Supreme Court - Digested Index

15 July 2022

Civil Procedure

Rules 52 and 63—order terminating parental rights—new findings made by substitute judge without hearing evidence—improper judicial action—An order terminating a father's parental rights to his child was vacated as a nullity where, after a prior termination order was vacated on appeal, remanded, and the matter assigned to a substitute judge (due to the original judge being deceased), the substitute judge acted in a judicial and not merely a ministerial manner by making new findings–beyond what appeared in the initial order–based on evidence the judge did not personally hear. Civil Procedure Rules 52 and 63 do not permit a substitute judge who did not preside over a matter to make new findings of fact and conclusions of law. In re K.N., 381 N.C. 823 (2022)

Termination of Parental Rights

Appellate review—cumulative error review—declined to extend—The Supreme Court declined to expand the doctrine of cumulative error review to a termination of parental rights matter. In re J.D.O., 381 N.C. 799 (2022)

Best interests of the child—adoptability—consent of children to being adopted—The trial court did not abuse its discretion by determining that the termination of a father's parental rights was in the best interests of his children. Although the father argued that the court did not sufficiently consider whether the children would consent to being adopted or whether they were ready to be adopted, the father's reliance on N.C.G.S. § 48-3-601, which provides that children over the age of twelve must consent to adoption, was misplaced because that statute governed adoptions and not termination of parental rights proceedings. Even if relevant, section 48-3-601 allows a trial court to dispense with the consent requirement upon a determination that it is not in the child's best interest to require consent. In re M.R., 381 N.C. 838 (2022)

Best interests of the child—consideration of statutory factors—additional factors not listed in statute—The trial court did not abuse its discretion by concluding that terminating respondent-mother's parental rights in her daughter was in the child's best interests, where the court's factual findings were supported by the evidence and adequately addressed each dispositional factor in N.C.G.S. § 7B-1110(a), including that there was no bond between the child and respondent-mother (at best, the record showed that any bond between them had lessened significantly), and that the likelihood of adoption was high where the child was a "very loving little girl" who did not exhibit any behavioral issues and where social services had already identified two potential adoptive families. Further, respondent-mother's argument that trial courts should consider additional dispositional factors not listed in section 7B-1110(a) should have been directed to the legislature, and, at any rate, the catch-all provision in section 7B-1110(a)(6) allows courts to consider "any relevant consideration" not enumerated in the statute. In re R.L.R., 381 N.C. 863 (2022)

Best interests of the child—dispositional factors—findings of fact—son's bond with mother and feasibility of adoption—The trial court did not abuse its discretion in determining that termination of respondent-mother's parental rights would be in her son's best interests where the findings–including those concerning the son's bond with his mother and the feasibility of adoption despite the son's behavioral issues–were supported by the record evidence. The trial court properly considered the dispositional factors in N.C.G.S. § 7B-1110(a) and performed a reasoned analysis weighing those factors. In re J.A.J., 381 N.C. 761 (2022)

Best interests of the child—dispositional factors—incarcerated father—no contact with child—The trial court did not abuse its discretion in determining that termination of respondent-father's parental rights would be in his son's best interests where respondent would not be released from incarceration until three years after the trial court's termination order and he had made no effort to have any relationship with his son. The trial court properly considered dispositional factors in N.C.G.S. § 7B-1110(a) and performed a reasoned analysis weighing those factors. In re J.A.J., 381 N.C. 761 (2022)

Best interests of the child—factual findings—evidentiary support—The trial court did not abuse its discretion in determining that it would serve the best interests of the children to terminate respondent-parents' parental rights where the court properly considered and made findings regarding the dispositional factors in N.C.G.S. § 7B-1110(a)–including that disrupting the routine and services established during the children's foster care would be needlessly detrimental and that the children lacked a strong bond with their parents–which had sufficient evidentiary support. There was no basis for the use of a "least restrictive disposition" test in this state, as suggested by respondent-parents. In re J.C.J., 381 N.C. 783 (2022)

Best interests of the child—statutory factors—adoptability—bond with mother versus prospective adoptive parents—The trial court did not abuse its discretion by concluding that terminating a mother's parental rights was in the best interests of her children, where the court's findings were supported by competent evidence, including a social worker's testimony regarding the children's adoptability and the likelihood of adoption by the children's foster parents, and demonstrated a proper consideration and reasoned weighing of the dispositional factors in N.C.G.S. § 7B-1110(a), including the relative bonds the children had with their mother and the foster parents. In re M.R., 381 N.C. 838 (2022)

Grounds for termination—failure to pay a reasonable portion of the cost of care—gifts—notice—The trial court did not err by concluding that respondent-parents' parental rights in their children were subject to termination on the grounds of failure to pay a reasonable portion of the cost of the care that the children received in foster care where the parents sporadically provided the children with gifts, clothing, and diapers during the determinative six-month period but failed to make any payment to the department of social services or to the foster parents. Further, the absence of a court order, notice, or knowledge could not serve as a defense to the parents' failure to support their children. Finally, because the trial court found that the father was consistently employed at the same job throughout the pendency of the case (the mother remained unemployed), it was not required to make specific findings concerning the six-month determinative period. In re J.C.J., 381 N.C. 783 (2022)

Grounds for termination—failure to pay a reasonable portion of the cost of care—gifts, clothing, and birthday party—The trial court's order terminating respondent-father's parental rights in his children on the grounds of willful failure to pay a reasonable portion of the cost of care was affirmed where, during the relevant six-month period, he had the ability to pay more than zero dollars toward the cost of his children's foster care but failed to pay any amount to the department of social services or the foster parents. His sporadic provision of lunch, gifts, and clothing for the children and a birthday party for his daughter did not preclude the trial court's finding that he failed to pay a reasonable portion of the cost of the children's care. In re M.C., 381 N.C. 832 (2022)

Grounds for termination—neglect—likelihood of future neglect—extensive history of drug use and domestic violence—Disregarding one finding of fact that was not supported by record evidence (regarding a father's participation in substance abuse and parenting education classes while incarcerated), the trial court's termination of a father's parental rights to his four children on the ground of neglect was supported by the remaining findings and did not rest solely on the father's incarceration. The findings detailed the father's extensive history of domestic violence with the children's mother and drug dealing, multiple arrests, lack of direct contact with his children in three years, and minimal progress on his case plan. Therefore, the court's conclusion that there was a "very high" likelihood of a repetition of neglect was well supported. In re B.E., 381 N.C. 726 (2022)

Grounds for termination—neglect—likelihood of future neglect—inability to provide care and safe environment—The trial court properly terminated a mother's parental rights to her three children on the ground of neglect where its unchallenged findings supported a determination that there was a likelihood of the repetition of neglect if the children were returned to the mother's care, based on her inability to provide stable housing or maintain utilities, her drug use, her criminal conduct leading to arrest and incarceration, and her delay of nearly twenty-one months after two of the children were taken into DSS custody before beginning to comply with her case plan. In re M.R., 381 N.C. 838 (2022)

Grounds for termination—neglect—likelihood of future neglect—inadequate progress on case plan—The trial court's order terminating respondent-mother's parental rights in her daughter on the ground of neglect was affirmed where clear, cogent, and convincing evidence supported the court's factual findings, including that respondent-mother did not begin working on her social services case plan until shortly before the termination hearing; she failed to demonstrate the sustained behavioral changes necessary to ensure her child's safety and welfare, particularly where it came to her substance abuse and parenting-related issues; her visits with the child were discontinued because of her inconsistent attendance and the resulting negative effect on the child; and she failed to maintain suitable housing and stable employment. In turn, these findings supported the court's conclusion that there was a high likelihood of future neglect if the child were returned to respondent-mother's care. In re R.L.R., 381 N.C. 863 (2022)

Grounds for termination—neglect—likelihood of future neglect—mental health issues—The trial court properly terminated a mother's parental rights to her three children based on neglect where its findings, supported by evidence, in turn supported the court's conclusion that there was a high likelihood of the repetition of neglect if the children were returned to the mother's care. Although the mother did make some progress on her mental health issues up to the time of the hearings, she remained unable to parent all of her children simultaneously, she was still prone to making angry outbursts, and she and the children's father were likely to resume their relationship after the completion of his incarceration, despite their extensive history of domestic violence. In re B.E., 381 N.C. 726 (2022)

Grounds for termination—neglect—likelihood of future neglect—ongoing substance abuse—The trial court's order terminating respondent-mother's parental rights in her children on the grounds of neglect was affirmed where, despite some non-fatal deficiencies in the order, the children had been adjudicated as neglected and the mother continued to have substance abuse issues that demonstrated a likelihood of future neglect–as shown by her refusal to regularly comply with her case plan's required random drug screens and by the positive test for cocaine in her newborn daughter. In re J.D.O., 381 N.C. 799 (2022)

Grounds for termination—willful abandonment—attempts to regain contact with children—In a case involving ex-spouses who previously lived in Kentucky, the trial court properly dismissed the mother's petition to terminate the father's parental rights in their three children on the ground of willful abandonment. The court's factual findings showed that, during the determinative six-month period, the father paid child support and attempted to register in North Carolina the parties' Kentucky custody order (granting sole custody to the mother while entitling the father to seek review of the order and request visitation upon completing the Friend of the Court's recommendations). Further, the court found that the father–who had been prevented from contacting the children under protective orders entered in Kentucky–had made several efforts to regain contact with his children outside of the determinative six-month period, including complying with the Friend of the Court's recommendations, making multiple attempts to obtain relief from the protective orders, and relocating to North Carolina to be closer to where the mother had moved with the children. In re N.W., 381 N.C. 851 (2022)

Grounds for termination—willful abandonment—incarceration—no contact with child—The trial court did not err by concluding that respondent-father's parental rights were subject to termination on the grounds of willful abandonment where he was incarcerated for nearly the entire time that his child was in the custody of social services and the evidence–including orders from prior proceedings and social workers' testimony that they were not aware of respondent-father ever calling the child or sending him any gifts–showed that he failed to make any efforts to communicate with his child during the relevant six-month time period. In re J.A.J., 381 N.C. 761 (2022)

Motion for continuance—more time for counsel to prepare—effective assistance of counsel—argument waived on appeal—The trial court did not err by denying respondent-mother's motion to continue a termination of parental rights hearing where her counsel told the court he needed more time to prepare a defense (respondent-mother had recently been incarcerated and would potentially be starting a 120-day substance abuse treatment program). Because counsel did not assert that the continuance was necessary to protect respondent-mother's constitutional right to effective assistance of counsel, the denial of the motion was reviewable for an abuse of discretion only; here, there was no abuse of discretion where respondent-mother failed to show any "extraordinary circumstances" to justify the continuance, which would have pushed the hearing beyond the ninety-day period prescribed by N.C.G.S. § 7B-1109(d). Moreover, there was no factual basis for respondent-mother's argument that her counsel's performance at the termination hearing was constitutionally deficient. In re A.M.C., 381 N.C. 719 (2022)

Motion to continue—denial—incarcerated parent—due process argument waived—no extraordinary circumstances—A father's argument on appeal that the denial of his fourth motion to continue a termination of parental rights (TPR) hearing violated his due process rights was waived because his counsel did not raise the constitutional issue before the trial court. There was no abuse of discretion where the father had already been granted three continuances to allow more time to secure his participation by telephone from federal prison, there was no showing that another continuance would increase his chances at participation, and more than eight months had passed since the filing of the TPR petition. Therefore, there were no extraordinary circumstances pursuant to N.C.G.S. § 7B-1109(d) to justify another continuance. In re B.E., 381 N.C. 726 (2022)

Parent's competency—inquiry—trial court's discretion—In a termination of parental rights case, the trial court did not abuse its discretion by not conducting an inquiry into respondent-mother's competency where the trial court was aware that she suffered from mental illness and that she was not consistent in receiving mental health treatment. The record showed that the trial court had the opportunity to observe respondent-mother throughout the proceedings and that she understood the nature of the proceedings, her role in them, and how to assist her attorney in preparing for them. In re J.A.J., 381 N.C. 761 (2022)

Permanency planning—cessation of reunification efforts—no change in plan—parent given additional opportunity for compliance—The trial court did not err by ordering the department of social services to cease reunification efforts between a father and his children–even though the court did not change the primary permanent plan from reunification–based upon findings that the father did not fully acknowledge his responsibility in the removal of his children from his care and the effect his mental health issues had on his parenting skills, that he had a pattern of noncompliance with his case plan, and that he continued to be aggressive and abusive with DSS workers. Given the father's behavior, the court did not violate N.C.G.S. § 7B-906.2(b) by deciding to give the father additional time to demonstrate compliance with his case plan rather than immediately eliminate reunification as a permanent plan. In re C.H., 381 N.C. 745 (2022)

Permanency planning—eliminating reunification—statutory factors—availability of parent—In an appeal from a termination of parental rights (TPR) order and an earlier permanency planning order, although the findings in the TPR order challenged by the father regarding his lack of progress on his case plan were supported by competent evidence and the trial court made sufficient findings to address subsections (d)(1), (d)(2), and (d)(4) as required by N.C.G.S. § 7B-906.2 before eliminating reunification as a permanent plan in the earlier order, there were insufficient findings addressing subsection (d)(3)–whether the father remained available to the court, the department of social services, and the guardian ad litem. Since the trial court substantially complied with the statute, the appropriate remedy was not to vacate the permanency planning order, but to remand for entry of additional findings of fact. In re C.H., 381 N.C. 745 (2022)

Subject matter jurisdiction—findings—record support—The trial court had subject matter over a termination of parental rights action where the trial court's order included a determination that it had subject matter jurisdiction and the record supported that determination. The trial court was not required to make an express finding of jurisdiction under N.C.G.S. § 50A-201, 50A-203, or 50A-204. In re J.D.O., 381 N.C. 799 (2022)


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