In re B.J.H., 378 N.C. 524 (2021)

  • Facts:  In 2017, the juveniles were adjudicated neglected due to circumstances regarding substance use, mental health, and a lack of stable housing and employment. In 2019, they were placed in a potential adoptive placement and DSS filed a TPR motion. The TPR adjudication hearing was bifurcated after father made that motion. The adjudicatory hearing was held on February 7th, and the dispositional hearing on June 15th. The TPR was granted, and parents appeal challenging the grounds.
  • G.S. 7B-1111(a)(2) authorizes a TPR on the ground that a parent willfully left the child in foster care for 12 months immediately preceding the petition and failed to make reasonable progress under the circumstances to correct the conditions that led to the child’s removal. Willfulness does not require the parent be at fault and may be found when a parent has a prolonged inability to improve their situation regardless of their good intentions. A parent’s reasonable progress is considered up to the time of the TPR adjudicatory hearing.
  • A TPR is a 2-stage process: adjudication and disposition. The court is not required to bifurcate the hearings into two separate stages but may hold separate adjudicatory and dispositional hearings. The court moves to the dispositional stage when the court concludes a ground exists at the adjudicatory stage. The court rendered its conclusion that grounds existed at the conclusion of the adjudicatory hearing. The period of a parent’s progress up to the TPR hearing refers to the adjudicatory hearing when the 2 stages are bifurcated. To hold otherwise would preclude the court from scheduling bifurcated hearings on different dates or would require the court to hold a portion of the adjudicatory hearing for the final hearing date and is inconsistent with the statutory framework of G.S. 7B-1109 and -1110. At the dispositional hearing, mother did not seek to reopen the adjudicatory stage, which she would have had to do if she wanted the court to consider additional evidence for the adjudicatory stage. Additionally, progress a parent makes is not up to the date the TPR order is entered. G.S. 7B-1109(e) addresses the timing of the entry of the order to 30 days after the completion of the TPR hearing.
  • Mother’s challenged findings are supported by the evidence, and the finding supports the conclusion. The court made a reasonable inference that mother’s failure to return a drug screen was a refusal to submit to drug screens; the lack of a request by DSS for drug screens in the 8 months before the TPR hearing does not undermine the finding that the mother had made no progress on her substance use at the time of the adjudicatory hearing; and the court’s findings that mother’s progress on her case plan was extremely limited despite her completing parenting classes was not error. The time involved in this case supports the court’s finding that mother’s lack of reasonable progress was willful.
  • The trial court has the responsibility to determine witness credibility, the weight to give their testimony, and the reasonable inferences to be drawn from that evidence. In response to father’s challenge, the court believed the DSS social worker’s testimony over that of father’s regarding the completion (or not) of a substance use assessment. Judicial notice of prior permanency planning orders (PPO) (one of which said he completed substance use assessment) does not preclude the court from determining credibility in favor of the DSS social worker when resolving a conflict in the testimony. Findings in a PPO are not binding on a court at the TPR hearing given the different application of the Rules of Evidence and lower standard of proof at a permanency planning hearing. A court may take judicial notice of findings of facts in prior orders, including those with a lower standard, because the court is presumed to disregard any incompetent evidence and to not rely on that incompetent evidence. The appellate court gives the trial court deference when the trial court reconciles conflicting evidence, “including the assessment of its prior findings in a permanency planning order and the testimony of a live witness at the termination hearing” as part of the trial court’s determination of witness credibility. 378 N.C. at 546.
  • A parent’s (non)compliance with a judicial adopted case plan is relevant but is not determinative of the parent’s reasonable progress in correcting the conditions. Father’s refusal to sign the case plan does not preclude the trial court from assessing father’s progress. The court’s not ordering father to comply with the case plan or take remedial action also does not preclude a TPR under this ground. Under G.S. 7B-904(d1), the court may order the parent to take certain action but the court is not required to make such an order. In its prior PPOs, the court made findings of father’s progress (or lack of progress). See G.S. 7B-906.2(d). The findings support the conclusion that father’s progress was not reasonable, and the evidence supported the findings.
Termination of Parental Rights
Willfully Leaving Child in Foster Care or Other Placement
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