In re M.T., 285 N.C. App. 305 (2022)

  • Facts:  In 2018, after a hearing and based on stipulations, two juveniles were adjudicated neglected, and the younger infant was also adjudicated abused and dependent. The circumstances involved lack of medical care and nonaccidental injury to the infant including skull and rib fractures in various stages of healing, retinol hemorrhages in both eyes, malnourishment, and other life-threatening conditions. At the time of adjudication and throughout the case, the cause of injuries were never explained; however, the juvenile was in the sole care of his parents at all times prior to the petition being filed. Different explanations for the injuries were provided at different times, including hospital caused, mother’s stepfather, and a single drop of the infant by father. The court determined those explanations were not credible to account for the various injuries occurring at different times.
  • At disposition, the children were placed in DSS custody, and parents were ordered to engage in a case plan. Mother’s case plan included a parenting capacity evaluation, parenting classes with demonstration of skills learned at visits, and random drug screens. In the first year of the case, the parents were incarcerated due to charges stemming from the infant’s abuse. Ultimately, father pled to a child abuse charge and mother’s charges were dismissed. At the third permanency planning hearing, reunification was eliminated as a permanent plan.
  • DSS filed a TPR, which was granted on the grounds of neglect and failure to make reasonable progress. At the dispositional portion of the TPR hearing, mother’s expert witness on child welfare policy and practice was not permitted to testify as her testimony was determined to be irrelevant. An offer of proof through the expert report was provided that addressed her testimony regarding racial disparity in child welfare, domestic violence and child welfare, and the importance of avoiding family separation and foster care versus kinship placement.
  • Mother appeals the permanency planning order eliminating reunification (which the court of appeals granted a petition for writ of certiorari to review) and the TPR order for both the grounds and the trial court’s denial of her expert witness testifying at the dispositional stage. Several agencies filed amicus briefs to the court to address domestic violence in child welfare cases, race in child welfare cases, and wealth-based pretrial incarceration on families.
  • TPR: Likelihood of Future Neglect as well as past neglect must be shown when there has been a long period of separation between the parent and juvenile. The court looks at the circumstances at the time of the TPR hearing.
    • “Here, as in most cases involving life-threatening non-accidental injuries to a baby, there is no direct evidence of exactly what happened. A baby cannot tell anyone what happened, and no one, other than someone who hurt the baby, saw what happened. Trial courts must often make these difficult and momentous decisions based upon circumstantial evidence and evaluation of credibility and weight of the evidence.” 285 N.C. App. at 306. The lack of mother’s explanation for the juvenile’s injuries is not an improper shifting of the burden of proof from the petitioner (DSS); instead, “it speaks to the likelihood of future neglect or abuse…. [and] also touches Mother’s reasonable progress, or lack thereof….” 285 N.C. App. at 340.  This lack of explanation helped the court evaluate whether DSS met its burden to prove the alleged grounds. The court’s determination that mother’s testimony and father’s email was not reasonable or medically defensible to explain the infant’s injuries is a credibility determination that the trial court makes and is not disturbed on appeal. The court’s findings about the lack of explanation support its determination of a likelihood of future neglect. Regarding the sibling, “the trial court could rely on the prior abuse and neglect of [the one juvenile] plus Mother’s lack of explanation for [his] injuries and condition when he arrived at the hospital to determine [the sibling] was also a neglected juvenile because of the likelihood of future abuse or neglect.” 285 N.C. App. at 354. There were additional findings about concerns related to the sibling (refusing immunizations and medical treatment). The findings support the conclusion of neglect.
    • The services mother completed did not address the reason for the children’s removal as the parental capacity evaluation did not look at the cause or extent of the child’s injuries and the parenting classes did not address the conditions in the home at the time of removal. Mother was on notice of that the parental capacity evaluation and parenting classes were insufficient at a prior permanency planning hearing where reunification was eliminated as a permanent plan.
    • Although the NC Coalition Against Domestic Violence argued in its amicus brief that the trial court’s focus on a lack of explanation requirement retraumatizes domestic violence survivor parents and children involved in the child welfare system, the appellate court focused on case law that “demonstrates why the lack of explanation can be so important.” 285 N.C. App. at 349. The trial court drew the same inference as other cases (In re D.W.P., 373 N.C. 327 (2020)) that when a parent cannot explain how the children were harmed, there is a risk of future harm being caused in the same way.  The court did not infer mother participated in or condoned the abuse but instead focused on mother’s belief that father harmed the child was medically impossible to explain all the injuries. Further, the definition of neglect includes living in an injurious environment, which can include failing to protect the juvenile from harm. A TPR focuses on the safety and wellbeing of a child and is not meant to be punitive against the respondent parent. Finally, unchallenged findings of fact show that domestic violence between the parents did not occur before the abuse, neglect, and dependency petition was filed. This case differs from those where domestic violence existed before the A/N/D petition is filed and is part of the basis for the children’s removal.
Termination of Parental Rights
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