In re H.N.D., ___ N.C. App. ___, 827 S.E.2d 329 (2019)

Dismissed in part
Affirmed in Part
  • Facts: In 2014 one child was adjudicated dependent based upon an agreement between mother and DSS related to domestic violence between mother and father. In 2015, a newborn sibling was adjudicated dependent based upon a stipulation by mother about continued domestic violence issues between her and father.  A 2017 permanency planning order (PPO) identified adoption as the permanent plans for the children and not reunification with mother, which had been the permanent plan. The order included findings about the long and continuing history of domestic violence between mother and father. Mother preserved her right to appeal the PPO.  A TPR was filed and mother’s rights were terminated by order dated June 27, 2018. One of the grounds the court concluded existed is the “dependency” ground under G.S. 7B-1111(a)(6). Mother appealed both the TPR (adjudication only) and PPO “ceasing reunification efforts.” Sl. Op. at 4.
  • TPR
    • The standard of review of the adjudication phase of a TPR is whether the findings of fact are supported by clear and convincing evidence and whether the findings support the conclusion of law. Conclusions of law are reviewed de novo.
    • G.S. 7B-1111(a)(6) requires that the parent be incapable of providing proper care and supervision for the juvenile such that the juvenile is dependent under G.S. 7B-101 and there is a reasonable probability the incapability will continue for the foreseeable future. There is clear and convincing evidence, via testimony, mother’s previous statements and stipulations, and a comprehensive mental health assessment and parenting evaluation, to support the court’s findings that (1)  the juveniles are dependent under G.S. 7B-101; (2) mom does not have an ability to provide proper care and supervision because of her unwillingness to separate from father, minimization of domestic violence, and failure to participate in recommended family or individual counseling to address the domestic violence; and (3) given her willful failure to engage in recommended services and the continuing domestic violence, there is a reasonable probability that mom’s incapability will continue for the foreseeable future.
    • Proper care and supervision and foreseeable future. Although mother argues she and father were never ordered to not have contact with each other, that is not the question for the court. The question “is whether mother is incapable of providing for the proper care and supervision of her children, and if so, whether Mother’s incapability is reasonably probable to continue into the foreseeable future.” Sl. Op. at 12-13. Mother’s stated intent to keep father in hers and the children’s lives despite the domestic violence she has suffered from him is clear and convincing evidence that she is incapable of providing proper care and supervision to the children, who are dependent, and that incapability will continue for the foreseeable future.
  • The appeal of the PPO “ceasing reunification efforts” is moot by the subsequent TPR order. Because the findings and conclusions in the TPR order did not rely on the PPO but instead relied on testimony as well as evidence of current conditions and made findings and conclusions not found in the PPO, the TPR renders the appeal of the PPO moot. (emphasis added). This case is similar to In re V.L.B., 164 N.C. App. 743 (2004).
    • Author’s Note: This opinion refers to the PPO “ceasing reunification efforts” but this author believes the appeal is of the elimination of a reunification as a permanent plan, which is authorized by G.S. 7B-1001(a)(5). The court of appeals has distinguished reunification efforts from reunification as a permanent plan. See In re C.P., 812 S.E.2d 188 (2018).


Termination of Parental Rights
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