In re J.W.

HUNTER, Judge.

LEVINSON, Judge dissenting.

I respectfully dissent. Because the record fails to reveal clear, cogent and convincing evidence necessary to support the findings of fact and conclusions of law supporting grounds for termination of respondent-mother's parental rights, the order of the trial court as it pertains to her must be reversed. I make no comment regarding sections I and II of the majority opinion.

As a preliminary matter, I note that I have set forth, in some detail, the evidence presented during the termination hearing. While this may repeat, in some instances, that which the majority opinion outlines, it is necessary to fully explain and discuss my reasoning.Page 467

Respondent is the mother of K.W. and J.W., two boys born to different fathers. K.W.'s father currently lives in Nevada and has had little contact with K.W. J.W.'s father, Mr. W, married respondent and moved the family to North Carolina.

In December 2000 respondent took J.W., then an infant, to the hospital because of his "spitting up." The hospital diagnosed J.W. with acid reflux and failure to thrive. DSS was contacted and made two home visits in December 2000. During the first home visit, the DSS worker observed an unsafe environment (because an ax, knife and loaded gun were unsecured), and an unsanitary environment (because of clothes and dirty dishes piled throughout the house). On a follow-up visit the next day, the gun, ax, and knife were secured and the home was clean. Nonetheless, DSS assumed custody of J.W. and K.W. by means of a petition alleging neglect because of unsafe and unsanitary living conditions. In addition, J.W. was alleged to be a neglected juvenile for lack of medical care. By order entered 16 February 2001, the children were adjudicated neglected and their custody continued with DSS.

During 2001, respondent and Mr. W. were allowed increasingly unsupervised and extended visitation. K.W was returned to the care of respondent and Mr. W. in May 2001; J.W. was returned to their custody in August 2001. DSS continued to maintain placement authority for both boys. On 9 November 2001 a permanency planning hearing was held. In maintaining reunification as the permanent plan, the trial court included the following findings of fact in its order:

(6) (b) The [respondent and Mr. W] have complied with the service plan and the psychological assessments have been favorable.

(c) Both children have been home since August, 2001. While the placement has gone well, the Department and GAL do have some concerns over the cleanliness of the home and the odor therein. However, the [respondent and Mr. W] have progressed a great deal and the situation as it exists today would not justify a removal of the children from that home. The Department and GAL wish to continue to monitor the placement.

During the fall of 2001, the DSS worker visited the home several times each month. She described respondent's housekeeping as "sporadic" and noted that clothes and dirty dishes were often visible. DSSPage 468made two more home visits in January 2002. On 7 January 2002 the home was worse than usual, with dishes and food left out, dirty clothes piled in the laundry room, cans of beans on the floor, no sheets on the beds, and toys strewn about the home. However, when the worker returned two days later, "the house was very clean, laundry room, kitchen, dining room floors, boy[s'] room, and den. It looked like a totally different house[.]" Despite the improvement, on 16 January 2002, the GAL and Attorney Advocate filed a motion for review to address placement and, on 25 January 2002, DSS obtained an order again removing the children from the home.

A subsequent permanency planning hearing was held 8 February 2002. At that time, the permanency goal was changed to a dual plan of reunification and relative placement. The trial court granted custody of the children to DSS, allowed supervised visitation for respondent and Mr. W., and ordered respondent and Mr. W. to comply with a case plan listing fourteen requirements, twelve of which applied to mother:

1. Attend Parenting classes

2. Participate — DSS Homemaker services

. . . .

4. Participate in household budgeting classes with Extension Services

5. Obtain counselling [sic] and treatment as recommended by Dr. Aiello.

6. Pay child support

. . . .

8. Mother obtain and maintain employment with a schedule compatible with the needs of the children

9. Obtain a telephone

10. Attend all medical and dental appointments with children or conference with care providers to maintain familiarity with children's condition

11. Keep and maintain a clean and appropriate home environment

12. Provide evidence of compliance to DSS or GAL on a weekly basis

Page 469

13. Maintain stable residence and not have boarders or house guests for extended periods of time

14. Sign releases for DSS and GAL to allow communication by DSS and GAL with all service providers above

At the termination hearing, a social worker testified the children were removed from the home the second time due to respondent's inconsistent housekeeping; inconsistent attendance of the children at daycare (notwithstanding the fact respondent was home during the daytime); and inconsistent medical care for the children. With respect to the concern about medical care, the record shows only that (1) J. W. had a cough and a fever of between 102 and 103 degrees for a couple of days in December 2001, and (2) in the fall of 2001, respondent had failed to return phone calls to the doctor concerning test results of J.W.'s scalp fungus. There was no evidence from this period of time concerning a failure to thrive on the part of J.W., or of respondent's failure to provide the children with adequate nutrition.

Following the 8 February 2002 permanency planning hearing, respondent attended every scheduled visitation with the children except one when she had car trouble. On that occasion, respondent called and rescheduled the visit. The DSS social worker testified that respondent's behavior during visits was appropriate. In the spring of 2002, respondent attended the only doctor's appointment scheduled for the children.

In the early summer of 2002, prior to 12 July 2002, the social worker made two unannounced visits to the home. Because respondent was not home either time, the worker was unable to see inside the house. Around the exterior of the house, she observed "a lot of trash and debris," a "busted screen," and pieces of furniture and broken toys in the yard.

Another permanency planning hearing was held 12 July 2002. The goal was changed to "relative placement." All visits between respondent and the children were ceased, and respondent has not been allowed visitation since that time. DSS was relieved of all efforts to work with respondent on her case plan. Respondent nevertheless continued to call the social worker regularly, sometimes as often as once a week, for the following one and one half years, to ask how the children were doing. Respondent telephoned the DSS worker regularly until 4 November 2003. She stopped calling for two months and resumed calling DSS again in January 2004. Respondent continued toPage 470bring items of clothing and money to DSS for the children. Beginning 12 July 2002, respondent was neither informed of the doctors' appointments for the children, nor given the names of their health care providers.

In June 2002 Mr. W. moved to Mississippi and had no further contact with DSS, the children, or respondent.

Following another permanency planning hearing held 8 August 2003, an order was entered which changed the goal to adoption. A DSS worker testified that the change was due to "a number of inconsistencies and a lack of compliance to that list [in the case plan]."

Respondent's mother, Ms. Gibson, and respondent's live-in boyfriend, Mr. Slonecker, testified at the termination hearing. They each attested to the fact that respondent was a good housekeeper and that she kept a clean home. Ms. Gibson stated that, since the children were taken away from her, respondent had matured a great deal and become more responsible. Mr. Slonecker stated that he worked full-time as a carpenter and has a three bedroom home with a yard in a quiet neighborhood. He stated respondent's home was clean and appropriate when they began dating in 2003 and that respondent continued to be a good housekeeper. Mr. Slonecker testified that if the children were returned to respondent, he could watch them at night while respondent worked.

The court terminated respondent's parental rights in both children based on neglect, pursuant to N.C.G.S. §7B-1111(a)(1), and her failure to correct the conditions leading to the removal of the children from the home, pursuant to N.C.G.S. §7B-1111(a)(2).

In its order terminating respondent's parental rights, the trial court made 57 findings of fact. On appeal, respondent challenges many of these findings as unsupported by evidence in the record. Specifically, as they relate to the grounds set forth in N.C.G.S. §§7B-1111(a)(1) and (a)(2), respondent challenges portions of findings numbers 43, 46, 47, 48, 49, and 55, and contends that the remaining findings of fact do not support these grounds.

I first turn to a review of the applicable law.

"A termination of parental rights proceeding consists of two phases. In the adjudicatory stage, the petitioner has the burden of establishing by clear and convincing evidence that at least one of the statutory grounds listed in N.C. Gen. Stat. §7B-1111exists."In rePage 471Anderson,151 N.C. App. 94,97,564 S.E.2d 599,602(2002) (citation omitted). "Upon determining that one or more of the grounds for terminating parental rights exist, the court moves to the disposition stage to determine whether it is in the best interests of the child to terminate the parental rights."In re Young,346 N.C. 244,247,485 S.E.2d 612,615(1997). "We review whether the trial court's findings of fact are supported by clear and convincing evidence and whether the findings of fact support the conclusions of law."Anderson,151 N.C. App. at 97,564 S.E.2d at 602(citation omitted).

According to N.C.G.S. §7B-1111(a)(1) (2003), the ground concerning neglect, a court may terminate one's parental rights where:

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

"Neglect", in turn, is defined as follows:

Neglected juvenile. — A juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law. . . .

N.C.G.S. §7B-101(15) (2003).

For a termination of parental rights based on neglect, the trial court must determine whether neglect is present at the time of the termination proceeding.See In re Ballard,311 N.C. 708,716,319 S.E.2d 227,232(1984). "[E]vidence of neglect by a parent prior to losing custody . . . is admissible in subsequent proceedings to terminate parental rights. The trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect[.]"Id.at 715,319 S.E.2d at 232(citation omitted). The probability of a repetition of neglect must be shown by clear, cogent and convincing evidence.See Young,346 N.C. at 250,485 S.E.2d at 616.

According to N.C.G.S. §7B-1111(a)(2), the ground concerning reasonable progress, a court may terminate one's parental rights where:

Page 472The 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. . . .

In explaining the application of this ground, this Court recently stated:

Thus, to find grounds to terminate a parent's rights under G.S. §7B-1111(a)(2), the trial court must perform a two part analysis. The trial court must determine by clear, cogent and convincing evidence that a child has been willfully left by the parent in foster care or placement outside the home for over twelve months, and, further, that as of the time of the hearing, as demonstrated by clear, cogent and convincing evidence, the parent has not made reasonable progress under the circumstances to correct the conditions which led to the removal of the child. Evidence and findings which support a determination of "reasonable progress" may parallel or differ from that which supports the determination of "willfulness" in leaving the child in placement outside the home.

A finding of willfulness does not require a showing of fault by the parent. Willfulness is established when the respondent had the ability to show reasonable progress, but was unwilling to make the effort. A finding of willfulness is not precluded even if the respondent has made some efforts to regain custody of the children.

With respect to the requirement that the petitioner demonstrate that the parent has not shown reasonable progress . . . evidence supporting this determination is not limited to that which falls during the twelve month period next preceding the filing of the motion or petition to terminate parental rights [as it was under the former statute].

In re O.C. and O.B., ___ N.C. App. ___, ___,615 S.E.2d 391,396(2005) (quotations and citations omitted).

In the instant case, the trial court made the following findings of fact. First, findings 1 through 24 deal generally with the procedural history of the motions to terminate parental rights; jurisdiction; and the parties and persons who appeared in court. Findings 25 through 37 concern the circumstances surrounding the 16 February 2001 adjudication of neglect when the children were initially removed from thePage 473home, and the history of actions taken by the trial court as a result of permanency planning hearings. In addition, the court made the following findings which have relevance to the termination of mother's parental rights:

38. Since the Court's order on January 25, 2002, the children have been in the full custody and care of DSS and have continuously remained out of the parents' home as of the date of this hearing. At the time of the filing of the motion for termination of parental rights, the children had been out of the parents' home for a total of over 20 months.

39. These children were neglected by the mother . . . in December 2000 as described by the Court in its order on February 9, 2001. . . .

. . . .

41. When the children were both placed or returned (after the August 10, 2001 hearing) to the physical care of [mother and Mr. W.] with weekly home visits from the DSS social worker, the parents . . . failed to consistently maintain a safe and sanitary home for them.

. . . .

45. Up to a point, the mother has kept in contact with the social worker; however, for a period of two and one-half (2/f) months she failed to contact the social worker and at other times, she has been somewhat sporadic.

I next turn to specific portions of additional findings of fact which have been challenged on appeal and are essential to my evaluation of this matter.

I first consider finding of fact number 43:

On February 8, 2002, the Court ordered the parents . . . to participate in a list of 14 services and obligations outlined by the Court and attached to the Court's order which was made available to them.

The mother failed to comply with most

of the items on the list.

She told the social worker that she attended parenting classes but failed to document the same with a certification of completion.

The mother did not offer any

evidence of such completion to this Court.

In fact, enough time has passed that she could have again enrolled in parenting classes in an effort to meetPage 474this obligation. She failed to follow through with homemaker services. The mother told the social worker she has participated in household budgeting classes but failed to document the same. She has failed to offer any evidence of completion of such classes to this Court.

The mother failed to

obtain mental health counseling and treatment

recommended by Dr. Aiello in a psychological

evaluation of the mother. She failed to get a

telephone. She failed to keep a clean and safe

home environment for the children.

. . . The mother has failed to find employment compatible with the needs of her children. She still works at the same position that she did when the children were taken from her custody in December 2000. The mother testified that she had some educational constraints with respect to pursuing other employment; however, the court is concerned with respect to just how much effort has been taken with seeking compatible employment.

There is not clear and convincing evidence in the record that mother "failed to keep a clean and safe home environment for the children." While there was evidence that mother failed to keep a clean and safe home during certain times leading up to the removal of the children, the petitioner produced no evidence of the same conditions for the eighteen month period preceding the termination hearing. Petitioner did not produce any photographs illustrating the workers' testimony concerning the conditions of respondent's home. In fact, the only photographs in the record were those introduced by respondent illustrating that her current home was clean. As late as the permanency planning hearing of November 2001, the trial court itself found that, while the GAL had some concerns about the cleanliness of respondent's home, she "[had] progressed a great deal and the situation as it exists today would not justify a removal of the children from [her] home." The last home visit by DSS occurred in late June or early July 2002. The termination hearing was held in mid-February 2004. The record evidence is uniform in that, for a substantial period of time next preceding the termination hearing, mother kept a clean and safe home, and there is an absence of clear and convincing evidence in the record to suggest she does not, or would not, keep an adequately safe and sanitary home.

There is not clear and convincing evidence in the record that mother "failed to get a telephone", or "failed to comply with most of the items on the list [outlined by the trial court]." The uncontradicted evidence showed respondent attended parenting classes; obtained a telephone and provided the phone number to DSS by the summer ofPage 4752002;¹attended the children's medical appointments; maintained a clean and appropriate home environment for eighteen months preceding the termination hearing; provided evidence of ongoing compliance to DSS approximately once each week; maintained a stable residence with no boarders or guests for extended periods of time following the entry of the case plan; maintained employment; and signed releases for DSS and the GAL.

There was not clear and convincing evidence to support the court's finding that mother "did not offer any evidence of . . . completion of parenting classes to this Court." On the contrary, respondent testified she completed the parenting course, and a DSS worker testified that the parenting classes requirement was satisfied.

Nor is there clear and convincing evidence in the record that mother "failed to obtain mental health counseling and treatment recommended by Dr. Aiello in a psychological evaluation. . . ." The record shows respondent obtained a psychological evaluation. Furthermore, there was significant evidence that she followed the recommendations of that evaluation. One DSS worker, who was assigned to the case in the spring of 2001, testified that respondent complied with all the psychological recommendations. A different worker, assigned to the case one year later, contradicted this testimony, stating there had been no compliance with the recommendations of the psychological evaluation during the previous worker's tenure. Respondent testified that she had attended counseling but stopped once the children were returned to her care. When respondent returned to the counseling agency to apply for further counseling, she was told she did not require their services. And in three separate court orders, representing hearings held 11 May 2001, 10Page 476August 2001, and 9 November 2001, the trial court found that "[Respondent has] complied with the [case] plan and the psychological assessments have been favorable." No psychological evaluation was offered into evidence. While I recognize that one social worker stated that the psychological requirements were not met, my review of the record demonstrates that the evidence is not clear and convincing on this point.

I next address portions of finding of fact number 46:

The Court had the opportunity to view the witnesses, hear their testimony, and judge their credibility. The Court had the opportunity to judge the attitude of the mother as a witness and to determine whether the neglect would likely reoccur if the children were returned to her care.

The mother has disclosed a lack of initiative

on her part to comply with the Court's directives:

she has failed to perceive or determine that these

services mentioned by the Court were needed by her

to provide or to assure the Court that she could

provide a safe and sanitary environment for her

minor children and for her own overall well

being.

Notwithstanding the trial court's correct observation that one of its functions is to determine the weight and credibility of witness testimony, this does not divest this Court of its responsibility to evaluate whether the evidence presented meets the threshold of clear and convincing evidence. As it concerns the court's findings that mother "lacked initiative" and "failed to perceive or determine that the services mentioned by the Court were needed by her," there is simply insufficient evidence in the record to support these generalized findings. The evidence was uncontradicted that respondent had complied with many of the directives in her case plan — something the trial court itself observed in its previous orders. More importantly, all the evidence showed that, for at least one year prior to the termination hearing, respondent had maintained a safe and sanitary home.

I next address finding of fact number 47:

The mother has testified that she would be able to meet the needs of the children if placed with her immediately.

However, she is unable to

articulate any plan by which the children would be

provided for after she goes to work.

Respondent did articulate a plan for her children's care while she is at work. She and Mr. Slonecker both testified that Mr. Slonecker would be responsible for the children while she worked.Page 477

I next address finding of fact number 48:

The mother has lived with Mr. W. in at least two residences since these cases began; at times others have resided with them.

One of the

Court's directives was to maintain stable housing

and not have guest[s] or boarders for extended

periods.

She has lived for the past year and [a] half in a duplex apartment in Cumberland County, North Carolina which she admits is inadequate and not in a community conducive for the children. Specifically, it would not be an environment in which she would be comfortable with the children being outside of the home.

Her

response to this circumstance is to move in with

her boyfriend while at the same time maintaining

her own apartment all of which, in and of itself.

shows instability on her part.

She has offered no evidence of any attempt to locate any other residence.

At the time of the termination proceedings, respondent had maintained her duplex apartment for one and one half years. There was no evidence she had others residing with her during that time or had "boarders for extended periods." While continuing to maintain her apartment, respondent moved in with Mr. Slonecker, whom she had been dating for one year. While respondent acknowledged that her duplex apartment was in an undesirable neighborhood, this is more akin to evidence of poverty than to "unstable" housing. The inference that respondent has failed to maintain stable housing is not reasonably supported by the evidence.

I next review the following underlined portions of finding of fact number 49:

The . . . actions of the mother demonstrate a

continuation of her failure to make a proper plan

for her children.

She has failed to do these things necessary to show she will be able to appropriately parent her children. They were placed back in her home in 2001 and she was unable to properly care for them and they were again removed by the Court. After being specifically told what was expected of her to do to demonstrate an improvement of her parenting skill and ability,

she failed to do very little except visits

with her children.

She stated on the stand that she was wrong or at fault about her children;

she does not perceive the need to comply with

the court's directives (service plan) to

demonstrate to the Court that she is able to

provide a safe and sanitary environment for her

children. She failed to perceive the meaning of

[J.W.'s] condition (failure to thrived in December

2000: she failed

Page 478

to perceive the danger, unsafe and unsanitary

conditions of her home in December 2000 and in

January 2002 (period the children were back in her

home').

At the time of her testimony in this hearing, she still discloses her failure to perceive the reasoning for the removal of her children. For example, she does not recognize development issues of minor children which is partially evidenced in [J.W.'s] case of quick recovery upon his receiving proper care. It is likely that these children would not be safe and properly cared for and supervised if placed in her home.

The uncontradicted evidence showed respondent had a plan for the children. She and the children would live with Mr. Slonecker. There were two unoccupied bedrooms in the home and Mr. Slonecker would babysit in the evenings while she worked. Some of the evidence showed respondent had imperfect compliance with certain requirements of her case plan. Overall, however, the evidence demonstrated that she made significant improvements to her housekeeping practices; was consistently attentive to the medical needs and concerns of the children; and was generally compliant with the children's attendance at daycare when they were last in her care. The record shows only that respondent had maintained a clean home for at least one year and had maintained extensive contact with DSS for over eighteen months following the end of her visits. Respondent's circumstances have changed markedly since the children were removed: she has demonstrated consistency in her housekeeping, housing, employment, and concern for the children; she has separated from her husband; re-established contact with her mother; and developed a stable relationship with Mr. Slonecker.

With respect to the court's finding that respondent "failed to perceive the meaning of [J.W.'s] condition (failure to thrive) in December 2000," I observe, first, that it was who took J.W. to the hospital due to concerns about symptoms associated with acid reflux and failure to thrive. Secondly, there are few, , facts set forth in the 16 February 2001 order adjudicating J.W. neglected that suggests mother's omissions concerning medical care for the children were significant: the court found that "the respondent parents have attended some medical care appointments for . . . [J.W] . . . in an attempt to provide better care for [him]." In addition, the neglect adjudication order stated only that J.W. was diagnosed with failure to thrive and, further, that J.W. "requires some special medical care. . . ." While these findings, and the conclusion of neglect, have some relevance to the current motion to terminate parental rights, these establishedPage 479findings related to mother's failure to attend to the medical needs of J.W. are, frankly, negligible and mostly unhelpful to petitioner in this termination matter.

With respect to the finding that mother "failed to perceive the danger, unsafe and unsanitary conditions of her home in December 2000 and in January 2002," I note, first, that the uncontradicted evidence was that respondent cleaned her home by the second DSS home visit in December 2000. The weapons had been secured and have not been noted as a problem since. In 2002, the evidence was that respondent's housekeeping was inconsistent. By the second home visit, in January 2002, respondent had cleaned the home. The evidence does not support the inference, by clear and convincing evidence, that respondent "failed to perceive" the dangers of an unsafe and unsanitary home.

I next address the following portion of finding number 49:

At the time of her testimony in this hearing, she still discloses her failure to perceive the reasoning for the removal of her children. For example, she does not recognize development issues of minor children which is partially evidenced in [J.W.'s] . . . quick recovery upon his receiving proper care.

Respondent's testimony corroborated the two diagnoses given to J.W. at the time of his hospitalization in December 2000: failure to thrive and acid reflux. Respondent stated the children were initially taken away from her due to the house being unkempt and J.W. having been diagnosed with acid reflux and failure to thrive. Respondent had demonstrated to the satisfaction of the court, by August 2001, that she could care for J.W. Respondent described the types of pureed food she had been instructed to feed J.W. during the time he was returned to her care. There was no evidence J.W. again exhibited failure to thrive while in respondent's care. From the foregoing evidence, it does not follow that respondent did not "perceive" the reason for the removal of the children or recognize developmental issues.

I next address the underlined portion of finding number 55:

The children are living in the same foster home. They have adjusted well to the foster family. Both children are healthy. . . . [J.W] is no longer suffering from failure to thrive. The boys are in need of a stable, safe and secure environment. They have now been in the same home for over two (2) years and this home has been a [good] environment. The mother has not seen the childrenPage 480for more than one year. . . .

The priorities

of the mother and Mr. W. are inconsistent with the

welfare of their children.

For the reasons already discussed, the record does not support a finding that respondent's priorities are "inconsistent with the welfare of [the] children." Respondent maintained a clean home and displayed consistent concern for the welfare of the children. And, frankly, on this record, it is unclear what the trial court meant by "[t]he priorities of the mother . . . are inconsistent with the welfare of [the] children."

I now consider whether the findings of fact, which are supported by clear, cogent and convincing evidence, are sufficient to support the court's conclusion that grounds exist to terminate respondent's rights based on neglect, G.S. §7B-1111(a)(1), and failure to correct the conditions leading to the removal of the children, G.S. §7B-1111(a)(2).

First, I easily conclude that the findings of fact which are supported by sufficient evidence in the record do not support grounds for termination pursuant to G.S. §7B-1111(a)(1) (neglect). Here, the findings do not show a probability of a repetition of neglect based upon any one or more of the central arguments made by DSS: keeping a clean home; attentiveness to medical care; and stable residence and employment. And, as already explained, mother's imperfect compliance with the case plan does very little on these facts to establish, by clear and convincing evidence, neglect under G.S. §7B-1111(a)(1).

I similarly conclude that the findings of fact which are supported by sufficient evidence in the record do not support grounds for termination pursuant to G.S. §7B-1111(a)(2) (reasonable progress). The circumstances leading to the children's removal from the home were an unsafe and unsanitary home environment, and inconsistent medical care for J.W. For all the reasons discussed above, the record evidence does not demonstrate, and the supported findings of fact do not support, a conclusion that mother failed to make reasonable progress in correcting those conditions which led to the removal of the children. And, again, mother's imperfect compliance with the case plan does very little on these facts to establish, by clear and convincing evidence, failure to make reasonable progress under G.S. §7B-1111(a)(2).

As to both grounds found by the trial court (neglect and failure to make reasonable progress), it is clear that the trial court relied, in very large measure, on mother's alleged failures to abide by the casePage 481plan. However, compliance with action items requested by DSS, or ordered by the court, does not necessarily establish or defeat the grounds for termination set forth in G.S. §7B-1111. By way of illustration, there is little or nothing in this record to explain how psychological treatment related to the need for mother to keep a clean and sanitary home, a central part of this termination matter. The psychological report wasn't even admitted into evidence. Even if a clinical regimen were recommended as a result of the "favorable" assessment, and mother failed to abide by the same, DSS has not demonstrated a between such a failure and the statutory termination grounds alleged. Nor is it clear why, on these facts, mother's failure to gain differing employment with daytime hours — something referenced in finding of fact 43 — necessarily supports either ground for termination. Or why her evening work schedule is necessarily "incompatible" with the needs of the children. Not all parents work "bankers' hours." While it is clear that the court urged — and respondent resisted — efforts to secure employment doing something other than serving cocktails at a nighttime establishment, it is unclear how this arguable failure to comply with the case plan necessarily helps establish the termination grounds alleged. Furthermore, it is unclear what mother failed to "perceive" — or what "initiative" she failed to demonstrate.

In conclusion, the findings and record evidence fall short of that required to terminate the relationship between mother and these two children. Accordingly, I would reverse those portions of the order terminating mother's rights over J.W. and K.W.