added) (cleaned up); see also In re Pierce, 356 N.C. 68, 73, 565 S.E.2d 81, 85 (2002) 

(determining that a child was removed within the meaning of § 7B-1111(a)(2) “when 

the trial court awarded custody of the child to DSS, and she was placed in foster 
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care”). As the Court of Appeals has correctly held, permitting this ground to apply to 

voluntary separations would unnecessarily subject parents to the risk of termination 

even when their “reasons” for transferring custody of their child do not “implicate the 

child welfare concerns of the State.” In re A.C.F., 176 N.C. App. at 525, 626 S.E.2d at 

733. Further, such a broad interpretation of § 7B–1111(a)(2) may cause parents to 

avoid voluntarily seeking out much-needed assistance from DSS for fear of 

permanently losing their parental rights. Because DSS never filed a petition to 

adjudicate Ella abused, dependent, or neglected, no legally valid order ever “removed” 

Ella from respondent’s custody. Therefore, Section 7B-1111(a)(2) does not support 

termination of respondent’s parental rights.

Conclusion

Petitioners bear the burden of proving that grounds exist for terminating 

respondent’s parental rights, based on facts that arise independently from the legally 

void permanency planning proceedings. As we hold that petitioners have failed to 

meet this burden, we reverse the Court of Appeals decision.

REVERSED.
Justice NEWBY concurring in result only.

I agree with the majority that because no abuse, neglect, or dependency 

petition was filed, the trial court lacked jurisdiction to conduct the initial permanency 

planning and review hearings here, and that the trial court’s findings that were not 

based on the void orders and proceedings are insufficient to support the termination 

of respondent’s parental rights. Accordingly, the matter should be remanded to the 

trial court. In its analysis, the majority improperly finds facts in this case, which is a 

job reserved for the trial court, and addresses issues unnecessary to resolve this 

matter, rendering much of the discussion dicta. Thus, I concur in the result only.