Opinion
No. COA13–92.
2013-07-2
In the Matter of G.L.K.
Paul W. Freeman, Jr., for Petitioner Wilkes County Department of Social Services. Mercedes O. Chut for Respondent-father.
Appeal by Respondent-father from order entered 31 October 2012 by Judge Jeanie R. Houston in Wilkes County District Court. Heard in the Court of Appeals 11 June 2013. Paul W. Freeman, Jr., for Petitioner Wilkes County Department of Social Services. Mercedes O. Chut for Respondent-father.
Louise M. Paglen for Guardian ad litem.
STEPHENS, Judge.
Respondent-father appeals from the trial court's order terminating his parental rights to G.L.K. (“George”). We affirm the trial court's order.
A pseudonym is used for ease of reading and to protect the juvenile's identity. SeeN.C.R.App. P. 3.1(b).
In July 2010, the Wilkes County Department of Social Services (“DSS”) began providing case management services to George's family due to concerns about substance abuse, domestic violence, and improper care of George, who was six months old at the time. Respondent-father and George's mother entered into case plans to address the areas of concern. Respondent-father had a substance abuse assessment, but was incarcerated in October 2010 and did not complete his case plan. The mother was also unsuccessful with her case plan, and, on 14 April 2011, DSS filed a juvenile petition alleging George was neglected. On that same date, DSS obtained nonsecure custody of George. The matter was heard on 17 May 2011, and with the consent of both parents, the trial court adjudicated George neglected.
On 20 February 2012, the trial court conducted a permanency planning hearing and relieved DSS of further efforts at reunification. At a subsequent permanency planning hearing on 16 April 2012, the trial court established a concurrent plan of placement with an “approved caregiver[ ] and/or adoption.” On 12 June 2012, DSS filed a petition to terminate parental rights and, as to Respondent-father, alleged neglect, willful failure to pay a reasonable portion of the cost of care, and dependency.
The termination of parental rights hearing was held on 11 October 2012, after which the trial court found that grounds existed to terminate Respondent-father's parental rights on the basis of neglect and dependency. The court determined that termination of Respondent-father's parental rights was in the best interests of George and entered an order terminating his rights. Respondent-father appeals.
The mother's parental rights were also terminated; however, she did not challenge the termination and is not a party to this appeal.
Respondent-father challenges the trial court's determination that grounds existed to terminate his parental rights on the basis of dependency and neglect, contending each ground was unsupported by the evidence or the findings of fact. We disagree.
“The standard for review in termination of parental rights cases is 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 Clark, 72 N.C.App. 118, 124, 323 S .E.2d 754, 758 (1984).
A trial court may terminate parental rights based on a finding
[t]hat 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) (2011). A dependent juvenile is defined as “[a] juvenile in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement.” N.C. Gen.Stat. § 7B–101(9) (2011). “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) (citation and quotation marks omitted).
Here, the trial court found and concluded that Respondent-father's “incarceration until March[ ] 2015 renders him incapable of providing for the care and supervision of the child[,]” and that Respondent-father “has not been able to offer an appropriate alternative child care arrangement.” However, Respondent-father urges that he has not been shown to be incapable of providing care to George and that Respondent-father's mother (“the paternal grandmother”) could serve as an appropriate alternative placement for George until Respondent-father is released from prison. We are not persuaded by either contention.
As for Respondent-father's own ability to provide care and supervision to George, the trial court found that Respondent-father was incarcerated in October 2010 during the case management phase of DSS's involvement with the family, has an expected release date of 17 March 2015, and did not complete any of the items on his case management plan prior to his incarceration. The trial court also found that Respondent-father's case management plan addressed concerns including Respondent-father's “problems of substance abuse, lack of proper supervision, and lack of appropriate parenting skills.” Respondent-father has not challenged any of these findings of fact, and they are thus conclusive on appeal. See In re J.K.C., ––– N.C.App. ––––, ––––, 721 S.E.2d 264, 268 (2012) (citations omitted).
The trial court further found that Respondent-father was unable to offer an alternative caregiver in that the paternal grandmother would not be an appropriate placement. Respondent-father contends that this finding is not supported by competent evidence. However, the findings of fact in both the termination order and in the 17 May 2011 order adjudicating George neglected reveal that: (1) George and his mother were residing with the paternal grandmother at the time George was neglected; (2) George's mother continued to use drugs while living in the paternal grandmother's home; (3) the paternal grandmother violated the DSS safety plan by leaving George unsupervised with his mother; (4) the paternal grandmother allowed people under the influence of methamphetamine to supervise George and his mother; and (5) George's mother had a possible plan to reside again with the paternal grandmother upon the mother's release from prison in February 2013. This evidence fully supports the trial court's determination that the paternal grandmother was not an appropriate alternative caregiver.
The primary cases relied on by Respondent-father are easily distinguishable. In In re J.K.C.,
the trial court found that [the] respondent would be incarcerated until 2013 and that [the] respondent's only relative who had offered to provide for [the juveniles] was [the] respondent's mother who was determined to be inappropriate. Although the trial court found that [the] respondent lacked an alternative child care arrangement, the trial court did not find [the] respondent was incapable of providing care and supervision. Similar to the facts in Clark, the guardian ad litem here did not present any evidence that [the] respondent's incapability of providing care and supervision was due to one of the specified conditions or any other similar cause or condition. Without such a determination, we conclude the trial court did not err in dismissing the termination petition based on N.C. Gen.Stat. § 7B–1111(a)(6).
Id. at –––, 721 S.E.2d at 277 (citation omitted; emphasis added). Here, in contrast, the trial court did make a finding and conclusion that Respondent-father was not capable of providing George with care and supervision. However, Respondent-father asserts that his incapability is not the result of “substance abuse, mental retardation, mental illness, organic brain syndrome” or any similar cause. This argument is misplaced.
The record before this Court does not reveal the offense or offenses which led to Respondent-father's incarceration and thus we need not consider whether criminal substance abuse may be a cause of his incapability to provide George with care and supervision.
In re J.K.C. relied upon and used language from 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), a case also cited by Respondent-father. However, that appeal was decided prior to the 2003 amendment of section 7B–1111 (a)(6). At the time In re Clark was decided, the statute provided that “[i]ncapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other similar cause or condition.” N.C. Gen.Stat. § 7B–1111(a)(6) (2001) (emphasis added). The 2003 amendment omitted the word “similar” such that a parent's incapability to provide proper care and supervision could be shown to be due to “ 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.” 2003 N.C. Sess. Laws 2003–140 (emphasis added). The omission of the adjective “similar” in 2003 indicates our General Assembly's intent to remove any suggestion that the “ other cause or condition” need be “similar” to those specifically listed. The version of the subsection applicable here requires only “ 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) (emphasis added). Accordingly, the cases cited by Respondent-father are inapposite, and his argument fails.
Because the evidence and findings of fact support the conclusion that grounds existed to terminate Respondent-father's parental rights on the basis of dependency, the trial court's order is
“A valid finding on one statutorily enumerated ground is sufficient to support an order terminating parental rights.” In re Stewart Children, 82 N.C.App. 651, 655, 347 S.E.2d 495, 498 (1986) (citation omitted). Accordingly, we do not address Respondent-father's arguments regarding neglect.
AFFIRMED. Judges GEER and ERVIN concur.
Report per Rule 30(e).