In re L.D.S. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-524
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
IN THE MATTER OF:
Guilford County
No. 12 J 75
L.D.S.
Appeal by respondent from order entered 10 February 2014 by
Judge Tabatha Holliday in Guilford County District Court. Heard
in the Court of Appeals 9 September 2014.
Mercedes O. Chut for petitioner-appellee Guilford County
Department of Social Services.
Robert W. Ewing for respondent-appellant.
Parker Poe Adams & Bernstein LLP, by William L. Esser IV,
for Guardian ad Litem.
STEELMAN, Judge.
Where father failed to identify alternative child care
arrangements for L.S. during the time of father’s incarceration,
the trial court did not err in terminating his parental rights.
I. Factual and Procedural Background
On 3 July 2012, Guilford County Department of Social
Services (“DSS”) filed a petition alleging that L.S. and his
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sister J.S. were neglected and dependent juveniles.1 At the time
the petition was filed, G.S. (“father”) was incarcerated with a
projected release date of 16 November 2014. Most of the
allegations in the petition pertained to the conduct of the
juveniles’ mother, T.A. (“mother”). DSS alleged that mother had
an extensive history of being a victim of domestic violence, as
well as mental health and substance abuse issues. DSS further
alleged that mother violated safety agreements put in place by
the investigating social worker; failed to keep appointments for
substance abuse and mental health assessments; failed to submit
to drug screens; and had threatened to take the children out of
state. DSS obtained non-secure custody of the juveniles.
On 3 October 2012, the trial court adjudicated the
juveniles as neglected and dependent. The trial court granted
custody of the juveniles to DSS and authorized their placement
in the home of L.S.’s paternal grandmother (“K.S.”). Father was
ordered to enter into and comply with a service agreement with
DSS. On 7 December 2012, the juveniles were placed with L.S.’s
paternal aunt and uncle (“Mr. and Mrs. W.”) after their
placement with K.S. was disrupted due to her medical issues and
the juveniles’ behavioral issues.
1
Father is not the father of J.S. and the instant appeal
pertains only to L.S.
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On 4 June 2013, the trial court set a permanent plan for
the juveniles of adoption with a concurrent plan of
reunification. The court noted that father had failed to comply
with his prison service agreement and had failed to maintain
contact with the social worker. The court ordered DSS to file a
petition to terminate parental rights within sixty days. The
trial court later changed the permanent plan for the juveniles
to adoption.
On 15 July 2013, DSS filed a petition to terminate father’s
and mother’s parental rights. DSS alleged that grounds existed
to terminate their parental rights pursuant to N.C. Gen. Stat. §
7B-1111(a)(1) (neglect), (2) (failure to make reasonable
progress), (3) (failure to pay a reasonable portion of the cost
of care for the juveniles) and (6) (dependency). On 10 February
2014, the trial court entered an order terminating father’s and
mother’s parental rights.
Father appeals.
II. Arguments
Father argues that the trial court erred by concluding that
grounds existed to terminate his parental rights. We disagree.
N.C. Gen. Stat. § 7B-1111 sets out the statutory grounds
for terminating parental rights. A finding of any one of the
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separately enumerated grounds is sufficient to support
termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230,
233-34 (1990). “The standard of appellate review is whether the
trial court’s findings of fact are supported by clear, cogent,
and convincing evidence and whether the findings of fact support
the conclusions of law.” In re D.J.D., 171 N.C. App. 230, 238,
615 S.E.2d 26, 32 (2005) (citing In re Huff, 140 N.C. App. 288,
291, 536 S.E.2d 838, 840 (2000), disc. review denied, appeal
dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001)).
In the instant case, the trial court concluded that grounds
existed to terminate father’s parental rights pursuant to N.C.
Gen. Stat. § 7B-1111(a)(6). Pursuant to this subsection, the
trial court may terminate a parent’s parental rights where:
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 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 “[a] juvenile in need of assistance or placement
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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). “In determining whether a juvenile is dependent, ‘the
trial court 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 B.M.,
183 N.C. App. 84, 90, 643 S.E.2d 644, 648 (2007) (quoting In re
P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005)).
Here, the trial court found as fact that father’s
“incarceration renders him incapable of, and unavailable for,
providing for the proper care and supervision of [L.S.].” The
trial court further found that father “lacks an appropriate
alternative child care arrangement.” Specifically, the trial
court made a finding that:
24. . . . The only alternative child care
arrangement proposed by [father] was
[father’s] mother, [K.S.]. The Department
initially placed the juveniles with [K.S.];
however, the placement subsequently
disrupted due to [K.S.’s] health issues.
Although the juveniles are currently placed
with [father’s] sister and her husband [Mr.
and Mrs. W.], neither [father] nor the
mother proposed them as a placement.
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Rather, [father’s] sister and her husband
volunteered to have the juveniles placed
with them.
Father does not challenge the court’s finding that he was
incapable of providing proper care and supervision to the
juvenile. Father does argue, however, that the trial court
erred by finding and concluding that he lacked an appropriate
alternative caregiver. Father claims that it was K.S.’s idea
that the children be placed with Mr. and Mrs. W., and notes that
he and his mother have been “communicating and working together
throughout this case.” Father intimates that he should receive
credit for suggesting Mr. and Mrs. W. as appropriate alternative
caregivers. Father further contends that he does not lack an
appropriate alternative caregiver because Mr. and Mrs. W. have
been willing and able caregivers for L.S. throughout this case.
We are not persuaded.
“Our courts have. . . consistently held that in order for a
parent to have an appropriate alternative child care
arrangement, the parent must have taken some action to identify
viable alternatives.” In re L.H., 210 N.C. App. 355, 364, 708
S.E.2d 191, 197 (2011) (emphasis added). “Having an appropriate
alternative childcare arrangement means that the parent himself
must take some steps to suggest a childcare arrangement — it is
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not enough that the parent merely goes along with a plan created
by DSS.” Id. at 366, 708 S.E.2d at 198.
In this case, the record demonstrates that father did not
identify Mr. and Mrs. W. as potential caregivers, nor did he
suggest an appropriate alternative placement. Additionally,
assuming arguendo that K.S. suggested Mr. and Mrs. W. as a
placement, there is no evidence she was acting on father’s
behalf or as his proxy. Consequently, we hold that the trial
court did not err by concluding that grounds existed pursuant to
N.C. Gen. Stat. § 7B-1111(a)(6) to terminate father’s parental
rights.
Father additionally argues that the trial court erred by
concluding that grounds existed pursuant to N.C. Gen. Stat. §
7B-1111(a)(1), (2), and (3) to terminate his parental rights.
However, because we conclude that grounds existed pursuant to
N.C. Gen. Stat. § 7B-1111(a)(6) to support the trial court’s
order, we need not address the remaining grounds found by the
trial court to support termination. Taylor, 97 N.C. App. at 64,
387 S.E.2d at 233-34.
AFFIRMED.
Judges CALABRIA and McCULLOUGH concur.
Report per Rule 30(e).