241 N.C. App. 32
N.C. Ct. App.2015Background
- DSS removed three young children (ages 2–5) in Feb–Mar 2013 after reports the family lived in a van, used a kerosene heater, refused to disclose location, had significant domestic violence, and the children suffered inadequate nutrition/hygiene.
- Children were placed with maternal relatives and stayed in out-of-home custody; permanency plan changed from reunification to adoption in late 2013 after parents made little progress on case plans.
- Mother worked full time for a period in 2013–early 2014, paid child support by withholding, lost employment in March 2014 (incarceration and weather-related issues), had transient housing, lacked a valid NC driver’s license, and attended some domestic-violence group sessions.
- Father was unemployed, provided no child support, attended few visits, did not complete domestic-violence programming, and had incidents of domestic violence with mother.
- District court terminated both parents’ rights for neglect and failure to make reasonable progress; additionally terminated father for failure to pay a reasonable portion of care costs. On appeal, the court reversed termination as to mother and affirmed as to father.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mother neglected children so as to justify termination under § 7B-1111(a)(1) | DSS: mother failed to correct conditions (unstable housing, transportation, domestic-violence involvement) showing likely future neglect | Mother: findings largely concern her interactions with DSS and partner, not her parenting; evidence showed bonding, support payments, and some services | Reversed as to mother — appellate court found findings did not establish past-and-likely-future neglect required for termination under (a)(1) |
| Whether mother failed to make reasonable progress under § 7B-1111(a)(2) | DSS: mother did not obtain stable housing, employment, transportation, budgeting — so lacked reasonable progress | Mother: many deficiencies were due to poverty, incarceration, or unrelated to the adjudication; some ordered requirements exceeded court's statutory authority | Reversed as to mother — court erred by relying on requirements (budgeting, treating social phobia) not shown to cause removal and by failing to find willfulness where required |
| Whether the trial court exceeded authority in imposing certain reunification tasks (budget plan, treatment for social phobia) under § 7B-904 | DSS: such tasks were appropriate to remedy home conditions that led to removal | Mother: tasks were not authorized or shown to have caused the adjudication; poverty and other factors explain noncompliance | Reversed as to mother — court ordered or relied on courses of conduct not authorized because they did not relate to conditions that led to removal |
| Whether terminating father's rights was in children's best interest (disposition) | DSS: termination supported by father’s lack of progress, failure to support, domestic violence, and other dispositional findings | Father: proposed guardianship/adoption by family preserves bond and continuity; argued court should consider ongoing contact | Affirmed as to father — appellate court held the record supports termination and court was not required to make findings on every evidentiary point about ongoing contact |
Key Cases Cited
- In re J.S.L., 177 N.C. App. 151, 628 S.E.2d 387 (standard of review; findings must be supported by clear, cogent, convincing evidence)
- In re C.W., 182 N.C. App. 214, 641 S.E.2d 725 (neglect must exist at termination hearing; if parent separated, show past neglect and likelihood of future neglect)
- In re J.N.S., 180 N.C. App. 573, 637 S.E.2d 914 (conclusion of neglect reviewed de novo)
- In re W.V., 204 N.C. App. 290, 693 S.E.2d 383 (trial court may not order conduct not authorized by § 7B-904)
- In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (finding ability to pay important for nonsupport terminations)
- In re T.D.P., 164 N.C. App. 287, 595 S.E.2d 735 (ability-to-pay analysis affirmed importance)
- In re D.R.B., 182 N.C. App. 733, 643 S.E.2d 77 (incarceration alone insufficient to terminate parental rights)
- In re Cogdill, 137 N.C. App. 504, 528 S.E.2d 600 (trial court cannot order conduct beyond § 7B-904)
- In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45 (trial court need not make findings as to every piece of evidence when selecting disposition)