In re S.D., 374 N.C. 67 (2020)

  • Facts: The child was adjudicated neglected and dependent in part based on father not having established paternity and never having seen or provided any financial or emotional support for the child. In a review order, father’s paternity was established and he was permitted to send mail or gifts to the child through DSS and could call about her well-being. He was also required to contact DSS once he was released from prison so he could begin working a case plan. After he was released from prison, father did not make significant progress on his case plan, and DSS was ordered to initiate a TPR. After the TPR motion was filed, father was arrested on drug charges and violating parole and remained incarcerated until he pled guilty 4 months later. The TPR hearing was held after father’s incarceration ended. The TPR was granted on the ground of neglect and failure to make reasonable progress. Father appeals. This opinion focuses on neglect.
  • Neglect:  G.S. 7B-1111(a)(1) authorizes a TPR when the parent has neglected the juvenile, which includes when a parent does not provide proper care, supervision, or discipline. When a parent and child have been separated for a long period, the petitioner/movant must show past neglect and a likelihood of future neglect by the parent. Factors include the best interests of the child and the fitness of the parent at the time of the TPR hearing. A TPR on the ground of neglect does not require that the respondent parent in the TPR be responsible for the child’s prior neglect adjudication. An adjudication that a juvenile is neglected is based on “…the circumstances and conditions surrounding the child, not the fault or culpability of the parent.” Sl.Op. at 13-14 quoting In re M.A.W., 370 N.C. 149, 154 (2017).
  • Incarceration: Father was incarcerated for 14 months of the 2-year period that the juvenile was in DSS custody. As previously held, “incarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision.” Sl.Op. at 14-15. Although incarceration limits a parent’s ability to show affection, incarceration is not an excuse for a parent to fail to use whatever means are available to show an interest in his child. Father made minimal efforts to show an interest in his child – he sent a single birthday card. His minimal progress on his case plan was a result of his own conduct, including his later incarceration for his continued criminal activity, his missing or cancelling several meetings with DSS, and his not engaging in recommended services. All of these actions limited DSS’s ability to assist him and are not because of DSS’s failure to make reasonable efforts to assist him as he proposes.
  • Evidence and Findings: The evidence at the TPR hearing including social worker testimony, the father’s testimony, and underlying review orders from the neglect and dependency action. In considering the father’s testimony, the trial court determined it was not credible, and a trial court is entitled to make a witness credibility determination “without fear of appellate reversal in light of the applicable standard of review.” Sl.Op. at 30. The evidence supports the court’s findings that father did not make adequate progress on his case plan or toward reunification, and the findings support the court’s conclusion of neglect.
Termination of Parental Rights
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