NO. COA05-627
Appeal by Respondent from order entered 27 October 2004 by
Judge David V. Byrd in District Court, Wilkes County. Heard in the
Court of Appeals 24 January 2006.
C.R. “Skip” Long, Jr., for petitioner-appellee.
Lisa Rowley, for Guardian Ad Litem.
Duncan B. McCormick, for respondent-appellant.
WYNN, Judge.
This appeal arises from a 27 October 2004 order terminating
Respondent's parental rights to J.N.C. After careful review, we
affirm the trial court's order terminating Respondent's parental
rights under N.C. Gen. Stat. § 7B-1111(a)(1) (2005).
The facts pertinent to this appeal are as follows: Petitioner-
mother and Respondent-father were married in 1998, and had one
child, J.N.C. The parties separated in February 2000 and divorced
the following year. On 6 March 2000, the parties signed a consent
order granting Petitioner primary physical custody of J.N.C,
granting Respondent certain visitation rights and ordering
Respondent to pay $300.00 per month in child support. In September 2000, Respondent's visits with J.N.C. began
“slacking off,” and from September 2000 until September 2002,
Respondent saw the child once per month or once every other month.
In early 2002, Respondent went to jail for seven months. While
incarcerated, Respondent sent one letter to J.N.C.; however, he did
not acknowledge the child's birthday in August 2002.
Respondent
did not call Petitioner to ask about J.N.C. during the period of
time that he did not see her in 2001 and 2002.
After his release from jail in mid-August or early September
2002, Respondent asked to visit the child, but Petitioner did not
allow the visit. Although Respondent spoke with a magistrate about
the enforcement of the March 2000 visitation order, Respondent did
not initiate any legal action to enforce his visitation rights.
On 25 September 2002, Petitioner filed a petition to terminate
Respondent's parental rights on the grounds that (1) Respondent
neglected the child; and (2) for a continuous period of one year
preceding the filing of the petition, Respondent willfully and
without justification failed to pay child support in accordance
with the child support decree.
Subsequent to the filing of the termination petition,
Respondent was incarcerated on charges of conspiracy to commit
robbery with a dangerous weapon, attempted murder, assault with a
deadly weapon with intent to kill inflicting serious injury,larceny after breaking and entering, breaking and entering, robbery
with a dangerous weapon and conspiracy to commit first degree
murder and robbery. Respondent was convicted on all charges and
received consecutive sentences of 220 to 273 months for attempted
murder; 116 to 149 months for assault with a deadly weapon with
intent to kill inflicting serious injury; 220 to 273 months for
felony conspiracy to commit first degree murder; ten to twelve
months for conspiracy to commit first degree murder; 103 to 133
months for robbery with a dangerous weapon; and ten to twelve
months for larceny and breaking and entering.
The trial court concluded that grounds existed pursuant to
sections 7B-1111(a)(1), (4) and (7) of the North Carolina General
Statutes to terminate Respondent's parental rights to the minor
child as (1) the minor child was a neglected juvenile as defined
in section 7B-101(15) pursuant to section 7B-1111(a)(1); (2)
Respondent failed to pay the court ordered child support pursuant
to section 7B-1111(a)(4)
for a continuous period of one year or
more; and (3) Respondent had wilfully abandoned the child pursuant
to section 7B-1111(a)(7). By order filed 27 October 2004, the
trial court terminated Respondent's parental rights . Respondent
appealed.
Preliminarily we note that although the trial court concludedthat grounds existed pursuant to sections 7B-1111(a)(1), (4) and
(7) of the North Carolina General Statutes to terminate
Respondent's parental rights
, we find it dispositive that the
evidence is sufficient to support termination of Respondent's
parental rights under section 7B-1111(a)(1)
.
See In re Pierce, 67
N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984) (a finding of one
statutory ground is sufficient to support the termination of
parental rights)
.
Under section 7B-1111(a)(1), a trial court may terminate
parental rights upon the findings that the child is a neglected
juvenile.
See N.C. Gen. Stat. § 7B-1111(a)(1). Section 7B-101(15)
of the North Carolina General Statutes defines a neglected juvenile
as:
[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 lives in
an environment injurious to the juvenile's
welfare. . . .
N.C. Gen. Stat. § 7B-101(15)
(2005).
Moreover, our Supreme Court has held that “[a] finding of
neglect sufficient to terminate parental rights must be based on
evidence showing neglect at the time of the termination
proceeding.”
In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615
(1997) (citation omitted). Further, “[t]o prove neglect in atermination case, there must be clear, cogent, and convincing
evidence (1) the juvenile is neglected within the meaning of
N.C.G.S. § 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 Beasley, 147 N.C. App. 399, 403, 555 S.E.2d 643,
646 (2001) (alteration in original) (internal quotation and
citation omitted).
We note that under our caselaw, incarceration alone is not
dispositive on the issue of whether to terminate parental rights.
See In re Yocum, 158 N.C. App. 198, 207-08, 580 S.E.2d 399, 405
(2003) (stating “[i]ncarceration, standing alone, is neither a
sword nor a shield in a termination of parental rights decision.”).
This Court has held that where
a child has not been in the custody of the
parent for a significant period of time prior
to the termination hearing, the trial court
must employ a different kind of analysis to
determine whether the evidence supports a
finding of neglect[,] . . . because requiring
the petitioner in such circumstances to show
that the child is currently neglected by the
parent would make termination of parental
rights impossible.
In re Pierce, 146 N.C. App. 641, 651, 554 S.E.2d 25, 31 (2001).
The length of a parent's incarceration may be considered in
determining whether a minor child is in a state of neglect due tothat parent's inability to provide proper care and supervision for
the child.
See In re P.L.P., __ N.C. App. __, __, 618 S.E.2d 241,
247 (2005).
The record shows that Respondent was incarcerated on charges
of conspiracy to commit robbery with a dangerous weapon, attempted
murder, assault with a deadly weapon with intent to kill inflicting
serious injury, larceny after breaking and entering, breaking and
entering, robbery with a dangerous weapon and conspiracy to commit
first degree murder and robbery.
As a result of Respondent's
convictions on all charges, he received a lengthy imprisonment
sentence and it is highly unlikely that he will be able to provide
proper care and supervision for the child.
A conclusion of neglect may also be supported by evidence of
a parent's sporadic contact between themselves and their child and
their complete failure to provide “personal contact, love, and
affection” to their child.
Pierce, 67 N.C. App. at 263, 312 S.E.2d
at 904 (citation omitted). Here, the trial court found that
Respondent had minimal contact with the child. The trial court
found that
w
hen Respondent was not incarcerated, he did not
exercise the visitation allowed by the court and his visits began
“slacking off” in 2000 and 2001.
Although Respondent wrote his
parents letters three times per month while incarcerated,
Respondent sent only one letter to the child during his seven-monthperiod of incarceration in 2002, and failed to acknowledge the
child's birthday in August 2002.
Upon his release from jail in
2002, Respondent made one attempt to visit with the child, and
Petitioner refused. Respondent never pursued any legal action to
enforce his visitation rights.
Even after the filing of the
termination petition in September 2002, Respondent sent a total of
three letters to the child since his incarceration in February 2003
to the date of the termination hearing on 4 June 2004.
We hold
that this evidence is clear, cogent, and convincing to support the
conclusion by the trial court that the child is a neglected
juvenile.
See N.C. Gen. Stat. § 7B-1111(a)(1).
Because we find there were grounds to terminate Respondent's
parental rights under section 7B-1111(a)(1) of the North Carolina
General Statutes, we need not address Respondent's remaining
assignments of error.
See Owenby v. Young, 357 N.C. 142, 145, 579
S.E.2d 264, 267 (2003)
(“[t]he finding of any one of the grounds is
sufficient to order termination.”).
Affirmed.
Judges HUNTER and JACKSON concur.
Report per Rule 30(e).
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