In re T.M.L., 377 N.C. 369 (2021)

  • Facts: In January 2018, the juveniles were adjudicated neglected and dependent based on a history of domestic violence and substance use by the parents. Father did not sign his case plan until July 2018, which addressed substance use, domestic violence, parenting skills, housing, and employment. In November 2019, DSS filed TPR petitions regarding father’s rights, which was granted. Father appeals.
  • G.S. 7B-1111(a)(2) authorizes a TPR on the ground of willfully leaving the juvenile in foster care for 12 or more months and failing to make reasonable progress under the circumstances to correct the conditions that led to the juvenile’s removal. The reasonableness of the parent’s progress is evaluated up to the time of the TPR hearing. Failure to complete the case plan services, when they address the issues that contributed to the circumstances leading to the juvenile’s removal, is probative of the parent’s progress or lack thereof.
  • When examining father’s progress, the trial court applied the incorrect standard (time period) by focusing on the one year period before the TPR was filed. “An appellant must not only show error; he must show that the error was prejudicial.” 377 N.C. at 374. The court also included findings that examined the father’s progress up to the date of the TPR hearing. Regardless of why the trial court made these later findings, they are sufficient to support the determination that the ground existed when looking at the totality of the father’s progress at the time of the TPR hearing. Father had not made reasonable progress with domestic violence services, finding appropriate housing or stable employment, or testing positive on drug screens. Father’s partial steps to make progress after the TPR was filed are insufficient.
  • G.S. 7B-1111(a)(2) prohibits the TPR on this ground “for the sole reason that the parents are unable to care for the juvenile on account of their poverty.” 377 N.C. at 380. This statutory language is not an element of the ground but instead establishes what is not a willful failure to make reasonable progress. The trial court does not have to make an affirmative finding that poverty is not the sole reason for the parent’s inability to care of the child. Similarly, a parent’s poverty does not have to be raised as an affirmative defense. The trial court’s findings reflect the evidence, which did not include poverty, and support the finding that his actions were willful.
Termination of Parental Rights
Willfully Leaving Child in Foster Care or Other Placement
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