In re W.K., 379 N.C. 331 (2021)

  • Facts: Paternal grandmother and step-grandfather, who filed a petition to adopt the child, filed a TPR petition against father. In 2017, petitioners were granted custody of the child through a Virginia child protective action; father was incarcerated at the time. The child protective action involved the parents’ drug use, father’s criminal history, and a failure to obtain appropriate medical services for the child, who has cerebral palsy. The court granted petitioner’s TPR, and father appeals.
  • G.S. 7B-1111(a)(1) authorizes a TPR on the ground of neglect, which includes a parent who does not provide proper care, supervision, or discipline or has abandoned the child or when the juvenile lives in an injurious environment. When the child has been separated from the parent for a period of time, there must be a showing of past neglect and a likelihood of future neglect, based on evidence of changed conditions between the time of the past neglect and TPR hearing.
  • Although the order did not state the ground in the “conclusions of law” section but instead included it in finding of fact 88, it was not prejudicial error. The court’s classification of findings or conclusions “does not alter the fact that the trial court’s determination concerning the extent to which a parent’s parental rights in a child are subject to termination on the basis of a particular ground must have sufficient support in the trial court’s factual findings. 379 N.C. at 334. The findings include the prior neglect and likelihood of future neglect based on father’s untreated substance use and lack of and inconsistent contact with the child both before and during his incarceration.
  • The findings of fact are supported by clear, cogent, and convincing evidence. The court made reasonable inferences that father had not made any substantial changes in 3 years to show there would not be an injurious environment for the child and that there was a likelihood of future neglect.
  • Incarceration, standing alone, is neither a sword nor a shield in a TPR. Although incarceration may limit a parent’s ability to show affection, it is not an excuse to do so by whatever means available. Father was able to send money for his daughter, communicate with and inquire about her, and visit with her but failed to do so for his son, who is the subject of this TPR. Father did not participate in the 12-month treatment program at the prison despite being incarcerated there for 4 years. Father communicated with his mother but never inquired about his son or his son’s health. Father removed petitioner’s email from his contact list.
Termination of Parental Rights
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