In re A.L.

378 N.C. 396

862 S.E.2d 163

In the MATTER OF: A.L.

No. 370A20

Supreme Court of North Carolina.

Filed August 27, 2021

J. Edward Yeager, Jr., for petitioner-appellee Robeson County Department of Social Services.

Maggie D. Blair, Charlotte, for appellee Guardian ad litem.

Anné C. Wright, Boone, for respondent-appellant mother.

BERGER, Justice.

¶ 1 Respondent appeals from an order terminating her parental rights in A.L. (Arden).¹ While the trial court properly applied North Carolina law in terminating respondent's parental rights in Arden, this case should be remanded for further proceedings to ensure compliance with the Indian Child Welfare Act.

I. Background

¶ 2 Arden was born January 31, 2015. Arden's birth certificate listed respondent's race as "American Indian". On July 22, 2016, the Robeson County Department of Social Services (DSS) obtained nonsecure custody of Arden and filed a juvenile petition alleging her to be a neglected juvenile.

¶ 3 The petition alleged that DSS received a referral on December 18, 2015, which stated respondent's boyfriend "kicked her out" of the home after realizing she was using drugs. There were concerns that respondent went to her mother's house, where "they were smoking crack and snorting pills." There were also concerns of respondent having seizures because "she smoked so much dope" and of respondent having a seizure while caring for Arden. Respondent admitted to cocaine use twice a week and the use of a non-prescribed pill, Loracet, for back pain.

¶ 4 The petition further alleged that on February 16, 2016, respondent agreed to a case plan which required her to complete substance abuse counseling and to follow all recommendations. In late April 2016, respondent was accepted into a substance abuse program at Crystal Lake. By mid-July 2016, respondent had been removed from Crystal Lake's program. On July 18, 2016, respondent informed a DSS social worker that she had smoked "crack" with her mother, sold her food stamps for drugs, and used cocaine with her boyfriend while Arden "was with them but ... asleep". On July 20, 2016, respondent also informed a DSS social worker that she paid her mother to watch Arden despite knowing that her mother was high. In an order issued July 22, 2016, the trial court found that Arden was a member of a State-recognized tribe and listed her race as "Indian" while ordering DSS to notify the tribe "of the need for nonsecure custody for the purpose of locating relatives or nonrelative kin for placement." The trial court reiterated that Arden was a member of a State-recognized tribe in orders dated August 31, 2016, September 1, 2016, and September 12, 2016.

¶ 5 Following a hearing on September 15, 2016, the trial court entered an order on November 9, 2016, adjudicating Arden to be a neglected juvenile. In a separate disposition order entered November 15, 2016, the trial court found that on August 31, 2016, respondent met with a DSS social worker and agreed to attend substance abuse treatment, participate and successfully complete the inpatient treatment services at Family Treatment Court, and participate in random drug screens. The permanent plan was set as reunification with a concurrent plan of adoption.

¶ 6 Following a permanency planning hearing on May 3, 2017, the trial court entered an order on July 6, 2017, finding that respondent had attended two separate facilities for substance abuse treatment during DSS's involvement. However, respondent had not successfully completed either program and was not seeing any provider to address her issues. The trial court further made findings of fact that respondent needed to address issues including housing, substance abuse, and parenting and mental health concerns.

¶ 7 Following a permanency planning hearing on November 1, 2017, the trial court entered an order on November 29, 2017, finding that on August 8, 2017, respondent entered treatment at Faith Home Recovery in South Carolina and graduated from its program on September 29, 2017. Thereafter, respondent entered residential treatment at Grace Court, and Arden was placed with respondent in a trial home placement.

¶ 8 Following a permanency planning hearing on February 7, 2018, the trial court entered an order on May 23, 2018, finding that on November 4, 2017, Grace Court staff informed a DSS social worker that respondent was testing negative on her random drug screens. On December 15, 2017, a DSS social worker made contact with Family Treatment Court and was informed that respondent was "doing well."

¶ 9 Following a permanency planning hearing on August 1, 2018, the trial court entered an order finding that Arden was placed in a licensed foster home. Respondent had been discharged from Grace Court for "insubordination" on April 6, 2018, and was receiving outpatient services at Southeastern Behavioral Health Services. On June 26, 2018, respondent was present for visitation with Arden at DSS, however, she was subsequently arrested for failure to appear for Family Treatment Court. On June 29, 2018, respondent was discharged from Family Treatment Court for noncompliance after testing positive for cocaine. On July 16, 2018, respondent informed a DSS social worker that she had "used crack ... last Monday." The trial court changed the permanent plan to adoption with a concurrent plan of reunification with respondent.

¶ 10 On October 24, 2018, DSS filed a petition to terminate respondent's parental rights² pursuant to N.C.G.S. § 7B-1111(a)(1), (2), and (3).

¶ 11 Following a permanency planning hearing on February 20, 2019, the trial court entered an order on May 8, 2019, finding that although respondent had attended three inpatient facilities for substance abuse, she had not successfully completed any of the programs. The trial court also found that she was not consistent in attending outpatient services at Southeastern Behavioral Health Services. Respondent continued to admit to cocaine use. On February 1, 2019, respondent entered the Walter B. Jones Center and successfully completed the detox program. She was discharged on February 13, 2019, but she did not follow up with any services after completing the program. The trial court further found that respondent had not completed parenting classes, was not receiving mental health services, and did not have her own housing.

¶ 12 Following a permanency planning hearing on January 15, 2020, the trial court entered an order on March 11, 2020, finding that respondent was currently receiving inpatient treatment at Miracle Hill/Shepherd's Gate. Arden had been in her current foster home since April 6, 2018. Arden's therapist testified that after her monthly visitations with respondent, Arden would suffer from sleep disruption, breakdowns, and outbursts of anger. The trial court subsequently terminated respondent's visitations with Arden.

¶ 13 A hearing was held on the petition to terminate respondent's parental rights, and the trial court entered an order on February 26, 2020, concluding that grounds existed to terminate respondent's rights in Arden pursuant to N.C.G.S. § 7B-1111(a)(1), (2), and (3).³ Despite the trial court's initial orders finding Arden to be a member of a State-recognized tribe, the trial court did not address the Indian Child Welfare Act in the Order on Adjudication, Order on Disposition, or the Order Terminating Respondent's Parental Rights. Respondent appeals.

¶ 14 On appeal, respondent challenges the trial court's determination that grounds existed to terminate her parental rights and argues that the trial court failed to comply with the Indian Child Welfare Act.

II. Discussion

A. Grounds for Termination

¶ 15 Here, the trial court found grounds for termination under N.C.G.S. § 7B-1111(a)(1), (2), (3), and (6). Because only one ground is needed to support termination, we will only review termination under N.C.G.S. § 7B-1111(a)(2). See N.C.G.S. § 7B-1111(a) ("The court may terminate the parental rights upon a finding of one or more [grounds for termination.]").

¶ 16 "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 re Z.A.M. , 374 N.C. 88, 94, 839 S.E.2d 792, 796–97 (2020) (citing N.C.G.S. §§ 7B-1109, -1110 (2019)). We review a trial court's adjudication of grounds to terminate parental rights " ‘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) ). "A trial court's finding of fact that is supported by clear, cogent, and convincing evidence is deemed conclusive even if the record contains evidence that would support a contrary finding." In re B.O.A. , 372 N.C. 372, 379, 831 S.E.2d 305, 310 (2019). Unchallenged findings are deemed to be supported by the evidence and are binding on appeal.

In re Z.L.W. , 372 N.C. 432, 437, 831 S.E.2d 62, 65 (2019). "The trial court's conclusions of law are reviewable de novo on appeal." In re C.B.C. , 373 N.C. 16, 19, 832 S.E.2d 692, 695 (2019).

¶ 17 On appeal, respondent specifically challenges whether the trial court's findings of fact support its conclusion that, under N.C.G.S. § 7B-1111(a)(2), she willfully left Arden "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" had been made in correcting the conditions which led to Arden's removal. Respondent argues that she made reasonable progress to correct the conditions that led to Arden's removal from her home by consistently seeking and engaging in treatment. She asserts that relapses for addicts "are not uncommon or unique, and therefore not unreasonable under the circumstances" and that at the time of the termination hearing, she had been sober and successfully participating in...