IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-96

No. 325A21

Filed 19 August 2022

IN THE MATTER OF: M.B., J.B., and J.S.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) (2019) from orders entered on 1 

June 2021 by Judge Marion M. Boone in District Court, Surry County. This matter 

was calendared for argument in the Supreme Court on 1 July 2022 but determined 

on the record and briefs without oral argument pursuant to Rule 30(f) of the North 

Carolina Rules of Appellate Procedure.

R. Blake Cheek for petitioner-appellee Surry County Department of Social 

Services.

James N. Freeman Jr. for appellee Guardian ad Litem.

David A. Perez for respondent-appellant mother.

HUDSON, Justice.

¶ 1 Respondent appeals from the trial court’s orders terminating her parental 

rights in Mary1 (born April 2010), James (born August 2011), and Joy (born 

September 2016) based on neglect and failure to show reasonable progress in 

correcting the conditions which led to the removal of the children from the home.

Because the trial court failed to make necessary determinations to support the 

1 Pseudonyms are used throughout the opinion to protect the identities of the children 

and for ease of reading.
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adjudication of grounds for termination under N.C.G.S. § 7B-1111(a)(1) and (2), we 

vacate the trial court’s orders and remand for further proceedings not inconsistent 

with this opinion. See N.C.G.S. § 7B-1111(a)(1)–(2) (2021). 

I. Factual and Procedural Background

¶ 2 On 22 March 2019, the Surry County Department of Social Services (DSS) filed 

juvenile petitions alleging that Mary, James,2 and Joy3 were neglected juveniles. The 

petitions alleged that the children lived in an injurious environment due to 

respondent’s substance abuse, improper supervision, and unsanitary home 

conditions. DSS explained that it had been providing case management services to 

the family since January 2019, but that respondent failed to participate in any 

referred services, including Intensive Family Preservation Services and assessments 

for mental health and substance abuse. The petitions alleged that a DSS social 

worker visited respondent’s home twice on 22 March 2019 to develop a safety plan for 

the children, but respondent refused to meet with the social worker. The social worker 

observed that there were “numerous bags of trash piled up on the back porch” and 

the home had a mouse infestation. The petition also alleged that Mary and Joy both 

had untreated boils on their bodies and that Mary had “blistery areas on her face.” 

After the filing of the juvenile petitions, DSS obtained nonsecure custody of the 

2 Mary and James share the same father, who is deceased.

3 Joy’s father is not a party to this appeal.
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children. The children were placed in foster care, and the trial court awarded 

respondent two hours of supervised visitation once per week. 

¶ 3 On 17 April 2019, respondent entered into a case plan with DSS to address the 

issues that led to the children’s removal from her home. The case plan required 

respondent to: obtain a substance abuse assessment and comply with recommended 

treatment including random drug screens, complete parenting classes, obtain and 

maintain suitable housing, and obtain and maintain gainful employment. 

¶ 4 On 11 June 2019, the trial court adjudicated Mary, James, and Joy neglected 

juveniles and continued custody with DSS. Respondent stipulated to the factual 

allegations in the petition that supported the trial court’s adjudication. The trial court

ordered respondent to comply with the components of her case plan and set the 

primary permanent plan as reunification with a secondary plan of termination of 

parental rights and adoption.

¶ 5 Following a 31 October 2019 review hearing, the trial court entered an order 

on 16 December 2019 reducing respondent’s visitation to two hours every other week 

due to her poor attendance. The court found that respondent had attended only seven 

of the thirteen scheduled visits. The court also found that respondent completed a 

comprehensive clinical assessment on 16 July 2019 and was referred to substance 

abuse intensive outpatient treatment. Finally, the court found that respondent was 

provided the opportunity to complete substance abuse treatment and parenting 
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Opinion of the Court

programs but had inconsistent attendance. 

¶ 6 In an order entered on 27 October 2020, the trial court changed the children’s 

primary permanent plan to termination of parental rights and adoption due to 

respondent’s ongoing mental health and substance abuse issues. The court found 

respondent was diagnosed with opiate use disorder severe, amphetamine use disorder 

severe, post traumatic stress disorder, and unspecified depressive disorder. 

Respondent was not compliant with her substance abuse treatments and continued 

to struggle with her sobriety, testing positive for amphetamines and 

methamphetamines on 10 June 2020. The court found that respondent was not 

making reasonable progress on her case plan and that there remained significant 

barriers to reunification.

¶ 7 On 23 December 2020, DSS filed a motion to terminate respondent’s parental 

rights in Mary, James, and Joy, alleging that grounds existed for termination based 

on neglect and willfully leaving the minor children in foster care without showing 

reasonable progress in correcting the conditions which led to the removal of the 

children from the home. See N.C.G.S. § 7B-1111(a)(1)–(2).

¶ 8 On 7 April 2021, the trial court held a hearing on the motion to terminate 

respondent’s parental rights. In a 1 June 2021 adjudication order, the trial court 

found that respondent had not completed substance abuse treatment as required by 

her case plan, had tested positive for illicit substances on six drug screens, had not 
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maintained safe and stable housing, and was not employed. The trial court further 

found that respondent was not making reasonable progress under the circumstances

in correcting the conditions that led to the removal of the children and, therefore, 

grounds existed to terminate respondent’s parental rights under N.C.G.S. § 7B1111(a)(1) and (2). In a separate disposition order entered the same day, the court 

concluded that it was in the children’s best interests that respondent’s parental rights 

be terminated and terminated respondent’s parental rights. Respondent timely 

appealed. 

¶ 9 On appeal, respondent argues that the trial court failed to make certain

necessary determinations regarding both grounds for termination. First, respondent 

contends that the trial court failed to make the necessary determination that there 

was a probability of repetition of neglect under N.C.G.S. § 7B-1111(a)(1). Second, 

respondent contends that the trial court failed to make the necessary determination 

that her failure to make reasonable progress was willful under N.C.G.S. § 7B1111(a)(2).4

II. Analysis

¶ 10 “Our Juvenile Code provides for a two-step process for termination of parental 

rights proceedings consisting of an adjudicatory stage and a dispositional stage.” In 

4 Respondent does not challenge the trial court’s determination that termination of 

her parental rights was in the best interests of the children.
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re Z.A.M., 374 N.C. 88, 94, (2020) (citing N.C.G.S. §§ 7B-1109, 1110 (2019)). 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 

N.C.G.S. § 7B-1111(a). N.C.G.S. § 7B-1109(e)–(f) (2021). We review an adjudication

order “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 (2019) (quoting In re Montgomery, 311 N.C. 101, 111 (1984)).

“Findings of fact not challenged by respondent are deemed supported by competent 

evidence and are binding on appeal.” In re T.N.H., 372 N.C. 403, 407 (2019). “The 

trial court’s conclusions of law are reviewable de novo on appeal.” In re C.B.C., 373 

N.C. 16, 19 (2019).

A. Adjudication Under N.C.G.S. § 7B-1111(a)(1)

¶ 11 First, respondent argues that the trial court erred in concluding that grounds 

existed to terminate her parental rights based on neglect because it failed to 

determine the likelihood of a repetition of neglect. We agree, and therefore vacate 

this portion of the trial court’s orders.

¶ 12 Pursuant to N.C.G.S. § 7B-1111(a)(1), a trial court may terminate parental 

rights upon a finding that the parent has neglected the juvenile. Generally, 

“[t]ermination of parental rights based upon this statutory ground requires a showing 

of neglect at the time of the termination hearing.” In re L.H., 378 N.C. 625, 2021-
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NCSC-110, ¶ 10 (quoting In re R.L.D., 375 N.C. 838, 841 (2020)). However, in 

instances where “the child has been separated from the parent for a long period of 

time, there must be a showing of a likelihood of future neglect by the parent.” Id.

(emphasis added) (quoting In re R.L.D., 375 N.C. at 841). “In such cases, a trial court 

may terminate parental rights based upon prior neglect of the juvenile if the trial 

court finds by clear and convincing evidence a probability of repetition of neglect if the 

juvenile were returned to [his or] her parents.” In re E.L.E., 243 N.C. App. 301, 308 

(2015) (cleaned up) (emphasis added).

¶ 13 Because it lacks a crystal ball, a trial court may consider many past and 

present factors to make this forward-looking determination. See In re L.H., ¶ 17 

(“[W]hile any determination of a likelihood of future neglect is inevitably predictive 

in nature, the trial court’s findings were not based on pure speculation.”). For 

instance, a trial court “must consider evidence of changed circumstances occurring 

between the period of past neglect and the time of the termination hearing.” In re 

Z.V.A., 373 N.C. 207, 212 (2019). Likewise, a trial court may consider “whether the 

parent has made any meaningful progress in eliminating the conditions that led to 

the removal of the children.” In re O.W.D.A., 375 N.C. 645, 654 (2020) (quoting In re 

J.H.K., 215 N.C. App. 364, 369 (2011)). When these factors evidence “a likelihood of 

repetition of neglect, the trial court may reach a conclusion of neglect under 

[N.C.G.S.] § 7B-1111(a)(1).” In re J.H.K., 215 N.C. App. at 368.
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¶ 14 However, these are only factors within the trial court’s ultimate determination 

of a likelihood of future neglect; noting the factors alone does not amount to making 

the determination itself. After noting these factors, the trial court must then 

distinctly determine a parent’s likelihood of neglecting a child in the future. See, e.g.,

In re L.H., ¶ 11 (affirming a trial court’s termination of parental rights under 

N.C.G.S. § 7B-1111(a)(1) because the trial court “ultimately determined there was a 

substantial likelihood that the children would again be neglected if returned to 

respondent’s care based on [various factual] findings” (emphasis added)); In re Reyes, 

136 N.C. App. 812, 815 (2000) (“[P]arental rights may . . . be terminated if there is a 

showing of a past adjudication of neglect and the trial court finds by clear and 

convincing evidence a probability of repetition of neglect if the juvenile were returned 

to [his or] her parents.” (emphasis added)). When the trial court fails to distinctly 

determine that there is a likelihood of future neglect, “the ground of neglect is 

unsupported by necessary findings of fact.” In re E.L.E., 243 N.C. App. at 308. Even 

when “competent evidence in the record exists to support such a finding, . . . the 

absence of this necessary finding [still] requires reversal.” Id.

¶ 15 Here, the trial court found the component factors but did not make the ultimate 

determination. While the trial court made extensive unchallenged findings in the 

adjudication order regarding respondent’s lack of progress on her case plan, the trial 

court’s order is devoid of any distinct determination of whether there was a likelihood 
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of future neglect should the children be returned to respondent’s care. Because the 

children had been outside of respondent’s care for an extended period of time, such a 

determination “was necessary to sustain the conclusion that respondent’s parental 

rights were subject to termination based on neglect.” In re B.R.L., 379 N.C. 15, 2021-

NCSC-119, ¶ 23.

¶ 16 To be sure, the trial court’s findings of fact regarding respondent’s lack of 

progress could have been sufficient to support a determination of a likelihood of 

future neglect. See, e.g., In re O.W.D.A., 375 N.C. at 654. For instance, the trial court’s 

unchallenged findings of fact demonstrated that respondent “ha[d] not obtained or 

maintained safe, suitable, and stable housing” and “ha[d] no visible means to support 

herself.” But as written, the trial court’s order fails to make the necessary and distinct 

determination of a likelihood of future neglect. This failure constitutes reversible 

error. Accordingly, we vacate this portion of the trial court’s orders and remand the 

matter to the trial court for consideration of whether there was a likelihood of 

repetition of neglect.

¶ 17 Because we conclude that termination of respondent’s parental rights cannot 

be upheld under N.C.G.S. § 7B-1111(a)(1), we next turn to the trial court’s conclusion 

that grounds existed for termination under N.C.G.S. § 7B-1111(a)(2).

B. Adjudication Under N.C.G.S. § 7B-1111(a)(2)

¶ 18 Second, respondent argues that the trial court erred in concluding that grounds 
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existed under N.C.G.S. § 7B-1111(a)(2) to terminate her parental rights because it 

failed to make any determination that her lack of progress was willful. We agree, and 

therefore vacate this portion of the trial court’s orders as well.

¶ 19 Subsection 7B-1111(a)(2) provides that parental rights may be terminated if 

“[t]he parent has willfully left the juvenile in foster care or placement outside the 

home for more than 12 months without showing to the satisfaction of the court that 

reasonable progress under the circumstances has been made in correcting those 

conditions which led to the removal of the juvenile.” N.C.G.S. § 7B-1111(a)(2).

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.

In re Z.A.M., 374 N.C. at 95. “The willfulness of a parent’s failure to make reasonable 

progress toward correcting the conditions that led to a child’s removal from the family 

home is established when the parent had the ability to show reasonable progress, but 

was unwilling to make the effort.” In re A.S.D., 378 N.C. 425, 2021-NCSC-94, ¶ 10 

(cleaned up).

¶ 20 This Court has previously determined that a trial court must make a finding 

of a parent’s willfulness in relation to termination of parental rights pursuant to 

N.C.G.S. § 7B-1111(a)(7) for willful abandonment. See In re K.N.K., 374 N.C. 50, 53 
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(2020) (“The willfulness of a parent’s actions is a question of fact for the trial court”);

In re N.D.A., 373 N.C. 71, 81 (2019) (concluding that a trial court’s “fail[ure] to 

adequately address the . . . willfulness of [respondent’s] conduct” rendered the 

findings insufficient to support termination based on willful abandonment); cf. In re 

N.M.H., 375 N.C. 637, 643–44 (2020) (affirming an adjudication of willful 

abandonment as a ground for termination despite the trial court’s failure to use the 

statutory language because the findings “ultimately support[ed] the conclusion that 

respondent’s conduct met the statutory criterion of willful abandonment[,]” and 

“when read in context, the trial court’s order makes clear that the court applied the 

proper willfulness standard to determine that respondent willfully abandoned the 

child under N.C.G.S. § 7B-1111(a)(7)”). Likewise, the Court of Appeals has reversed 

a trial court’s termination of parental rights on the ground of willful failure to make 

reasonable progress because the trial court’s order did “not contain adequate findings 

of fact that respondent acted ‘willfully[,]’ ” In re C.C., 173 N.C. App. 375, 384 (2005), 

when the order was “devoid of any finding that respondent was ‘unwilling to make 

the effort’ to make reasonable progress in remedying the situation that led to the 

adjudication of neglect[,]” id. at 383. 

¶ 21 Based on these precedents, we are persuaded that the trial court was required 

to make a finding of willfulness to support its termination of respondent’s parental 

rights under N.C.G.S. § 7B-1111(a)(2) in this case.
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¶ 22 As above, the trial court’s orders here falls short of this requirement: they lack 

any determination that respondent’s conduct was willful. Although the trial court 

made extensive findings regarding respondent’s lack of progress on her case plan, it 

neither found nor concluded that respondent willfully left the children in foster care 

without making reasonable progress or that respondent’s lack of progress met the 

statutory criteria under N.C.G.S. § 7B-1111(a)(2). Accordingly, we hold that the trial 

court’s findings are insufficient to support its conclusion that grounds existed to 

terminate respondent’s parental rights pursuant to N.C.G.S. § 7B-1111(a)(2) and 

vacate this portion of the trial court’s orders. However, we note that evidence was 

presented during the adjudicatory stage from which the trial court could have made 

additional findings of fact addressing the willfulness of respondent’s failure to make 

progress on her case plan. We therefore remand the matter back to the trial court for 

further factual findings on this ground.

III. Conclusion

¶ 23 Because the trial court failed to make necessary determinations on 

adjudication under N.C.G.S. § 7B-1111(a)(1) and (2), we vacate the court’s orders

terminating respondent’s parental rights and remand the matter for further 

proceedings not inconsistent with this opinion, including the entry of a new order 

determining whether respondent’s parental rights were subject to termination based 

on neglect and willful failure to make reasonable progress. See In re C.L.H., 376 N.C. 
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614, 2021-NCSC-1, ¶ 17 (vacating and remanding for further proceedings “[w]here . . 

. the trial court’s adjudicatory findings were insufficient to support its conclusion that 

termination of the parent’s rights was warranted, but the record contained additional 

evidence that could have potentially supported a conclusion that termination was 

appropriate” (cleaned up)). The trial court may, in the exercise of its discretion, 

receive additional evidence on remand if it elects to do so. See In re N.D.A., 373 N.C. 

at 84.

VACATED AND REMANDED.
Justice BERGER dissenting.

¶ 24 The majority’s elevation of form over substance only serves to delay final 

resolution of this matter. Because the trial court entered a detailed order sufficient 

to terminate respondent’s parental rights under N.C.G.S. § 7B-1111(a)(1) and (2), I 

respectfully dissent. 

¶ 25 Here, the trial court’s unchallenged findings of fact demonstrate respondent’s 

inability to provide “safe, suitable, and stable housing” for the children at the time of 

the termination hearing. Additionally, the trial court found that respondent had 

reported “no stable employment” and “has no visible means of support” to provide for 

her children going forward. The trial court indicated that at the time of the hearing, 

respondent “ha[d] failed to achieve stability for herself and her children.” 

¶ 26 Moreover, the trial court made extensive unchallenged findings in the 

adjudication order regarding respondent’s lack of progress on her case plan. The 

juveniles had been in the custody of DSS for two years, and the trial court outlined 

respondent’s failure to complete the substance abuse treatment and parenting 

programs, pointing to her excessive absences, “lack of engagement,” and continued 

“narcotic usage.” Notably, the trial court found respondent “still has ongoing

substance abuse problems and she has not completed any in-patient treatment.” 

(Emphasis added.) Accordingly, the trial court found that respondent had not 

demonstrated progress in resolving the issues her case plan attempted to address. 
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Berger, J., dissenting

¶ 27 These findings demonstrate that respondent lacked the ability to provide 

proper care to Mary, James, and Joy at the time of the termination hearing and are 

indicative of a likelihood of future neglect if the children were returned to 

respondent’s care. See In re M.A., 374 N.C. 865, 870, 844 S.E.2d 916, 920–21 (2020); 

see also Matter of L.E.W., 375 N.C. 124, 136, 846 S.E.2d 460, 469 (2020) (“the 

willfulness of a parent’s failure to make reasonable progress toward correcting the 

conditions that led to a child’s removal from the family home ‘is established when the 

[parent] had the ability to show reasonable progress, but was unwilling to make the 

effort.’ ”) Though the trial court could have provided additional findings in its order, 

those it did include support its conclusion to terminate respondent’s parental rights. 

Chief Justice NEWBY joins in this dissenting opinion.