In re B.O.A., ___ N.C. App. ___, 818 S.E.2d 331 (2018), reversed ___ N.C. ___ (Aug. 16, 2019)

Held: 
Reversed
  • Facts: In 2015, DSS filed a petition alleging a 4 month old was neglected due to an injurious environment related to her exposure to domestic violence between her parents and an unexplained bruise on the infant’s arm. A nonsecure custody order was entered. In 2016, the child was adjudicated neglected and was placed in the home of her paternal grandmother for the duration of the case. Respondent agreed to an out-of-home services agreement that required her to obtain mental health assessments and follow recommendations, complete a domestic violence program and follow recommendations, submit to random drug screens, participate in weekly group substance abuse therapy, participate in medication management, complete parenting classes and apply the skills learned during visitation, refrain from criminal activity, obtain and maintain stable income, and submit proof of income and budgeting to maintain household bills. In 2017, DSS filed a TPR petition, which was granted after concluding the respondent willfully left the juvenile in foster care or other placement outside the home for more than 12 months without making reasonable progress under the circumstances to correct the conditions that led to the child’s removal (G.S. 7B-1111(a)(2)), and the TPR was in the child’s best interests.
  • Standard of review: Whether there is competent evidence to support the findings of fact and whether the findings of fact support the conclusion of law. The conclusion of law is reviewed de novo.
  • The child was adjudicated neglected and removed from the home due to domestic violence and a bruise on the child’s arm. The finding that the respondent completed domestic violence classes but has not demonstrated skills that she was to learn in those classes is unsupported by the evidence. The social worker testified that the respondent was hostile to DSS. Under G.S. 50B-1, domestic violence is limited to acts “by a person with whom the aggrieved party has or had had a personal relationship,” which does not include the relationship between the mother and DSS and does not correlate to the domestic violence component of her case plan regarding demonstrating skills learned. Sl. Op. at 8. The social worker and respondent both testified that the respondent did call the police for assistance in having her live-in boyfriend removed from the home after he refused to leave. Respondent further testified her call to the police was her implementation of skills she learned, and the boyfriend was not present when the police arrived. This evidence supports a finding that respondent sought assistance prior to domestic violence occurring. Evidence showed respondent obtained a 50B order against the child’s father and had no further contact with him after the 2015 incident.
  • The finding that there was no credible evidence that respondent is unable to protect her child is stricken and disregarded. DSS has the burden as petitioner to prove the alleged grounds by clear and convincing evidence; “it was not respondent’s burden to prove the nonexistence of the ground.” Sl. Op. at 11.
  • Findings regarding respondent’s failure to demonstrate what she learned in parenting classes during visitation is unrelated to the reasons that the child was removed from the home due to domestic violence and an unexplained bruise on the child’s arm. There was no evidence of any concerns regarding physical abuse or inappropriate interactions between respondent and the child. Although DSS argued the out-of-home services agreement identified the real issues related to substance abuse, mental health issues, and parenting skills, DSS did not allege any of these conditions in either the nonsecure custody order or petition alleging neglect, and the adjudication of neglect was not based on any of these conditions. “Without prior notice or allegations, they cannot now be asserted as conditions which led to [the juvenile’s] removal for purposes of G.S. 7B-111(a)(2).” Sl. Op. at 12. Respondent’s lack of progress to comply with these provisions of her service agreement is irrelevant for a TPR based on failure to make reasonable progress to alleviate the conditions leading to the child’s removal or adjudication.
Category:
Termination of Parental Rights
Stage:
Adjudication
Topic:
Willfully Leaving Child in Foster Care or Other Placement
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