In The Matter Of: L.R.S.

• Court: Court of Appeals of North Carolina
• Decided: October 21, 2014
• Docket: 14-323
• Status: Published

Opinion

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 -3- 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. -4- 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 -5- 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 -6- 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). -7- 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 -8- 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). -9- 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 -10- 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. -11- 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.