221 N.C. App. 361
N.C. Ct. App.2012Background
- DSS filed a petition on 17 September 2010 alleging J.E.M., Jr. was neglected and dependent; paternal grandmother caretaker due to health issues; father's home cluttered, in disrepair, and lacking power; father tested positive for drugs without prescription; parents failed to comply with case services plan; mother had health problems from a car accident; DSS took the juvenile into nonsecure custody the same day.
- Adjudication occurred on 19 November 2010, with a separate disposition keeping J.E.M., Jr. in DSS custody.
- DSS filed a motion to terminate parental rights on 19 August 2011, alleging neglect, dependency, willful failure to progress, and willful failure to pay child care costs.
- At the 5 October 2011 hearing, mother relinquished her rights; father did not contest the allegations; no additional evidence was presented besides the petition’s assertions.
- On 3 November 2011, the trial court found neglect and willful failure to pay a reasonable portion of the cost of care; a separate disposition held termination was in the juvenile’s best interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether neglect grounds exist given current conditions and history | DSS asserts history and probability of repetition show neglect if returned. | Father contends no current neglect evidence supports termination. | Neglect grounds supported by evidence of possible repetition. |
| Whether father willfully failed to pay a reasonable portion of the cost of care | DSS found father paid nothing since custody and was able to pay some. | Father argues the findings lack specificity about a reasonable portion. | Court properly concluded willful failure to pay; no payments despite ability. |
Key Cases Cited
- In re L.O.K., J.K.W., T.L.W., & T.W.L., 174 N.C. App. 426 (N.C. Ct. App. 2005) (fitness at termination time; history supports repetition if necessary)
- In re Huff, 140 N.C. App. 288 (N.C. Ct. App. 2000) (no requirement to specify exact reasonable portion; zero may be inadequate)
- In re O.W., 164 N.C. App. 699 (N.C. Ct. App. 2004) (court must deduce ultimate facts from evidentiary facts; not merely recite petition)
- In re A.M., 192 N.C. App. 538 (N.C. Ct. App. 2008) (independent determination required; hear oral testimony; cannot rely solely on petition)
- In re J.N.S., 165 N.C. App. 536 (N.C. Ct. App. 2004) (no summary judgment in 7B termination; must hear evidence and make findings)
- In re N.B., 195 N.C. App. 113 (N.C. Ct. App. 2009) (extends A.M. rationale to other grounds for termination)
- In re Davis, 116 N.C. App. 409 (N.C. Ct. App. 1994) (evidence of neglect and related factors; corroborates repetition considerations)