In re T.R.W., ___ N.C. App. ___ (May 21, 2024)
Held:
Reversed
- Facts: Three children were adjudicated neglected and placed in foster care in 2015. Mother and Father were ordered to make progress on their case plan addressing hygiene and safety concerns in the home and the parents’ ability to care for the children’s medical needs. Following an unsuccessful trial placement the court ordered adoption be the children’s primary plan with a secondary plan of reunification. Subsequently, father had a stroke and the parents moved to South Carolina to live with a relative to assist them with father’s care. By February 2018 all three children were in foster placement together. The children’s primary plan was changed to guardianship, which was ordered to the foster parents in January 2020. The court waived future hearings, relieved DSS of supervisory responsibility for the family, and released the GAL and parent attorneys. Mother and Father were granted quarterly visitation and weekly telephone calls with the children. In October 2021 the Guardians filed a petition to terminate the parental rights (TPR) of Mother and Father. The TPR was granted on the grounds of neglect and willfully leaving the children in placement outside the home for more than 12 months without making reasonable progress in correcting the conditions that led to the children’s removal. Father appeals the TPR. This summary discusses Father’s challenge to several findings of fact as unsupported by clear, cogent and convincing evidence.
- G.S. 7B-1109 places the burden on the petitioner to prove the existence of one or more grounds for the termination of parental rights found in G.S. 7B-1111(a) by clear, cogent, and convincing evidence. The trial court must “ ‘take evidence [and] find the facts’ necessary to support its determination of whether the alleged grounds for termination exist.” Sl. Op. at 6, quoting G.S. 7B-1109(e). “The trial court’s findings must be more than a recitation of allegations.” Sl. Op. at 16 (quoting In re H.P., 278 N.C. App. 195, 204 (2021)).
- Appellate courts review a TPR adjudication order to determine whether the findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law. Findings of fact that are effectively conclusions of law are treated as conclusions of law reviewable upon appeal. Conclusions of law are reviewed de novo.
- Several findings of fact are unsupported by clear, cogent, and convincing evidence. Other findings of fact are recitations of allegations in the petition of which the record is silent.
- G.S. 7B-1111(a)(1) authorizes a TPR on the ground of neglect, which involves a parent not providing proper care, supervision, or discipline or creating an injurious environment to the child’s welfare. When there has been a period of separation, there must be past neglect and likelihood of future neglect by the parent. The court looks at the likelihood of future neglect based on circumstances between the past neglect and the time of the TPR hearing.
- The remaining, supported findings do not support a conclusion that there is a likelihood Father will neglect the children in the future. The children have been removed from Father’s custody for over six years with permanency achieved under guardianship for over four years at the time of the TPR hearing. Father was compliant with his case plan prior to the children achieving permanency, is employed, is in therapy, and benefits from services. Father consistently calls the children weekly, pays child support, and sends the children gifts. South Carolina DSS determined the parents’ home was safe and that they had custody of their youngest child.
- G.S. 7B-1111(a)(2) authorizes a TPR when a parent willfully leaves a child in foster care for 12 months and fails to make reasonable progress under the circumstances to correct the conditions that led to the child’s removal. Willfulness is when a parent has an ability to make progress but is unwilling to make the effort. The trial court can consider evidence of progress up until the date of the TPR hearing.
- The remaining, supported findings do not support the conclusion that Father failed to make reasonable progress under the circumstances to correct the conditions which led to the children’s removal. Findings do not show current concerns about the children’s hygiene, home conditions, and Father’s ability to meet the children’s medical needs, which were the conditions that led to the children’s removal. Father complied with his case plan, even upon suffering a stroke, until permanency was achieved. Father has consistently called the children weekly in compliance with visitation established in the permanency planning order establishing the guardianship; maintained employment; and provided child support and gifts for the children. This is reasonable progress under the circumstances of the guardianship for the children.
- The supreme court has held that “a permanency guardianship allows parents whose children cannot be returned to them to have a meaningful opportunity to maintain a legal relationship with their children.” Sl. Op. at 31 (citations omitted).
Category:
Termination of Parental RightsStage:
AdjudicationTopic:
Neglect