In re J.D.A.D., 253 N.C. App. 53 (2017)

  • Facts: Mother is petitioner; father is respondent. Respondent father has been incarcerated since 2015 and is not expected to be released until October 2018. The TPR was granted on the ground set forth at G.S. 7B-1111(a)(9) after the court found the respondent is unable to provide a home for the child but did not find that his failure to establish a safe home was willful.
  • G.S. 7B-1111(a)(9) allows a termination of parental rights when two prongs are satisfied by clear, cogent, and convincing evidence:
    • (1) the respondent’s parental rights to another child of his/hers have been involuntarily terminated by a court, and
    • (2) the parent lacks the ability or willingness to establish a safe home (“safe home” is defined at G.S. 7B-101(19)).
  • Although a parent’s incarceration is relevant when determining whether the grounds for termination exist, “incarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision” (citing In re C.W. 182 N.C. App. 214, 220 (2007)). The court’s only rationale to support the TPR ground was the adjudicatory fact addressing the respondent’s incarceration. The finding does not support the conclusion of law that the ground exists.
  • Evidence of the Respondent’s lack of approval for visitation, minimal financial support for the child, continued use of illegal substances, and failure to obtain necessary substance abuse treatment support the petitioner’s claims regarding the respondent’s inability to provide a safe home but there were no adjudicatory findings of these issues (emphasis added). Some of this evidence was relied upon in disposition but not for adjudication.
Termination of Parental Rights
Prior TPR/No Safe Home
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