Opinion
No. COA10-89
Filed 1 June 2010 This case not for publication
Appeal by respondent-father from an order entered 10 August 2009 by Judge Laura Powell in Rutherford County District Court. Heard in the Court of Appeals 10 May 2010.
Marvin Sparrow, for petitioner Rutherford County Department of Social Services. Parker Poe Adams Bernstein, LLP, by Susan L. Dunathan and Matthew C. Jordan, for appellee Guardian ad Litem. Robert W. Ewing, for respondent-appellant father.
Rutherford County 05 J 80.
Respondent-father appeals from an order terminating his parental rights to P.C.H. After careful review, we reverse and remand.
On 26 May 2005, the Rutherford County Department of Social Services ("DSS") filed a juvenile petition alleging that P.C.H. was an abused, neglected and dependent juvenile. At the time the petition was filed, respondent-father and the mother were divorced. While in the custody of the mother, P.C.H. was sexually abused by the mother's boyfriend. The mother's boyfriend was subsequently convicted of two counts of second degree sexual offense. DSS assumed custody of the child by non-secure custody order. On 8 March 2006, P.C.H. was adjudicated an abused juvenile.
On 10 December 2008, DSS filed a petition to terminate both parents' parental rights. DSS alleged three grounds for termination: (1) that respondent-father and the mother had neglected the juvenile pursuant to N.C.G.S. § 7B-1111(a)(1); (2) that respondent-father and the mother had willfully left the juvenile in foster care for more than twelve months without showing that reasonable progress under the circumstances had been made in correcting those conditions that led to the juvenile's removal, pursuant to N.C.G.S. § 7B-1111(a)(2); and (3) that respondent-father and the mother were incapable of providing for the proper care and supervision of the juvenile, such that the juvenile was a dependent juvenile, and there was a reasonable probability that such incapability would continue for the foreseeable future, pursuant to N.C.G.S. § 7B-1111(a)(6).
Hearings were held on the petition to terminate respondent-father's and the mother's parental rights on 1, 2, and 22 April 2009. The trial court found that respondent-father had been diagnosed "with several serious mental health conditions including mental retardation, among other things." The trial court further found that respondent-father had "been convicted of criminal offenses, including domestic violence." Based on this, it appears the trial court terminated respondent-father's parental rights solely pursuant to N.C.G.S. § 7B-1111(a)(6) when it concluded that:
the nature of the conditions the Respondent Father suffers coupled with his past criminal convictions, he is not capable of providing for the proper care and supervision of the minor child and there exists a reasonable probability that the inability will continue until the foreseeable future.
The trial court similarly found that, due to the mother's diagnoses of "mild mental retardation, lack of self awareness, Post Traumatic Stress Disorder, Bipolar Disorder and Major Depression," she, likewise, was incapable of providing proper care and supervision for P.C.H. Therefore, the trial court concluded that grounds existed to terminate respondent-father's and the mother's parental rights "in that neither is capable of providing for the proper care and supervision of the minor child and there exists a reasonable probability that this inability will continue for the foreseeable future."
The trial court also noted that P.C.H. was a "special needs child" and that the "likelihood of adoption . . . [was] remote." Thus, the trial court declined to terminate the mother's parental rights because it would "give the minor child no greater level of permanence than not terminating" the mother's parental rights. Nevertheless, the trial court concluded that it was in P.C.H.'s best interests to terminate respondent-father's parental rights due to his "lack of . . . participation" in the case, "coupled with the conditions from which he suffers." Respondent-father appeals.
Respondent-father first argues that the trial court erred by failing to set forth the standard of proof used in its termination order.
Proceedings to terminate parental rights occur in two phases: (1) the adjudication phase and (2) the disposition phase. In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003). "In the adjudication stage, the petitioner must prove by clear, cogent, and convincing evidence the existence of one or more of the grounds for termination." In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984); see also N.C. Gen. Stat. § 7B-1109(f) (2009) ("all findings of fact shall be based on clear, cogent, and convincing evidence"). This Court has held that the trial court is required "to affirmatively state in its order the standard of proof utilized in the termination proceeding." In re Church, 136 N.C. App. 654, 657, 525 S.E.2d 478, 480 (2000).
Here, in the written order terminating respondent-father's parental rights, the trial court failed to affirmatively state that it utilized the "clear, cogent, and convincing" standard. However, we conclude that it is apparent from the record that the trial court applied the proper evidentiary standard and its failure to state the standard in the written order was not prejudicial. At the conclusion of the adjudicatory phase of the hearing, the trial court orally stated that DSS had provided "clear, cogent, and convincing evidence . . . of [respondent-father's] inability to . . . parent the child." Although the better practice is to state in the written adjudication order the appropriate standard of proof, the fact that the trial court orally stated at trial the appropriate standard enables this Court to determine that the proper standard of proof was utilized. In re J.D.S., 170 N.C. App. 244, 252-53, 612 S.E.2d 350, 356 (noting that the trial court's failure to set forth the clear, cogent, and convincing standard in its order was not material because "the evidence manifestly supports the trial court's findings of fact" and "the trial court stated on the record that its findings of fact were based on `clear and convincing evidence'"), cert. denied, 360 N.C. 176, 623 S.E.2d 584 (2005).
We next consider respondent-father's argument that the trial court erred by concluding that grounds existed pursuant to N.C.G.S. § 7B-1111 to terminate his parental rights. N.C.G.S. § 7B-1111 sets out the statutory grounds for terminating parental rights. A finding of any one of the separately enumerated grounds is sufficient to support a 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., D.M.D., S.J.D., J.M.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), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001)).
In the present case, the trial court concluded that grounds existed pursuant to N.C.G.S. § 7B-1111(a)(6) to terminate respondent-father's parental rights. N.C.G.S. § 7B-1111(a)(6) provides that a court may terminate parental rights upon finding:
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 unavailable to parent the juvenile and the parent lacks an appropriate alternative child care arrangement.
N.C. Gen. Stat. § 7B-1111(a)(6) (2009). This Court has stated that:
For a trial court to terminate parental rights, [s]ection 7B-1111(a)(6) requires that in addition to a parent having a condition which renders her unable or unavailable to parent the juvenile, the parent also must have no appropriate alternative child care arrangement in order to terminate parental rights. Absent such a finding of fact, the order does not support the conclusion of law that sufficient grounds exist pursuant to section 7B-1111(a)(6) to terminate respondent's parental rights.
In re N.B., I.B., A.F., ___ N.C. App. ___, ___, 688 S.E.2d 713, 717 (2009) (alterations and emphasis in original) (internal quotation marks omitted); see also In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005) (In determining whether a juvenile is dependent, the trial court is required to "address both (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements.").
Here, the trial court did not make sufficient findings that respondent-father lacked an appropriate alternative child care arrangement. Without such a finding, we cannot uphold the trial court's order terminating respondent-father's parental rights based on N.C.G.S. § 7B-1111(a)(6). Accordingly, we must reverse the order terminating respondent-father's parental rights and remand for further findings with respect to whether respondent-father has an appropriate child care arrangement.
Respondent-father next argues that the trial court abused its discretion by determining it was in P.C.H.'s best interests to terminate his parental rights. Because of our determination that the termination order must be reversed and remanded as to respondent-father, we need not address respondent-father's remaining argument.
Reversed and remanded.
Judges JACKSON and STROUD concur.
Report per Rule 30(e).