In re H.R.P., ___ N.C. App. ___ (December 31, 2024)
Held:
Affirmed
There is a dissent
by Thompson, J.
- Facts: Mother and Father appeal the termination of their parental rights (TPR). The child was adjudicated neglected in part based on circumstances created by the parents’ substance use. The trial court entered a permanency planning order (PPO) awarding guardianship to the child’s paternal aunt and uncle and ordering the Parents monthly supervised visitation. Approximately a year and a half later, the guardians filed to TPR based on three grounds (the uncle passed away during the proceedings, leaving guardian-aunt as sole petitioner to the appeal). At the TPR hearing, the court took judicial notice of the Adjudication Order and guardian-aunt testified that the parents had never visited the child at the ordered place for visitation; Mother was impaired at her last visit with the child, which lasted only ten minutes, and occurred over eighteen months prior to the hearing; Father was also impaired at the same visit and had occasional short visits with the child; Mother does not communicate about the child’s well-being; and neither parent provides any support for the child. Both Parents testified at the hearing offering conflicting evidence as to their visitation, substance use and treatment. The court allowed Parents’ motion to dismiss the petition for insufficient evidence as to the ground under G.S. 7B-1111(a)(6) but entered an order finding grounds exist to TPR under G.S. 7B-1111(a)(1) and 7B-1111(a)(2). Parents challenge several findings as unsupported by the evidence and argue that the findings do not support a conclusion that either ground exists to TPR.
- Appellate courts review the adjudication of TPR grounds to determine whether the findings of fact are supported by clear, cogent and convincing evidence and whether the findings support the conclusions of law. Judgements of the trial court will not be disturbed on appeal even if evidence supports contrary findings. Recitations of testimony are disregarded “absent an indication concerning whether the trial court deemed the relevant portion of the testimony credible.” Sl. Op. at 8 (citation omitted). Conclusions of law are reviewed de novo.
- Three challenged findings are disregarded as recitations of testimony with no indication the trial court weighed the credibility of the testimony. The remaining challenged findings are supported by the evidence, including testimony of Parents and Petitioner. Though Parents’ testimony conflicted with other record evidence, “the existence of contrary evidence is insufficient to overcome the trial court’s judgment.” Sl. Op. at 12.
- G.S. 7B-1111(a)(1) allows for the termination of parental rights when the parent has neglected the child. Neglect can include “the total failure to provide love, support, and personal contact.” Sl. Op. at 15. “[W]hen a child has been separated from their parent for a long period of time, the petitioner must prove (1) prior neglect of the child by the parent and (2) a likelihood of future neglect of the child by the parent.” Sl. Op. at 14 (citation omitted). The trial court “must consider evidence of changed circumstances occurring between the period of past neglect and the time of the termination hearing.” Sl. Op. at 14 (citation omitted). A parent’s failure to complete their case plan can support a finding of a likelihood of future neglect.
- Findings support the conclusion that both parents neglected the child and there is a likelihood of future neglect by the parents. Findings showing past neglect include that the parents had not parented the child since the child’s removal and had never sought a relationship with the child. Findings of the likelihood of future neglect include that the parents failed to set up visitation or consistently visit the child for over one year prior to the TPR hearing; failed to complete court ordered services offered by DSS; and failed to seek treatment for their substance use. The court considered evidence of the parents’ circumstances at the time of the TPR hearing, including testimony of both parents.
- G.S. 7B-1111(a)(2) allows for the termination of parental rights when “[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.” “Willfulness is established when the respondent had the ability to show reasonable progress, but was unwilling to make the effort.” Sl. Op. at 18 (citation omitted).
- Findings support the conclusion that grounds exist to terminate parents’ rights under G.S. 7B-1111(a)(2), including Parents’ failure to visit or seek a relationship with the child for over one year preceding the TPR hearing, despite their ability to contact Petitioner, and their failure to complete their court ordered services.
- Dissent: The trial court’s findings are unsupported by competent evidence and do not support the conclusions that grounds exist to TPR under G.S. 7B-1111(a)(1) or (a)(2). In considering Parents’ motion to dismiss for insufficiency of the evidence, the trial court acknowledged that no information was presented at the TPR hearing regarding either parent’s current circumstances. Without this evidence, especially as to whether Parents are still using substances, the court could not have considered the changed circumstances as required by appellate precedent in determining whether there is a likelihood of future neglect. Further, Mother’s testimony was the only competent evidence as to her changed circumstances and progress on her case plan. No evidence was presented as to Father’s progress in correcting the conditions that led to removal. Petitioner failed to meet her burden at adjudication.
Category:
Termination of Parental RightsStage:
AdjudicationTopic:
Neglect