In re K.H., 375 N.C. 610 (2020)

There is a dissent
Newby, J. There's also a concurrence in part and dissent in part, Ervin, J. and Davis, J.
  • Facts: A 16-year-old parent and her 9-month-old baby were placed in nonsecure custody with DSS. Initially, mother and infant were separated (April 5, 2017 through June 9, 2017) but then were placed in a foster home together from December 19, 2017 until August 8, 2018 when they were separated again. The infant was adjudicated neglected and dependent (the opinion does not address respondent minor mother’s status as an abused, neglected, or dependent juvenile but does make reference to her also being in DSS custody). After respondent minor mother made minimal progress, DSS filed a TPR motion on August 8, 2018. The TPR was granted on three grounds: failure to make reasonable progress (7B-1111(a)(2)), failure to pay the reasonable cost of care (7B-1111(a)(3)), and dependency (7B-1111(a)(6)). Respondent mother appeals all three grounds.
  • G.S. 7B-1111(a)(2) requires a two-step analysis: (1) that the child has been willfully left by the parent in foster care or placement outside the home for more than 12 months and (2) the parent has not made reasonable progress under the circumstances to correct the conditions that led to the child’s removal.
  • The time period for the first prongwillfully left in foster care or placement outside the home for 12 months – is based on the time from the court order placing the child outside the home to the time that the TPR petition/motion is filed. There is a finding that the juvenile has been in care for approximately 13 months, but it is unclear whether the court was including the months between the filing of the TPR motion and the TPR hearing, which should not have been considered.
  •  The plain meaning of foster care and placement outside the home presumes the child and parent have been physically separated. See G.S. 131D-10.2(9) (definition of “foster care”). The period of time the minor parent and juvenile were placed in the same foster home does not count toward the determinative time period since the juvenile has not actually lived apart from the parent. This interpretation supports the purpose of G.S. 7B-1111(a)(2) to provide parents with at least 12 months’ notice that they must correct the conditions that led to their child’s removal before having to respond to a termination of parental rights. Here, the period of time the juvenile and minor parent were separated was 10 months before the TPR motion was filed and is insufficient to support a TPR on this ground.
  • Dissent: Although the application of the time period is tricky in this situation, the juvenile was placed in foster care and outside mother’s home for more than 12 months. During the time the juvenile and minor parent were in the same foster home, the juvenile was not in mother’s custody and no evidence shows mother had responsibility for caring for the juvenile during that time, and the juvenile was not in her mother’s home but was in the home of a foster family and children’s home.
Termination of Parental Rights
Willfully Leaving Child in Foster Care or Other Placement
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