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In re M.A.W.

Supreme Court of North Carolina

September 29, 2017

IN THE MATTER OF: M.A.W.

          Heard in the Supreme Court on 28 August 2017.

         On writ of certiorari pursuant to N.C. G.S. § 7A-32(b) of a unanimous decision of the Court of Appeals, __ N.C.App. __, 787 S.E.2d 461 (2016), reversing an order entered on 12 August 2015 by Judge J.H. Corpening, II in District Court, New Hanover County.

          Regina Floyd-Davis for New Hanover County Department of Social Services, petitioner-appellant.

          Parker Poe Adams & Bernstein LLP, by William L. Esser IV, for appellant Guardian ad Litem.

          Rebekah W. Davis for respondent-appellee father.

          JACKSON, JUSTICE.

         In this appeal we consider whether the trial court erred by terminating respondent's parental rights on the basis of neglect. Because we conclude that the findings in the trial court's order were sufficient to support termination of respondent's parental rights based upon neglect, we reverse the Court of Appeals' determination that the trial court had erred.

         On 11 March 2013, the New Hanover County Department of Social Services (DSS) filed a petition alleging that the minor child M.A.W.[1] was a neglected juvenile. The petition alleged that M.A.W.'s mother "has a history of substance abuse and mental health issues." At the time the petition was filed, respondent father was incarcerated on charges of habitual impaired driving.

         At the adjudication hearing on 12 June 2013, the trial court found that M.A.W.'s mother had tested positive for use of the controlled substance commonly known as Percocet without having a valid prescription for the drug. In addition, the trial court found that the mother's history of both substance abuse and mental health issues previously had interfered with her ability to provide appropriate care for her children. The trial court also noted that DNA testing had confirmed respondent's paternity and that respondent had reported participation in various services available to him during his incarceration, including a parenting class and Alcoholics Anonymous meetings. In addition, the trial court observed that respondent had requested a home study on his mother for consideration of placement for M.A.W.

         Based upon these and other findings of fact, the trial court concluded as a matter of law that M.A.W. was "neglected" as defined by N.C. G.S. § 7B-101(15) and that it was in the best interest of the child to remain in the legal custody of DSS, which had the discretion to provide or arrange for foster care or another placement. The mother was ordered to comply with her Family Services Agreement, which included participating in treatment for substance abuse and mental health issues; submitting to random drug and alcohol screens; and finding and maintaining suitable housing and employment. Respondent was ordered to enter into a Family Services Agreement and to access services available to him during his incarceration- specifically parenting courses and substance abuse treatment programs. The trial court's order also established a visitation schedule for the mother and for respondent upon his release from incarceration.

         After numerous permanency planning review hearings, on 10 April 2014, M.A.W.'s mother voluntarily relinquished her parental rights and executed consent for M.AW.'s adoption by M.A.W.'s maternal relatives. The trial court's 5 May 2014 permanency planning order relieved DSS of reunification efforts with the mother. The order also reported that respondent was still incarcerated, that he "has a drinking problem, " and that "[h]is continued sobriety is paramount to any plan of reunification." The trial court added that prior to his incarceration, respondent "reports that he provided for the child financially and emotionally, " "was aware of [the mother]'s substance abuse, " and had "anticipated the Department's intervention." The trial court endorsed reunification with respondent as the permanent plan for the child and ordered respondent to contact DSS within three days of his release.

         Respondent was released from incarceration on 29 August 2014. At a 4 September 2014 permanency planning review hearing, DSS stated that termination of parental rights was not appropriate because respondent needed to be afforded the opportunity to enter into a case plan. At the next review hearing on 8 January 2015, the trial court found, inter alia, that respondent had denied several requests from DSS to access the home of his mother, with whom he purported to live, that the court did not know where respondent was residing, and that respondent's initial regular visits with M.A.W. had declined in consistency. Further noting respondent's indication of his ability to pay child support arrearages for another child he had fathered, the trial court determined that respondent intended to disregard child support payments for M.A.W. Based upon these and other findings of fact, the trial court permitted DSS to cease reunification efforts with respondent and changed the permanent plan for M.A.W. to adoption.

         On 10 February 2015, DSS filed a petition to terminate respondent's parental rights as to M.A.W. on the grounds of "neglect" and "failure to legitimate." N.C. G.S. § 7B-1111(a)(1), (5) (2015). Following a hearing, the trial court concluded that respondent had neglected M.A.W., and it found "a high probability that there [would] be a repetition of neglect, and that the neglect [would] continue in the foreseeable future." The trial court entered an order on 12 August 2015 terminating respondent's parental rights based upon neglect in accord with N.C. G.S. § 7B-1111(a)(1). Respondent appealed to the Court of Appeals.

         In a unanimous opinion filed on 21 June 2016, the Court of Appeals reversed the trial court's termination of respondent father's parental rights, holding that the trial court erred in concluding grounds existed pursuant to N.C. G.S. § 7B-1111(a)(1) to terminate respondent's parental rights. In re M.A.W., __ N.C.App. __, __, 787 S.E.2d 461, 463 (2016). The Court of Appeals stated that "while there was a prior adjudication of neglect, the party responsible for the neglect was the juvenile's mother, not father." Id. at__, 787 S.E.2d at 463. The court further reasoned that "[w]ithout evidence of any prior neglect, [DSS] failed to show neglect at the time of the hearing." Id. at__, 787 S.E.2d at 463 (citing In re J.G.B., 177 N.C.App. 375, 382, 628 S.E.2d 450, 455 (2006)). The Court of Appeals also determined that "the evidence, as well as the trial court's findings, [did] not support a ...


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