In re T.N.H., ___ N.C. ___ (Aug. 16, 2019)

  • Facts: Respondent mother appeals a TPR based on G.S. 7B-1111(a)(9) (prior involuntary TPR and lack of ability or willingness to establish a safe home). Mother has an extensive DSS history dating back to 2000 that resulted in several of her children being removed from her care and not returned to her. Regarding T.N.H., a neglect petition was filed by DSS in 2015 due to domestic violence and threats to the juvenile by the juvenile’s father. In 2015, T.N.H. was adjudicated neglected based on stipulations made by the parties, including mother. In 2017, guardianship was awarded with supervised visitation ordered with mother and father. In 2018, a new neglect petition was filed. T.N.H. was adjudicated neglected based on a lack of proper care and supervision. He had been permitted to stay with his parents unsupervised in a motel room, where he left the room and met a man who sexually abused him. His parents never reported the abuse, and his parents (and the man) were charged with felony child abuse. Mom is incarcerated. DSS initiated this TPR, which was granted. The appeal asserts that there was insufficient evidence and insufficient findings of fact for the TPR.
  • The court must take evidence, find facts, and adjudicated the (non)existence of a ground under G.S. 7B-1111(a). “While Rule 52(a) does not require a recitation of the evidentiary and subsidiary facts required to prove the ultimate facts, it does require specific findings of the ultimate facts established by the evidence, admissions, and stipulations which are determinative of the questions involved in the action and essential to support he conclusions of law reached.” Sl. Op. at 8 quoting Quick v. Quick, 305 N.C. 446, 451-52 (1982) (emphasis in original).
  • Here, the trial court’s reliance in part on evidence from prior proceedings and findings in earlier orders is proper and appropriate. Respondent is collaterally estopped from re-litigating the findings of fact in the 2015 and 2018 neglect adjudications that were based on her stipulations and were not appealed. “We agree with the Court of Appeals’ precedent holding that the trial court may not rely solely on prior court orders and reports but must receive some oral testimony at the hearing and make an independent determination regarding the evidence presented.” Sl. Op. at 12. The trial court took judicial notice of the record. Several of the findings about respondent’s lack of progress were from the 2018 adjudicatory order which applies the clear and convincing evidence standard. The trial court also heard testimony from the social worker about the history and current lack of progress and based its finding in part of that testimony and demonstrates the court’s independent determination of the evidence.
  • Regarding G.S. 7B-1111()a)(9), respondent’s rights to another child were terminated by court order. The record supports the court’s finding that respondent lacks the ability or willingness to provide a safe home given her current incarceration with unknown release date, lack of stable home upon her release from prison and history of unstable housing, failure to satisfactorily complete her case plan, sexual abuse of T.N.H. while in her care and failure to believe his disclosure or to report the abuse, and lack of understanding of his trauma and mental health needs.
Termination of Parental Rights
Prior TPR/No Safe Home
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