IN THE MATTER OF: Randolph County
J.T.R., No. 05 J 163
Minor Child.
Shaun L. Hayes, for petitioner-appellee mother.
Terry F. Rose, for respondent-appellant father.
Scott N. Dunn, for Guardian ad Litem.
LEVINSON, Judge.
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
Affirmed.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).
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