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"NC Supreme Court Upholds Buncombe County Termination of Residents' Parental Rights"


In January 2018, Lauren S. had a child, a baby referred to in court documents by their initials: K.R.M. (Because the case involves minors, the full names of the parents and children are withheld).


K.R.M. was Lauren’s second child in two years. Almost immediately after K.R.M. was born, Buncombe County’s Department of Social Services filed a petition to take the baby away from Lauren, stating that the baby was a “neglected juvenile.”


When Lauren learned that DSS was going to take her baby, she and the baby’s father, Wesley, threatened to sue social services, according to the department’s report. They grabbed the baby, but social services called hospital security, who took the baby from the parents and into DSS’s custody.


Lauren and Wesley’s loss of K.R.M. represented the second time in two years that social services had taken a child out of their custody.


In August 2016, Buncombe County’s social services department took custody of the couple’s infant, referred to as T.A.M., after reports from Child Protective Services to the department said the mother suffered from untreated mental illness, the father was abusive, and that both parents had been using drugs.


Hospital staff tested the baby’s umbilical cord for drugs. It came up positive for marijuana and opiates.


For the next three-and-a-half years, the family cycled through different custody arrangements as the parents sought help, to varying degrees, with their drug and mental health problems. Sometimes they relapsed, other times they stopped going to mandated appointments.


Ultimately, in January 2020 Buncombe County District Judge Susan Marie Dotson-Smith ruled to permanently terminate the parents’ custody rights to both children. On June 18, the North Carolina Supreme Court upheld the judge’s ruling.


Following a change to the law in 2019, all termination of parental rights cases skipped the Court of Appeals and went straight to the Supreme Court. The law switched back on July 1, 2021, meaning all these cases will now go before the Appeals Court before the Supreme Court.


According to Amy Funderburk, the clerk of court at the N.C. Supreme Court, 229 termination of parental rights have been appealed to the court since Jan. 1, 2019.


Hanna Honeycutt, an attorney who works for the Department of Health and Human Services and represented Buncombe County in the case, said the decision “is binding for those involved” but, “It was a highly fact specific holding and, therefore, unlikely to be broadly applied to these sorts of cases going forward.”


Lauren and Wesley's case doesn't set any new precedent. There aren't any especially outlandish details within the court documents associated with their case. The case is “pretty run-of-the-mill,” as Honeycutt said.


But, in its ordinariness, Lauren and Wesley's case provides insight into the functioning of the legal system that has the ability to permanently sever parental rights. It provides clarity on what leads social workers and judges in Buncombe County to decide that parents are permanently unfit, an outcome that is rare but impactful for all involved.


According to Rebecca Smith, social work director for Buncombe County's Health and Human Services department, 70 children in Buncombe county have been permanently severed from their parents' custody since 2019.


In 2019, 43 terminations occurred, 18 in 2020, and nine so far in 2021. Currently, 17 children have active cases that might lead to the permanent termination of their parents' rights.

Smith said the number of terminations are significantly lower for 2020 and 2021 because of COVID-19.


"Covid has drastically impacted our court system and our ability to move cases through the court system. There may be some additional factors, as well, but this is one significant variable," she said.


"All the (termination of parental rights) are related to abuse and neglect," said Stacey Wood, a spokesperson from Buncombe County's Department of Social Services.


During the 2019-20 year, the most recent for which data is available, statewide there were 64,070 child abuse and neglect hearings, according to data from the courts.

History of homelessness, drug use and domestic violence

When Lauren gave birth to T.A.M. in August 2016, the hospital tested her bloodstream for drugs. She’d been in two months earlier and she’d also been drug tested then.

Before the birth, she had methamphetamine in her system. After the birth, tests found marijuana and unprescribed oxycodone in her blood.


Along with details about the drugs, the Department of Social Services learned from reports filed by Child Protective Services that while Lauren was pregnant, she’d been homeless, living in her car, suffering from untreated mental illness, and that she’d previously lost custody of another child. The report also alleged that she and the father had a history of domestic violence.


Lauren admitted to a social worker that she smoked marijuana while she was pregnant but insisted she hadn’t used other drugs. She also said she had borderline personality disorder, but she denied any allegations of domestic violence.

Wesley said nothing in the report DSS received was true.


The social worker investigating the case spoke with a different social worker who’d dealt with the family on an earlier case. That social worker said she’d seen bruises on Lauren from Wesley during her time on their case, and that Lauren confided in her about the abuse. She also said that neither parent had completed earlier case plans that the department set out for them, which included mental health treatment and attending classes on substance abuse and domestic violence.


In light of the reports, and information from the social worker, DSS removed T.A.M. from Lauren and Wesley and put the baby in a “safety care placement.”


Annick Lenoir-Peek, the Deputy Parent Defender at Indigent Defense Services, explained that safety care placements put the child in the custody of someone else temporarily, “maybe a neighbor, a family member, someone like that,” while DSS investigates the allegations.


During the safety care placement, both parents could see T.A.M. only during supervised visitation sessions, and they were not allowed to have contact with each other in the child’s presence.


Part of the process also required the parents to agree to “family services agreements.”

“It's also known as a case plan,” Lenoir-Peek said, explaining that it’s a list of things that both the parents and the agency must do within a period in order to remove safety concerns.

Both were required to get treatment for substance use: Lauren agreed to stop using nonprescription drugs, go to Narcotics Anonymous meetings and submit to random drug tests. Wesley agreed to stop using drugs, attend drug abuse classes and also take random drug tests.


Each had separate requirements, too: anger management classes and batterer intervention classes for the father, intensive outpatient therapy and domestic violence classes for the mother.


Batterer intervention programs are designed to teach people who commit domestic violence healthier ways to interact with intimate partners, according to the N.C. Council for Women.

Details on Lauren’s domestic violence program were not explained in court documents. Her attorney did not want to share more details and did not respond to a request to connect the Citizen Times with his client


The father's attorney did not respond to a request for comment.


The role that domestic violence plays in child custody cases is complicated. Lenoir-Peek said that when considering domestic violence as a reason to remove a child from a home or not, the court looks at whether the victim of the domestic violence has removed themselves from the situation or not.


“Have they chosen to stay? Have they acknowledged the damage that being in a domestic violence situation, the effect, that it has on the children, or not? Basically, that's what it's looking at,” she said.

A 'neglected juvenile'

Within a month, the requirements the department set out for Lauren and Wesley didn't stick. Lauren was arrested on drug charges and Wesley told social workers he’d been smoking marijuana and hadn’t gone to his domestic violence prevention classes.


The Department of Social Services filed a petition against the family, saying their child T.A.M. was a “neglected juvenile,” a powerful charge that, if the court finds is supported sufficiently by evidence, can form the basis for the ultimate termination of parental rights.


The court issued an order affirming DSS’s allegation.


For the next year-and-a-half, a similar cycle continued. Then K.R.M. was born.


The details from T.A.M.’s case, along with an admission by Lauren that she’d smoked weed during her pregnancy and a drug test of Wesley that registered weed, meth and cocaine in his system, formed the basis of DSS’s new petition that this baby, too, was a “neglected juvenile.”


When filed by DSS, the accusation does not come with criminal charges. "There may be a criminal neglect charge as well but that is a completely separate filing. One does not necessarily lead to the other," Lenoir-Peek said.


Four months later, following confirmation from Lauren and Wesley that the information in DSS’s report was true, the court entered another order: K.R.M. was also a “neglected juvenile.”


Three months later, in July 2018, things began to turn around. Lauren and Wesley were both sober, and the court approved unsupervised visitation between them and their children.


Related: Reports of child sexual abuse rise sharply in Asheville, Buncombe County in wake of 'Safe Child Act'


But, the upswing wasn’t long lived: In September the parents both missed some of their required classes and they were evicted from their home. The court suspended their unsupervised visits. The next month, DSS said they learned Lauren and Wesley were using drugs again, Lauren wasn’t going to therapy, and domestic violence had become a problem again in their relationship.


In January 2019, the court found that neither parent was complying with the treatment plan and that the mother had threatened employees from the department of social services.

Up until this point, the court stated that its primary goal was to permanently return the children to Wesley and Lauren’s custody. But after nearly three years, the court decided that was no longer a feasible plan.


The court issued an order stating the permanent plan for both children would be adoption, with a secondary plan being permanent placement with their birth parents.

In February 2019, DSS filed petitions to permanently terminate the rights of both parents.

Permanent termination of parental rights

In January 2020, the district court heard arguments in the case and sided with the Department of Social Services, saying that permanent termination of parental rights was in the children’s best interests.


Both parents appealed the court’s decision, the father on the basis that the trial wasn’t fair because his attorney withdrew from representing him. According to the Supreme Court opinion, the attorney withdrew after the father failed to stay in contact with her and explain what he wanted.


The mother appealed because she said the decision to terminate her rights was not in her children’s best interest. The Department of Social Services argued that the children had little relationship with their mother – that she was more like a babysitter or a family friend, than a parent – that she failed to address her mental health which impacted her ability to show up on time to visitations and to “control her emotions” during the visits.


The department also said the children had nightmares and acted aggressively after their visits with their parents, leading them to conclude the visits were harming rather than helping the children. DSS also said that exposing the children to the parent’s drug relapses was against the children’s best interests.


The mother disputed all these claims, most notably arguing that it’s unfair for the department and the court to require her to have a strong bond with the children in order to regain custody of them. She said she’d had few opportunities to bond and act motherly with her children, given that their visitations were limited and supervised for many years.

The mother argued that she “should not be penalized for separation from her children when evaluating parental skills” because, she said, the department didn’t give her an opportunity to develop a relationship with them.


The Supreme Court said they were not persuaded by her argument.


First, they said the mother misunderstood the decision, that she was not required to show she had a “parental bond” with the children in order to avoid the termination of her rights, but that the termination was the result of other issues over the years.


They also evaluated that the mother’s lack of bond with the children was at least partially her own fault, citing her “relapses into substance abuse, the fact that she was often late for visits, and her inability to control her emotions during those visits.”

A change in court venue

The case skipped the Court of Appeals and went straight to the state Supreme Court, due to a law that changed on Jan. 1, 2017, but didn’t go into effect until two years later.

Sara DePasquale, a professor of public law and government at UNC Chapel Hill, explained that in 2017 the legislature passed a law that would shrink the Appeals Court from 15 judges to 12. The plan was to not reappoint judges following retirements.


“Speculating,” DePasquale said, within those two years the legislature likely expected that three judges would have retired and they would then need to shift some of their workload onto the Supreme Court, which led termination of parental rights (along with a host of other cases) to be automatically shifted to the Supreme Court, rather than the Appeals Court.


While the right to a speedy trial is a constitutional one, DePasquale said that federal law requires that cases involving termination of parental rights go even faster.


“These cases need to be essentially fast-tracked compared to any other type of case that was appealed, given the need for permanency for children within a reasonable period of time,” she said.


It’s possible that the need for quicker trials, combined with the expected decrease in the number of Appeals Court judges, could explain the shift.


DePasquale said she isn’t clear on if the Supreme Court adjudicated these cases faster than the Appeals Court.


“But one thing (the shift) did do,” she said, “was it eliminated the opportunity for there to be a second appeal to the Supreme Court after the Court of Appeals entered its decision. So at least that extra potential six, seven, eight, nine, 10 months for a second appeal to happen would be eliminated because the decision itself from the Supreme Court is going to be the final decision.”


But, as of July 1, the law changed back again: all termination of parental rights cases will now be heard by the Court of Appeals before going to the Supreme Court. The change follows Senate Bill 75 which restored the Appeals Court to 15 judges. Gov. Roy Cooper signed the bill into law in February 2019.


Author: Clarissa Donnelly-DeRoven - Asheville Citizen Times

Date: Monday, July 12, 2021 5:01 a.m.

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