226 N.C. App. 249
N.C. Ct. App.2013Background
- DSS filed neglect petitions in 2008 alleging parental drug and alcohol abuse endangered the children.
- A 11 March 2008 consent order adjudicated the children neglected and awarded custody to DSS; they were placed with the paternal grandparents, petitioners.
- On 3 September 2008, the court awarded legal and physical custody to petitioners and converted the case to a civil custody action under § 7B-911, relieving DSS and the guardian ad litem of further responsibility.
- Petitioners sought termination of respondent-mother’s parental rights; a termination hearing occurred on 19 March 2012, with ruling issued 25 May 2012.
- The trial court terminated respondent’s rights on three grounds: (1) willful neglect of placement for more than 12 months without showing reasonable progress; (2) incapacity due to substance abuse with likelihood of continuation; (3) willful abandonment for at least six months prior to petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §7B-lll(a)(2) termination is proper when children were in out-of-home placement for over 12 months under a court order. | Respondent argues placement did not exceed 12 months under a court order. | Petitioners contend the civil-custody order qualifies as an order placing children out of the home. | Yes; order qualifies and supports termination. |
| Whether conversion to a civil custody action affects the reasonable-progress requirement. | Respondent asserts conversion negates progress requirement. | Petitioners argue progress under § 7B-llll(a)(2) remains the test regardless of conversion. | Conversion does not defeat reasonable progress standard. |
| Whether §7B-llll(a)(2) may terminate in a private termination where petitioners are custodians. | Respondent claims lack of ability to regain custody matters and best interests apply. | Petitioners rely on statutory language and case law showing termination can proceed on progress grounds. | Termination proper under §7B-llll(a)(2) despite petitioners’ custodianship. |
Key Cases Cited
- In re Clark, 72 N.C. App. 118, 323 S.E.2d 754 (1984) (standard for review of termination findings: clear and convincing evidence)
- In re Pope, 144 N.C. App. 32, 547 S.E.2d 153 (2001) (de novo review of conclusions of law;)
- In re O.C. & O.B., 171 N.C. App. 457, 615 S.E.2d 391 (2005) (explanation of 7B-llll(a)(2) grounds and reasonable progress standard)
- In re Á.C.F., 176 N.C. App. 520, 626 S.E.2d 729 (2006) (construction of 7B-911 and court orders as placement outside home)