In re K.D.C., 375 N.C. 784 (2020)

Held: 
Reversed
  • Facts: The juveniles were adjudicated neglected in an underlying action due to circumstances created by father and mother’s incarceration. Mother was ordered to comply with a case plan. Mother was incarcerated throughout the neglect proceeding. Ultimately, DSS filed a TPR petition alleging the grounds of neglect, failure to make reasonable progress, and dependency. The TPR was granted, and mother appeals the grounds.
  • Neglect requires a showing of neglect as defined by G.S. 7B-101(15) at the time of the TPR hearing (current neglect) or if the child has been separated from the parent for a long period of time, a TPR for neglect must be based on a showing of past neglect and a likelihood of future neglect by considering the evidence of changed circumstances given the history of neglect by the parents between the time of the past neglect and the TPR hearing.
  • Incarceration, standing alone, is neither a sword nor a shield in a TPR decision. In determining neglect, an analysis of the relevant facts and circumstances, including the length of a parent’s incarceration, must be considered. The findings of fact about mother’s failure to complete her mental health and substance abuse requirements despite having the ability to do so are not supported by clear and convincing evidence. DSS as the petitioner and not the respondent has the burden to prove mother’s non-compliance with her case plan, and the evidence presented by DSS was insufficient. Mother did complete a “mothering class,” anger management, and grief recovery classes which appear to be her attempt to comply with the component of her case plan to improve her parenting skills. Mother’s failure/inability to secure stable housing and employment so far in advance (15 months) of her release from incarceration “is difficult to consider justly as a failure to comply with her case plan.” Sl.Op.at 13. Mother maintained regular contact with her children.
  • The court erred in determining there was a likelihood of repetition of future neglect.
Category:
Termination of Parental Rights
Stage:
Adjudication
Topic:
Neglect
Tags:
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7B-1111(a)(1)
incarceration
likelihood of repetition of neglect