In re K.P.W., ___ N.C. ___ (October 18, 2023) (per curiam)
Held:
Reversed
There is a dissent
by Earls, J.
- Facts: The child at issue was born to Mother in 2015. In 2018, a neglect petition was filed naming Mother and the putative father – the man listed on the child’s birth certificate who was not the man mother was intimate with at the time of the child’s conception. Questions arose as to paternity, and DNA testing revealed the putative father was not the biological father. DSS filed a TPR petition in November 2019 listing Mother, the putative father, and “John Doe” as respondent parents. In January 2019, DSS noticed a preliminary hearing under G.S. 7B-1105 to determine the identity of the unknown parent. Days later, Mother disclosed to DSS for the first time that she believed respondent-Father to be the child’s biological father. In February 2020, a preliminary hearing was held where the court received evidence of Mother’s identification of respondent-Father as the child’s biological father. The court entered an order granting DSS’s requests to amend the TPR petition if it was determined that respondent-Father was the biological father, and to serve notice by publication for “John Doe”. In April 2020, DSS located and contacted respondent-Father, who told DSS that he had been in casual contact with Mother since 2018; Mother had previously told him in 2018 that he was the child’s biological father; and she had shared pictures of the child with him and he had noticed their resemblance. In February 2021, DNA testing confirmed respondent-Father was the child’s biological father. In October 2021, DSS filed an amended TPR petition naming Mother and respondent-Father as the respondent parents. Respondent-Father was served and filed a pro se answer contesting the TPR, and appeared and participated in the TPR hearing. A TPR order was entered in November 2022 on the grounds of abandonment and neglect. Father timely appealed. Father argued the court’s failure to follow the procedures of G.S. 7B-1105 prejudiced him.
- Procedural History: In a split decision, the court of appeals vacated the TPR order, holding that the trial court failed to follow the procedures mandated by G.S. 7B-1105 regarding the preliminary hearing for an unknown parent after the initial TPR petition was filed, specifically by failing to hold the preliminary hearing within 10 days (it was 76 days), failing to summons the respondent father once his identity was known or order publication on an unknown parent, and failing to enter an order after the preliminary hearing and instead addressing that hearing in the TPR order that was entered years later. The majority determined that the trial court’s failure to follow the statutory mandate prejudiced Father by delaying his preparation for the TPR proceedings and appointment of an attorney. 291 N.C App. 310 (2023) (unpublished). The decision was then appealed to the supreme court. The supreme court reversed per curiam for reasons stated in the dissent. This summary is of the dissent in that court of appeals opinion.
- After DNA testing confirmed respondent-father was the child’s biological father, the amended petition which named respondent-Father and was properly served on respondent-Father began a new TPR proceeding whereby a preliminary hearing to identify an unknown parent was not required. Any deficiencies in the proceedings concerning the original 2019 TPR petition are irrelevant. 291 N.C. App. 310, Dillion, J. Dissent at 1 (citing In re W.I.M., 374 N.C. 922, 926; “[T]he filing and serving of an amended petition with a new summons is essentially the initiation ‘of a new termination proceeding.’ ”). Respondent-Father was not prejudiced by any failures in complying with G.S. 7B-1105 because the findings of fact show Father’s “disinterest towards the child over the course of four years.” Dissent at 3. The findings are sufficient to support the grounds of abandonment and neglect. Father was aware that he was very likely the child’s biological father as early as 2018 and, during the three years between then and the time he was contacted by DSS, he had not sought to determine paternity, asserted any parental rights, sought a relationship with the child, or sought to improve the welfare of the child despite being aware of domestic violence in Mother’s home. After DNA testing confirmed respondent-Father was the biological father, though he sent the child one or two letters through DSS, requested pictures, and offered relative placement options, he never sought to meet the child during periods he was not incarcerated or ever inquire with DSS as to her well-being. In affirming the trial court’s decision that TPR was in the child’s best interest, the dissent emphasized that the findings show there was no bond between respondent-Father and the child.
Category:
Termination of Parental RightsStage:
Preliminary Hearing on Unknown ParentTopic:
When Required