In re A.J.P., 375 N.C. 516 (2020)

There is a dissent
Earls, J.
  • Facts: The juvenile was adjudicated a dependent juvenile based on circumstances due to mother’s substance use and criminal activity and putative father’s criminal activity and inability to care for their infant and lack of an appropriate alternative child care arrangement. Mother and putative father executed a relinquishment. It was later discovered putative father was not the biological father and a TPR on unknown fathers was initiated. Respondent father contacted DSS to indicate he might be the father, and he was determined to be so. Father was incarcerated but entered into a family services plan and the dependency case continued to hold permanency planning hearings. Eventually DSS filed a TPR alleging father had willfully left the juvenile in foster care and failed to make reasonable progress and willfully abandoned the juvenile. The TPR petition was filed in April 2019 and the hearing was continued in May 2019 because respondent father’s attorney withdrew due to a conflict of interest and a new attorney was appointed and needed time to prepare. The TPR was granted on both grounds, and father appeals.
  • G.S. 7B-1111(a)(2) authorizes a TPR when the parent has willfully left the juvenile in a foster care or other placement for more than 12 months without making reasonable progress under the circumstances to correct the conditions that led to the child’s removal. Willfulness involves a parent’s ability to show reasonable progress but an unwillingness to make the effort. 
  • The challenged findings are supported by clear and convincing evidence.
  • Although the juvenile was removed from mother’s home, the court found mother and father’s relationship involved the use of controlled substances, father supplied mother with those substances even throughout her pregnancy, and father was incarcerated for drug-related criminal activity. The components of father’s case plan addressing substance abuse and mental health issues relate to identifying and correcting underlying traumas that cause the behaviors so a safe and secure environment for the juvenile can be created. Father contributed to the circumstances leading to the juvenile’s removal such that there is a sufficient nexus between the conditions that led to her removal and the mental health and substance abuse components of father’s case plan. See In re B.O.A., 372 N.C. 372 (2019).
  • The court considered the limitations to his completing his case plan due to his incarceration when determining his willfulness in not making reasonable progress. Although father was incarcerated, he could have completed the substance abuse portion of his case plan. He failed to provide proof that he did so. Additionally, father knew mother was pregnant but made no effort to contact her or the child after the child was born and during a period of time where he was not incarcerated. Since his involvement in the case, he has not sent cards, made calls, or requested the opportunity to see his child. He did not reach out to the child’s GAL despite having contact information for the GAL.
  • Dissent: The trial court failed to analyze how incarceration affected the respondent’s capacity to comply with his case plan before concluding his failure to make reasonable progress was willful. Since the record could support the conclusion that grounds existed, the remedy should be vacate and remand.
Termination of Parental Rights
Willfully Leaving Child in Foster Care or Other Placement
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