In The Matter Of: L.R.S. ( 2014 )

NO. COA14-323
NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014
IN THE MATTER OF:
L.R.S. Surry County
No. 12 JT 09
Appeal by respondent mother from order entered 16 December
2013 by Judge David V. Byrd in Surry County District Court.
Heard in the Court of Appeals 29 September 2014.
Susan Curtis Campbell for petitioner-appellee Surry County
Department of Social Services.
Mercedes O. Chut for respondent-appellant mother.
Administrative Office of the Courts, by Appellate Counsel
Tawanda N. Foster, for guardian ad litem.
McCULLOUGH, Judge.
Respondent mother appeals from an order entered 16 December
2013, which terminated her parental rights to her minor child,
L.R.S. (“Lilly”)1. Because the trial court’s conclusion that the
ground of dependency existed to terminate respondent’s parental
rights is supported by its findings of fact and record evidence,
we affirm.
1
Pseudonyms are used to protect the child’s identity and for ease
of reading.
-2-
The Surry County Department of Social Services (“DSS”)
became involved with respondent and Lilly in January of 2012
when it obtained non-secure custody of Lilly and filed a
petition alleging she was a neglected and dependent juvenile.
At the time of the filing of the petition, Lilly was just two
months old, respondent had been arrested and jailed on criminal
charges, and Lilly’s father was incarcerated with the North
Carolina Department of Public Safety. After a hearing on 8
March 2012, the trial court entered adjudication and disposition
orders on 4 April 2012, concluding Lilly was a neglected and
dependent juvenile and continuing custody of Lilly with DSS. At
the time of the entry of the court’s orders, respondent lived in
a residential facility in Wake County pursuant to a pre-trial
release order for pending federal criminal charges.
Over the next several months, respondent resided in
residential facilities awaiting disposition of her federal
criminal charges. Respondent regularly visited with Lilly until
18 December 2012, when she was expelled from the residential
facility for not complying with its rules. In January 2013,
respondent was convicted of her federal criminal charges and
sentenced to a term of 38 months imprisonment. Respondent was
subsequently transported to a federal correctional institution
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in Danbury, Connecticut to serve her sentence. In a permanency
planning order entered 11 March 2013, the trial court relieved
DSS of further reunification efforts with both parents, set the
permanent plan for Lilly as adoption, and directed DSS to
initiate an action to terminate parental rights.
On 18 March 2013, DSS filed a motion for the termination of
parental rights to Lilly. After a hearing on 28 August 2013,
the trial court entered an order terminating the parental rights
of both respondent and Lilly’s father. The court concluded
grounds existed to terminate respondent’s parental rights based
on neglect and dependency, see N.C. Gen. Stat. § 7B-1111(a)(1),
(6) (2013), and that it was in Lilly’s best interests to
terminate her parental rights.2 Respondent appeals.
On appeal from an order terminating parental rights, this
Court reviews the order for “whether the findings of fact are
supported by clear, cogent and convincing evidence and whether
these findings, in turn, support the conclusions of law.” In re
Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6 (citations and
quotation marks omitted), disc. review denied sub nom., In re
2
The trial court also terminated the parental rights of Lilly’s
father on the grounds of neglect, dependency, and abandonment.
N.C. Gen. Stat. § 7B-1111(a)(1), (6), (7). Lilly’s father also
appealed from the trial court’s order, but was permitted to
withdraw his appeal by order of this Court entered 6 May 2014.
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D.S., 358 N.C. 543, 599 S.E.2d 42 (2004). “Findings of fact
supported by competent evidence are binding on appeal even
though there may be evidence to the contrary.” In re S.R.G.,
195 N.C. App. 79, 83, 671 S.E.2d 47, 50 (2009). The trial
court’s findings of fact which an appellant does not
specifically dispute on appeal “are deemed to be supported by
sufficient evidence and are binding on appeal.” In re M.D., 200
N.C. App. 35, 43, 682 S.E.2d 780, 785 (2009). However, “[t]he
trial court’s conclusions of law are fully reviewable de novo by
the appellate court.” In re S.N., 194 N.C. App. 142, 146, 669
S.E.2d 55, 59 (2008) (quotation marks omitted), aff’d. per
curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).
We first address respondent’s argument that the trial court
erred in concluding grounds existed to terminate her parental
rights based on dependency. A trial court may terminate
parental rights if it concludes:
That the parent is incapable of providing
for the proper care and supervision of the
juvenile, such that the juvenile is a
dependent juvenile within the meaning of
G.S. 7B-101, and that there is a reasonable
probability that such incapability will
continue for the foreseeable future.
Incapability under this subdivision may be
the result of substance abuse, mental
retardation, mental illness, organic brain
syndrome, or any other cause or condition
that renders the parent unable or
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unavailable to parent the juvenile and the
parent lacks an appropriate alternative
child care arrangement.
N.C. Gen. Stat. § 7B-1111(a)(6) (2013). A dependent juvenile is
defined as one who is “in need of assistance or placement
because (i) the juvenile has no parent, guardian, or custodian
responsible for the juvenile’s care or supervision or (ii) the
juvenile’s parent, guardian, or custodian is unable to provide
for the juvenile’s care or supervision and lacks an appropriate
alternative child care arrangement.” N.C. Gen. Stat. § 7B-
101(9) (2013). Thus, the trial court’s findings regarding this
ground “must address both (1) the parent’s ability to provide
care or supervision, and (2) the availability to the parent of
alternative child care arrangements.” In re P.M., 169 N.C. App.
423, 427, 610 S.E.2d 403, 406 (2005).
Respondent first asserts that the ground of dependency is
only properly found where the evidence shows that the
incapability will continue throughout the child’s minority.
Respondent cites to this Court’s opinion in In re Guynn, 113
N.C. App. 114, 437 S.E.2d 532 (1993), for support for this
assertion. However, in Guynn, this Court reviewed an order
terminating parental rights using a prior statutory version of
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the ground of dependency. The dependency ground at issue in
Guynn required the trial court to find:
That the parent is incapable as a result of
mental retardation, mental illness, organic
brain syndrome, or any other degenerative
mental condition of providing for the proper
care and supervision of the child, such that
the child is a dependent child within the
meaning of G.S. 7A-517(13), and that there
is a reasonable probability that such
incapability will continue throughout the
minority of the child.
Id. at 119, 437 S.E.2d at 535-36; see also N.C. Gen. Stat. § 7A-
289.32(7) (1991). Here, the trial court applied the current
standard and was not required to find that there was a
reasonable probability that such incapability will continue
throughout the minority of the child. Rather, the trial court
properly found that there is a reasonable probability that such
incapability will continue for the foreseeable future.
Respondent also argues that the trial court erred in
concluding that the ground of dependency existed where DSS
presented no evidence of mental illness or disability that would
render her incapable of parenting in the foreseeable future. In
support of her argument, respondent cites In re J.K.C., 218 N.C.
App. 22, 721 S.E.2d 264 (2012), which relies on In re Clark, 151
N.C. App. 286, 565 S.E.2d 245, disc. review denied, 356 N.C.
302, 570 S.E.2d 501 (2002).
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In Clark, this Court reversed a trial court’s order
terminating parental rights on the ground of dependency where
there was “no evidence at trial to suggest that respondent
suffered from any physical or mental illness or disability that
would prevent him from providing proper care and supervision for
[the juvenile], nor did the trial court make any findings of
fact regarding such a condition[,]” and where “there was no
clear and convincing evidence to suggest that respondent was
incapable of arranging for appropriate supervision for the
child.” In re Clark, 151 N.C. App. at 289, 565 S.E.2d at 247-
48. Relying on Clark, in J.K.C., this Court then affirmed the
dismissal of a termination petition on the ground that, although
the respondent was incarcerated, “the trial court did not find
respondent was incapable of providing care and supervision.” In
re J.K.C., 218 N.C. App. at 41, 721 S.E.2d at 277. In J.K.C.,
this Court further noted that “[s]imilar to the facts in Clark,
the guardian ad litem . . . did not present any evidence that
respondent’s incapability of providing care and supervision was
due to one of the specific conditions or any other similar cause
or condition.” Id.
In Clark, however, this Court again applied a prior version
of the statute setting forth the ground of dependency, which
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stated that a trial court could terminate parental rights where
it found:
That the parent is incapable of providing
for the proper care and supervision of the
juvenile, such that the juvenile is a
dependent juvenile within the meaning of
G.S. 7B-101, and that there is a reasonable
probability that such incapability will
continue for the foreseeable future.
Incapability under this subdivision may be
the result of substance abuse, mental
retardation, mental illness, organic brain
syndrome, or any other similar cause or
condition.
In re Clark, 151 N.C. App. at 288, 565 S.E.2d at 247 (emphasis
added); see also N.C. Gen. Stat. § 7B-1111(a)(6) (2001). As
this Court recently discussed in an instructive unpublished
opinion, see In re G.L.K., COA 13-92, 2013 WL 3379750 (N.C. App.
July 2, 2013), effective 1 December 2003, the North Carolina
General Assembly modified the ground of dependency by removing
the requirement that “other” causes or conditions resulting in
dependency be “similar” to substance abuse, mental retardation,
mental illness, or organic brain syndrome. 2003 N.C. Sess. Laws
ch. 140, §§ 3, 11. The statute now permits dependency to be
based on “substance abuse, mental retardation, mental illness,
organic brain syndrome, or any other cause or condition that
renders the parent unable or unavailable to parent the juvenile
. . . .” N.C. Gen. Stat. § 7B-1111(a)(6).
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In contrast to J.K.C., in the present case, the trial court
found that due to her extended incarceration, respondent would
be unable to parent Lilly, and that this inability would
continue for the foreseeable future. The court found that in
January 2013, respondent was sentenced to an active term of 38
months imprisonment, and that her projected release date was 13
September 2014. Thus, at the time of the hearing in August 2013
respondent was not scheduled to be released from federal custody
for at least 13 additional months, and potentially faced up to
30 additional months imprisonment. Respondent’s extended
incarceration is clearly sufficient to constitute a condition
that rendered her unable or unavailable to parent Lilly.
Respondent further contends the trial court erred in
finding that she had not proposed an appropriate alternative
child care arrangement for Lilly. Respondent argues that she
repeatedly offered a married couple (the “Martins”), who had
previously adopted another of respondent’s children, as
appropriate alternative caregivers. Respondent’s argument is
misplaced.
Respondent first indicated to the trial court that the
Martins were willing to accept placement of Lilly and were
interested in adopting her at the 11 January 2013 permanency
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planning hearing. Mrs. Martin testified at that hearing that
she and her husband were willing to care for Lilly, however, she
also acknowledged that they had previously declined placement of
Lilly in April 2012. At the termination hearing, a DSS social
worker testified that although respondent had repeatedly
recommended placement of Lilly with the Martins, DSS did not
recommend the placement. Moreover, no evidence was presented at
the termination hearing that the Martins continued to agree to
be considered a placement option for Lilly. Given the Martins’
prior decision to decline the placement and lack of evidence at
the termination hearing that they were willing and able to care
for Lilly, we cannot say the trial court erred in finding that
respondent had not proposed an alternative child care
arrangement for her child. Accordingly, we hold the trial
court’s findings of fact support its conclusion that grounds to
terminate respondent’s parental rights existed pursuant to N.C.
Gen. Stat. § 7B-1111(a)(6).
Because the evidence and findings of fact support the
conclusion that grounds existed to terminate respondent’s
parental rights on the basis of dependency, we need not address
respondent’s arguments regarding the court’s conclusion that
grounds also existed to terminate her parental rights under N.C.
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Gen. Stat. § 7B-1111(a)(1). In re P.L.P., 173 N.C. App. 1, 8,
618 S.E.2d 241, 246 (2005), aff’d, 360 N.C. 360, 625 S.E.2d 779
(2006). Respondent has not challenged the dispositional ruling
that termination of her parental rights was in Lilly’s best
interests, and we thus affirm the trial court’s order
terminating respondent’s parental rights.
Affirmed.
Judges CALABRIA and STEELMAN concur.