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Domestic Relations — Parent & Child – Termination of Parental Rights – Dependency – Incarceration

In re L.R.S. (Lawyers Weekly No. 14-07-0979, 11 pp.) (Douglas McCullough, J.) Appealed from Surry County District Court (David Byrd, J.) N.C. App.

Holding: At the time of the termination-of-parental-rights hearing, respondent was not scheduled to be released from federal custody for at least 13 months, and she potentially faced up to 30 additional months’ imprisonment. Respondent’s extended incarceration is clearly sufficient to constitute a condition that rendered her unable or unavailable to parent the minor child, “Lilly.”

We affirm the termination of parental rights.

Respondent asserts that the ground of dependency is only properly found where the evidence shows that the incapability to parent will continue throughout the child’s minority. However, respondent relies on case law construing a prior version of the relevant statute. The trial court applied the current standard and properly found that there is a reasonable probability that such incapability will continue for the foreseeable future.

Respondent also argues that the trial court erred in concluding that the ground of dependency existed where DSS presented no evidence of mental illness or disability that would render her incapable of parenting in the foreseeable future. However, the current version of G.S. § 7B-1111(a)(6) permits dependency to be based on “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….”

Respondent suggested placing Lilly with a couple who had adopted another of respondent’s children. Given the couple’s prior decision to decline the placement and lack of evidence at the termination hearing that they were willing and able to care for Lilly, we cannot say the trial court erred in finding that respondent had not proposed an alternative child care arrangement for Lilly. Accordingly, we hold the trial court’s findings of fact support its conclusion that grounds to terminate respondent’s parental rights existed pursuant to G.S. § 7B-1111(a)(6).


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