In re: N.N.B. ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-261
Filed: 5 May 2020
Guilford County, No. 15JT 108
IN THE MATTER OF: N.N.B.
Appeal by respondent from order entered on or about 6 November 2018 by
Judge Tonia A. Cutchin in District Court, Guilford County. Heard in the Court of
Appeals 18 February 2020.
Mercedes O. Chut, for petitioner-appellee Guilford County Department of
Health and Human Services.
David A. Perez for respondent-appellant father.
Parker Poe Adams & Bernstein LLP, by Lisa Sperber, for guardian ad litem.
STROUD, Judge.
Respondent appeals termination of his parental rights. Because the evidence
supports the trial court’s finding of fact that respondent lacks an appropriate
alternative child care arrangement, it did not err by concluding that Neal is a
dependent juvenile or by terminating respondent’s parental rights on this basis. We
affirm.
I. Background
IN RE: N.N.B.
Opinion of the Court
On 30 May 2017, the Guilford County Department of Health and Human
Services (“DHHS”) filed a petition alleging that Neal,1 age 11 at the time of the
petition, was a neglected and dependent juvenile. The allegations in the petition
focus on Neal’s mental health issues exhibited in his problematic behaviors which
include suicidal ideations, harming animals, and starting fires. This appeal concerns
only Neal’s father, respondent, as Neal’s mother relinquished her parental rights in
2018.
Respondent is incarcerated serving a term of 461 years for rape, burglary, and
other crimes. Respondent has not seen Neal since 2012 even though he was not
incarcerated until 2014. Ultimately, respondent’s rights were terminated based on
failure to properly establish paternity, failure to provide proper care and supervision,
and abandonment. Respondent appeals.
II. Failure to Provide Proper Care and Supervision
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Respondent challenges each ground of termination.
A proceeding to terminate parental rights is a two step
process with an adjudicatory stage and a dispositional
stage. A different standard of review applies to each stage.
In the adjudicatory stage, the burden is on the petitioner
to prove by clear, cogent, and convincing evidence that one
of the grounds for termination of parental rights set forth
in N.C. Gen. Stat. § 7B–1111(a) exists. The standard for
appellate review is whether the trial court’s findings of fact
are supported by clear, cogent, and convincing evidence
and whether those findings of fact support its conclusions
1 We have used a pseudonym to protect the identity of the juvenile.
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IN RE: N.N.B.
Opinion of the Court
of law. Clear, cogent, and convincing describes an
evidentiary standard stricter than a preponderance of the
evidence, but less stringent than proof beyond a reasonable
doubt.
If the petitioner meets its burden of proving at least
one ground for termination of parental rights exists under
N.C. Gen. Stat. § 7B–1111(a), the court proceeds to the
dispositional phase and determines whether termination of
parental rights is in the best interests of the child. The
standard of review of the dispositional stage is whether the
trial court abused its discretion in terminating parental
rights.
In re D.R.B., 182 N.C. App. 733, 735, 643 S.E.2d 77, 79 (2007). “Unchallenged
findings are binding on appeal.” In re C.B., 245 N.C. App. 197, 199, 783 S.E.2d 206,
208 (2016).
North Carolina General Statute § 7B-1111 provides,
(a) The court may terminate the parental rights
upon a finding of one or more of the following:
(6) 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 the incapability will continue for
the foreseeable future. Incapability
under this subdivision may be the
result of substance abuse, intellectual
disability, 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.
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IN RE: N.N.B.
Opinion of the Court
N.C. Gen. Stat. § 7B-1111 (2017).
A dependent child is defined as a juvenile in need of
assistance or placement because the juvenile’s parent,
guardian, or custodian is unable to provide for the care or
supervision and lacks an appropriate alternative child care
arrangement. Under this definition, 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 P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005) (citation, quotation
marks, ellipses, and brackets omitted).
Here, respondent concedes that due to his lengthy incarceration he cannot
provide care or supervision but contends that he proposed two relative placements –
his mother and sister. Respondent contends “[t]he real issue before this Court is
whether . . . [he] lacked an ‘appropriate alternative child care arrangement.’”
Respondent also does not challenge the trial court’s findings of fact regarding his
mother and sister. Respondent’s mother “when contacted . . . stated she had failing
health and was residing in a retirement community that did not allow children.” The
trial court found respondent’s sister was not a “viable” option as Neal had been in
level IV psychiatric treatment and had been moved to a level III group home. DHHS
determined, and the trial court found, that no relative placement would be
appropriate at this time because of the level of care Neal requires. Again, respondent
does not challenge these findings of fact as unsupported by the evidence but contends
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IN RE: N.N.B.
Opinion of the Court
“[t]his matter is unusual in that no relative placement could have been considered
immediately appropriate as of the termination hearing.”
Respondent notes his sister had been Neal’s primary caregiver from his birth
until 2008, when she moved to Georgia. Because respondent’s sister lived in Georgia,
an Interstate Compact on the Placement of Children (“ICPC”) home study was
required before Neal could be placed in her home. DHHS completed an ICPC Case
Manager Statement of Interest form for respondent’s sister and allowed her to have
weekly telephone contact with Neal, continuing up to the time of the termination
hearing. Respondent further explains that the trial court had also ordered DHHS to
initiate the ICPC home study for his sister. But at that time, Neal was placed in
Level IV Psychiatric Residential Treatment Facility (“PRTF”). When DHHS
contacted the ICPC office, they asked that DHHS first determine the discharge plan
for Neal from the PRTF. The PRTF recommended that Neal transition to a Level III
group home and did not recommend placement with a relative because of Neal’s
substantial needs for psychiatric care. DHHS then suspended its plan to place Neal
with respondent’s sister, although DHHS still had plans to submit the ICPC request
if a relative placement was ever deemed appropriate for Neal. Thus, respondent
argues that he offered his sister as an appropriate child care arrangement but he was
not allowed to have “any input or involvement whatsoever in the decision to transition
Neal from a PRTF to a Level III group home.” Respondent contends that even if he
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IN RE: N.N.B.
Opinion of the Court
had not been incarcerated, “there is no reason to believe he would have had any more
actual involvement as to the placement of his child in a level III group than he had
while incarcerated.”
Respondent cites to In re C.B., where the child’s mother did not propose
appropriate child care alternatives and was uncooperative with DSS’s attempts to
provide mental health services for the child. 245 N.C. App. at 211, 783 S.E.2d at 216.
But C.B. is inapposite to this case. See id., 245 N.C. App. 197, 783 S.E.2d 206.
In C.B., the child suffered from severe mental health problems which resulted
in “aggressive, assaultive, dangerous behaviors[.]” Id. at 203, 783 S.E.2d at 211. The
child had been hospitalized several times, but the mother minimized the problem and
claimed the child just had “seizures” although there was no evidence of any seizure
disorder. Id. at 205, 783 S.E.2d at 212. The mother repeatedly refused to participate
in intensive in-home treatment for the child because she believed she could handle
the child on her own. See id. In C.B., the mother challenged the trial court’s findings
of the severity of the child’s mental needs and contended she was able to care for the
child properly herself. See id. at 206, 783 S.E.2d at 212.
Respondent does not challenge the trial court’s findings regarding Neal’s
serious mental health issues or need for a Level III placement. Respondent contends
only that his sister is an “appropriate” placement in that she is available and willing
and has a close relationship with Neal. But respondent’s sister is not an “appropriate”
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IN RE: N.N.B.
Opinion of the Court
placement for Neal because of his psychiatric needs. Respondent’s sister may well be
an “appropriate” placement for a child who does not require such a high level of care,
but not for Neal.
Accordingly, the trial court did not err in concluding that Neal is a dependent
juvenile and that respondent’s rights should be terminated under North Carolina
General Statute § 7B-1111(a)(6). This argument is overruled. As we have found one
ground for termination, we need not address the others. See In re B.S.D.S., 163 N.C.
App. 540, 546, 594 S.E.2d 89, 93–94 (2004) (“Having concluded that at least one
ground for termination of parental rights existed, we need not address the additional
ground[s] . . . found by the trial court.”).
III. Conclusion
For the foregoing reasons, we affirm.
AFFIRMED.
Judges INMAN and YOUNG concur.
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