Opinion
No. COA10-407
Filed 3 August 2010 This case not for publication
Appeal by respondent-father from order entered 26 January 2010 by Judge Robert M. Wilkins in Randolph County District Court. Heard in the Court of Appeals 20 July 2010.
Joyce L. Terres for petitioner-appellee, mother. Robin E. Strickland for respondent-appellant, father.
Randolph County No. 09 JT 54.
Respondent-Father Dallis B. appeals from an order entered by the trial court terminating his parental rights to his daughter, E.K.B. (Elisa). After careful consideration of Respondent-Father's challenge to the trial court's termination order in light of the record and the applicable law, we conclude that the termination order should be affirmed.
"Elisa" is a pseudonym utilized throughout the remainder of this opinion to protect the privacy of the juvenile and for ease of reading.
I. Factual Background
Elisa was born to Respondent-Father and Petitioner-Mother Amber P. in December 2004. The couple and Elisa lived together until May 2006, when Petitioner-Mother filed an ex parte domestic violence protection action pursuant to Chapter 50B of the North Carolina General Statutes in which she alleged that Respondent-Father had attempted to choke her. On 16 June 2006, Petitioner-Mother obtained the entry of a domestic violence protective order (DVPO) that was to remain in effect for a period of one year. The DVPO allowed Respondent-Father to have visitation with Elisa from the 15th through the 25th of each month. Respondent-Father did not pick up Elisa for visits in August, September, and October of 2006.
On 14 November 2006, the trial court entered a Memorandum of Judgment/Order in which Petitioner-Mother and Respondent-Father agreed that Petitioner-Mother would have primary custody of Elisa and Respondent-Father would have visitation with her from 14 November 2006 until 18 November 2006. Petitioner-Mother testified that, when Respondent-Father returned Elisa on 18 November 2006, he was "intoxicated." Petitioner-Mother noticed that Elisa was withdrawn when she returned home.
A month after the November visit, Respondent-Father was arrested and jailed. Respondent-Father subsequently pled guilty to various felony offenses on 13 February 2007 and was sentenced to 70 to 84 months imprisonment in the custody of the North Carolina Department of Correction. Respondent-Father remains incarcerated to this day.
On 8 April 2009, Petitioner-Mother filed a petition seeking the termination of Respondent-Father's parental rights on the grounds of neglect, pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), and abandonment, pursuant to N.C. Gen. Stat. § 7B-1111(a)(7). The trial court held a hearing on the termination petition in November and December 2009.
At the termination hearing, Petitioner-Mother testified that Respondent-Father was abusive towards her. At the time that Respondent-Mother left him in May 2006, Respondent-Father threatened to kill Petitioner-Mother and members of her family if she tried to take Elisa away from him. Petitioner-Mother also testified that Respondent-Father consumed and sold drugs throughout their relationship. According to Petitioner-Mother, she had not received any letters, gifts, phone calls or money from Respondent-Father that were intended for Elisa during the last three years. Finally, Petitioner-Mother testified that she married Mr. P in October 2006, that she and Mr. P had a child following their marriage, and that Mr. P would like to adopt Elisa.
Respondent-Father testified that, during his incarceration, he made 70 cents a day; that he signed up for Elisa to receive gifts through the Angel Tree program in 2008; that he sent Elisa a recording of him reading a book as part of the Father Read program; and that he asked members of his family to keep in touch with Elisa. Respondent-Father also testified that he had mailed a couple of letters to Elisa, but admitted that he had not sent his daughter any letters since 2007. Respondent-Father admitted that he had previously ingested cocaine and that he had choked Petitioner-Mother. Respondent-Father stated that he wanted to be a father to Elisa.
By means of an order that was entered on 26 January 2010, the trial court dismissed the abandonment ground and found that Respondent-Father's parental rights in Elisa were subject to termination solely on the basis of neglect. The trial court concluded that termination was in Elisa's best interests and terminated Respondent-Father's parental rights in Elisa. Respondent-Father noted an appeal to this Court from the trial court's termination order.
II. Standard of Review
Termination of parental rights proceedings involve the use of a two-stage process. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). At the adjudicatory stage, "the petitioner has the burden of establishing by clear and convincing evidence that at least one of the statutory grounds listed in N.C. Gen. Stat. § 7B-1111 exists." In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002). "If the trial court determines that grounds for termination exist, it proceeds to the dispositional stage, and must consider whether terminating parental rights is in the best interests of the child." Id. at 98, 564 S.E.2d at 602.
The trial court's decision to terminate parental rights at the dispositional stage is reviewed under an abuse of discretion standard. Id.
III. Grounds for Termination
On appeal, Respondent-Father contends that the trial court erred by failing to make sufficient findings of fact to support its conclusion that his parental rights were subject to termination based upon neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). We disagree.
A neglected juvenile is defined, in part, as "[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent[.]" N.C. Gen. Stat. § 7B-101(15). In order to prove that a parent's parental rights are subject to termination on the grounds of neglect, there must be clear and convincing evidence that (1) the juvenile is neglected within the meaning of N.C. Gen. Stat. 7B-101(15) and (2) "the juvenile has sustained `some physical, mental, or emotional impairment . . . or [there is] a substantial risk of such impairment'" as a consequence of the neglect. In re Reyes, 136 N.C. App. 812, 814-15, 526 S.E.2d 499, 501 (2000) (quoting In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993)). Neglect must either exist at the time of the termination hearing or, if the parent has been separated from the child for an extended period of time, the petitioner must show that the parent has neglected the child in the past and that the parent is likely to neglect the child in the future. In re Ballard, 311 N.C. 708, 714-15, 319 S.E.2d 227, 231-32 (1984).
"Incarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision." In re Yocum, 158 N.C. App. 198, 207-08, 580 S.E.2d 399, 405 (2003). "Incarceration alone, however, does not negate a father's neglect of his child." In re Hendren, 156 N.C. App. 364, 368, 576 S.E.2d 372, 376 (2003) (citing In re Williams, 149 N.C. App. 951, 563 S.E.2d 202 (2002). Thus, a parent's incarceration may be considered in determining whether a minor child is a neglected juvenile as a result of that parent's inability to provide proper care and supervision for the child because of his or her incarceration. See In re P.L.P., 173 N.C. App. 1, 10-11, 618 S.E.2d 241, 247 (2005), aff'd per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006) (upholding a trial court's finding that an incarcerated father neglected his child where the father "(1) could have written [the child] but did not do so; (2) made no efforts to provide anything for the minor child; (3) has not provided any love, nurturing or support for the minor child; and (4) would continue to neglect the minor child if the child was placed in his care"); In re Bradshaw, 160 N.C. App. 677, 682, 587 S.E.2d 83, 86 (2003) (upholding a trial court's finding that an incarcerated father neglected his child where that father "neither provided support for the minor child nor sought any personal contact with or attempted to convey love and affection for the minor child"). Put another way, our decisions concerning the termination of the parental rights of incarcerated parents require the trial court to evaluate what the incarcerated parent did and did not do with respect to his or her child on a case-by-case basis.
To support its conclusion that Respondent-Father's parental rights in Elisa were subject to termination on the grounds of neglect, the trial court made the following unchallenged findings of fact:
6. That the juvenile has resided from birth through the present date in the physical custody of the Petitioner. Petitioner was awarded the temporary custody of the child in the November 14, 2006, Order entered in Civil Action 06 CVD 1622.
. . . .
11. The Court finds by clear, cogent and convincing evidence, that the Respondent was granted the right to visit with the minor child in writing, pursuant to the November, 2006, decree referenced above. The Respondent, prior to the written order, had visited the child and his second to last visit was scheduled for July of 2006. The Petitioner does not know if the Respondent actually saw the child during the visit, but the Respondent appeared at the end of the visit for the return of the child. The Respondent had a final visit with the child on November 18, 2006, at which time he returned the child over an hour late, and engaged in a verbal altercation with the Petitioner. The Petitioner was concerned about the child's health and emotional state at the conclusion of the visit.
12. The Court finds that the clear[,] cogent and convincing evidence in this matter establishes that the November, 2006, visit was the last time the Respondent saw the child or had contact with her.
13. The Court finds by clear, cogent and convincing evidence, that Respondent has been incarcerated in the North Carolina Department of Correction[] since February 16, 2007 (he was in jail as of November 2007 awaiting trial), due to his conviction on multiple felony matters in Wilkes County, North Carolina, including Felony Trafficking Schedule I (Principal) (06CRS055883), consolidated for Judgment with an additional charge of Felony Trafficking Schedule I (Conspiracy) 06CRS004018), Felony Obtaining Property by False Preten[s]es (Principal) (06CRS004638), Felony Obtaining Controlled Substances by Fraud/Forgery (Principal)(06CRS004639), Felony Obtaining Property by False Pretenses (Principal) (06 CRS004640), Felony Obtaining Controlled Substances by Fraud (Principal) (06 CRS4641). The aforementioned offenses had offense dates occurring in October of 2005, November of 2005, January of 2006, February of 2006, and [M]ay of 2006. Respondent admitted that he had a drug problem in 2006 and prior, and plead guilty to said offenses.
14. By clear, cogent and convincing evidence the Court also finds that the Respondent's earliest scheduled release date will not occur until the child attains the age of 8 years; the child was under the age of 2 at the last contact; was age 2 when the Respondent was incarcerated, and will be 5 on December 4, 2009; and that the Respondent's criminal actions have placed him in a position that the juvenile has not, since at least November of 2006, received proper care, supervision, or discipline from the Respondent, the juvenile's parent, as defined by N.C. Gen. Stat. § 7B-101(15)(2007), thereby satisfying the statutory definition of a neglected juvenile.
15. The Petitioner has shown by clear, cogent and convincing evidence that the Respondent has had no involvement with the child since November of 2006, that this was voluntary after November 2006, that the Respondent further engaged in criminal activity causing his incarceration and further lack of involvement with the minor child. That the Respondent has not since November of 2006, requested contact with the child except that relatives have contacted the Petitioner once related to the Respondent's father's death. That the Respondent has not offered or provided any financial support, care, or assistance of any kind to the child since prior to the entry of the November 2006 Order.
16. That the Court finds by clear[,] cogent and convincing evidence presented, that the minor child will be approximately age 8 as of the earliest possible release date for the Respondent, and that the Respondent's neglect of the child is reasonably likely to continue and that for the foreseeable future and next several years, the Respondent will not be able to provide the minor child with adequate care, supervision[,] or discipline.
. . . .
18. That Petitioner has proven by clear, cogent and convincing evidence the following ground for the termination of parental rights of Respondent[-Father]: Pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), the Respondent has neglected the juvenile and pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), the minor child is a neglected juvenile by the Respondent, within the meaning of N.C. Gen. Stat. § 7B-101.
As a result of the fact that Respondent-Father has not challenged any of the trial court's findings of fact as lacking adequate evidentiary support, they are binding on us for purposes of appellate review. O'Connor v. Zelinske, 193 N.C. App. 683, 687, 668 S.E.2d 615, 617 (2008) (stating that, "[b]ecause Plaintiff fails to argue that the trial court's findings of fact are not supported by sufficient evidence, any such argument is deemed abandoned, and the trial court's findings of fact are binding on appeal") (citing Estroff v. Chatterjee, 190 N.C. App. 61, 71, 660 S.E.2d 73, 79 (2008)).
Respondent-Father concedes that he did not provide any care, supervision or discipline for Elisa from the time of his last visit in November 2006 through the termination hearing on 30 November 2009. Respondent-Father also concedes that his failure to provide proper care, supervision or discipline for his daughter would suffice to render Elisa a neglected child outside the termination of parental rights context. Respondent-Father argues, however, that, in order for the trial court to terminate his parental rights on the grounds of neglect, it was required to find that Elisa was impaired or at risk of impairment as a result of his failure to provide proper care, supervision and discipline. Since the trial court failed to make a finding regarding the extent to which his actions impaired Elisa's well-being or placed her at risk of such impairment, Respondent-Father contends that the trial court's order is legally deficient and should be overturned.
This Court has previously considered and rejected an argument that is essentially identical to that advanced by Respondent-Father in this case. In In re Ore, 160 N.C. App. 586, 589, 586 S.E.2d 486, 488 (2003), the appealing parent "assert[ed that] the trial court erred in terminating her parental rights without finding the child was impaired, or there was a substantial risk of impairment, by her neglect." As is the case here, there was no prior adjudication of neglect in Ore. In rejecting the appealing parent's argument, this Court stated that:
To prove neglect in a termination case, there must be clear, cogent and convincing evidence of (1) neglect and (2) as a consequence of the neglect, "the juvenile has sustained `some physical, mental, or emotional impairment . . . or [there is] a substantial risk of such impairment. . . ." In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000) (quoting In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993)). In the case at bar, the court did not make any findings of fact regarding the impairment prong, but this Court previously reasoned that an express finding of fact regarding impairment is not required where the evidence supports such a finding. Safriet, 112 N.C. App. at 753, 436 S.E.2d at 902. In the case at bar, the court found that respondent had failed to parent, or even maintain contact with, the child. Moreover, the court found respondent's neglectful behavior was likely to continue for the foreseeable future because "[r]espondent has a history of being incarcerated for various criminal offenses as well as a long history of substance abuse and failure to address those problems with necessary treatment. . . ." Finally, the court added that "these incapabilities of being capable to provide for proper care and supervision will continue for the foreseeable future." These facts demonstrate not only neglect, but also that the minor child was at a substantial risk of impairment due to the neglect.
Ore, 160 N.C. App. at 589, 586 S.E.2d at 488. As a result, this Court has already expressly rejected Respondent-Father's argument and held that findings of impairment are unnecessary as long as the trial court made findings demonstrating that "the minor child was at substantial risk of impairment due to the neglect." Id.
The undisputed findings of fact in this case demonstrate that Respondent-Father had no involvement with Elisa after the November 2006 visit; that Petitioner-Mother was "concerned about [Elisa's] health and emotional state" following that visit; that Respondent-Father had not requested any contact with his daughter during his incarceration; and that Respondent-Father had not "offered or provided any financial support, care or assistance of any kind" to Elisa during his incarceration. See In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982) (stating that "[n]eglect may be manifested in ways less tangible than failure to provide physical necessities," so that a trial judge may consider "a parent's complete failure to provide the personal contact, love, and affection that inheres in the parental relationship"). The trial court further found that Respondent-Father's "neglect is reasonably likely to continue and that for the foreseeable future and next several years, [Respondent-Father] will not be able to provide [Elisa] with adequate care, supervision or discipline." These unchallenged findings of fact are virtually identical to those held sufficient to support the termination order at issue in Ore. As a result, we conclude that the trial court's findings of fact are sufficient to support its conclusion of law that Respondent-Father's parental rights in Elisa were subject to termination for neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). For that
reason, the trial court's order should be, and hereby is, affirmed.
AFFIRMED.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).