In re J.D.O., 381 N.C. 799 (2022)

  • Facts: In 2019, the juveniles were adjudicated neglected based on circumstances created by mother’s substance use. In 2020, DSS filed TPR petition, which was granted. The court took judicial notice of the underlying file. Mother appeals, raising a lack of subject matter jurisdiction and challenging the grounds, arguing the facts were not supported by the evidence and do not support the conclusion of neglect.
  • G.S. 7B-1111(a)(1) authorizes a TPR when a parent neglects their child, including failing to provide proper care, supervision, or discipline or creating an injurious living environment. When a parent and child have been separated for a long period of time there must be prior neglect and the likelihood of future neglect based on the changed conditions of the parent’s fitness and the child’s best interests at the time of the TPR hearing.
  • “[A] trial court may take judicial notice of the underlying juvenile case file at a hearing on a termination of parental rights petition.” 381 N.C. at 806. However, the trial court cannot rely solely on prior order and court reports. There must be some oral testimony and an independent determination of the evidence presented. The court stated it would take judicial notice of the adjudication order and later stated it was taking judicial notice of the entire file. The written TPR order finds the court took judicial notice of the entire file. The court’s oral statement of what it was taking judicial notice of was superseded by its written findings in the order, which was all the documents in the underlying file. In challenging the consideration of exhibits, Mother did not show the court relied on inadmissible evidence rather than witness testimony when making its findings of fact.
  • Many of the court’s findings are not findings but are recitations of testimony. Those non-findings are disregarded. In assessing the entire order, the adjudicatory findings support the conclusion. Other challenged findings are supported by the evidence – social worker testimony. Although some favorable factors for mother were not included, “[t]he trial court is not … ‘required to make findings of fact on all the evidence presented, nor state every option it considered.’ ” 381 N.C. at 815 (citation omitted).
  • Regarding prior neglect, there is no merit to mother’s argument that an adjudication is about the child’s status and does not satisfy G.S. 7B-1111(a)(1). Case law has established a prior adjudication of neglect is sufficient to establish prior neglect in a TPR based on G.S. 7B-1111(a)(1), and there is no requirement that the parent whose parental rights are at issue be responsible for the prior neglect adjudication. Having not appealed the underlying adjudication order, mother is bound by collateral estoppel.
  • Regarding the likelihood of future neglect, a parent’s failure to make progress on their case plan is indicative of a likelihood of future neglect, while their compliance with a case plan does not preclude a finding of neglect. The inquiry is not an inventory of what components of the case plan the parent achieved. Although mother was engaging in treatment, she did not resolve her issues with substance use such that the children could return to her care.
  • Cumulative error is applied rarely in a review of a criminal conviction. “[C]umulative errors lead to reversal when ‘taken as a whole’ they ‘deprived [the] defendant of his due process right to a fair trial free from prejudicial error.’ ” 381 N.C. at 821 (citation omitted). Cumulative error has not been recognized in a TPR or in civil cases generally and will not be expanded to this TPR appeal.
Termination of Parental Rights
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