In re K.M.D. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-370
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
IN THE MATTER OF: Surry County
No. 12-JT-25
K.M.D.
Appeal by respondent from order entered 7 November 2013 by
Judge William F. Southern, III in Surry County District Court.
Heard in the Court of Appeals 28 July 2014.
Susan Curtis Campbell for Surry County Department of Social
Services, petitioner-appellee.
Raleigh Divorce Law Firm, by Lauren R. Hinzey, for guardian
ad litem.
Levine & Stewart, by James E. Tanner III, for respondent-
appellant.
DILLON, Judge.
Respondent appeals from an order terminating his parental
rights to his daughter Kelli1 pursuant to N.C. Gen. Stat. § 7B-
1111(a)(1) and (3). He challenges the court’s findings
regarding the applicable statutory grounds. He also contends
1
We use a pseudonym to protect the identity of the minor.
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that the court abused its discretion by terminating his parental
rights. We affirm.
On 18 April 2012, the Surry County District Court entered a
juvenile adjudication order concluding that three-year-old Kelli
was an abused and neglected juvenile. The court found that on 4
March 2012, drugs, drug paraphernalia, and items used in the
manufacture of methamphetamine were found in the home that the
child shared with her mother, that the child’s mother was both
using and selling methamphetamines, and that other adult members
of the household were consuming methamphetamines and other drugs
regularly. The court also found that respondent was
incarcerated in the North Carolina Department of Correction,
where he had been since 28 October 2011. On 10 January 2013,
the court entered an order relieving the Surry County Department
of Social Services (“DSS”) of reunification efforts and
directing DSS to initiate proceedings to terminate the parental
rights of both parents.
On 1 March 2013, DSS filed a motion to terminate parental
rights. Following two hearings, the court filed an order on 7
November 2013 terminating respondent’s parental rights on
grounds pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) in that he
neglected Kelli and the neglect is likely to be repeated, and
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pursuant to N.C. Gen. Stat. § 7B-1111 (a)(3) in that he failed
to pay a reasonable portion of the cost of care for Kelli while
she has been in foster care. The child’s mother consented to
adoption.
We review a court’s order terminating parental rights to
determine whether the findings of fact are supported by clear,
cogent and convincing evidence and whether the conclusions of
law are supported by the findings of fact. In re Shepard, 162
N.C. App. 215, 221, 591 S.E.2d 1, 6, disc. review denied sub nom
In re D.S., 358 N.C. 543, 599 S.E.2d 42 (2004). We review de
novo the court’s conclusions of law. In re S.N., 194 N.C. App.
142, 146, 669 S.E.2d 55, 59 (2008), aff’d per curiam, 363 N.C.
368, 677 S.E.2d 455 (2009). We review for abuse of discretion
the court’s determination that it is in the juvenile’s best
interest to terminate parental rights. In re T.M.T., 367 N.C.
165, 171, 752 S.E.2d 453, 457 (2013).
Respondent contends the court’s findings of fact regarding
his prior neglect of Kelli and the evidence regarding repetition
of that neglect are insufficient to support termination of his
parental rights. A court may terminate parental rights pursuant
to N.C. Gen. Stat. § 7B-1111(a)(1) if it concludes that the
parent has neglected the child. N.C. Gen. Stat. § 7B-1111(a)(1)
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(2013). A child is neglected if the parent fails to provide
proper care, supervision, discipline or a safe environment.
N.C. Gen. Stat. § 7B-101(15) (2013). When a court has
previously adjudicated the child as neglected, the court must
consider the probability that the child will be neglected if
returned to the parent’s care. In re Ballard, 311 N.C. 708,
715, 319 S.E.2d 227, 232 (1984).
Respondent has been incarcerated during the entire time
Kelli has been in foster care through the date of the hearing to
terminate parental rights. “Incarceration, by itself, is
insufficient to establish neglect in a termination case, but it
is relevant to whether a child is neglected.” In re J.K.C., ___
N.C. App. ___, ___, 721 S.E.2d 264, 270 (2012). According to
the court’s findings of fact, respondent has a lengthy history
of alcohol abuse and has been convicted of numerous criminal
offenses involving alcohol and drugs, including seven
convictions of driving while impaired. He was incarcerated in
2002 for driving while impaired, during which incarceration he
did not participate in the DART program. In 2005 and 2006,
respondent was incarcerated again for driving while impaired,
during which incarceration he did participate in the DART
program. During 2007, respondent participated in an outpatient
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alcohol abuse counseling program. Notwithstanding his
participation in these rehabilitation programs, respondent
continued to consume alcohol and to drive while impaired,
culminating in his incarceration during the time of these
juvenile proceedings. Respondent does not challenge these
findings of fact. Given respondent’s long and largely unabated
history of criminal activity and drug and alcohol abuse, which
resulted in respondent’s multiple incarcerations and inability
to provide proper care, supervision, and care of his child, we
conclude it was reasonable for the trial court to find it likely
that the neglect by respondent will continue in the future.
Having determined that termination of parental rights
pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) is supported by the
findings of fact and the evidence, we need not address
respondent’s arguments concerning termination of parental rights
pursuant to N.C. Gen. Stat. § 7B-1111(a)(3). In re Parker, 90
N.C. App. 423, 424, 368 S.E.2d 879, 880 (1988).
We next consider respondent’s contention that the court
abused its discretion by terminating his parental rights. In
determining whether termination of parental rights is in the
best interest of the child,
[t]he court shall consider the following
criteria and make written findings regarding
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the following that are relevant:
(1) The age of the juvenile.
(2) The likelihood of adoption of the
juvenile.
(3) Whether the termination of
parental rights will aid in the
accomplishment of the permanent plan for the
juvenile.
(4) The bond between the juvenile and
parent.
(5) The quality of the relationship
between the juvenile and the proposed
adoptive parent, guardian, custodian, or
other permanent placement.
(6) Any relevant consideration.
N.C. Gen. Stat. § 7B-1110(a) (2013). While this statute
mandates consideration of all of these factors, the court is
required to make written findings of fact only regarding those
factors which are relevant. In re D.H., ___ N.C. App. ___, ___,
753 S.E.2d 732, 735 (2014). Great deference is to be given to a
trial court’s discretionary decision and the appellate court may
not overturn it unless “it was so arbitrary that it could not
have been the result of a reasoned decision.” White v. White,
312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).
Here, the court made the following findings of fact in its
order:
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30. The permanent plan for the minor child
is adoption.
31. The juvenile is almost five (5) years
of age, having been born [in October 2008].
32. The court finds that the likelihood of
adoption of the juvenile is high.
33. The termination of the respondent-
father’s parental rights will allow the
child to be adopted.
34. The bond between the juvenile and the
father is very good.
35. The relationship between the juvenile
and the proposed adoptive parents, is very
strong. The juvenile has been in the care
of the proposed adoptive parents since
October 5, 2012.
While the child has been placed with the
current foster parents, she has received
intensive in-home counseling and the foster
parents have been actively involved in her
counseling. Additionally, during the
current placement, the child has continued
to have contact with the father and the
father’s extended family.
We conclude the foregoing findings represent a reasoned
decision. We find no abuse of discretion and affirm the court’s
order terminating respondent’s parental rights.
Affirmed.
Judge Robert C. HUNTER and Judge DAVIS concur.
Report per Rule 30(e).