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. 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 was granted on both grounds, and father appeals.
  • G.S. 7B-1111(a)(7) authorizes a TPR when the parent has willfully abandoned the child for at least 6 consecutive months immediately preceding the filing of the TPR petition or motion. Abandonment implies conduct by the parent that manifests a willful determination to forego all parental duties and relinquish all parental claims to the child, which is demonstrated by withholding his presence, love, care, and opportunity to display filial affection and failure to pay support and maintenance. Willfulness is a question of fact. The court may consider the parent’s conduct outside of the determinative 6-month period when evaluating the parent’s credibility and intentions.
  • Incarceration greatly limits a parent’s options for showing affection but does not excuse a parent from showing interest in his child’s welfare by whatever means are available. Courts must recognize the limitations on a parent when requiring them to do what they can to show appropriate concern for their child’s welfare.
  • The relevant 6-month period is April 30, 2018 to October 31, 2018 when respondent parent was incarcerated. Although outside of this time period, the court properly considered father’s conduct in not contacting or providing care for his child from her birth until his incarceration for determining father’s credibility and intentions.
  • The findings support the conclusion.
  • Dissent: The trial court failed to analyze how incarceration affected the respondent’s capacity to comply with his case plan before concluding he willfully abandoned the juvenile. Undue weight was given to the period of time before the 6-month determinative time period. Since the record could support the conclusion that grounds existed, the remedy should be vacate and remand.
Termination of Parental Rights
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