In re J.M.J.-J., 374 N.C. 553 (2020)

  • Facts: In 2017, the juvenile was adjudicated neglected and dependent. Respondent father did not contest the allegations in the petition that included mother’s substance abuse and mental health issues and father’s knowledge of those issues as well as his own extensive criminal history involving domestic violence and controlled substances. After adoption was ordered as the primary permanent plan, DSS filed a TPR petition, which was granted on the grounds of neglect and abandonment. Respondent father appeals, arguing the evidence does not support the findings, and the findings do not support the conclusion that grounds existed.
  • The standard of review is whether the findings are supported by clear, cogent, and convincing evidence, and whether the findings support the conclusion of law.
  • Under G.S. 7B-1111(a)(1) and 7B-101(15), neglect involves a lack of a parent’s proper care, supervision, or discipline or when a juvenile lives in an injurious environment. When a parent and child have been separated for a long period of time, the TPR petitioner must show past neglect and a likelihood of future neglect. The trial court considers evidence of changed circumstances between the past neglect and the time of the TPR hearing. Because the determinative factors for whether a child is neglected are the circumstances and conditions surrounding the child and not the fault or culpability of the parent, it is “not necessary that the parent whose rights are subject to termination be responsible for the prior adjudication of neglect.” Sl.Op. at 20.
  • Collateral estoppel applies to father in his challenge to findings that the mother lacked an appropriate child care arrangement at the time the juvenile petition alleging neglect and dependency was filed. The prior adjudication order made that finding and respondent-father, who did not appeal that order, is bound that finding. Collateral estoppel also applies to father’s argument about his case plan requirements when the initial dispositional order in the N/D action stated he was required to follow a case plan that identified the services and steps he was to take.
  • Judicial notice of all prior orders in the N/D action was taken by the trial court in the TPR. There were findings of fact in a permanency planning order about father’s positive test for controlled substances. “Although the permanency planning order is subject to a lower standard of evidentiary proof than a termination of parental rights determination, this [Supreme] Court has acknowledged that ‘[a] trial court may take judicial notice of findings of fact made in prior orders, even when those findings are based on a lower evidentiary standard because where a judge sits without a jury, the trial court is presumed to have disregarded any incompetent evidence and relied upon the competent evidence.’ ” Sl.Op. at 9 quoting In re T.N.H., 372 N.C. 403, 410 (2019). Further, the NC Supreme Court “agree[s] with the Court of Appeals that ‘[i]t is well-established that a trial court may take judicial notice of its own proceedings.’ ” Sl.Op. at 13 (citation omitted).
  • The trial court determines the reasonable inferences to be drawn from competent evidence, which the trial court did in making its findings regarding respondent’s substance abuse and the circumstances for his missed drug screens.
  • Incarceration in and of itself is neither a sword nor a shield in a TPR; “the extent to which a parent’s incarceration … support[s] a finding of neglect depends upon an analysis of the relevant facts and circumstances, including the length of the parent’s incarceration.” Sl.Op. at 20 (citation omitted). Prior to father’s incarceration, he made no attempts to comply with his case plan and continued to test positive for controlled substances supporting the courts findings that past neglect existed and future neglect was likely since father’s circumstances had not changed at the time of the TPR hearing.
Termination of Parental Rights
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