245 N.C. App. 75
N.C. Ct. App.2016Background
- DSS petitioned in 2013 alleging C.L.S. was neglected and dependent due to birth cocaine/ PCP exposure and mother's substance abuse history.
- Initial adjudication of neglect and dependency occurred November 15, 2013; paternal identity unknown at that time.
- Paternity testing in May 2014 established Respondent as the father; reunification efforts were ceased and adoption became the permanency plan on September 29, 2014.
- DSS petitioned to terminate parental rights on October 14, 2014, alleging neglect, willful abandonment for over 12 months without progress, and failure to legitimize the child.
- Respondent allegedly refused to sign a case plan, had limited contact with DSS, and was incarcerated in May 2014 on unrelated charges; he never met C.L.S.
- Trial court terminated parental rights of both parents on March 4, 2015; Respondent appeals challenging the neglect finding and other grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the neglect finding supported by clear, cogent evidence? | DSS argues Respondent neglected C.L.S. by failing to engage and provide care or contact. | Respondent contends there was no current neglect since he did not have custody and the neglect was attributed to the mother. | Yes; neglect supported, but only one ground needed to sustain termination. |
| Did the record establish willful abandonment for more than 12 months under § 7B-1111(a)(2)? | DSS asserts Respondent willfully left juvenile in foster care without progress. | Respondent had no knowledge of paternity and thus no opportunity to progress; petition filed within 12 months of paternity knowledge. | No; improper under 7B-1111(a)(2) due to absence of evidence of awareness and timing. |
| Did the trial court err in concluding Respondent failed to legitimate the child under § 7B-1111(a)(5)? | DSS argues Respondent failed to take steps to legitimize the child prior to petition. | Respondent did not have clear findings showing failure to establish paternity or legitimation by listed methods. | Yes; grounds under § 7B-1111(a)(5) not supported by findings. |
Key Cases Cited
- In re Taylor, 97 N.C.App. 57 (N.C. Ct. App. 1990) (any one ground can support termination)
- In re D.J.D., 171 N.C.App. 230 (N.C. Ct. App. 2005) (parental fitness at termination governs neglect determination)
- In re Pierce, 146 N.C.App. 641 (N.C. Ct. App. 2001) (different analysis when child not in parent's custody long)
- In re J.G.B., 177 N.C.App. 375 (N.C. Ct. App. 2006) (prior neglect evidence required to support grounds when child out of custody)
- In re I.S., 170 N.C.App. 78 (N.C. Ct. App. 2005) (specific findings required for § 7B-1111(a)(5))
- In re Harris, 87 N.C.App. 179 (N.C. Ct. App. 1987) (requiring explicit factual support for termination grounds)
- Whittington v. Hendren, 156 N.C.App. 364 (N.C. Ct. App. 2003) (incarceration does not automatically negate parental neglect analysis)