In re J.K.C.
218 N.C. App. 22
| N.C. Ct. App. | 2012Background
- GCDSS involvement since May 2003 due to Jack’s neglect and mother’s substance abuse and domestic violence issues.
- Children Jack (born Nov 2002) and Jasmine (born Oct 2004) were adjudicated neglected/dependent in 2006-2008.
- Respondent was incarcerated for most of the relevant period; custody shifted to mother, then to GCDSS in 2008.
- Guardian ad litem filed to terminate rights in Aug 2009; mother relinquished rights to the children.
- Trial court dismissed the petition in Mar 2011; GAL appealed challenging specific findings and grounds.
- The appellate court affirmatively upheld the dismissal, ruling there was insufficient clear and convincing evidence to support termination on multiple grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Grounds for termination: neglect | GAL argues sufficient evidence of neglect existed | Respondent contends evidence shows changed conditions and no probable repetition | Neglect ground not proven by clear evidence; court’s findings show changed conditions and compliance. |
| Grounds for termination: willful failure to make reasonable progress | GAL asserts failure to progress supported by case plan status | Respondent argues substantial compliance and no willful abandonment | No clear and convincing proof of willful lack of progress; court properly found substantial compliance. |
| Paternity (7B-1111(a)(5)) | GAL argues lack of established paternity for Jasmine; Jack’s paternity presumed false | Birth certificates for Jack and Jasmine show respondent as father; presumptions support paternity | Jack: paternity established; Jasmine: paternity presumption due to birth certificates not rebutted; termination not supported on this ground. |
| Dependency (7B-1111(a)(6)) | GAL seeks termination based on incapability to provide care | Respondent lacks evidence of incapability due to a condition; Clark control favors dismissal | Insufficient evidence of incapability or suitable alternative care; court did not terminate on dependency. |
Key Cases Cited
- In re Shepard, 162 N.C. App. 215 (N.C. App. 2004) (standard of review for termination of parental rights)
- In re Nolen, 117 N.C. App. 693 (N.C. App. 1995) (clear-and-convincing burden on petitioner)
- In re Shermer, 156 N.C. App. 281 (N.C. App. 2003) (disapproved termination on neglect where no clear proof)
- In re P.L.P., 173 N.C. App. 1 (N.C. App. 2005) (relevance of changed conditions and incarceration)
- In re Harris, 87 N.C. App. 179 (N.C. App. 1987) (burden to prove failure to establish paternity and related grounds)
- In re Clark, 151 N.C. App. 286 (N.C. App. 2002) (dependency analysis; need for evidence of specific conditions)
- Ballard, 311 N.C. 708 (N.C. 1984) (neglect analysis requires changed conditions to rebut past neglect)
- Sherman (guardian ad litem reference), (see above) (-) (referenced for context on paternity presumptions)
- McCormick on Evidence, 2nd ed. § 343 () (rebuttable presumption when birth certificate lists father)