Opinion
No. COA11-111
Filed 5 July 2011 This case not for publication
Appeal by petitioner from orders entered 18 March 2010 and 19 October 2010 by Judge Kimberly Y. Best-Staton in Mecklenburg County District Court. Heard in the Court of Appeals 24 May 2011.
Thurman, Wilson, Boutwell Galvin, P.A., by W. David Thurman, for petitioner-appellant. Appellate Defender Staples Hughes, by Assistant Appellate Defender Annick Lenoir-Peek, for respondent-appellee.
Mecklenburg County No. 09 J 337.
Petitioner Christian Adoption Services, Inc. appeals from an order denying its petition to terminate respondent father's parental rights to J.C. ("Jason") and from an order denying petitioner's motion for a new trial and placement pending appeal. Jason's biological mother relinquished her parental rights to petitioner, petitioner placed Jason with a prospective adoptive family, and petitioner filed a petition to terminate respondent father's parental rights.
The pseudonym "Jason" is used throughout this opinion to protect the minor's privacy and for ease of reading.
Although the trial court concluded that petitioner failed to meet its burden of proof on the grounds for termination alleged in the petition — neglect, abandonment, and failure to pay a reasonable portion of the child's care — the court's findings of fact (unchallenged by respondent father) establish as a matter of law that respondent father willfully failed to provide support for his child for a period of six months prior to the filing of the petition, although he was financially able to do so. We must, therefore, reverse the trial court's order denying the petition. Because at least one ground exists for terminating respondent father's parental rights, we remand for the trial court to conduct a dispositional hearing and decide whether termination of respondent father's parental rights is in Jason's best interests.
Facts
The trial court made the following findings of fact. Jason was born in 2004 in Greensboro, North Carolina. Respondent father has been incarcerated most of Jason's life other than for a nine-month period from January 2006 until October 2006, a six-month period from January 2007 until June 2007, and a four-month period from July 2007 until November 2007. Respondent father has been convicted of more than 30 offenses, including multiple convictions for felony breaking and entering, for felony possession of stolen goods, and for felony larceny. He has also been convicted of misdemeanor child abuse and identity fraud. He is currently scheduled to be released from prison in the year 2047.
From August 2004 until January 2006, Jason lived with his mother and her two other children either at his mother's residence or with his maternal grandmother. In 2006, Jason lived with respondent father for a couple of months, but for the remainder of 2006 and from October 2006 until January 2007, he lived with his mother either at his mother's residence or at the maternal grandmother's residence. From January 2007 until November 2007, Jason lived with respondent father on the campus of UNC Greensboro or with respondent father and his respondent father's girlfriend in an apartment.
From November 2007 until August 2008, Jason again lived with his mother either at her home or with his maternal grandmother at the grandmother's home. In August 2008, Jason's mother "had become overwhelmed with caring for her children without additional support from her family and decided to relinquish her parental rights." Jason's mother placed him and his younger brother with petitioner on 6 August 2008, in order to permit their adoption. Petitioner is a private adoption agency located in Mecklenburg County, North Carolina. Five days later, the mother revoked the surrender, only to change her mind again on 18 August 2008 when she executed a second relinquishment to adoption. Petitioner placed the two boys together with a prospective adoptive family in Minnesota on 19 August 2008.
The younger brother, who has a different father than Jason, was not involved in this proceeding.
According to the trial court, there was no child support order in effect requiring respondent father to pay for Jason's support, and "[f]rom November[] 2007 until August[] 2008 and continuing to time of trial, the father did not contribute financially to the care of the child." Respondent father, however, maintained a trust fund balance in jail and "testified that he had the ability to provide support for any of his children at any time. . . ." He acknowledged that if his children had a need, he would send money orders or other items to those children to meet their needs — he sent money orders, clothing, and gifts to his children other than Jason on a number of occasions after his incarceration in November 2007. Jason's mother testified that at the time she placed Jason with petitioner, she did not have the financial means to care for him and was not receiving support from either her family or from respondent father.
From November 2007 until April 2009, respondent father telephoned the maternal grandmother or Jason's aunt several times. On multiple occasions, the grandmother and the aunt informed respondent father that Jason was fine. When Jason's mother relinquished her rights to Jason, she informed petitioner that respondent father was incarcerated "`somewhere in North Carolina.'" Respondent father did not learn that Jason was living in Minnesota until he was served with the termination of parental rights petition in April 2009.
Petitioner made no attempt to locate or contact respondent father before placing Jason with the family in Minnesota. On 19 May 2009, petitioner filed a petition in Mecklenburg County District Court to terminate the parental rights of respondent father, who was identified as Jason's biological father. Petitioner sought to terminate respondent father's parental rights on the grounds of: (1) neglect of the child, N.C. Gen. Stat. § 7B-1111(a)(1) (2009); (2) failure to pay a reasonable portion of the cost of the child's care, N.C. Gen. Stat. § 7B-1111(a)(3); and (3) willful abandonment of the child for at least six months immediately preceding the filing of the petition, N.C. Gen. Stat. § 7B-1111(a)(7).
The trial court conducted a hearing on the petition on 5 January 2010. The court entered an order on 18 March 2010 in which it concluded that petitioner failed to establish any of the three grounds by clear, cogent, and convincing evidence. Accordingly, the court denied the petition to terminate respondent father's parental rights.
On 30 March 2010, petitioner filed a motion for a new trial, or alternatively, to amend the judgment. Petitioner alleged that respondent father engaged in misconduct, that there was newly discovered evidence, and that the evidence was insufficient to justify the verdict. This motion was heard on 9 July 2010, and the trial court entered an order on 19 October 2010 denying the motion. Petitioner filed notice of appeal from the two orders on 29 October 2010 and an amended notice of appeal on 1 November 2010.
Discussion
Petitioner contends that the trial court erred by failing to find the existence of any ground to terminate respondent father's parental rights. A proceeding to terminate parental rights consists of two stages, an adjudicatory phase followed by a dispositional phase. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). In the adjudicatory stage, the petitioning party must show by clear, cogent, and convincing evidence that grounds authorizing termination of parental rights exist. In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997). If one of the grounds to terminate parental rights exists, the trial court moves on to the dispositional stage, where the trial court determines whether termination of parental rights is in the best interests of the child. In re Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908.
We review the trial court's order to determine whether the findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law. In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6, disc. review denied sub nom. In re D.S., 358 N.C. 543, 599 S.E.2d 42 (2004). Conclusions of law are reviewed de novo. In re J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006).
We first address petitioner's contention that the court erred by concluding that petitioner did not meet its burden of proving that respondent father failed to pay a reasonable portion of the cost of the care of the child while in foster care. In order to terminate parental rights on this ground, the petitioner must show that (1) the juvenile had been placed in the custody of a county department of social services, a licensed child-placing agency, a child-caring institution, or a foster home, and (2) for a continuous period of six months next preceding the filing of the petition or motion, the parent has willfully failed for such period to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so. N.C. Gen. Stat. § 7B-1111(a)(3).
Here, the trial court made the following unchallenged findings of fact:
20. From November, 2007 until August, 2008 and continuing to time of trial, the father did not contribute financially to the care of the child. There is no child support order in effect in any jurisdiction for the father to pay money for the care of the child. Further,
a. The father maintained a trust fund balance in jail,
b. The father testified that he had the ability to provide support for any of his children at any time,
c. The father testified that if his children had a need, he sent money orders or other items to those children to meet their need,
d. The father testified that a number of times after his incarceration in November, 2007, he sent money orders, clothing, and gifts to his other children[,]
e. At the time of placement of the minor child with the petitioner, the mother of the minor child testified that she did not have the financial means to care for the minor child and was not receiving support from either her family or from the Respondent Father,
f. At the time of placement of the minor child, the mother of the minor child stated that she was unable to care for the minor child and could not provide for the needs of the minor child,
g. From November, 2007 until the present time, Respondent Father has had financial means despite his incarceration.
h. Respondent father provided nothing for the support of the minor child, [Jason], or for [Jason's] mother from November, 2007 until the present time.
These findings of fact are unchallenged and thus "are deemed to be supported by sufficient evidence and are binding on appeal." In re M.D., N.D., 200 N.C. App. 35, 43, 682 S.E.2d 780, 785 (2009).
Notwithstanding these findings of fact, the court made the following conclusion of law:
3. The petitioner has failed to prove by clear, cogent and convincing evidence of [sic] Willfully Failing to pay a reasonable portion of the cost of care of the juvenile because:
a. Father was unemployed while incarcerated.
b. There was no Child Support order entered in any jurisdiction on behalf of this child.
c. Even if there was a failure to pay, said failure was not willful because the father did not know that the child was in the custody of the Petitioner until the petition was filed 1) despite multiple inquiries regarding the condition of the child, to the mother, which the mother chose to ignore, and to the mother's family, which responded that the juvenile was "fine[,]" 2[]) because petitioner, despite having reasonable grounds to believe that the father was incarcerated "somewhere in North Carolina", failed to investigate any further regarding the whereabouts or intent of the father.
d. Despite multiple reasonable opportunities to inform the father of the whereabouts and condition of the child, mother chose not to.
e. Despite multiple reasonable opportunities to inform the father of the whereabouts and condition of the child, the mother's family members chose to respond that the child was "fine".
f. Respondent father has had financial means despite his incarceration.
g. Respondent Father provided nothing for the support of the minor child, [Jason], or for [Jason's] mother from November, 2007 until the present time.
We hold that this conclusion of law was not supported by the findings of fact. The trial court found — and respondent father does not dispute — that he had the ability to pay some amount of support for Jason, but still paid nothing during the six months prior to the filing of the petition to terminate his parental rights. It is well established that nonpayment constitutes a failure to pay a reasonable portion if the "respondent [was] able to pay some amount greater than zero." In re Bradley, 57 N.C. App. 475, 479, 291 S.E.2d 800, 802 (1982). See also In re T.D.P., 164 N.C. App. 287, 290, 595 S.E.2d 735, 738 (2004) ("In the instant case, there was clear and convincing evidence that respondent had an ability to pay an amount greater than zero. As discussed above, the trial court noted that although respondent's wages were meager, he was nevertheless being paid for his work in the prison kitchen. Respondent therefore had an ability to pay some portion of the costs of T.D.P.'s foster care."), aff'd per curiam, 359 N.C. 405, 610 S.E.2d 199 (2005).
The trial court in this case, however, appears to have concluded that there was no failure to pay because, as the order states, "[t]here was no Child Support order entered in any jurisdiction on behalf of this child." Our appellate courts, however, have previously held that the absence of a court order requiring a parent to pay a reasonable portion of the cost of care or lack of knowledge does not relieve a parent of the obligation to support his or her child or prevent termination of his parental rights for failure to pay support. See id. at 289, 595 S.E.2d at 737. See also In re Wright, 64 N.C. App. 135, 139, 306 S.E.2d 825, 827 (1983) (rejecting father's claim that his parental rights should not be terminated because he was not given notice of any requirement to pay support). The trial court's reliance on the lack of a child support order is, therefore, in error.
The trial court then concluded that "[e]ven if there was a failure to pay, said failure was not willful because the father did not know that the child was in the custody of the Petitioner" during the pertinent time frame since Jason's mother and other family members had chosen not to tell him. Yet, the issue here is not about whether respondent father paid support to petitioner, but about whether respondent father paid a reasonable portion of the cost of his son's care. Respondent father has cited no authority, and we have found none, suggesting that the findings regarding the failure to notify respondent father of the location of his son precludes a finding of willfulness.
In In re Becker, 111 N.C. App. 85, 94, 431 S.E.2d 820, 826 (1993), the trial court similarly concluded that the petitioner had failed to prove that the father's failure to pay child support was willful because he was incarcerated and medically disabled. This Court, however, noted that the evidence showed that during the relevant six-month period, the father had received unemployment benefits and an income tax refund. Id. The Court held "that the evidence was sufficient to show that respondent father had the ability to pay some support during the six month period preceding the filing of the petition, despite his incarceration and his alleged medical disability" and, therefore, "[t]he trial court erred in granting the father's motion to dismiss. . . ." Id.
Here, the unchallenged findings of fact establish that respondent father had financial means despite his incarceration, but still did not pay anything towards Jason's care. While respondent father argues that the trial court did not make any findings of willfulness, we cannot fully agree. The trial court did not use the word "willful," but the court specifically found that "[t]he father testified that he had the ability to provide support for any of his children at any time" and that he had during the relevant time frame sent "money orders, clothing, and gifts to his other children[.]" These findings of fact that respondent father acknowledged his ability to pay and his willingness to pay support for other children while not paying any sums for the support of Jason, although he could have sent the support to either Jason's mother or grandmother, establish a willful failure to pay support.
Accordingly, we hold that the trial court's findings of fact do not support its conclusion of law that petitioner failed to prove by clear, cogent, and convincing evidence that respondent father willfully failed to pay a reasonable portion of the cost of care for this child. We, therefore, reverse and remand. Because we have concluded that the trial court's findings of fact establish the existence of one ground to terminate respondent father's parental rights, the trial court must on remand move to the dispositional stage and, after considering the factors set out in N.C. Gen. Stat. § 7B-1110(a) (2009), determine whether termination of respondent father's parental rights is in Jason's best interests. In re Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908. Because of our resolution of this appeal, we do not address petitioner's remaining arguments.
Reversed and remanded.
Judges McGEE and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).