Opinion
No. 07-1408.
Filed March 4, 2008.
Cleveland County No. 06J142.
Appeal by respondent-father from order entered 6 September 2007 by Judge Ali B. Paksoy in Cleveland County District Court. Heard in the Court of Appeals 18 February 2008.
Charles E. Wilson, Jr., attorney for petitioner-appellee Cleveland County Department of Social Services. Womble Carlyle Sandridge Rice by Aulica Lin Rutland, attorney for guardian ad litem for the minor child. Robert W. Ewing, attorney for respondent-appellant father.
Respondent-father D.A.R ("father") appeals the trial court's order terminating his parental rights to the minor child, K.J.H. We affirm. On 2 May 2005, the Cleveland County Department of Social Services ("DSS") filed a juvenile petition alleging that K.J.H. was dependent and neglected. Specifically, the petition alleged the father had shot K.J.H.'s mother in the head and that the mother subsequently died. The petition further alleged that the father had been incarcerated for first-degree murder, possession of a firearm by a felon, and attempted breaking and entering. On 20 June 2005, the trial court adjudicated K.J.H. as dependent based on the father's stipulation that he was unable to provide for the proper care and supervision of the child and lacked an appropriate alternative childcare arrangement. Legal and physical custody was placed with DSS. After permanency planning hearings and numerous home studies of relatives, the permanency plan was changed to adoption. On 19 July 2006, DSS filed a petition to terminate the father's parental rights based on dependency and neglect. Following a hearing on 22 August 2007, the trial court entered an order on 6 September 2007 terminating the father's parental rights to K.J.H. Father appeals.
Our standard of appellate review in this case 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 trial court's conclusions of law that one or more of the statutory grounds set forth in N.C. Gen. Stat. § 7B-1111 (2007) for termination exists. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001); N.C. Gen. Stat. § 7B-1109(e)-(f) (2007).
We first address the father's contention that the trial court erroneously terminated his parental rights on the basis of neglect. Pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), a "neglected juvenile" is defined as follows:
A juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15) (2007).
In deciding whether grounds exist on the basis of a neglect for purposes of terminating parental rights, the dispositive question is the fitness of the parent to care for the child "`at the time of the termination proceeding.'" In re L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d 236, 242 (2005) (quoting In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984)). Termination may not be based solely on past conditions that no longer exist. Id. When a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, then additional findings are needed regarding the present situation. The trial court may find that grounds for termination exist upon a showing of a "history of neglect by the parent and the probability of a repetition of neglect." In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003).
The father asserts that the trial court erroneously concluded that neglect would likely occur in the foreseeable future since the father had not yet gone to trial on the pending criminal charges. The father contends the findings of fact do not support the conclusion of law that his incapability would continue for the foreseeable future. As an initial matter, we note that the father failed to assign as error those findings of fact which he contends do not support the incapability ground, and therefore those findings are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) ("Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and binding on appeal.").
From a review of the trial court's order, it is clear that the possibility of future criminal convictions was not the basis for the trial court's determination of neglect. Rather, the trial court made its determination on the grounds of the "father's lack of contact with the juvenile." In support of this conclusion, the trial court made several detailed findings regarding the father's failure to demonstrate concern or interest in the minor child since his incarceration. Specifically, the trial court found there was an initial inquiry as to the child's welfare after his first court appearance. Nevertheless, the father did not inquire about nor seek visitation with the child, despite having information on how families achieve monthly visitation. The trial court further found that the father had not sent any cards, letters or other items to the child. Finally, the trial court found that the father refused to provide information regarding the child's health or any medical needs when such information was requested by DSS.
This Court previously has established that incarceration "is not an excuse for respondent's failure to show `interest in the children's welfare by whatever means available.' A father's neglect of his child cannot be negated by incarceration alone." In re D.J.D., 171 N.C. App. 230, 240, 615 S.E.2d 26, 33 (2005) (quoting In re Hendren, 156 N.C. App. 364, 368, 576 S.E.2d 372, 376 (2003)) (citation omitted); see also In re Ore, 160 N.C. App. 586, 589, 586 S.E.2d 486, 488 (2003) (upholding termination for neglect where the parent had "failed to parent, or even maintain contact with, the child"). Consequently, we conclude that the findings that the father failed to arrange for visitation with, inquire about, or otherwise make contact with K.J.H. during father's incarceration despite the opportunity to do so are sufficient to support the trial court's conclusion that grounds existed to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1).
Since we conclude that the trial court found grounds existed for termination of parental rights under N.C. Gen. Stat. § 7B-1111(a)(1), we need not address the father's remaining argument regarding the additional ground relied upon by the trial court under N.C. Gen. Stat. § 7B-1111(a)(6). See In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984) (holding that a finding of one statutory ground is sufficient to support the termination of parental rights). Accordingly, we affirm.
Affirmed.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).