241 N.C. App. 426
N.C. Ct. App.2015Background
- Children came into DSS physical custody after a 15 Jan 2011 report; Kentucky had prior juvenile proceedings concerning the children.
- DSS initially acted in 2011 but North Carolina courts lacked UCCJEA/title jurisdiction because Kentucky retained continuing jurisdiction until it transferred on 4 Oct 2013.
- North Carolina court exercised emergency temporary jurisdiction and entered an emergency nonsecure custody order on 25 Feb 2013; a valid adjudication of neglect/dependency was first entered 10 Dec 2013.
- DSS filed a disposition/permanency order following a 5 Dec 2013 hearing (order entered 4 Feb 2014) setting adoption as the permanent plan and directing DSS to seek termination; DSS filed a TPR motion on 7 Feb 2014; TPR hearing occurred 12–13 May 2014.
- Trial court terminated Respondent’s parental rights on 4 Sep 2014 on multiple statutory grounds; the court of appeals reversed as to TPR, concluding DSS failed to prove any statutory ground for termination and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (DSS) | Defendant's Argument (Respondent) | Held |
|---|---|---|---|
| Whether N.C. court had jurisdiction to act before Kentucky relinquished | North Carolina could proceed; earlier proceedings and service efforts justified actions | Kentucky retained continuing jurisdiction under UCCJEA; many NC orders pre-25 Feb 2013 were void | NC lacked jurisdiction until emergency custody order (25 Feb 2013); many earlier orders void; Kentucky’s transfer on 4 Oct 2013 required further deferral before proceedings resumed |
| Whether disposition/perm. planning and service requirements could be imposed before entry of written orders | Service agreements and requirements were proper and Respondent failed to comply | Orders and enforceable duties arise only upon entry (writing, signing, filing); pre-entry requirements unenforceable | Court may only impose such obligations after written, signed, and entered orders; many imposed requirements were without authority prior to 4 Feb 2014 entry |
| Whether evidence supported statutory grounds for termination (neglect, abandonment, incapacity, 12-month ground) | Historical neglect, substance abuse, criminal history, lack of contact and failure to comply justified TPR under multiple statutory subsections | Post-release time and compliance window too short; prior custody and service obligations were void or unenforceable; insufficient evidence of current substance abuse, incapacity, or willful abandonment | DSS failed to prove any statutory ground by clear, cogent, and convincing evidence: 12-month ground inapplicable, insufficient evidence for (1) neglect, (6) incapacity, and (7) abandonment; TPR reversed |
| Whether DSS made reasonable efforts and whether timing/notice to Respondent was adequate | DSS provided multiple service agreements and efforts dating back to 2011; permanency finding and TPR filing procedurally proper | Many listed efforts predated lawful custody; only short period (3 months or less) elapsed between enforceable orders and TPR motion/hearing—insufficient to evaluate compliance or show reasonable efforts | Court held DSS had not carried burden to show reasonable efforts or allow adequate time after authorized disposition; three days between entry and TPR filing (and three months to entry in other parts) insufficient to justify termination |
Key Cases Cited
- In re J.W.S., 194 N.C. App. 439 (2008) (UCCJEA jurisdictional rules and requirement to defer to state with continuing jurisdiction)
- In re Van Kooten, 126 N.C. App. 764 (1997) (exercise of emergency jurisdiction is limited and further proceedings must defer to state of continuing jurisdiction)
- In re B.S.O., V.S.O., R.S.O., A.S.O., & Y.S.O., 225 N.C. App. 541 (2013) (termination order entry requirements and Rule 52 procedural mandates apply to TPR cases)
- In re Thompson, 754 S.E.2d 168 (N.C. Ct. App. 2014) (orders must be reduced to writing, signed, and filed to create enforceable authority)
- In re G.B.R., 220 N.C. App. 309 (2012) (in neglect determinations court must evaluate parent fitness at time of termination and consider changed conditions)
- In re O.J.R., 769 S.E.2d 631 (N.C. Ct. App. 2015) (burden of proof and appellate review standard in TPR adjudications)
- In re S.E.P. & L.U.E., 184 N.C. App. 481 (2007) (DSS custody without a valid court order is not legal custody for TPR purposes)
- In re Adoption of Searle, 82 N.C. App. 273 (1986) (standard for willful abandonment requires a deliberate relinquishment of parental claims)