The Promise of Adoption Assistance cannot be the Sole Reason to Terminate Parental Rights

   North Carolina statute prohibits a court from terminating parental rights ". . .for the sole reason that the parents are unable to care for the juvenile on account of their poverty." N.C. Gen. Stat. 7B-111(a)(2). When a trial court takes into consideration the availability of adoption assistance resources in fashioning its adjudicatory order in a termination case, has it violated public policy?

   The North Carolina Court of Appeals, in the Cumberland County case of In re T.J.F., __N.C.App.__ (NO. COA13-707, November 19, 2013),answered in the negative-but perhaps only because the trial court had terminated parental rights for other reasons outside of the financial resources available to a child.

   In reaching its opinion, the Court relies on the fundamental premise, first articulated in In re Montgomery,that the court's paramount concern is the "best interest" of the juvenile, the "pole star" around which all juvenile court decision making revolves. As the Court noted, the Respondent Father's objection to the trial court's consideration of adoption assistance -financial resources paid by the State to adoptive families where children meet certain criteria-might have had some merit if it had been to only basis for termination cited by the court. As it stood ". . .the court cited other bases in its determination that termination of parental rights was in [the child's] best interest. In making a determination of the
disposition in the child’s best interest a court may assign more

weight to one or more factors over the others. . .Here, consistent with the purpose of protecting the child from abuse or neglect,

the bulk of the court’s findings of fact in the adjudication and

disposition orders is devoted to the failure of respondent-father to satisfy his parental obligations to his child by withholding his presence, affection,and support. Only one mention is made concerning the possibility of the child’s obtaining financial benefits by beingadopted by her maternal grandparents."
   Thus too much reliance on the fact that economic goodies at the end of the tunnel can run a trial court afoul of public policy which explicitly against terminating parental rights merely because one is poor. Thus is the moral of the story, at least as far as In re T.J.F.. However, a more salient question arises in a slightly different context: to what extent can economic benefits that might accrue to a child ever be the primary factor in any juvenile decision? Those who regularly practice in the juvenile courts are well aware that such issues frequently arise. A prime example is where, following cessation of reunification efforts with a parent, the court is posed with the dilemma of finding a third party to provide a permanent plan for the child. Does the Court opt to keep the child with foster parents who, with the assistance of of the State, is able to abundantly provide for the material needs of a juvenile? Or does the Court defer to an available and appropriate relative placement who can maintain a degree of family connectedness for the juvenile but whose cash reserves are considerably strained? If the court sides with the foster parents, solely based upon what they can financial provide, isn't that tantamount to endorsing the evil that N.C. General Statute 7B-1111(a)(2) seeks to prevent?
   As they say, money isn't everything. The court's discussion about economics as a basis for termination, while not dicta, was nonetheless scant and unsubstantive. However, the day will come when this same Court of Appeals will have to determine to what extent money-although not everything-is or is not something.

Anticipatory Neglect and the A/N/D cases

 

   North Carolina law has long held that evidence substantiating anticipatory neglect is sufficient to give rise to an adjudication of neglect. The North Carolina appellate courts have in the past found anticipatory neglect in a variety of contexts in initial child welfare cases alleging neglect, including where parents were planning to move a child into a home that would be injurious (In re McClean, 135 N.C. App. 387 (1999)); and exposing a child to the potential of harm from violent behaviour and drug use (In re W.V., 204 N.C. App. 290 (2010). The anticipatory neglect doctrine has also been addressed within the arena of domestic violence ( In re K.J.D.,203 N.C. App. 653 (2010)). A variant on the anticipatory neglect doctrine can also found in the context of the the termination of parental rights case where the North Carolina appellate courts have long stated that neglect can be found as a ground to terminate parental rights where a child would likely suffer from a repetition of receiving improper care, discipline or be exposed to an injurious environment if returned back to the home of a parent. ( See In re Brimm,139 N.C. App. 733 (2000)).   

   The importance of the anticipatory doctrine lies in its divergence from the standard theory that underlies the garden variety neglect case: that an act or omission of a parent, guardian, caretaker or custodian has created a direct impact on a child such that a child receives deficient care, supervision, discipline or in exposed to an injurious environment. To borrow from the parlance of Tort Law, a nexus must typically be established between the parental act or omission and an actual injury to the child, the act or omission being the proximate cause of the injury. (Palsgraf v. Long Island R.R. Co., (248 N.Y. 339, 162 N.E. 99 (1928)). In the case of anticipatory neglect, no damage has occurred but liability still arises for creating the conditions that would likely lead to injury to a child. Thus, one need not establish that a child actually was stuck by a discarded needle tainted with Hepatitis C. Rather, the mere likelihood of such an occurrence is enough if it can be established that a child might reasonably have come across it in the house.The same can be said for parental impairment or domestic violence: the child need not be physically harmed by these acts. Rather, it is enough to show that these acts might overflow (however unintended that might be) to the detriment of the child.

   Of course, the touchstone of child welfare law in North Carolina is that clear, cogent and convincing evidence exist that a child will be harmed by parental acts or omissions. Accordingly, those prosecuting or defending against such claims must bear in mind what the evidence must show. Simply put, there must be a reasonable understanding that the overwhelmingly likely trajectory of events will lead to a child getting hurt or suffering a detrimental lack of care or being exposed to something no child should have to encounter.