In re K.N., ___ N.C. App. ___ (December 19, 2023)

  • Facts: Mother appeals the termination of her parental rights to two children based on the grounds of abuse, neglect, and willfully leaving the children in foster care for more than 12 months and her failure to make reasonable progress to correct the conditions which led to their removal. DSS became involved in 2018 and the children were ultimately adjudicated abused, neglected, and dependent in 2019 based on circumstances involving Mother’s inappropriate discipline resulting in criminal charges and convictions, and mother’s mental health and failure to comply with in-home services. Throughout disposition, Mother failed to complete many of the ordered services and activities in her case plan, including demonstrating the ability to meet the basic and therapeutic needs of her children, including creating a stable home environment and engaging and cooperating in the treatment of one of the children’s therapeutic treatment; and recommendations adopted by the court relating to her mental health and irrational behavior, including consistently taking her medication and participating in cognitive therapy and substance use treatment. DSS filed the TPR motion in June 2021, which was granted and entered on December 21, 2022. In its order, the court made findings based on witness testimony and from findings and conclusions in permanency planning orders.
  • A trial court’s adjudication of grounds to terminate parental rights are reviewed to determine “whether the findings of fact are supported by clear, cogent[,] and convincing evidence and whether the findings support the conclusions of law.” Sl. Op. at 13 (citation omitted). Conclusions of law are reviewed de novo. Sl. Op. at 13.
  • G.S. 7B-1111(a)(2) authorizes a trial court to terminate parental rights after “the parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile.” Sl. Op. at 13, quoting G.S. 7B-1111(a)(2). Termination under this ground requires a “two-step analysis” to determine both whether the parent willfully left the child in foster care for more than 12 months and the parent’s failure to make reasonable progress in correcting the conditions that led to their child’s removal. Sl. Op. at 13 (citation omitted). A parent’s “prolonged inability to improve her situation, despite some efforts in that direction, will support a finding of willfulness . . . and will support a finding of lack of progress . . .” Sl. Op. at 14 (citation omitted). Noncompliance with the case plan can only support termination if there is “a nexus between the components of the court-approved case plan with which the respondent failed to comply and the conditions which led to the child’s removal from the parental home.” Sl. Op. at 14 (citation omitted).
  • Mother challenges nine findings of fact as not supported by clear and convincing evidence, and further argues that several findings are improperly based upon judicially-noticed facts from prior court orders. The challenged findings were supported by the evidence, including witness testimony. “While a trial court ‘may not rely solely’ on judicially-noticed evidence from prior hearings or rely on evidence ‘from prior dispositional orders, which have a lower standard of proof[,]’ a trial court may use testimony from former hearings to corroborate additional testimony received at the current adjudicatory hearing.” Sl. Op. at 12 (emphasis in original) (citation omitted). There must be some oral testimony at the TPR hearing and that testimony corroborated the judicially-noticed facts from the prior permanency planning orders resulting in the court making an independent determination of the new evidence presented at the TPR hearing.
  • Unchallenged findings support that the children were placed in foster care from the time of their removal in November 2018 through the life of the case, satisfying the first requirement of G.S. 7B-1111(a)(2) that the juvenile was willfully left in placement outside of the home for more than 12 months before the TPR motion was filed.
  • Mother failed to make reasonable progress in correcting the conditions that led to the children’s removal. Mother admitted she did not consistently take prescribed medication to manage her bipolar disorder and had ceased taking the medication altogether since becoming pregnant. Mother failed to create and maintain a stable living environment and to actively treat and manage her behaviors resulting from her mental health condition relating to violence and aggression toward her children, evidenced by Mother terminating her treatment with her therapist and bringing another child alleged to have participated in the over-discipline of the other two children back into her home. These components of her case plan address the issues that contributed to the circumstances of the children’s removal from her home and Mother’s noncompliance support termination.
Termination of Parental Rights
Willfully Leaving Child in Foster Care or Other Placement
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