No. COA11-338North Carolina Court of Appeals
Filed 16 August 2011 This case not for publication
Gaston County No. 09-JT-22.
Appeal by respondent from judgment entered 28 December 2010 by Judge Thomas Taylor in Gaston County District Court. Heard in the Court of Appeals 1 August 2011.
Thomas B. Kakassy, for Gaston County Department of Social Services, petitioner-appellee.
Hunton Williams, by Jason S. Thomas, for guardian ad litem.
Robin E. Strickland, for respondent-appellant.
MARTIN, Chief Judge.
L.D.G. was born on 28 January 2009. The Gaston County Department of Social Services (the “petitioner”) sought an adjudication that the infant was a dependent juvenile on 2 February 2009, when L.D.G. was only five days old. His mother had consistently demonstrated physically aggressive behaviors,
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had a history of poly-substance abuse, and had been hospitalized multiple times for suicidal ideations and self-harming behaviors. She was herself previously in the custody of the petitioner and, during her time in their custody, had run away and been suspended from school repeatedly. She exhibited symptoms of untreated mental illness and refused to take prescribed medication. On 29 January 2009, threats of violence by L.D.G.’s mother’s boyfriend (who is not respondent) led to the hospital forbidding L.D.G. to be left alone with his mother or to be released from the hospital with her. Because of these concerns, nonsecure custody was granted to petitioner.
On 14 April 2009, L.D.G. was adjudicated to be a dependent juvenile as defined by N.C.G.S. § 7B-101(9). L.D.G.’s mother advised the court that respondent might be L.D.G.’s father. DNA paternity testing was completed and respondent was adjudicated to be L.D.G.’s father by an order signed 26 August 2009.
On 27 September 2010, petitioner filed to terminate respondent’s parental rights to L.D.G. On 28 December 2010, the trial court filed a judgment terminating respondent’s parental rights on the grounds that he had (1) neglected L.D.G., (2) willfully left L.D.G. in foster care or placement outside the home for more than 12 months without showing to the satisfaction
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of the court that reasonable progress under the circumstances had been made in correcting the conditions which led to his removal, and (3) was “incapable of providing for the proper care and supervision of the juvenile such that the juvenile is a dependent juvenile.” Respondent appeals.
Respondent argues that the evidence and the findings of fact do not support any of the three bases upon which the trial court based the termination of his parental rights. After careful consideration and for the reasons which follow, we reject his arguments.
On appeal, “[o]ur standard of review for the termination of parental rights is whether the court’s `findings of fact are based upon clear, cogent and convincing evidence’ and whether the `findings support the conclusions of law.'” In re Pope, 144 N.C. App. 32, 40, 547 S.E.2d 153, 158 (quoting In re Huff, 140 N.C. App. 288, 292, 536 S.E.2d 838, 840 (2000) disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001)) aff’d, 354 N.C. 359, 554 S.E.2d 644 (2001). “Our review of the trial court’s findings of fact is limited to whether there is competent evidence to support the findings; however, the trial court’s conclusions of law are reviewable de novo.” Id.
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We begin by examining the trial court’s conclusion that respondent was “incapable of providing for the proper care and supervision of [L.D.G.] such that [he] is a dependent juvenile.”
The court may terminate parental rights upon a finding that
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) (2009). A “dependent juvenile” is defined as one “in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile’s care or supervision or whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement.” N.C. Gen. Stat. § 7B-101(9) (2009). In determining whether a juvenile is dependent, the court must consider (1) the parent’s ability to provide care or supervision and (2) the availability to the parent of an appropriate
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alternative child care arrangement. In re P.M., 169 N.C.App. 423, 427, 610 S.E.2d 403, 406 (2005).
In support of its conclusion that respondent was incapable of providing L.D.G. with proper care and supervision, the court made findings of fact summarizing a parental capacity evaluation conducted by clinical psychologist Dr. Brian Simpson. Dr. Simpson concluded, and the trial court concurred, that respondent suffers from a depressive disorder, mild mental retardation, and a history of alcohol abuse. Dr. Simpson also concluded that respondent’s “limited intellectual abilities affect not only his judgment, but also [his] capacity for emotional regulation and behavioral control.” When combined with his other symptoms and history as a sex offender, the court found that these disabilities raise “serious and troubling questions as to [respondent’s] parental capacity.” The court also found, based upon its own observations of respondent during the course of the hearing, that he demonstrated a “lack of affect and a lack of reaction to the evidence” and “a general lack of awareness and interest.”
The court further found that respondent suffered from hypertension and a GI disorder and had not sought treatment for these conditions because he had no funds. He refused treatment
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for his alcohol abuse and had not completed sex offender treatment after refusing to admit his wrongdoing and being ejected from the program after four consecutive absences. The court also noted in its findings that while respondent works for his mother in a cleaning service and does other odd jobs, his relatives pay his bills, including his child support payments.
Finally, the court found that “[w]hile respondent father has visited with the child, he has been and continues to be incapable of providing adequate shelter, supervision, and an otherwise adequate environment for the child.” Respondent “did not and could not offer a proper environment for the child,” and “[t]he Department does not anticipate that he will be able to do so in the future.”
Respondent argues this last finding was not supported by the evidence. He contends the fact that he is a sex offender with permanent cognitive limitations does not prevent him from parenting and that the evidence shows that he was attentive to the needs of the juvenile and was able to appropriately care for the juvenile without intervention by the social worker during his supervised visits with the juvenile. He further points to evidence that he had “tremendous family support.”
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In reviewing respondent’s arguments, we note first that unchallenged findings of fact are binding on appeal Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Respondent has failed to challenge that he suffers from a depressive disorder, mild mental retardation, and a history of alcohol abuse. Respondent has also failed to challenge the finding that he refused to get treatment for alcoholism, and was ejected from a sex offender treatment program after four consecutive absences. All of these findings alone are sufficient to support the trial court’s conclusion that respondent was incapable of providing for the proper care and supervision of L.D.G. and in turn its judgment terminating respondent’s parental rights.
Furthermore, even had respondent properly challenged all of the findings upon which the court based its conclusion of law, findings of fact are binding upon this Court “where there is some
evidence to support those findings, even though the evidence might sustain findings to the contrary.” In re Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53 (1984) (emphasis added). Here, respondent concedes there was some evidence of incapacity; he acknowledges in his brief that Dr.
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Simpson’s parental capacity evaluation “suggested he may not be able to parent without assistance.”
In fact, Dr. Simpson’s report provided more than jus some evidence “suggesting” that respondent was “incapable of providing adequate shelter, supervision, and an otherwise adequate environment” for L.D.G. Dr. Simpson wrote:
[Respondent] rather wishfully sees himself as a father figure involved in raising his son. . . . However, current evaluation findings revealed deficient intellectual abilities and with [sic] strong likelihood of mild mental retardation. There has been an acknowledged history of alcohol abuse and with question [sic] as to whether this persists — at least episodically. Currently he apparently suffers from active GI bleed and has previously been diagnosed with hypertension, but does not attempt to avail himself of medical care. Thusly, it would be reasonable to presume that if [respondent] is neglectful in his own medical care needs, that he would similarly be so if he had primary responsibilities in raising a young child. Whether there continue to be episodes of intoxication is uncertain but considered probable especially as [respondent] seeks to utilize alcohol to contend with psychiatric difficulties. There has been history of one suicide attempt at the age of 25 and while this was described as being a reactive depression in the aftermath of his father’s death, he continues to struggle with problems of depression, at times has a sense of futility and even hopelessness, and suffers from feelings of inadequacy.
Whether his past sexual offenses representPage 9
problems in impulse control, questionable judgment, more predatory sexual behaviors, or is consistent with his own levels of emotional functioning is uncertain. He has undergone comprehensive sex offender evaluation and has indicated his willingness to comply with DSS requirements, but when asked as to the purpose of this program or what he might have learned in his first meeting, he replied that it involves “people just talking”. I would further observe that his limited intellectual abilities influence not only his judgment, but also capacity for emotional regulation and behavioral control. That he also suffers from continued symptoms consistent with depression, and also may continue to abuse alcohol raises serious and troubling questions as to his parental capacity.
. . . .
Even as [respondent] would have benefit of medical and psychiatric care, and as he would be further supported in parent training and would complete a sex offenders program, impressions of mild mental retardation would suggest that he would not reasonably be expected to develop competencies to adequately and appropriately care for his infant son unless such responsibilities would be largely assumed by his family including his sister and mother.
We hold the foregoing evidence supports the court’s findings of fact, which in turn support the court’s conclusion of law, that grounds existed to terminate respondent’s parental rights pursuant to N.C.G.S. § 7B-1111(a)(6).
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Having affirmed termination of parental rights on one ground, we need not address respondent’s arguments concerning the other two grounds utilized by the court to terminate his parental rights In re P.L.P., 173 N.C. App. 1, 8, 618 S.E.2d 241, 246 (2005) (“[W]here the trial court finds multiple grounds on which to base a termination of parental rights, and `an appellate court determines there is at least one ground to support a conclusion that parental rights should be terminated, it is unnecessary to address the remaining grounds.'”), aff’d per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006) (quoting In re Clark, 159 N.C. App. 75, 78, 582 S.E.2d 657, 659 (2003)).
We affirm the judgment.
Affirmed.
Judges ERVIN and THIGPEN concur.
Report per Rule 30(e).
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