Opinion
No. COA14–827.
02-17-2015
In the Matter of J.T.N.
Holland & O'Connor, P.L.L.C., by Jennifer S. O'Connor, for petitioner-appellee Johnston County Department of Social Services. J. Thomas Diepenbrock for respondent-appellant. Marie H. Mobley for guardian ad litem.
Holland & O'Connor, P.L.L.C., by Jennifer S. O'Connor, for petitioner-appellee Johnston County Department of Social Services.
J. Thomas Diepenbrock for respondent-appellant.
Marie H. Mobley for guardian ad litem.
DAVIS, Judge.
S.M.N.R. (“Respondent”) appeals from the trial court's order terminating her parental rights to her son, J.T.N. (“Jerry”). On appeal, Respondent argues that the trial court erred in terminating her parental rights to Jerry because the grounds for termination were not supported by clear, cogent, and convincing evidence. After careful review, we affirm.
The pseudonym “Jerry” is used throughout this opinion to protect the identity of the minor child and for ease of reading. N.C.R.App. P. 3.1(b).
Factual Background
The Johnston County Department of Social Services (“DSS”) filed a petition on 15 October 2009 alleging that Jerry was a neglected and dependent juvenile. The petition contained various allegations, including that (1) Respondent and Jerry's father had engaged in domestic violence in the presence of Jerry; (2) Respondent experienced difficulties with substance abuse and had been refusing to submit to drug screens as recommended by DSS; (3) Respondent admitted that she had struggled to provide appropriate supervision of Jerry due to illness and anxiety; and (4) the sanitation of the family home had deteriorated to the degree that rotting trash and miscellaneous items covered the floor, making it difficult to walk through the house.
Following an adjudication hearing held on 13 January 2010, the trial court entered an order adjudicating Jerry to be a neglected juvenile on 12 February 2010. In its disposition order entered on 15 March 2010, the trial court placed Jerry with J.P., a family friend who had been caring for Jerry since November 2009. J.P. indicated that she could no longer provide care for Jerry in April 2010, and after several brief placements with relatives, Jerry was placed in DSS custody on 16 May 2011.
Following several permanency planning and review hearings, the trial court changed the permanent plan for Jerry to adoption by order entered 22 May 2013. On 25 July 2013, DSS filed a petition to terminate Respondent's parental rights to Jerry. The termination of parental rights hearing was held on 26 February 2014, and on 21 April 2014, the trial court entered an order terminating Respondent's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) and N.C. Gen.Stat. § 7B–1111(a)(6). Respondent timely appealed to this Court.
Jerry's father's parental rights were also terminated in the trial court's 21 April 2014 order, but he did not contest the order and is not a party to this appeal.
Analysis
On appeal, this Court reviews an order terminating parental rights to determine “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 Shepard, 162 N.C.App. 215, 221, 591 S.E.2d 1, 6 (citation and quotation marks omitted), disc. review denied,358 N.C. 543, 599 S.E.2d 42 (2004). “Findings of fact supported by competent evidence are binding on appeal even though there may be evidence to the contrary.” In re S.R.G., 195 N.C.App. 79, 83, 671 S.E.2d 47, 50 (2009). Undisputed findings of fact “are deemed to be supported by sufficient evidence and are binding on appeal.” In re M.D., 200 N.C.App. 35, 43, 682 S.E.2d 780, 785 (2009). However, “[t]he trial court's conclusions of law are fully reviewable de novoby the appellate court.” In re S.N.,194 N.C.App. 142, 146, 669 S.E.2d 55, 59 (2008) (citation and quotation marks omitted), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).
We first address Respondent's argument that the trial court erred in concluding that grounds existed to terminate her parental rights under N.C. Gen.Stat. § 7B–1111(a)(6). Pursuant to N.C. Gen.Stat. § 7B–1111(a)(6), a trial court may terminate a parent's rights to a child if
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) (2013). Accordingly, in order to terminate a parent's rights under N.C. Gen.Stat. § 7B–1111(a)(6), the trial court must make findings that “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).
Our Juvenile Code defines a dependent juvenile, in pertinent part, as one who is “in need of assistance or placement because ... the juvenile's parent, guardian, or custodian is unable to provide for the juvenile's care or supervision and lacks an appropriate alternative child care arrangement.” N.C. Gen.Stat. § 7B–101(9) (2013).
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Respondent contends that terminating her rights pursuant to § 7B–1111(a)(6) was improper because (1) the trial court's conclusion that she was incapable of providing for the proper care and supervision of Jerry was based solely upon her incarceration; and (2) her period of incarceration was likely to be shortened due to the possibility of a reduction in her sentence.
This Court has previously held that a parent's extended incarceration is “sufficient to constitute a condition that rendered her unable or unavailable to parent [the juvenile].” In re L.R.S.,––– N.C.App. ––––, ––––, 764 S.E.2d 908, 911 (2014) ; see also In re N.T.U.,––– N.C.App. ––––, ––––, 760 S.E.2d 49, 58 (affirming termination of parental rights under § 7B–1111(a)(6) where parent was incarcerated awaiting trial on charges relating to homicide and bank robbery and there was no evidence that parent would be released in foreseeable future), disc. review denied,––– N.C. ––––, 763 S.E.2d 517 (2014).
Here, the trial court made several findings regarding Respondent's incarceration. The court found that (1) Respondent was currently imprisoned in Lexington, Kentucky after pleading guilty in 2012 to federal charges involving methamphetamine; (2) she has been continuously incarcerated since her arrest in September 2011 and, consequently, has been unable to exercise her visitation with Jerry since that time; (3) Respondent was sentenced to a term of ten years imprisonment; (4) her current projected discharge date is in 2020; and (5) although Respondent “has repeatedly indicated that she believes her sentence will be reduced, it has not occurred .... [and] the amount of time, if her sentence[ ] is reduced, is unknown.”
The trial court also found that while Respondent had provided DSS with several possible placements for Jerry, none of them were found to be able to provide proper care, supervision, and a safe home for Jerry. Respondent has not challenged any of the above findings, and as a result, they are binding on appeal. See M.D., 200 N.C.App. at 43, 682 S.E.2d at 785.
These unchallenged findings of fact support the trial court's legal conclusion that due to her incarceration, Respondent was unable to provide proper care and supervision for Jerry, would not be able to do so for the foreseeable future, and did not have any alternative child care arrangement. Despite Respondent's insistence that a reduction in her sentence is likely based on her cooperation with the prosecutor's office in testifying against her co-defendants and her plan to successfully complete a nine-month drug awareness program, any such reduction in her term of incarceration is still unknown and cannot overcome the fact that at the time of the termination hearing, Respondent was not expected to be released from prison for six years.
Consequently, we cannot conclude that the trial court erred in determining that Respondent's inability to provide care for Jerry would continue for the foreseeable future. See L.R.S.,––– N.C.App. at ––––, 764 S.E.2d at 911 (affirming trial court's conclusion that respondent's inability to parent juvenile based on her incarceration would continue for foreseeable future where “at the time of the hearing in August 2013 respondent was not scheduled to be released from federal custody for at least 13 months, and potentially faced up to 30 additional months imprisonment”).
Thus, we hold that the trial court did not err in concluding that grounds existed to terminate Respondent's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(6). Because competent evidence and the trial court's findings of fact support termination of Respondent's parental rights under § 7B–1111(a)(6), we need not address Respondent's arguments regarding the trial court's conclusion that grounds also existed to terminate her parental rights on the basis of neglect. See N.T.U.,––– N.C.App. at ––––, 760 S.E.2d at 57 (“In termination of parental rights proceedings, the trial court's finding of any one of the ... enumerated grounds is sufficient to support a termination.” (citation and quotation marks omitted)). As Respondent has not challenged the trial court's conclusion that termination of her parental rights was in Jerry's best interests, we affirm the trial court's decision to terminate Respondent's parental rights. See L .R.S.,––– N.C.App. at ––––, 764 S.E.2d at 911.
Conclusion
For the reasons stated above, we affirm the trial court's 21 April 2014 order terminating Respondent's parental rights.
AFFIRMED.
Chief Judge McGEE and Judge STEELMAN concur.
Report per Rule 30(e).
Opinion
Appeal by respondent from order entered 21 April 2014 by Judge Resson Faircloth in Johnston County District Court. Heard in the Court of Appeals 26 January 2015.