In re D.W.P., 373 N.C. 327 (2020)

There is a dissent
(Earls, J.)
  • Facts: In an underlying abuse and neglect action, D.W.P. was adjudicated abused and neglected based on multiple serious injuries (bone fractures) that were in various stages of healing and were caused by nonaccidental means. His sister was adjudicated neglected. No plausible explanation for the injuries was provided by respondent mother or her fiancé at the time. Respondent mother entered an Alford plea to misdemeanor child abuse, which arose from the injuries to D.W.P. At a permanency planning hearing, the court eliminated reunification and directed DSS to file a TPR petition, which DSS did. The TPR was granted based on neglect and failure to make reasonable progress. Respondent mother appeals on the basis that the findings are not supported by clear, cogent, and convincing evidence. The opinion focuses on neglect.
  • Standard of review is whether the findings are supported by clear, cogent, and convincing evidence and whether the findings support the conclusion of law.
  • Findings and Role of Trial Judge: A trial judge’s duty is to determine a witness’s credibility and how much weight to give that testimony and to draw reasonable inferences from that testimony. These determinations are not subject to appellate review. Findings of fact must be “sufficiently specific” to allow for appellate review of the judgment and are made through processes of logical reasoning based on the evidence presented. Sl.Op. at 6. (citations omitted).
  • Findings were supported by clear, cogent, and convincing evidence despite mother’s challenge to findings involving (1) her credibility based on the various explanations she provided for how the child may have been injured and her lack of insight about the injuries and failure to make reasonable progress; (2)  her probation violation for not obtaining a psychiatric evaluation; (3) her working on reestablishing her relationship, which involved domestic violence, with her now ex-fiance; and (4) her getting married to a different man and withholding that information from the DSS social worker which resulted in a background check on him not being conducted.
  • Likelihood of neglect: Because of the period of separation between mother and her child, the court must determine whether there was prior neglect and a likelihood of future neglect, with the determinative factors being the child’s best interests and the parent’s fitness to care for the child at the time of the TPR hearing. Although respondent mother has made some progress, including completing parenting classes, attending therapy, and regularly visiting with the children, she continued to fail to acknowledge the likely cause of her child’s injuries. In a TPR, the child’s best interests are paramount and are meant to ensure the child’s safety and well-being and to not be punitive against the parent. The findings that mother did not try to understand how her child was injured or how her relationships affect the children’s wellbeing support the conclusion that neglect is likely to reoccur.
  • Dissent (Earls, J): The findings are not supported by the evidence. Mother was compliant with her case plan. Further, the evidence shows mother (1) was consistent throughout the case that she did not injure her child and did not know how he was injured and (2) acknowledged her responsibility to protect her children as their primary caregiver. Regarding the injured child’s sister, the findings of fact relate to her living in the home where another child was abused. That alone is insufficient when there is no evidence that current circumstances present a risk of harm or neglect to her.
Termination of Parental Rights
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