In re A.L.S., 375 N.C. 708 (2020)

  • Facts: The juveniles were adjudicated neglected and dependent based on circumstances created by mother’s substance use, criminal activity and pending charges, and problems regarding the appropriateness of the safety placement mother identified. During the underlying neglect and dependency action, mother was incarcerated with a term of 32 to 56 months imprisonment. DSS filed a petition to terminate mother’s parental rights on several grounds, which was granted. Mother appeals, challenging the grounds. This opinion focuses on the ground of dependency.
  • 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.
  • The findings included mother’s incarceration during most of the case including at the time of the TPR hearing and her projected release date of May 2022. The possible placements mother proposed were either rejected as inappropriate or failed to complete the necessary paperwork. Based on these findings, the court concluded the ground of dependency existed.
  • The appeal focuses on mother’s incapability to provide care and supervision and that the incapability would continue for the foreseeable future. Although the mother could have been released sooner than the projected May 2022, any error in the court’s finding of that date did not prejudice mother because the earlier possible date was at least 22 months after the TPR hearing. An extended period of incarceration regardless of an exact release date provides ample support for a determination that mother was incapable of providing care and supervision and there was a reasonable probability that the incapability would continue for the foreseeable future.
  • Based on the statutory language of G.S. 7B-1111(a)(6), the trial court is not required to find the basis for the respondent’s incapability of providing for the children’s care based on a statutorily enumerated condition or other similar cause. The statute was amended since the court of appeals determined In re Clark, 151 N.C. App. 286 (2002), which was relied on in In re J.K.C., 218 N.C. App. 22 (2012), that limited the condition to certain mental or physical impairments or other similar cause or condition. The current statutory language is broader and states “any other cause or condition,” rather than limit it to a “similar” cause or condition. Mother’s extended continued incarceration is a cause or condition.
Termination of Parental Rights
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