In re A.L.L., 376 N.C. 99 (2020)

There is a dissent
in part and concur in part, Newby, J.
  • Facts: The juvenile was adjudicated dependent in an underlying juvenile action based on circumstances related to mother’s mental health issues. During the course of the underlying dependency action, mother was ordered to comply with her case plan, which she did but she was still engaging in inappropriate behaviors and had parenting deficits. Ultimately the court appointed permanent guardians for the juvenile under G.S. 7B-600, achieving a permanent plan. The guardians filed the TPR petition so they could adopt. The TPR was granted on the grounds of dependency and willful abandonment. Mother appeals both grounds and argues the court lacked subject matter jurisdiction.
  • G.S. 7B-1111(a)(6) authorizes a TPR when the parent is incapable of providing proper care and supervision for the juvenile such that juvenile is dependent as defined by G.S. 7B-101(9) and that there is a reasonable probability the incapability will continue for the foreseeable future. The court must address both prongs of the definition of juvenile based on (1) the juvenile not having a parent, guardian, or custodian who is able to provide for the juvenile’s care and supervision and (2) the parent, guardian, or custodian lacks an appropriate alternative child care arrangement.
  • There were no findings about the second prong of dependency – lack of an appropriate alternative child care arrangement.
  • A legal permanent guardian is an appropriate alternative child care arrangement under G.S. 7B-1111(a)(6), even when the parent did not identify that person.  Differing from prior Court of Appeals opinions, G.S. 7B-1111(a)(6) does not require that the parent must locate and secure the appropriate alternative child care arrangement; the issue centers on “the availability or unavailability of an appropriate alternative child care arrangement, not the parent’s success or failure in identifying one….” Sl.Op. at 12. This interpretation of the statute comports with the purpose of the Juvenile Code. “[W]hen a parent is unable to provide appropriate care, but the child is residing with another appropriate permanent caretaker, then the parent’s incapability does not itself supply a reason for the state to intervene to dissolve the constitutionally protected parent-child relationship. In this circumstance, requiring the parent to affirmatively identify an alternative child care arrangement threatens the parent’s constitutional status without serving the state’s parens patriae interest in the child’s safety.” Sl.Op. at 14.
  • “Permanent guardianship, which provides a child with stability and the opportunity to develop durable, healthy, dependent bonds with adult caregivers, is distinct from a temporary custodial arrangement which leaves a juvenile in a state of ongoing uncertainty.” Sl.Op. at 15. “Requiring the identification of an alternative child care arrangement serves a child’s interest in permanency when the child is in the custody of an incapable parent or a temporary caregiver. But when the child resides with a permanent legal guardian, the parent’s ability to identify an alternative child care arrangement is extraneous to the concerns animating our Juvenile Code.” Id. Footnote 3 states, "Until a legal permanent guardianship has been established, a parent will still have reason to identify and propose an alternative child care arrangement."
Termination of Parental Rights
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