In re C-R.D.G.
| Decision Date | 04 September 2018 |
| Docket Number | No. COA18-148,COA18-148 |
| Citation | 817 S.E.2d 799 (Table) |
| Court | North Carolina Court of Appeals |
| Parties | In the MATTER OF: C-R.D.G., minor child. |
Senior Associate County Attorney Kathleen Arundell Jackson, for Mecklenburg County Department of Social Services, Youth and Family Services, Petitioner-Appellee.
Assistant Appellate Defender Joyce L. Terres, for Respondent-Appellant Father.
Parker, Poe, Adams & Bernstein L.L.P., Raleigh, by R. Bruce Thompson II, for Guardian ad Litem.
Respondent-Father appeals from order terminating his parental rights as to his minor daughter C-R.D.G. ("the child"). We reverse and remand.
Mecklenburg County Department of Social Services, Youth and Family Services Division ("YFS") filed a petition on 6 January 2015 alleging that the child was a neglected and dependent juvenile. YFS stated it received a report on 29 December 2014 that the child’s mother ("the mother") had left her in the care of a maternal aunt ("the maternal aunt") because she was entering drug rehabilitation. Sometime later, after not hearing from the mother, the maternal aunt attempted to locate her at her last known address, but was unsuccessful. While the maternal aunt was willing to provide care for the child, she needed daycare assistance because she worked full-time. Additionally, the child had been sick and the maternal aunt had been unable to obtain medical care for her because the mother did not provide the maternal aunt with the child’s Medicaid card. YFS stated it had also attempted to locate the mother, but was not successful. YFS claimed the mother was not in rehabilitation and had been "seen daily by people in the neighborhood." Accordingly, YFS obtained non-secure custody of the child and placed her with the maternal aunt.
At the time YFS filed the petition alleging neglect and dependency, the identity of the child’s father was unknown. YFS eventually located the mother and she identified Respondent-Father as the child’s father. Respondent-Father was later located in prison in Virginia.
Respondent-Father had been incarcerated on several occasions. When he was sixteen years old, Respondent-Father was convicted of two counts of second-degree murder and sentenced to eighty years of incarceration. Respondent-Father’s convictions were reversed two years later in 2004 by the West Virginia Supreme Court. Respondent-Father was charged with first-degree capital murder and robbery in 2006. A mistrial was declared and Respondent-Father pleaded guilty to possession with intent to distribute cocaine and robbery prior to retrial. After five years of incarceration, Respondent-Father was released on probation in 2011. While Respondent-Father was on probation, the child was conceived. Prior to the child’s birth, Respondent-Father was re-incarcerated in 2013 for violating his probation by crossing state lines and being charged with possession of a firearm by a felon. Respondent-Father’s estimated release date is in July of 2020.
The trial court held adjudicatory and dispositional hearings on 12 May 2015. The mother stipulated to the facts supporting the adjudication of the child as neglected and dependent. The trial court placed the child in the legal and physical custody of YFS and established a permanent plan of reunification with concurrent plans of guardianship and adoption. In a review order entered 21 September 2015, the trial court found that Respondent-Father’s paternity of the child had been established through DNA testing.
The maternal aunt had a disagreement with YFS on 4 March 2016 and refused to continue providing care for the child, and she was placed in foster care. The child was returned to the mother’s home on 8 July 2016 for a trial placement. However, by September 2016, the mother began regressing. She did not attend therapy, failed to appear for drug court, and admitted to using cocaine. YFS then removed the child from the mother’s care and returned her to foster care.
YFS contacted Respondent-Father and he offered several placement options for the child, including his wife, who resided in Maryland. Following a subsequent permanency planning review hearing on 28 September 2016, the trial court ceased reunification efforts, and changed the primary permanent plan for the child to adoption and the secondary plan to guardianship. The trial court permitted Respondent-Father to continue his contact with the child and ordered YFS to follow up with the placement options Respondent-Father provided. The trial court further ordered YFS to file a petition to terminate Respondent-Father’s and the mother’s parental rights within sixty days. YFS filed a petition to terminate Respondent-Father’s and the mother’s parental rights on 2 February 2017, pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (neglect), (2) (willful failure to make reasonable progress), (3) (failure to pay support), and (6) (dependency) (2017).
The trial court held a permanency planning review hearing on 10 May 2017. The social worker assigned to the child’s case testified that Respondent-Father’s wife’s home study was fully approved and the trial court admitted the YFS court summary, including a summary of the home study, into evidence. The home study described Respondent-Father’s wife’s home, which she had lived in for seventeen years, her relationship with her two children, and her finances. Respondent-Father’s wife additionally testified that she was willing and able to care for the child. Consequently, Respondent-Father argued that a hearing on the petition to terminate his parental rights was unnecessary and that the child should be placed with his wife. The trial court entered an order on 31 May 2017 maintaining the permanent plan of adoption with a secondary concurrent plan of guardianship. The court further ordered that custody of the child remain with YFS and that she remain in foster care.
Hearings on the petition to terminate Respondent-Father’s and the mother’s parental rights were held on 31 May 2017, 1 June 2017, and 11 July 2017. Prior to the hearings, Respondent-Father moved to dismiss the petition to terminate his parental rights, arguing that the petition was unnecessary and the child should be placed with his wife. The trial court denied Respondent-Father’s motion.
The trial court entered an order on 2 November 2017, determining that grounds existed to terminate Respondent-Father’s parental rights pursuant to N.C.G.S. § 7B-1111(a)(6). The trial court also found that grounds existed pursuant to N.C.G.S. § 7B-1111(a)(1), (2), and (6) to terminate the mother’s parental rights. The trial court concluded it was in the child’s best interest that Respondent-Father’s and the mother’s parental rights be terminated. The trial court terminated the parental rights of both Respondent-Father and the mother. YFS filed a Rule 60 motion on 8 November 2017 to reconsider whether grounds existed pursuant to N.C.G.S. § 7B-1111(a)(1) and (3) to terminate Respondent-Father’s parental rights. That motion was denied. Respondent-Father appeals from the trial court’s order terminating his parental rights.1
Respondent-Father raises three arguments on appeal: (1) the trial court erred in terminating his parental rights as to the child because he provided an appropriate alternative child care arrangement, (2) the trial court erred by concluding it was in the child’s best interest to terminate Respondent-Father’s parental rights, and (3) the trial court erred by failing to place the child with his wife at the 10 May 2017 permanency planning hearing and by failing to make required findings. YFS argues that alternative bases in law exist to support the trial court’s decision to terminate Respondent-Father’s parental rights under N.C.G.S. § 7B-1111(a)(1), (2), and (3).
In section A of this opinion, we address Respondent-Father’s first argument concerning N.C.G.S. § 7B-1111(a)(6). In section B, we address YFS’s argument concerning N.C.G.S. § 7B-1111(a)(1), (2), and (3). Finally, in section C, we address Respondent-Father’s third argument concerning the trial court’s 31 May 2017 permanency planning order. We agree with Respondent-Father that the trial court erred in determining that grounds existed to terminate his parental rights and, therefore, we do not address his second argument.
Respondent-Father first argues the trial court erred by concluding grounds existed to terminate his parental rights. We agree.
N.C. Gen. Stat. § 7B-1111 (2017) sets out the statutory grounds for terminating parental rights. A finding of any one of the separately enumerated grounds is sufficient to support 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. , 171 N.C. App. 230, 238, 615 S.E.2d 26, 32 (2005) ().
In the present case, the trial court concluded grounds existed to terminate Respondent-Father’s parental rights pursuant to N.C.G.S. § 7B-1111(a)(6). This subsection provides that the trial court may terminate parental rights where:
[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 [N.C.]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...
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