Held:

Reversed

Facts: Respondent-Father appeals the termination of his parental rights as to two children based on the grounds of neglect, failure to make reasonable progress, and the inability to establish a safe home when there is a prior involuntary termination of parental rights as to another child. Petitioners were former foster parents to one of the children who, after reunification, Father and Mother relied on for child care. After the second child was born and for a period of two years after, Father and Mother left the children with petitioners for irregular and lengthy intervals. Petitioners obtained emergency custody through a Chapter 50 action, at the request of Father, based on concerns for Mother’s substance use and Father being subject to a DVPO that Mother obtained on behalf of herself and the children. Petitioners maintained custody of the children via Chapter 50 for a period of two years, during which Father consistently exercised supervised visitation. Petitioners initiated this private TPR action, alleging their intent to adopt the children. The trial court adjudicated each of the three grounds and terminated Father’s parental rights. Father argues the trial court’s findings are insufficient for each ground. Father also successfully challenged the trial court’s ex parte investigation regarding his testimony relating to parental rights to his other children, which is summarized separately.
Appellate courts review TPR orders to determine whether clear and convincing evidence supports its findings and whether the findings support its conclusion of law. Rule 52(a) requires “specific findings of the ultimate facts established by the evidence . . . essential to support the conclusions of law reached.” Sl. Op. at 9 (citation omitted).
G.S. 7B-1111(a)(2) allows the trial court to TPR where the parent “has willfully left the juvenile in foster care or placement outside the home for more than [twelve] 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 11, quoting G.S. 7B-1111(a)(2). The supreme court has held that “[r]emoval, as contemplated by section 7B-1111(a)(2), refers only to circumstances where a juvenile court ‘has entered a court order requiring that a child be in foster care or other placement outside of the home.’ ” Id. (citations omitted) (emphasis in original). The juveniles were never removed in this case and therefore the trial court could not conclude grounds exist to TPR under G.S. 7B-1111(a)(2). Petitioners acquired custody through a Chapter 50 action, precluding notice to Father that his parental rights were at risk or informing him of steps necessary to avoid termination. Father did not have a case plan to track progress and the court made no findings as to what actions Father should have taken to regain custody of his children.

Category:

Termination of Parental Rights

Stage:

Adjudication

Topic:

Willfully Leaving Child in Foster Care or Other Placement

Tags:

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private TPR