Court: Court of Appeals of North Carolina; June 16, 2015; North Carolina; State Appellate Court
Respondent-Mother's appeal from the trial court's order terminating her parental rights to her children A.G.M. and A.L.M. has resulted in a reversal and remand for further proceedings regarding the termination, while all other aspects of the trial court's decision are affirmed. The Guilford County Department of Health and Human Services (DSS) obtained nonsecure custody of the children on January 15, 2011, following a report of Respondent's arrest for crack cocaine use and lack of childcare. The children were later adjudicated as neglected and dependent juveniles and placed in foster care. The trial court permanently changed the children's plan to adoption on March 29, 2012. Respondent was incarcerated multiple times during this period, participating in various rehabilitation programs and maintaining contact with her children through cards and gifts until she ceased sending items after learning they were not shown to the children. Respondent's attorney filed a motion to dismiss the termination petitions on September 28, 2012, arguing a lack of subject matter jurisdiction due to ongoing juvenile proceedings in Kentucky, which had not formally relinquished jurisdiction as required by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Despite the trial court’s belief that Kentucky's jurisdiction had ended, it was determined that North Carolina lacked jurisdiction to proceed. On January 31, 2013, DSS dismissed the original proceedings and requested emergency temporary custody of the children, which the trial court granted on February 25, 2013. New petitions alleging neglect and dependency were filed by DSS on March 28, 2013, citing Respondent's incarceration and the substance abuse histories of both parents as barriers to reunification.
On October 4, 2013, a Kentucky trial court issued valid orders transferring jurisdiction to North Carolina, although these orders were not filed in Guilford County until a later date. Subsequently, on December 10, 2013, the North Carolina trial court adjudicated the children as neglected and dependent juveniles following a November 7 hearing regarding petitions for nonsecure custody filed by DSS. The court found the children neglected due to inadequate care, abandonment by their parents, and living in an injurious environment. They were deemed dependent because the parents could not provide appropriate care or supervision.
The trial court denied visitation to Respondent, citing the prolonged absence of contact with the children. Respondent was instructed to engage with the children's therapist and DSS to explore potential visitation, contingent upon therapy with a DSS-approved therapist. DSS was recognized for its reasonable efforts toward achieving permanence for the children, with a follow-up Dispositional/Permanency Planning Hearing scheduled for December 5, 2013.
At the December hearing, where Respondent was absent, the trial court issued an order on February 4, 2014, detailing the conditions that led to the children's custody. These included Respondent's criminal history, substance abuse, domestic violence issues, and prior CPS involvement in Kentucky. After Respondent's January 25, 2013 release from prison, DSS provided multiple service agreements outlining requirements for Respondent, including obtaining mental health evaluations, completing domestic violence counseling, ensuring a safe environment for the children, maintaining stable housing, attending parenting classes, securing employment, and complying with drug assessments and screenings.
The trial court determined that Respondent did not comply with the service agreement, leading to the consideration of terminating parental rights due to the children being in the custody of the Department of Social Services (DSS) for 31 months without permanence. The court found that DSS had made reasonable efforts to achieve permanence and changed the permanent plan to adoption, with a concurrent plan for reunification with Respondent, contingent upon her signing the service agreement and engaging in required services. Following a hearing on December 5, 2013, the court's order was signed on February 3, 2014, and served on Respondent on February 5, 2014. Two days later, DSS filed a motion to terminate Respondent's parental rights, citing neglect, prolonged placement outside the home, failure to contribute to care, dependency, and abandonment. A hearing on the motion occurred on May 12 and 13, 2014, resulting in an order terminating parental rights on September 4, 2014, confirming it was in the children's best interests. Respondent appealed, arguing that the trial court erred in the termination. The appellate court noted that the trial court lacked subject matter jurisdiction since the unresolved Kentucky custody order maintained exclusive jurisdiction over the case, indicating that the requirements of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) were not met for the trial court to adjudicate the DSS petition.
DSS had a continuing duty to ensure no conflicting proceedings in other states that could affect the case, as stipulated by N.C. Gen. Stat. 50A-209(d) (2013). Without proper jurisdiction, the trial court lacked authority to order DSS to take nonsecure custody of the children, meaning DSS was not an agency with legal custody prior to a specific court order on 25 February 2013. All prior court orders were deemed void ab initio due to the lack of subject matter jurisdiction. Following the emergency custody order, the trial court was required to defer further actions pending Kentucky's decision on jurisdiction. The trial court could only order DSS to assume temporary custody and was prohibited from making additional custody-related orders.
On 28 March 2013, DSS filed a new juvenile petition claiming the children were neglected and dependent. However, the court lacked jurisdiction to address this petition until Kentucky relinquished jurisdiction on 4 October 2013. The first valid adjudication recognizing the children's neglect and dependency occurred on 10 December 2013. The trial court determined that the children had been in DSS's custody since 15 January 2011, during which DSS attempted to facilitate reunification with the Respondent, who had been incarcerated at various times. The court found that the Respondent engaged in inappropriate acts before her first incarceration, violated bond agreements after her release, and failed to maintain contact with DSS.
The trial court determined that the Respondent did not pursue drug treatment after her release from prison in January 2013, despite her previous indication to a social worker in March 2011 that she would. Although no formal petition to terminate parental rights was filed, the trial court referred to the proceedings as a termination of parental rights case. The findings were substantiated by evidence, but not all were pertinent to the adjudication. The Department of Social Services (DSS) had been in physical custody of the children since January 2011, based on void court orders, and did not gain legal custody until 2013. Therefore, the Respondent had not legally lost custody, and neither DSS nor the trial court had the authority to mandate compliance with service agreements for custody restoration. Any lack of communication or response to DSS by the Respondent prior to the disposition cannot constitute a violation of any order. The trial court's order for Respondent to contact the children's therapist for visitation and to engage in therapy pre-approved by DSS lacked clarity regarding the therapy's purpose and the court's authority to impose such requirements. Under N.C. Gen. Stat. 7B-904, the court may require a parent to undergo treatment if it serves the best interests of the child, but such orders must be formalized in writing. A permanency planning hearing held on December 5, 2013, just before the adjudication order, marked the first time a permanent plan for the children was established. The law mandates that a termination of parental rights order must be written, signed, and filed within 30 days of the hearing, and the Rules of Civil Procedure govern the procedures for these cases, stipulating that judgments are entered when reduced to writing, signed, and filed with the clerk.
An order related to juvenile proceedings must be reduced to writing, signed, and entered within 30 days after a hearing, applicable to various orders including initial juvenile petitions, disposition orders, and custody continuations, as per N.C. Gen. Stat. 7B-807(b), 7B-905(a), 7B-906.1(h), and 7B-506(d). Legal authority arises only upon entry of these orders. If an order is not entered within the 30-day timeframe, the clerk of court is required to schedule a subsequent hearing to explain the delay and clarify the order's contents, with the new order to be entered within 10 days after this hearing.
In this case, the disposition and permanency planning order from the December 5, 2013 hearing was entered on February 4, 2014, establishing adoption as the permanent plan while allowing for concurrent reunification efforts with the Respondent. The trial court identified multiple issues leading to the children's custody, including Respondent's criminal history, substance abuse, and domestic violence. The court noted that the Department of Social Services (DSS) attempted to provide Respondent with service agreements in July and October 2013, which required her participation in various evaluations and treatments; however, she did not sign these agreements before the December hearing.
It was determined that neither the trial court nor DSS had the authority to compel Respondent's participation in these requirements prior to the February 4, 2014 order. Furthermore, the trial court ordered Respondent to pay $50 in child support effective February 1, 2013, despite her income of $2,220 per month, raising questions about the authority under which this support was ordered. The authority to mandate child support arose only after the December hearing, with enforcement possible only following the entry of the February order.
Prior to the February 25, 2013 order granting the Department of Social Services (DSS) emergency custody of the children, DSS had physical but not legal custody. There is no legal authority to mandate child support based on emergency custody. Emergency jurisdiction allows for temporary protective orders only. Under N.C. Gen. Stat. 7B-906.1, during permanency planning hearings, the court must evaluate and document services offered to reunite the juvenile with their parents or guardians. If the juvenile is not placed with a parent, additional criteria regarding DSS's efforts to implement a permanent plan must also be considered.
In the February 4, 2014 order, the trial court noted that DSS had provided various services to reunite the children with the Respondent, including service agreements and assistance requests, but no such services were rendered after December 10, 2013. The court determined that DSS had made reasonable efforts toward reunification and permanence. Following this order, DSS filed a motion for termination of the Respondent's parental rights on February 7, 2014. Termination hearings took place on May 12 and 13, 2014, with the court's order to terminate parental rights issued on September 4, 2014.
The trial court based the termination on grounds outlined in N.C. Gen. Stat. 7B-1111(a)(1), (2), (6), and (7), citing neglect and the Respondent's failure to make reasonable progress toward remedying the conditions that necessitated the child's removal, noting that parental rights cannot be terminated solely due to poverty.
The document outlines specific grounds for the termination of parental rights under North Carolina law, particularly referencing G.S. 7B-101 and G.S. 7B-1111. It asserts that a parent may be deemed incapable of properly caring for a juvenile, classifying the juvenile as a dependent, if the parent's incapacity is likely to persist due to factors such as substance abuse or mental health issues. Additionally, a finding of willful abandonment for six consecutive months is cited as a termination ground.
The burden lies with the petitioner to demonstrate, by clear and convincing evidence, that at least one ground for termination exists. Appellate review focuses on whether sufficient evidence supports the trial court's findings of fact and conclusions of law.
In this case, the court indicated that since the children were not removed from the respondent for more than twelve months prior to the hearing, grounds under G.S. 7B-1111(a)(2) were invalid. Claims based on G.S. 7B-1111(a)(6) regarding past substance abuse were also deemed unsupported, as there was no evidence of substance abuse since early 2011. Insufficient evidence was found to support a claim of neglect as defined by G.S. 7B-101(15), emphasizing that current parental fitness must be evaluated alongside any past neglect, particularly in light of evidence of changed circumstances. The trial court's reliance on historical factors, such as abusive relationships and prior drug use, was deemed inadequate given the lack of recent evidence pointing to a likelihood of repeated neglectful behavior.
Respondent had limited interaction with men from January 2011 until the termination hearing, resulting in insufficient opportunity for the Department of Social Services (DSS) to assess potential neglect. DSS did not prove that Respondent's criminal history constituted neglect. The trial court identified ongoing neglect based on several factors, including Respondent's failure to sign a service agreement, noncompliance with its terms, lack of communication with the Social Worker, failure to participate in necessary services, and unstable housing. Despite these issues, the trial court and DSS lacked the authority to enforce compliance with service agreements until after the disposition order was entered on February 4, 2014. The three months between this order and the termination hearing were inadequate to evaluate any likelihood of repeated neglect, especially since Respondent had no contact with her children during this period, had not failed drug tests, and maintained employment and housing. DSS did not demonstrate that Respondent's living conditions were harmful while her children were in foster care. Furthermore, there was insufficient evidence to support the claim that Respondent willfully abandoned her children for six months prior to the filing of the termination petition. The trial court's findings regarding Respondent's lack of cooperation did not account for the absence of a legally enforceable reunification plan until after February 4, 2014. Consequently, the short period following the filing of the termination motion on February 7, 2014, was inadequate to evaluate Respondent's compliance with court orders or DSS's efforts toward reunification.
Reasonable efforts are defined as the diligent use of preventive or reunification services by a department of social services (DSS) to ensure a juvenile's safe and timely return home. DSS failed to prove that the Respondent willfully abandoned parental duties, as evidenced by the Respondent's child support payments, engagement with the children's guardian ad litem, sobriety, stable employment, and participation in proceedings. Consequently, the court reversed the order dated September 4, 2014, that terminated the Respondent's parental rights, affirming other uncontested portions of the order and remanding the case for further jurisdictional actions. DSS retains the right to file relevant petitions or motions as needed. Additionally, it was noted that the petition was filed on March 28, 2013, after the Respondent's release on January 25, 2013, and that the presumptive father’s parental rights were also terminated, although he did not attend the hearing or appeal the decision. The legitimacy of the March 28 petition is called into question in light of the timing.
