How is Failure to Make Reasonable Progress on Correcting the Reason for a Child's Removal Measured in North Carolina?

Sometimes parental rights are terminated due to a parent’s failure to make reasonable progress to correct the situation that resulted in a child being removed from the home. But how does the court measure reasonable progress? And when does it do the measuring? In a recent North Carolina parental rights case, a mother appealed from the lower court’s order terminating her parental rights for failure to make reasonable progress to correction conditions that led to her being removed from the home.

The case arose when the Department of Social Services got nonsecure custody of a child. They petitioned the court, claiming she was neglected and that her home was made harmful by domestic violence between the parents. The mother had been choked in the child’s presence ,when the child was only four months at the time, and there was also a bruise on her arm. The mother had filed charges against the father for injuring the child in question’s half-sibling who had to go live with her father.

The lower court found that the child was neglected. She was placed with her paternal grandmother. The lower court ordered the mother to follow an out-of-home service agreement that required her to complete various tasks, including getting psychological and mental health assessments and refraining from criminal actions. She also had to get and keep a stable income for at least three months in a row. She was permitted 90 minutes of supervised visitation with her child each week.

The lower court ordered reunification as a permanent plan. It later found the mother had tested positive for very high levels of amphetamines. She also gave inconsistent reports about substance abuse, diagnosis and medication. The lower court stopped reunification efforts and changed the permanent plan to adoption. It also found that she hadn’t complied with terms of her service agreement and was still hostile and uncooperative with the Department of Social Services.

The Department petitioned to terminate the mother’s parental rights for willfully failing to make reasonable progress to correct what had resulted in removal. The court found there was a failure to make reasonable progress and that termination was in the child’s best interest.

The mother appealed, arguing that the lower court had made a mistake in terminating her parental rights for failure to make reasonable progress to correct conditions which led to removal of the juvenile, because the findings of fact were not enough to support the court’s conclusion. The appellate court explained that parental rights can be terminated under N.C. Gen. Stat. § 7B-1111(a)(2) where the court finds and decides that there is clear and convincing evidence to support the conclusion that the parent willfully left the child in foster care or placement outside the home for more than 12 months without showing to the court’s satisfaction that reasonable progress had been made in correcting the conditions that resulted in removal.

The lower court’s order needs to include sufficient factual findings about whether a parent acted willfully and the parent’s failure to make reasonable progress. There is no reasonable progress where whatever conditions resulted in removal continued with little or no signs of progress. The lower court found that within the last six months the mother had called the police on her live-in boyfriend and father of her new child. She couldn’t show what she learned in parenting classes. She continued to shift her attention away from the child during multiple visitations. She didn’t complete the Service Agreement, and didn’t show the ability to put her child first.

The mother argued that she called the police on her live-in boyfriend because he wouldn’t leave, but that it wasn’t domestic violence, and the court’s finding didn’t support the conclusion that she hadn’t corrected the domestic violence issue that resulted in her child’s removal. The court agreed that the Department hadn’t presented clear, convincing evidence to show she failed to demonstrate that she’d learned domestic violence skills. At the hearing, a social worker had testified to the mother’s version of what had happened with her live-in boyfriend and that it hadn’t involved violence or force. The appellate court found that seeking assistance showed the mother’s attempt to stop domestic violence from happening.

The appellate court also found that the Department hadn’t shown evidence to support the conclusion that she wasn’t able to protect the child and it wasn’t her burden to prove that a fact didn’t exist. The Department had claimed the mother had a lack of focus with the child, but the appellate court explained that this wasn’t why the child had been removed. The Department hadn’t shown evidence of improper interaction between mother and child or physical abuse. The Department claimed that there were deeper issues in the family, but hadn’t put those conditions in the nonsecure custody order or neglect petition and therefore hadn’t given notice to the mother of those conditions.

The lower court’s order was reversed.

If your child has been removed from your North Carolina home and there is the threat that your parental rights will be terminated, it is important to seek legal counsel. Call the Woodruff Family Law Group at 336.272.9122 or contact us via our online form.