Opinion
No. COA11–1595.
2012-05-15
In The Matter of J.J.D.
Mercedes O. Chut for petitioner-appellee Guilford County Department of Social Services. W. Michael Spivey for respondent-appellant father.
Appeal by respondent-father from order entered 13 October 2011 by Judge K. Michelle Fletcher in Guilford County District Court. Heard in the Court of Appeals 17 April 2012. Mercedes O. Chut for petitioner-appellee Guilford County Department of Social Services. W. Michael Spivey for respondent-appellant father.
Smith, James, Rowlett & Cohen, L.L.P., by Margaret Rowlett, for guardian ad litem.
HUNTER, ROBERT C., Judge.
Respondent-father appeals from an order terminating his parental rights to his daughter, J.J.D. We affirm.
On 5 September 2007, the Guilford County Department of Social Services (“DSS”) filed a juvenile petition alleging that J.J.D. and her four older half-siblings were neglected and dependent juveniles. DSS filed the petition based on concerns regarding the condition of the family's home, improper supervision of the juveniles, inadequate medical care for one of the juveniles, and the parents' failure to timely report allegations that one of the juveniles had been sexually abused by a family friend. DSS took the juveniles into nonsecure custody on 6 September 2007. On 9 October 2007, following a hearing, the trial court entered an order adjudicating the juveniles neglected and dependent.
The trial court changed J.J.D.'s permanent plan to adoption on 14 July 2010. By that time, the juvenile's mother, F.D., had moved to Texas, where she was under investigation for alleged sexual abuse of one of her daughters. F.D.'s parental rights to J.J.D. had been terminated on 3 August 2009. Respondent had been warned to cease contact with F.D. based on the allegations, but the trial court found that respondent continued to communicate with her. On 16 August 2010, DSS filed a petition to terminate respondent's parental rights to J.J.D., alleging neglect and dependency as grounds for termination. SeeN.C. Gen.Stat. § 7B–1111 (a)(1), (a)(6) (2011).
Following a hearing, the trial court entered an order on 13 October 2011 in which it found the existence of both grounds for termination alleged against respondent. The trial court also concluded that termination of respondent's parental rights was in the juvenile's best interests. Respondent timely appealed from the order.
On appeal, respondent challenges the trial court's conclusions that grounds exist to terminate his parental rights. Pursuant to N.C. Gen.Stat. § 7B–1111(a), a trial court may terminate parental rights upon a finding of one of the 10 enumerated grounds. “ ‘So long as the findings of fact support a conclusion [that one of the enumerated grounds exists], the order terminating parental rights must be affirmed.’ “ In re Humphrey, 156 N.C.App. 533, 540, 577 S.E.2d 421, 426 (2003) (quoting In re Oghenekevebe, 123 N.C.App. 434, 436, 473 S.E.2d 393, 395 (1996)). Therefore, if we determine that the findings of fact support one ground for termination, we need not review the other challenged ground. Id.
We review the trial court's order to determine “whether the trial court's findings of fact were based on clear, cogent, and convincing evidence, and whether those findings of fact support a conclusion that parental termination should occur on the grounds stated in N.C. Gen.Stat. § [7B–1111(a) ].” Oghenekevebe, 123 N.C.App. at 435–36, 473 S.E.2d at 395. Respondent argues that the trial court erred in terminating respondent's parental rights because several of the findings of fact are based on inadmissible hearsay statements made by the juvenile to her therapist. Respondent specifically challenges finding of fact numbers 31, 38, and 39 on this basis. However, we find the challenged findings of fact unnecessary to affirm the trial court's conclusion that grounds for termination exist, and we therefore decline to address them. See In re T.M., 180 N.C.App. 539, 547, 638 S.E.2d 236, 240 (2006) (“[W]e agree that some of [the challenged findings] are not supported by evidence in the record. When, however, ample other findings of fact support an adjudication of neglect, erroneous findings unnecessary to the determination do not constitute reversible error.”). Furthermore, because respondent has failed to challenge the remaining findings of fact, they are presumed to be supported by competent evidence and are binding on appeal. See In re M.D., N.D., 200 N.C.App. 35, 43, 682 S.E.2d 780, 785 (2009).
The trial court's undisputed findings of fact are sufficient to support dependency as a ground for termination, which is defined as follows:
[T]he 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). 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.” In re P.M., 169 N.C.App. 423, 427, 610 S.E.2d 403, 406 (2005).
The following findings of fact address the first prong of this ground for termination:
15. Based on the following findings of fact, the Court finds grounds to terminate the father's parental rights pursuant to N.C.G.S. 7B–1111(a)(6): The father is incapable of providing for the proper care and supervision of the juvenile, such that she is a dependent juvenile within the meaning of G.S. 7B–101, and there is a reasonable probability such incapability will continue for the foreseeable future. And the father lacks an appropriate alternative care arrangement.
16. Dr. Edward Morris, Ph.D., was qualified as an expert in clinical psychology based on his education and experience. Dr. Morris began his evaluation and treatment of [respondent] approximately 2.5 years ago.
17. That based on Dr. Morris' testimony as well as the psychological evaluations and addendums in the court file, the Court finds the following: [respondent] falls within the range of low-level functioning; he is still on page 1 of a homework assignment after 20 sessions; parenting a small child is too much for him to handle on a day-to-day basis and he does not have the skills to parent the child if she were placed with him today; [respondent] has been consistent, he has not improved in parenting ability over time.
18. Dr. Morris also testified, and the Court concurs, that based on his long history of failing to progress, he does not see him becoming capable of providing for the proper care and supervision of the juvenile in the foreseeable future.
19. [Community Social Services Technician] Eric Tolbert began supervising visits between [respondent] and the juvenile approximately 2.5 years ago.
20. Based on Mr. Tolbert's testimony, the Court finds the following: after 2.5 years Mr. Tolbert still has to redirect [respondent] on how to parent his child; [respondent] is the only parent where none of Mr. Tolbert's techniques have worked in improving parenting skills; supervising visits with [respondent] is like parenting two children; Mr. Tolbert feels he could probably leave the child with [respondent] to run quickly to the corner store, but if he took a trip to Wal–Mart, he would worry the whole time about what was going on at home; [respondent] undoubtedly loves and cares about his child; [respondent] has been shown, instructed and modeled numerous times how to handle situations, but it is like he is starting over every time. Mr. Tolbert said that supervising visits between [respondent] and his daughter was like looking after two children; giving instructions to [respondent] is like instructing a child.
21. [Respondent] has been provided numerous resources, including 6 parenting courses, and he still cannot demonstrate what he has learned. After 4 years he is still at status quo.
22. Melissa Fox was qualified as an expert in child and family therapy and in non-directive child-centered play therapy. She began working with the juvenile in January 2010 and included [respondent] for family therapy beginning in April 2010. Her last session with them was May 24, 2011.
23. Melissa Fox also testified that [respondent] is unable to parent alone. He needs support and someone to tell him what to do on a full-time basis. She also does not see him improving in the next six months to a year. The Court agrees.
These findings of fact are sufficient to establish that respondent is incapable of providing for the proper care and supervision of J.J .D. and that there is a reasonable probability that such incapability will continue for the foreseeable future. Therefore, we conclude that the first prong is satisfied.
Second, the trial court also made sufficient findings establishing that respondent lacked an appropriate alternative child care arrangement. The following findings of fact address this prong:
24. The father would need a strong support system to parent the juvenile and no such support system has been provided by [respondent]. It does not exist.
25. DSS had hoped that [respondent's] parents would be such supporters, but they indicated early on they were only interested in visiting, not parenting. Subsequently, his mother passed away and his father is not in a position to take on such a burden.
26. [Respondent] lacks an appropriate alternative childcare arrangement as he has not provided the names of any willing and able persons.
Thus, we conclude that the trial court made sufficient findings which addressed respondent's ability to provide care or supervision for his child and the availability to the parent of alternative child care arrangements. See P.M., 169 N.C.App. at 427, 610 S.E .2d at 406. Accordingly, we find that the trial court's findings of fact support the dependency ground for termination.
Affirmed. Judges STROUD and ERVIN concur.
Report per Rule 30(e).