In re Z.D., ___ N.C. App. ___, 812 S.E.2d 668 (2018)

There is a dissent
based on evidence supporting findings that were sufficient for TPR under G.S. 7B-1111(a)(2)
  • Facts: In 2011, the child was adjudicated dependent based on circumstances related to respondent mother’s mental health issues, drug use, unsafe home, and choice of unsafe childcare arrangements. Child was placed petitioners in the TPR, as a kinship placement in the underlying dependency action in 2011, and custody was ordered to the petitioners in 2012. Respondent mother has court ordered visitation. Respondent mother is diagnosed with bipolar disorder and has had multiple psychiatric hospitalizations and involuntary commitments from 2010 – 2015. Respondent mother engages in outpatient treatment. Petitioners filed the TPR in June 2016, and the TPR was granted in May 2017 on the grounds of neglect, failure to make reasonable progress to correct the conditions that led to the child’s removal, and dependency. G.S. 7B-1111(a)(1), (2), and (6). Respondent mother appeals.
  • Standard of Review is whether the clear, cogent, and convincing evidence supports the findings of fact and whether the findings of fact support the conclusion that a ground exists to terminate parental rights. The appellate court reviews the de novo whether the findings support the conclusions.
  • Quoting Quick v. Quick, 305 N.C. 446, 452 (1982), “the trial court must make ‘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 the conclusions of law reached” (emphasis in original). There must be adequate evidentiary findings to support the ultimate finding.
  • The evidentiary findings of fact are insufficient to support the ultimate finding required for each ground alleged and the conclusion that any of the alleged grounds under G.S. 7B-1111(a)(1), (2), and (6) existed. The evidentiary findings lacked specificity.
    • G.S. 7B-1111(a)(2) requires a 2-part analysis: (1) the child has been willfully left in foster care placement or placement outside the home for over 12 months and (2) at the time of the TPR hearing, the parent has not made reasonable progress under the circumstances to correct the conditions that led to the child’s removal. There were no findings regarding mother’s conduct or circumstances over the 15 months prior to the TPR hearing regarding her mental health, and no findings at all regarding her progress (or lack thereof) in correcting her drug use or the condition of her home at the time of the TPR hearing. Regarding her mental health, the findings of fact lack detail is describing what an “episode” is, how frequently respondent had such episodes, and how the episodes “left her incapable of properly caring for her son.” The finding of fact describing respondent’s behavior during visits as “consistently concerning” and “disturbing” lacked any particularity in what behavior it was referring to and how that behavior impacted respondent’s ability to care for her son. The findings do not address respondent’s progress or lack of progress to correct the conditions the resulted in her son’s removal. Evidence, through her psychiatrist’s testimony, tended to show she made significant progress in addressing her mental health issues, and other evidence showed she had stable housing and income and was not using drugs.
    • A TPR on the ground of neglect under G.S. 7B-1111(a)(1) requires the court to consider evidence of past neglect, changed conditions related to the past neglect, and the probability of the repetition of neglect in those cases where the child has not been in the parent’s custody for a significant period of time before the TPR hearing. The findings addressing the likelihood of repetition of neglect that used the terms “concerning” and “disturbing” are subjective and ambiguous and are not sufficiently specific to determine the behaviors exhibited by respondent and how those behaviors negatively impacted her son or her ability to provide proper care and supervision to her son. The likelihood of repetition of neglect is also not shown by clear, cogent, and convincing evidence and lacked temporal proximity to the TPR hearing as it focused on conduct that occurred at least 6 months before the hearing.
    • Dependency under G.S. 7B-1111(a)(6) requires the court to address (1) the parent’s ability to provide care or supervision and (2) the availability to the parent of an alternative child care arrangement. The evidentiary findings are insufficient to support the ultimate finding that respondent was incapable of providing care or supervision and that such incapability would continue for the foreseeable future. The findings relate to respondent’s history rather than her progress (or lack thereof) for the 15 months before and up to the TPR hearing and fail to address her mental health and alleged incapability at the time of the hearing. Petitioners failed to present clear, cogent, and convincing evidence of respondent’s current incapability and that it would continue for the foreseeable future.
Termination of Parental Rights
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