IN THE MATTER OF: Randolph County
J.T.R., No. 05 J 163
Shaun L. Hayes, for petitioner-appellee mother.
Terry F. Rose, for respondent-appellant father.
Scott N. Dunn, for Guardian ad Litem.
Minor child J.T.R. is the biological child of respondent and petitioner. Respondent and petitioner are divorced, and petitioner has legal and physical custody of J.T.R.
On 30 June 2005, petitioner filed a petition seeking to terminate respondent-father's parental rights. Petitioner cited in the petition that respondent had admitted to on more than one occasion . . . touching of his genital area against the genital area of [two juveniles who] were residing in the family home . . .. The above acts were the basis for defendant's convictions in October 2000 for committing ten counts of taking indecent libertieswith a minor child and four counts of raping a minor child. Petitioner asserted that respondent was sentenced to fifty years imprisonment and would not be eligible for parole until he had served forty years of his sentence. Petitioner also claimed that respondent had not seen J.T.R. since November 1999 when the child was two years of age. Petitioner alleged as grounds for termination that: (1) respondent was incapable of providing for the proper care and supervision of J.T.R., and that there was a reasonable probability that such incapability would continue for the foreseeable future; (2) respondent committed a felonious assault that resulted in serious bodily injury to another child who resided in the home; and (3) respondent willfully abandoned the child for at least six consecutive months immediately proceeding the filing of the petition.
On 20 April 2006, hearings were held on the petition to terminate respondent's parental rights. The trial court made the following findings of fact:
11. The respondent has been incarcerated since October 2000 at which time he was sentenced to serve a minimum of 230 months and maximum of 285 months (40 to 50 years). The minor child will be at least 42 years old when the respondent is eligible to be released from prison. The respondent cannot provide for the proper care and supervision of the minor child during the child's minority.
12. The respondent has not seen the minor child since November 17, 1999 when the child was two years old.
13. The respondent was convicted of . . .[several] felony . . . sex offense[s]. The victims were the stepdaughter (daughter of the petitioner) of the respondent who was only 8 years old atthe time and a neighbor child. [J.T.R.] . . . was residing in the family home when these acts occurred. . . .
14. The respondent has sent cards and letters to the minor child on an average of 4 . . . per year. He has sent 3 letters since July 2005.
15. The respondent has not contributed to the support of the minor child since 1999. Neither has his family. He earns $.70 to $1.00 per day and does not contribute any of that to the support of the minor child. He has the opportunity to earn $7.00 to $8.00 per hour but he has not applied for the work.
The trial court concluded, based on the above findings by clear, cogent and convincing evidence, that:
respondent father has willfully neglected the minor child at that term is defined in NCGS 7B-101(15) in that respondent abandoned the minor child by his willful actions which caused his incarceration, that the respondent has not provided and can not provide during the child's minority proper care and supervision. . . .
The court further concluded that it was in the children's best interest that respondent's parental rights be terminated. Respondent appeals.
Respondent first argues that the trial court erred by finding that there were grounds to support the termination of his parental rights. We disagree.
G.S. § 7B-1111 sets out the statutory grounds for terminating parental rights. A finding of any one of the separately enumerated grounds is sufficient to support a termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990). [T]he party petitioning for the termination must show by clear, cogent, and convincing evidence that grounds authorizing the termination ofparental rights exist. In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997).
In the case sub judice, the trial court concluded that respondent had willfully neglected J.T.R. as neglect is defined by G.S. § 7B-101(15) . See G.S. 7B-1111(a)(1). We find clear, cogent and convincing evidence to support the trial court's findings of fact and conclusion of law.
G.S. § 7B-101(15) includes in its definition of a neglected juvenile [a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker. Here, the uncontradicted evidence supports the trial court's finding that respondent will be incarcerated until the minor child is at least forty-two years old. The trial court properly considered respondent's incarceration in making its determination that he would be unable to provide proper care and supervision for the child. See In re P.L.P., 173 N.C. App. 1, 11, 618 S.E.2d 241, 247 (2005), affd, 360 N.C. 360, 625 S.E.2d 779 (2006) (father would be incarcerated for approximately ten more years, at which time juvenile would have reached the age of majority, and child cannot be placed with his father during his incarceration) ; In re Williams, 149 N.C. App. 951, 960-61, 563 S.E.2d 202, 207 (2002)(court considered the fact that respondent's incarceration would likely continue for another twenty years in concluding that sufficient evidence supported the trial court's findings of facts and conclusions of law).
Nonetheless, [a] court cannot rely 'solely' on the commissionof a crime and subsequent incarceration in making its determination of neglect. In re A.E., 171 N.C. App. 675, 683, 615 S.E.2d 53, 59 (2005) (citing In re Williamson, 91 N.C. App. 668, 678, 373 S.E.2d 317, 322 (1988)). In addition to respondent's lengthy incarceration, he failed to provide any financial support to the minor child. Respondent's limited income may have prevented him from more fully supporting the child; however, the court found that respondent had the opportunity in prison to earn $7.00 to $8.00 per hour, but did not apply for the work. A review of the record reveals that respondent did apply for the work, but withdrew his application because there was a lengthy waiting list. Notwithstanding respondent's explanations, his withdrawal of the application could be properly considered as some evidence of an intent to withhold financial support. Moreover, the trial court found that respondent had not seen the child since November, 1999. While petitioner testified she refused respondent's requests to take J.T.R. to the prison facility, there was no evidence presented to suggest that respondent had either made efforts to speak by telephone with J.T.R., or had asked the court to compel visits with J.T.R. at the prison. On this record, we conclude that the trial court's findings of fact are supported by competent evidence, and that they support a conclusion that respondent neglected the minor child.
Respondent next argues that the trial court erred by determining that termination of his parental rights was in the best interests of the child. We reject this argument. Once the trial court has found that grounds exist to terminate parental rights, the court shall determine whether terminating the parent's rights is in the juvenile's best interest. G.S. § 7B- 1110(a). The trial court's decision to terminate parental rights at the disposition stage is discretionary. See In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). Here, respondent will be incarcerated until at least 2040, long after the juvenile will have attained his majority. Moreover, the trial court found that:
the present husband of the petitioner loves the minor chid and has filled the [role] of father to the minor child for at least the past five years and has known him since his birth. The minor child calls him Dad. He taught him to fish, takes him to church on Wednesdays and Sundays, helps him with his homework, and plays ball and other games with him. [He] thinks of [the minor child] as his son and wants to adopt him.
Based on these findings, we conclude that the trial court did not abuse its discretion in determining that termination was in the child's best interest. We have considered respondent's remaining arguments and find them to be without merit. Accordingly, the order for termination of parental rights is
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).
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