243 N.C. App. 41
N.C. Ct. App.2015Background
- May (born 2011) was removed from Mother and Respondent's home after social services discovered severe, ongoing physical abuse of May's four older half-siblings by Mother and participation by Respondent; DHHS gained custody of all five children in October 2012 and adjudicated them (May – neglected/dependent; siblings – abused/neglected/dependent).
- Respondent was later confirmed by DNA as May's biological father, signed a service agreement, and received supervised visits (one hour weekly); DHHS filed to terminate his parental rights in March 2013.
- Respondent completed some case-plan tasks (paternity, parenting/psychological evaluations, individual therapy, separate residence, regular supervised visitation) but did not follow a psychologist’s recommendation for a full psychiatric evaluation and initially continued communicating with Mother after agreeing to cease contact.
- Evidence at the termination hearing included admissions that Respondent participated in physical discipline of the older children (e.g., hitting with sandals; assisting in holding a child near a hot burner), instances where he left the home during abuse, false reports to the social worker about contact with Mother, and statements suggesting he might leave May with Mother if convinced she had controlled her anger.
- The trial court found by clear, cogent, and convincing evidence that Respondent neglected May, was neglecting her at the time of the termination hearing, and that there was a likelihood of repetition of neglect; it terminated his parental rights and concluded termination was in May’s best interest. The Court of Appeals affirmed; one judge dissented.
Issues
| Issue | Plaintiff's Argument (DHHS) | Defendant's Argument (Respondent) | Held |
|---|---|---|---|
| Whether findings supporting termination under N.C. Gen. Stat. § 7B-1111(a)(1) are supported by clear, cogent, and convincing evidence | DHHS: Respondent’s past participation in abuse, dishonesty, continued contact with Mother, failure to complete recommended psychiatric evaluation, and lack of protective insight show neglect now and likelihood of repetition | Respondent: He completed case-plan tasks, engaged in therapy, maintained appropriate, affectionate supervised visits, separated from Mother, and showed sufficient parental growth to merit reunification | Court: Affirmed — findings are supported by ample, competent evidence and support conclusion of neglect and likelihood of repetition |
| Whether neglect must exist at time of termination hearing (and probability of repetition) | DHHS: Historical abuse plus Respondent’s ongoing attitude/contacts and lack of insight create a substantial risk of future neglect despite changed circumstances | Respondent: Trial evidence shows changed circumstances, therapy “resolved” issues, no contact with Mother for ~1 year before hearing, and objective compliance with plan — no current neglect or likely repetition | Court: Affirmed — trial court properly considered changed circumstances but reasonably found ongoing risk based on credibility, testimony, and in-court observations |
| Whether trial court properly considered Respondent's in-court demeanor and credibility | DHHS: Judge may weigh demeanor and credibility; Respondent’s smile, lack of empathy, and evasiveness support findings | Respondent: In-court demeanor is an insufficient or unreliable basis to terminate parental rights when objective compliance exists | Court: Affirmed — demeanor and credibility are for the trial judge; those observations were supported by the record and relevant to protective capacity |
| Whether terminating rights was in child’s best interest | DHHS: Termination protects May from likely future exposure to injurious environment and is in her best interest | Respondent: Termination was premature given compliance, bond, and lack of evidence he would neglect now | Court: Affirmed — trial court concluded termination served May’s best interest (supported by findings about safety risk and Respondent’s lack of protective insight) |
Key Cases Cited
- In re A.B., 768 S.E.2d 573 (N.C. App.) (standard of review for termination: appellate review of findings and de novo review of legal conclusions)
- In re Young, 485 S.E.2d 612 (N.C.) (neglect to terminate must exist at time of termination proceeding)
- In re Ballard, 319 S.E.2d 227 (N.C.) (court must consider changed circumstances and probability of repetition when predicting future neglect)
- In re McLean, 521 S.E.2d 121 (N.C. App.) (court must assess substantial risk of future abuse based on historical facts)
- In re Oghenekevebe, 473 S.E.2d 393 (N.C. App.) (trial court may consider in-court demeanor and credibility in custody/termination determinations)
- In re Nolen, 453 S.E.2d 220 (N.C. App.) (DHHS bears burden to prove grounds for termination by clear, cogent, and convincing evidence)