In re N.K., 375 N.C. 805 (2020)

  • Facts: There is an underlying neglect and dependency case. This TPR was granted on the grounds of neglect. Respondent mother appeals, raising as one argument that the findings in the TPR order resemble the language of findings in other orders and reports that were subject to lower evidentiary standards than the TPR adjudication standard of clear, cogent, and convincing evidence and were admitted into evidence at the TPR hearing but should not have been used to support the findings in the TPR.
  • 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.
  • Quoting In re T.N.H., 372 N.C. 403, 410 (2019), the “trial court may take judicial notice of findings of fact made in prior orders, even when those findings are based on a lower evidentiary standard because[,] where a judge sits without a jury, the trial court is presumed to have disregarded any incompetent evidence and relied upon the competent evidence.” The court must also receive some oral testimony and make an independent determination about the evidence presented. Id. Here, the court took judicial notice of the reports and orders and heard live testimony from the DSS social worker. After reviewing the record (the reports, orders, and live testimony), the findings have adequate evidentiary support and are in the proper form.
  • Although mother had financial difficulties, the record shows her rights were not terminated solely on the basis of poverty. There was a combination of factors including her substance abuse, mental health, and domestic violence issues and her failure to complete treatment to address those issues or follow through on referrals to assist her with her financial difficulties.
  • Willfulness is not required for a showing of neglect. Mother’s mental health issues do not preclude a neglect determination. A parent’s inability to adequately provide for their child may be “by reason of mental infirmity or by reason of willful conduct on the part of the parent….” 19.
  • The unchallenged findings support the conclusion of neglect.

Remanded due to ICWA

Termination of Parental Rights
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