IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-378

No. COA21-681

Filed 7 June 2022

Duplin County, No. 10 JT 02

IN RE: S.O.C. A Minor Juvenile.

Appeal by Respondent-Mother from Order entered 22 July 2021 by Judge 

Robert Gilmore in Duplin County District Court. Heard in the Court of Appeals 6 

April 2022.

Elizabeth Myrick Boone for petitioner Duplin County Department of Social 

Services.

Benjamin J. Kull for Respondent-Mother.

Brian C. Bernhardt, Attorney for Guardian ad Litem

HAMPSON, Judge.

Factual and Procedural Background

¶ 1 Respondent-Mother appeals from the trial court’s Judgment Terminating 

Parental Rights entered 22 July 2021, which adjudicated grounds to terminate

Respondent-Mother’s parental rights under N.C. Gen. Stat. § 7B-1111(a)(1), (2), and 

(6) and further determining it was in the best interests of the juvenile to terminate 
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Respondent-Mother’s parental rights.

1 The Record tends to reflect the following:

¶ 2 Respondent-Mother is the mother of Samuel.2 On 30 January 2018, the Duplin 

County Department of Social Services (DSS) filed a Juvenile Petition (Petition) 

alleging Samuel was neglected as defined by N.C. Gen. Stat. § 7B-101.

¶ 3 The Petition alleged that on 29 January 2018, DSS launched an investigation 

after Samuel reported that his older brother choked him with a belt causing Samuel 

to develop red marks on his neck and also placed a hand over Samuel’s mouth causing 

him to almost pass out. Samuel reported that when he screamed for help, 

Respondent-Mother came into his bedroom. However, after Respondent-Mother

evaluated the situation, she felt the juveniles “were fine” so she left the juveniles 

alone and did not seek medical treatment. Respondent-Father was home but also did 

not address the incident. The DSS report noted that a prior 21 November 2012 trial 

court order required Respondent-Mother to be supervised with the juveniles at all 

times.

¶ 4 On 2 February 2018 the trial court entered a Non-Secure Custody Order 

granting non-secure custody to DSS. On 4 April 2018, the trial court entered an 

Order adjudicating Samuel neglected as defined by N.C. Gen. Stat. § 7B-101. In its 

 

1 Respondent-Father did not appeal the TPR. 

2 The juvenile is referred to by the parties’ stipulated pseudonym. 
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Disposition Order, the trial court ordered Respondent-Mother to obtain a psychiatric 

evaluation, an independent parenting evaluation, and to continue receiving intensive 

in-home services.

¶ 5 Respondent-Mother submitted to an individual Psychological Assessment at 

the Waynesboro Family Clinic with Dr. James T. Smith on 8 November 2018 (the 

Smith Evaluation). During the Smith Evaluation, Respondent-Mother completed an 

Adaptive Behavior Assessment System (ABAS) and Slosson Intelligence Test (SIT) to 

“determine her IQ and level of adaptive behavior so that her capacity to regain 

custody and appropriately parent her children could be determined.”

¶ 6 Respondent-Mother and her children also submitted to a Child/Family 

Evaluation with Dr. Kristy Matala at Matala Psychological Services (the Matala 

Evaluation). The Matala Evaluation consisted of interviews with RespondentMother and her children which occurred over multiple sessions from 2 October 2018 

to 12 November 2018. The Matala Evaluation indicated Respondent-Mother had “a 

need for . . . a competent supervisor who can act as a guardian by providing care to 

the children.” 

¶ 7 On 16 September 2020, approximately two years after the Matala and Smith 

Evaluations, the trial court entered a Six Month and Permanency Planning Review 

Order pursuant to N.C. Gen. Stat. § 7B-906.1. As part of the Order, the trial court 

reviewed the 2018 Smith Evaluation, which stated: 
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a. That Respondent-Mother’s adaptive behavior functioning is in 

the low to below average range;

b. That Respondent-Mother has a Mild Intellectual disability, and 

is unlikely to progress beyond the 6th grade level in academic 

subjects; and

c. That Respondent -Mother should be supervised while caring for 

her children. 

¶ 8 The trial court also found that, due to the COVID-19 pandemic, RespondentMother’s visitations were telephonically held and that “Respondent-Father is now 

required to initiate all phone calls [as] calls from Respondent-Mother have resulted 

in upsetting the juveniles.” The trial court found the conditions which led to removal 

still existed and that it was in the best interest of the Juveniles to remain in DSS 

custody. The trial court Ordered Samuel’s primary permanent plan as custody to a 

relative or other suitable person and for his secondary permanent plan to be 

reunification. 

¶ 9 The trial court entered an Order of Continuance on 11 January 2021, and on 

14 January 2021, the trial court entered an additional Six Month and Permanency 

Planning Review Order. The trial court found Respondent-Mother remained 

unemployed and continued to initiate phone calls with the juveniles against their 

previous Order. The trial court also found that a potential placement RespondentMother supplied to the trial court for evaluation “informed the Department she was 

adopting a six-week-old baby and would not be a possible placement for the 
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Juveniles.” The trial court found that “the best plan of care to achieve a safe, 

permanent home for Samuel within a reasonable period of time is a primary plan of 

adoption . . . and a secondary plan of reunification.” The trial court ordered Samuel’s 

primary permanency plan changed to adoption and maintained his secondary 

permanency plan as reunification.

¶ 10 On 23 February 2021, approaching three years after the trial court adjudicated 

Samuel as neglected, DSS filed a Petition for the Termination of Parental Rights. In 

this Petition, DSS alleged grounds existed to terminate Respondent-Mother’s 

parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a) (1), (2), and (6) as follows: 

12. That clear and convincing facts sufficient to terminate 

Respondent-Mother’s parental rights exist and are specifically as 

follows: 

a. That the juvenile has been adjudicated to be a neglected 

juvenile as defined by N.C. Gen. Stat. §7B-101[15], having 

been so adjudicated in an Order entered April 4, 2018;

b. That the juvenile is neglected as defined by N.C. Gen. Stat. 

§7B-101, and there is a high probability of continued neglect . 

. . . 

d. That the Respondent-Mother has willfully left the juvenile 

in foster care or placement outside of the home for more than 

twelve (12) months without reasonable progress under the 

circumstances being made in correcting those conditions 

which led to the removal of the juvenile. . . 

f. That the Respondent-Mother is incapable of providing for 

the proposed care and supervision of the juvenile, such that 

the juvenile is a neglected juvenile within the meaning of N.C. 

Gen. Stat. § 7B-101, and that there is a reasonable probability 
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that such incapability will continue for the foreseeable future.

¶ 11 The trial court conducted a hearing on the Petition to Terminate Parental 

Rights on 9 June 2021. On 22 July 2021, now more than three years after the trial 

court adjudicated Samuel as neglected, the trial court entered its Judgment 

Terminating Parental Rights. In its Judgment, the trial court made Findings of Fact 

related to the family’s history with DSS between 2008 and 2018. As it relates to 

Respondent-Mother, these findings included:

10. That the Juvenile has been under the legal custody of the 

Duplin County Department of Social Services since January 

29, 2018.

11. That the Respondent Parents have an extensive history with 

the Duplin County Department of Social Services Chat predates the Juvenile's birth which includes:

a. That on November 15, 2008 the Department received a 

neglect report. The report was substantiated for injurious 

environment (domestic violence).

b. That on December 04, 2009 the Department received a 

report for improper medical care which was substantiated. 

On January 7, 2010 the children were removed from the 

home and placed into foster care due to concerns of lack of 

heat in the home, roach infestation, significant medical 

needs of the children, and failure to thrive diagnosis for two 

of the three minor children. . . . On February 2, 2011, the 

court ordered that physical and legal custody be given back 

to the parents and the case was closed, 

c. That on September 1, 2010, the Department received a 

neglect report regarding the family. The family was found 

to be in need of services and case was transferred to case 
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management, 

d. That on May 23, 2011, the Department received an abuse 

and neglect report regarding the family. . . . The case was 

substantiated for abuse and neglect (physical) . The 

children were placed into foster care and it was adjudicated 

on September 28, 2011. On November 21, 2012, the court 

ordered that the legal and physical custody be given back 

to [Respondent-Parents]; that [Respondent-Mother] have 

supervised visitation with the juveniles and that 

[Respondent-Mother] had to be supervised at all times . . . 

e. That on May 1, 2012, the Department received a 

neglect/abuse report stating that [Samuel] reported that 

his father . . . had spanked him on the butt. . . . . The Social 

Worker did observe a bruise on his butt that appeared to 

be a few days old. The case was substantiated and closed, 

f. That on June 4, 2013, the Department received a report 

of abuse and neglect. The case was substantiated and sent

to case management. Over the course of the case the 

parents completed parenting [sic] and . . . mental health 

evaluations through New Dimensions. The case 

management case was closed, 

g. That on August 15, 2013 the Department received a 

neglect report. . . . The report was substantiated and sent 

to case management on September 12, 2013. The case was 

later closed on January 21, 2014. 

h. That on November 20, 2017, the Department received a 

neglect report regarding the family. . . .

i. That on January 29, 2018, the Duplin County 

Department of Social Services received a neglect report . . 

.

¶ 12 The trial court also set out the findings from the 2018 Smith Evaluation: 
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a. That Respondent-Mother’s IQ as measured with the S[I]T, is 

50, based on a comparison of her chronological age and her mental 

age, estimated to be 8 years and 3 months;

b. That the score, coupled with the adaptive behavior scores 

places Ms. Capitano in the [range] of Mild Intellectual Disability;

c. That persons with such Mild Intellectual Disability can benefit 

from training in social and occupational skills but are unlikely to 

progress beyond the sixth-grade level in academic subjects; 

d. That Ms. Capitano is seeking to regain custody of her four 

children. It is recommended that this is a reasonable request 

which should be supported at a level that considers her level of 

disability; and

e. That the Respondent-Mother Should be supervised while 

caring [for] her children, given her impaired level of cognitive 

functioning.

¶ 13 The trial court also found the 2018 Matala Evaluation reported: 

13. That the Respondent Parents submitted to a child forensic 

evaluation on October 2, 2018. The findings expressed doubts 

that the parents had the ability to provide a safe, stable 

environment [for] the children and meet all of their special needs 

without a competent supervisor, who can act as a guardian by 

providing care to the children. 

¶ 14 Lastly, the trial court found “the prior adjudication of neglect was admitted 

into evidence and was considered.” 

¶ 15 Based on these findings, the trial court concluded statutory grounds existed for 

the termination of Respondent-Mother’s parental rights as alleged in the Petition in 

that: 
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a. That the juvenile has been adjudicated to be neglected as 

defined by N.C. Gen. Stat. §7B-101 and there is a high probability 

of a repetition of neglect;

b. That the Respondent-Mother has willfully left the juvenile in 

foster care or placement outside of the home for more than twelve 

(12) months without reasonable progress under the 

circumstances being made in correcting those conditions which 

led to the removal of the Juvenile; and

c. That the Respondent-Mother 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. Gen. 

Stat. §7B-101, and that there is a reasonable probability that such 

incapability will continue for the foreseeable future.

¶ 16 The trial court further concluded it was in the best interests of Samuel to 

terminate Respondent-Mother’s parental rights and, ultimately, ordered 

Respondent-Mother’s parental rights terminated as to Samuel. On 23 August 2021, 

Respondent-Mother timely filed Notice of Appeal.

Issue

¶ 17 The dispositive issue on appeal is whether the trial court erred in adjudicating 

grounds to terminate Respondent-Mothers’ parental rights under N.C. Gen. Stat. § 

7B-1111(a) (1), (2), and (6) where the trial court did not base its Findings of Fact on 

conditions related to Respondent-Mother at the time of the termination hearing. 

Analysis

¶ 18 Jurisdiction for this appeal is granted by N.C. Gen. Stat. §§ 7A-27(b)(2) and 

7B-1001(a)(7) (2021). The standard of appellate review of an order adjudicating 
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grounds upon which to terminate parental rights is whether the trial court’s findings 

of fact are supported by clear, cogent, and convincing evidence and whether those 

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

316 S.E.2d 246, 253 (1984). 

This Court reviews de novo the issue of whether a trial court’s 

adjudicatory findings of fact are supported by its conclusion of law 

that grounds existed to terminate parental rights pursuant to 

N.C. Gen. Stat. § 7B-1111(a). Under a de novo review, the court 

considers the matter anew and freely substitutes its own 

judgment for that of the trial court. 

In re T.M.L., 377 N.C. 369, 2021-NCSC-55, ¶ 15 (internal citations and quotations

omitted).

¶ 19 In this case, the trial court concluded statutory grounds existed under N.C.

Gen. Stat. § 7B-1111(a) (1), (2), and (6) to terminate Respondent-Mother’s parental 

rights. Under N.C. Gen. Stat. § 7B-1111(a) (1), (2), and (6), the trial court may 

terminate parental rights upon finding one or more of the following: 

(1) The parent has abused or neglected the juvenile. The juvenile 

shall be deemed to be abused or neglected if the court finds the 

juvenile to be an abused juvenile within the meaning of G.S. 

7B-101 or a neglected juvenile within the meaning of G.S. 7B101.

(2) The parent has willfully left the juvenile in foster care or 

placement outside the home for more than 12 months without 

showing to the satisfaction of the court that reasonable 

progress under the circumstances has been made in correcting 

those conditions which led to the removal of the juvenile. No 

parental rights, however, shall be terminated for the sole 
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reason that the parents are unable to care for the juvenile on 

account of their poverty.

. . .

(6) That 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 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. Gen. Stat. § 7B-1111(a) (2021). 

¶ 20 Respondent-Mother contends the trial erred in terminating RespondentMother’s parental rights under N.C. Gen. Stat. § 7B-1111(a) (1), (2), and (6) as none 

of the trial court’s adjudicatory Findings of Fact address the circumstances at the 

time of the hearing. Specifically, Respondent-Mother contends the trial court’s 

findings only address circumstances which existed—at the latest—almost thirty-onemonths prior to the termination of parental rights hearing. 

¶ 21 The North Carolina Supreme Court recently addressed a similar argument in 

In Re Z.G.J., 378 N.C. 500, 2021-NCSC-102. There, the respondent argued inter alia

a trial court’s findings based on evidence of the circumstances more than 13 months 

prior to the termination hearing did not support the trial court’s conclusion that 

grounds existed to terminate Respondent-Mother’s parental rights under N.C. Gen. 
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Stat. § 7B-1111(a) (1), (2), and (6). The Supreme Court agreed and reversed the 

adjudication of grounds to terminate parental rights. Id. at ¶ 34. 

¶ 22 With respect to the adjudication of neglect as a ground to terminate parental 

rights under Section 7B-1111(a)(1), the Court observed: “It is well established that 

when deciding whether future neglect is likely, ‘[t]he determinative factors must be 

the best interests of the child and the fitness of the parent to care for the child at the 

time of the termination proceeding.’ ” Id. at ¶ 26, (quoting In re Ballard, 311 N.C. 

708, 715, 319 S.E.2d 227 (1984)). The Court determined that as the only evidence 

presented incorporated only the allegations of the Petition filed more than 13 months 

prior to the hearing, and that those allegations “do not shed any light on respondent’s 

fitness to care for [the juvenile] at the time of the termination hearing, and the trial 

court erred by relying on the stale information in the petition as its only support for 

this ground.” Id. at ¶ 27.

¶ 23 Similarly, with respect to Section § 7B-1111(a)(2), the Supreme Court noted:

Termination under this ground requires the trial court to perform 

a two-step analysis where it must determine by clear, cogent, and 

convincing evidence whether (1) a child has been willfully left by 

the parent in foster care or placement outside the home for over 

twelve months, and (2) the parent has not made reasonable 

progress under the circumstances to correct the conditions which 

led to the removal of the child.

Id. at ¶ 30 (quoting In re Z.A.M., 374 N.C. 88, 95, 839 S.E.2d 792 (2020)). “A parent’s 

reasonable progress ‘is evaluated for the duration leading up to the hearing on the 
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motion or petition to terminate parental rights.’ ” Id. at ¶ 30 (quoting In re J.S., 374 

N.C. 811, 815, 845 S.E.2d 66 (2020)). Thus, the trial court’s adjudication of grounds 

to terminate parental rights based solely on evidence of circumstances more than 13 

months prior was also in error.

¶ 24 Additionally, as it relates to an adjudication of dependency as a ground to 

terminate parental rights, the Supreme Court likewise recognized Section 7B1111(a)(6) requires a showing:

(1) “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 G.S. 7B-101, and ... there is a 

reasonable probability that such incapability will continue for the 

foreseeable future[,]” and (2) “the parent lacks an appropriate 

alternative child care arrangement.” N.C. Gen. Stat. § 7B1111(a)(6) (2019). 

Id. at ¶ 31. Moreover, “Like the adjudication of grounds pursuant to subsections 

(a)(1) and (2), an adjudication of dependency as a ground for termination under 

subsection (a)(6) must be based on an examination of the parent’s ability to care for 

and supervise their child at the time of the adjudication hearing.” Id. Therefore, as 

with the other grounds, the trial court’s findings related to circumstances more than 

13 months prior did not support the trial court’s adjudication of dependency. Id.

¶ 25 Ultimately, the Supreme Court summarized its holding on these points: 

by relying solely on the evidence from a termination petition that 

was filed thirteen months prior to the hearing, the trial court 

erred by concluding grounds for termination existed under 
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subsections (a)(1), (2), and (6), since each of those grounds 

requires evaluating the evidence as of the time of the termination 

hearing.

In re Z.G.J., 378 N.C. 500, 2021-NCSC-102, ¶ 34. 

¶ 26 In the case before us, the trial court based its July 2021 determination that 

grounds existed to terminate Respondent-Mother’s parental rights under N.C. Gen. 

Stat. § 7B-1111(a) (1), (2), and (6) based on Findings of Facts from almost 31 months 

prior to the termination hearing. Indeed, most of the trial court’s relevant findings 

consist of reciting case history from 2008 to 2018 and the findings from the 2018 

Smith and Matala reports. The trial court made no findings that would support a 

determination that at the time of the June 2021 hearing there was a likelihood of 

repetition of neglect. The trial court also made no findings evaluating RespondentMother’s progress, if any, to correct the conditions resulting in the removal of Samuel 

from her custody in the time period leading up to the hearing. Finally, the trial court 

also made no findings which reflect any examination of the Respondent-Mother’s 

ability to care for and supervise Samuel at the time of the adjudication hearing.

¶ 27 Thus, under In re Z.G.J., the trial court’s findings—in this case based on 

circumstances pre-dating the termination of parental rights hearing by almost 31 

months or more—failed to evaluate the evidence at the time of the termination of 

parental rights hearing. Thus, in turn, those findings cannot support the trial court’s 

conclusion grounds existed to terminate Respondent-Mother’s parental rights under 
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N.C. Gen. Stat. § 7B-1111(a) (1), (2), and (6). Consequently, the trial court erred in 

adjudicating grounds existed to terminate Respondent-Mother’s parental rights. See 

Id. at ¶ 34. As such, we vacate the trial court’s Judgment Terminating Parental 

Rights and remand this matter to the trial court to determine (1) whether the existing 

record contains evidence from which it may make Findings of Fact as to the 

circumstances at the time of the termination hearing and, if so, (2) to make a new 

determination as to whether grounds exist to terminate parental rights and, in turn, 

(3) enter the disposition it deems in the best interest of Samuel.3 If the trial court 

determines the evidence does not support grounds for terminating RespondentMother’s parental rights, the trial court should dismiss the Petition. 

Conclusion

¶ 28 Accordingly, for the foregoing reasons, we vacate the trial court’s 22 July 2021 

Judgment Terminating Parental Rights and remand this matter to the trial court to 

conduct further proceedings as set forth herein.

VACATED AND REMANDED.

Judges DILLON and DIETZ concur.

 

3 In remanding this matter to the trial court, we also note that in adjudicating 

dependency as a ground to terminate parental rights, the trial court also failed to make any 

finding the “the parent lacks an appropriate alternative child care arrangement” as required 

under N.C. Gen. Stat. § 7B-1111(a)(6) (2019).