In re C.A.B.

• Citation: 871 S.E.2d 468
• Decision Date: 06 May 2022
• Docket Number: 138A21
• Parties: In the MATTER OF: C.A.B.
• Court: United States State Supreme Court of North Carolina

871 S.E.2d 468

In the MATTER OF: C.A.B.

No. 138A21

Supreme Court of North Carolina.

Filed May 6, 2022

Jamie L. Hamlett, for petitioner-appellee Alamance County Department of Social Services.

Christina Freeman Pearsall, for appellee Guardian ad Litem.

Mercedes O. Chut, Greensboro, for respondent-appellant father.

EARLS, Justice.

¶ 1 In this case we consider whether a parent who was incarcerated at the time of an adjudicatory hearing on a motion to terminate his parental rights was entitled to a continuance in order to have the opportunity to be present at the hearing. Respondent-father was incarcerated when he first learned that he was the father of a newborn, Caleb,¹ and he remained in detention throughout the duration of Caleb's juvenile proceedings. He expressed a desire to parent Caleb upon his release and opposed the effort to terminate his parental rights. On the day of the adjudicatory hearing, respondent-father was unable to appear due to a lockdown at his prison necessitated by the COVID-19 pandemic. According to respondent-father's counsel, the lockdown was set to expire in five days. Nonetheless, the trial court denied respondent-father's motion to continue the hearing and ultimately entered an order terminating his parental rights.

¶ 2 Parents, including incarcerated parents, possess a "fundamental liberty interest[ ]" which "includes the right of parents to establish a home and to direct the upbringing and education of their children." Owenby v. Young , 357 N.C. 142, 144, 579 S.E.2d 264 (2003) (cleaned up). Thus, "[w]hen the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures." In re Murphy , 105 N.C. App. 651, 653, 414 S.E.2d 396 (quoting Santosky v. Kramer , 455 U.S. 745, 753–54, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ), aff'd per curiam , 332 N.C. 663, 422 S.E.2d 577 (1992). In this case, respondent-father was denied the opportunity to present testimony at the termination hearing and to work with his counsel to develop and execute a strategy to oppose termination of his parental rights. Furthermore, the substantive findings in support of the trial court's decision to terminate respondent-father's parental rights all directly related to his conduct in prison, a subject respondent-father's testimony would have aided the court in assessing. Accordingly, the trial court's denial of respondent-father's motion to continue the adjudicatory hearing undermined the fairness of that hearing. We conclude that the trial court prejudicially erred and we vacate the order terminating respondent-father's parental rights.

I. Background.

¶ 3 On 28 January 2019, the Alamance County Department of Social Services (DSS) assumed custody of Caleb, who was four days old, after his mother tested positive for cocaine at Caleb's birth. No father was listed on Caleb's birth certificate, but Caleb's mother identified respondent-father as a possible biological father. At the time of Caleb's birth, respondent-father was detained on federal charges including obtaining property by false pretenses, possession of stolen goods, and possession of a firearm by a felon. Eleven days after DSS took custody of Caleb, respondent-father took a paternity test which established to a near certainty that he was Caleb's biological father.

¶ 4 On 14 March 2019, a DSS social worker visited respondent-father at the Alamance County Detention Center, where he was being held pending the resolution of the federal charges against him. At the time, respondent-father told the social worker that he thought he was "looking at three years in prison," but that he "would like for his son to be with family" and "would like to work to regain custody of his son when he is released from prison." He identified three relatives as potential alternative caregivers. None of the three relatives agreed to take custody of Caleb; however, the social worker subsequently learned that respondent-father's sister, Larissa, was willing to care for Caleb if she could also adopt him. DSS ordered a home study to determine if Larissa would be a suitable placement.

¶ 5 Before the home study was completed, Caleb was adjudicated to be a neglected and dependent juvenile. DSS retained nonsecure custody. The court approved a case plan proposed by DSS requiring respondent-father to:

• Develop a sufficient source of income to support himself and the child and use funds to meet basic needs. He can work to achieve this goal by applying for a minimum of five jobs a week, submitting monthly job search log[s] and taking part in job-readiness programs.

• Provide a safe, stable and appropriate home environment. He can work to achieve this goal by applying for housing at five locations a week and providing a monthly log to the social worker, saving sufficient funds for deposits, complying with the terms of his lease, maintaining the home in a fit and habitable condition and keeping working utilities.

• Refrain from allowing his substance abuse to affect his parenting of his child and provide a safe, appropriate home by not exposing his child to an injurious environment.

• Obtain and follow the recommendations of a substance abuse assessment, refrain from using illegal or illicit substances or abusing prescription medication[s], provide a home environment free of illegal or illicit substances and/or persons who are using or under the influence of such.

• Demonstrate the ability to implement age-appropriate disciplinary practices and parenting skills.

• Attend a parenting curriculum and demonstrate appropriate skills during visitation.

Although the trial court noted that respondent-father's "visitation is suspended due to the limits of visits in the Alamance County [detention center]," the court did not otherwise adapt respondent-father's case plan to reflect the circumstances of his incarceration.²

¶ 6 Subsequently, DSS received a favorable home study for Larissa and her husband, and Caleb was placed in their home on 3 May 2019. To facilitate Caleb's adoption by Larissa, respondent-father executed a relinquishment of his parental rights specifically to his sister and brother-in-law. Caleb's mother also relinquished her parental rights. Both parents were released as parties to Caleb's juvenile proceedings. In April 2020, DSS received final approval for Larissa and her husband to adopt Caleb.

¶ 7 But, later that same month, Larissa informed DSS that she "feels overwhelmed with everything that is going on in her life right now." She also expressed concern that, notwithstanding their relinquishments, respondent-father and Caleb's mother "are going to want to be in and out of his life because [they are] family once [Caleb's] adopted." Larissa explained that she had arrived at the conclusion "that she just couldn't keep [Caleb]" and that it was "in his best interest ... to go to a deserving family ... where his birth parents couldn't mess up his life." On 4 May 2020, DSS notified respondent-father and Caleb's mother that Larissa's adoption of Caleb would not go forward. Respondent-father subsequently revoked his specific relinquishment of his parental rights. Caleb was removed from Larissa's home and placed with foster parents.

¶ 8 On 15 July 2020, the trial court restored respondent-father as a party to Caleb's juvenile proceedings and appointed him an attorney. DSS had difficulty establishing contact with respondent-father, who by this time was being held at the Beckley Federal Correctional Institution in West Virginia. Eventually, respondent-father notified DSS and the court that he "no longer wanted [Caleb] to be adopted by someone new because he had already gotten a full year closer to being released since he initially executed his specific relinquishment." Respondent-father asserted that he "has not had any write-ups or engaged in any trouble since his incarceration in May of 2018," "has taken courses at the prison in order to be a better father for [Caleb]," and "has a job in the penitentiary kitchen"; in addition, he stated that he "started a rehabilitation program for drug abuse" and signed up to "take a parenting class" but that both had been suspended due to COVID-19. Respondent-father also provided the names of additional relatives to be considered as potential placements for Caleb, including respondent-father's own parents.

¶ 9 On 12 August 2020, the trial court approved an updated case plan requiring respondent-father to

participate in Parenting classes through the prison ... demonstrate appropriate and safe parenting choices ... maintain communication with [DSS] ... engage in Mental Health services provided through the prison ... demonstrate good coping skills ... participate in his 100-hour rehab program through the prison ... help provide for the needs of [Caleb] ... give consent for his case manager to provide [DSS with] information regarding his stay in prison ... [and] upon [his] release from prison ... engage in activities to obtain and maintain an appropriate home for he and [Caleb]; ... maintain a way to meet the[ir] daily needs ... [and] refrain from illegal activities that could cause him to be arrested and incur more prison time ....

The court maintained a primary plan of adoption with a secondary plan of guardianship and ordered DSS to perform a home study of Caleb's paternal grandparents. The trial court later determined that "though the paternal grandparents have a suitable home and the financial ability to provide for the Juvenile ... [Caleb] should remain in the current foster placement progressing to adoption by the [f]oster [f]amily."

¶ 10 On 28 August 2020, DSS filed a motion in the cause seeking termination of respondent-father's parental rights. DSS asserted that termination was warranted on four grounds: neglect pursuant to N.C.G.S. § 7B-1111(a)(1) ; willful failure to make reasonable progress to correct the conditions that led to Caleb's removal pursuant to N.C.G.S. § 7B-1111(a)(2) ; willful failure to pay a reasonable portion...