NC Appeals Court: Mom who committed crime while pregnant can lose parental rights

Judge Murphy justifies decision because ‘life begins at conception’

By: - October 18, 2023 6:00 am
A view of the outside of the NC Court of Appeals building

The NC Court of Appeals Building – Photo:

The state Court of Appeals issued a ruling Tuesday that affirmed the termination of a mother’s parental rights — even though the child hadn’t yet been born at the time of the mother’s crimes — because “life begins at conception.”

The mother had pleaded guilty to felony child abuse of another child, which prompted a lower court to terminate her parental rights.

Appeals Court Judge Hunter Murphy wrote the 22-page opinion, referencing a North Carolina Supreme Court case from 1949 in which the court held that, “Biologically speaking, the life of a human being begins at the moment of conception in the mother’s womb.” But that quote dealt with laws involving inheritance. The Supreme Court wrote in that same opinion issued more than 70 years ago, “Ordinarily a different rule or definition is applied as to when life begins, in tort actions and in criminal statutes.”

Murphy, a Republican, wrote the opinion. Judge Jefferson Griffin, a Republican, concurred. Judge Toby Hampson, a Democrat, concurred in result only, which means he agrees with the outcome of the ruling but not the reasoning outlined in the opinion.

The decision sets a precedent for future cases involving parental rights and unborn children.

Abuse and recusal

The family of five included a mother and father, their child Roxanne, the father’s daughter Wendy, and the mother’s son, Luis. In May 2017, they would become a family of six, when the mother gave birth to Opal.

(Neither parent is named in the ruling, and the children’s names are pseudonyms.)

The mother told a therapist that the father would hurt her emotionally and physically, to the point she had miscarriages.

The Durham County Department of Social Services opened juvenile cases for the children after an incident on Dec. 3, 2016, in which Wendy was severely hurt. The mother, who was pregnant with Opal at the time, was later charged with felony negligent child abuse of Wendy. The father was also jailed on unspecified criminal charges.

DSS removed Luis and Roxanne from the mother’s home in April 2017 and placed them with their maternal grandmother. The ruling did not specify where Wendy went.

A month later, on May 8, Opal was born. Within two days, the father posted bail, and then was deported by federal immigration authorities.

Three days after Opal was born, DSS filed a juvenile dependency and neglect petition on Opal’s behalf and removed the newborn from her mother’s custody.

Later that summer DSS allowed the mother to have supervised visits with her children, and had planned to reunite the mother with Opal.

Those plans would eventually change.

The mother pled guilty to two felonies involving child abuse on June 27, 2018, for the injuries inflicted on Wendy in December 2016, six months before Opal was born. The mother received a prison sentence of 51 to 74 months, during which she would not see her children.

The grandmother had custody of Luis and Roxanne. She did not have custody of Opal, but was able to have supervised visits with her.

In 2021 the trial court determined that the primary goal for Opal was adoption, not guardianship, and directed DSS to file a petition to terminate the mother’s parental rights.

The mother unsuccessfully tried to get the trial court judge to recuse herself, alleging that the judge wouldn’t give her a fair hearing. The judge previously had ruled against her, the mother argued, and had referred to the mother’s actions underlying her conviction for felony child abuse against Wendy as “torture.”

The Court of Appeals ruled that the mother did not present sufficient evidence that the judge could have ruled impartially.

Parental rights

Murphy then turned his attention to whether the mother’s parental rights should have been terminated.

State law allows the court to terminate a parent’s rights if they have “willfully failed” to pay child support for six continuous months before the filing of a petition. The law also allows the court to terminate parental rights if the parent has “committed a felony assault” that seriously injures a child or parent in the household.

The mother argued there wasn’t sufficient evidence that she had willfully failed to pay for Opal’s care. She’d held a job for four of the six months preceding the filing of the petition to terminate her rights, and testified that she had contacted Child Support Enforcement about paying child support but never received instruction on how to do so.

She also contested the notion of a “household,” arguing that Opal was not living with Wendy because Opal hadn’t been born yet.

But in his written opinion, Murphy held that even though Opal was still in utero, she was a member of the household.

“In North Carolina, it has been long held that ‘the life of a human being begins at the moment of conception in the mother’s womb,'” wrote Murphy, whom the state Supreme Court censured in 2020 for enabling a “toxic work environment” in his chamber by employing a high school friend who made lewd and sexually inappropriate remarks to coworkers. “During the time period within which Mother was pregnant with Opal, inclusive of the last date of Mother’s offense, Wendy ‘resid[ed] in the home’ with Opal and Mother.”

Click here for a link to the decision in the case, titled “In re: E.D.-A.”

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Kelan Lyons
Kelan Lyons

Investigative Reporter Kelan Lyons writes about criminal and civil justice, including high-profile litigation, prison and jail conditions, housing, and the challenges people face when they leave prison.