In re J.A.A.

Termination of parental rights whether the trial court received sufficient evidence and made adequate findings of fact to support an adjudication of grounds under N.C.G.S. 7B-1111(a)(5) and (9).

<bold>1. Termination of Parental Rights — neglect — children left</bold> <bold>in foster</bold> <bold>care for more than twelve months without reasonable progress</bold> <block_quote> The trial court did not err in a parental rights termination proceeding by concluding there was clear, cogent, and convincing evidence supporting the termination of respondent mother's parental rights under N.C.G.S. § <cross_reference>7B-1111</cross_reference>(a)(2) on the ground that respondent left her children in foster care for more than twelve months without showing reasonable progress had been made to correct those conditions which led to the removal of her children, and by concluding that termination was in the best interests of the children, because: (1) respondent willfully left her children in the custody of DSS for a time period well beyond the statutory period of twelve months; (2) respondent has refused to acknowledge and treat the very conditions that led to her loss of custody and even refused to acknowledge the medical diagnosis of her children; and (3) any attempt to set up a visitation with the children by the diligence of DSS or the children's guardian ad litem was frustrated at respondent's own behest.</block_quote> <bold>2. Guardian Ad Litem — incapable parents — competency</bold> <block_quote> A guardian ad litem (GAL) statutorily assigned to respondent mother under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 17 in a parental rights termination<page_number>Page 216</page_number> proceeding concerning parental incapability under N.C.G.S. § <cross_reference>7B-1111</cross_reference>(a)(6) could testify as to her ward's parental capability and ultimately against the interest of her ward.</block_quote>

Termination of parental rights whether the trial court abused its discretion by concluding that terminating respondent's parental rights was in the best interests of the juveniles.

This is a termination of parental rights case, focusing on Braxton M. and Briley N., the minor children ("the Children") of Kevin M. ("Father") and Heather N. ("Mother"). On March 21, 2011, the Washington County Juvenile Court ("juvenile court") entered an order removing the Children from the parents' custody and placing them in the physical custody of Mother's father and stepmother, William N. and Donna N. ("Maternal Grandparents") in response to a dependency and neglect action initiated by the Tennessee Department of Children's Services ("DCS") due to Briley's drug-exposed condition at birth.1 In September 2011, the juvenile court entered an order maintaining physical custody of the Children with Maternal Grandparents and directing that the parents would retain the option of petitioning for return of custody at a later date. On April 15, 2015, Maternal Grandparents filed a petition in the Greene County Circuit Court ("trial court") to terminate the parental rights of the parents and adopt the Children. Mother subsequently surrendered her parental rights to the Children and is not a party to this appeal. Following a bench trial, the trial court found that statutory grounds existed to terminate the parental rights of Father upon its finding by clear and convincing evidence that Father had abandoned the Children by willfully failing to financially support and visit them. See Tenn. Code Ann. § 36-1-113(g)(1). Finding Father to be a putative father, the trial court also applied the statutory grounds provided in Tennessee Code Annotated § 36-1-113(g)(9)(A)(iv)-(v) to find clear and convincing evidence that Father had failed to manifest an ability and willingness to assume legal and physical custody of the Children and that placing the Children in Father's legal and physical custody would pose a risk of substantial harm to their physical or psychological welfare. The court further found by clear and convincing evidence that termination of Father's parental rights was in

<bold>1. Termination of Parental Rights — neglect — incarcerated father —</bold> <bold>findings not supported by evidence</bold> <block_quote> The trial court erred by terminating the parental rights of a father on the ground of neglect where there was undisputed evidence that he was consistent in writing to the children, although he was on probation and then incarcerated, and respondent married the mother, which legitimated the child born out of wedlock. Significant portions of the court's findings were wholly unsupported by the evidence presented during the termination proceeding.</block_quote> <bold>2. Termination of Parental Rights — lack of progress — incarcerated</bold> <bold>father — findings not sufficient</bold> <block_quote> The trial court's findings in a termination of parental rights proceeding were not sufficient to support the conclusion that<page_number>Page 215</page_number> respondent had left the children in foster care for more than twelve months without making progress. The trial court failed to make any findings of fact specifically related to respondent's progress after the children were removed from the home.</block_quote> <bold>3. Termination of Parental Rights — abandonment — not alleged in</bold> <bold>petition</bold> <block_quote> The trial court erred by terminating parental rights based on abandonment where DSS did not allege abandonment in the petition. Respondent did not have notice that abandonment would be at issue.</block_quote>