Winning Appeal: In Re J.V.

The Law Office of Mark L. Hayes recently prevailed in In re J.V., No. COA19-111 (N.C. Ct. App. Oct. 1, 2019), after the Court of Appeals reversed the trial court’s termination of parental rights order against its client (“Termination Order”).

During the termination hearing in the trial court, the State introduced testimony that Mr. Hayes’ client had completed almost every part of his Case Plan but argued he had not made progress in the assigned classes. At the close of the State’s testimony, the trial court concluded there were grounds to terminate Mr. Hayes’ client’s parental rights. On appeal, Mr. Hayes argued the Termination Order did not pertain to his client, as there was no evidence of paternal neglect, and was instead based on the neglect of the mother.

DSS first argued that because it determined Mr. Hayes’ client’s child was neglected, Mr. Hayes’ client’s agreement to that finding was sufficient to support a history past neglect and future neglect. However, Mr. Hayes distinguished the primary case DSS relied on in its argument, and the Court of Appeals agreed, concluding that past neglect was not indicative of a likelihood of future neglect. The Court pointed out the “stark contrast” between the father in the DSS’ case and the conduct of Mr. Hayes’ client, noting the dissimilarities and misplaced applicability.  In re J.V., No. COA19-111 at 16. Unlike the case it relied on, DSS failed to show here that there was concern of substance abuse problems, criminal history, or that Mr. Hayes’ client was unlikely to complete his Case Plan. Further, the Court found the trial court also failed to consider “evidence of changed conditions” made by Mr. Hayes’ client, which was necessary in its determination of future neglect. In re J.V., No. COA19-111 at 18 (quoting In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984)).

Mr. Hayes next argued that the trial court erred by concluding grounds existed under a statute to terminate his client’s parental rights. To determine whether there are grounds to terminate parental rights, the trial court must answer whether the child has been left “willfully” by the parent and whether the parent has made “reasonable progress” to fix the problems which led to the child being placed elsewhere. In re J.V., No. COA19-111 at 20 (quoting In re O.C. & O.B., 171 N.C. App. 457, 464-65, 615 S.E.2d 391, 396 (2005)). The Court of Appeals disagreed with DSS’ argument that Mr. Hayes’ client was supposed to meet a certain level of progress in the Case Plan classes, and instead found his client had proven his attendance and participation. In support of its reversal, the Court of Appeals agreed with Mr. Hayes that the trial court erred as Mr. Hayes’ client was “overwhelmingly compliant” with his Case Plan and the Termination Order did not show he willfully left his child.

Please been advised, however, that success in this case should not be construed as an indication this firm will be successful in any given future case, and you should consult with a licensed attorney to determine the viability of your own case.

Posted on: 28 Jul, 2020