Opinion
No. COA12–1014.
2013-03-19
In the Matter of J.M. and J.N.J.
No brief for Robeson County Department of Social Services, petitioner-appellee. Michael N. Tousey for guardian ad litem.
Appeal by respondent from orders entered 25 April 2012 by Judge John B. Carter, Jr. in Robeson County District Court. Heard in the Court of Appeals 18 February 2013. No brief for Robeson County Department of Social Services, petitioner-appellee. Michael N. Tousey for guardian ad litem.
Mary McCullers Reece for respondent-mother.
HUNTER, ROBERT C., Judge.
Respondent is the mother of five children. The oldest, J.M., and the youngest, J.N.J., are the subject of this appeal. On 5 September 2008, the Robeson County Department of Social Services (“DSS”) filed a juvenile petition alleging J.M. and J.N.J. were neglected. DSS also obtained nonsecure custody of J.M. and J.N.J. By order entered 16 January 2009, the court adjudicated J.M. and J.N .J. neglected.
On 15 March 2011, DSS filed a petition to terminate respondent's parental rights to J.M. On 18 April 2011, DSS filed a petition to terminate respondent's parental rights to J.N.J. The petitions alleged grounds existed to terminate respondent's parental rights because she: (1) failed to cooperate with DSS for the return of the juvenile; (2) willfully left the juvenile in custody of DSS in foster care for at least twelve months; and (3) had not paid child support towards the care of the juvenile.
The matter came on for a termination of parental rights hearing on 21 March 2012. In its termination orders filed 25 April 2012, the trial court concluded grounds existed to terminate respondent's parental rights because she “willfully left the juvenile[s] in custody of the Department in foster care for a period of 12 months without making reasonable if any efforts to get the child [ren] back,” and “paid no child support towards the care of the juveniles eventhough [sic] able to pay.” The trial court further determined that termination of respondent's parental rights was in the best interests of J.M. and J.N.J. Respondent appeals from the orders terminating her parental rights.
“The standard for review in termination of parental rights cases is whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the conclusions of law.” In re Clark, 72 N.C.App. 118, 124, 323 S .E.2d 754, 758 (1984).
Respondent first argues the trial court erred in concluding she willfully failed to pay child support towards the care of J.M. and J .N.J. during the six months preceding the filing of the petitions. We agree.
The trial court may terminate parental rights where:
The juvenile has 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 the parent, for a continuous period of six months next preceding the filing of the petition or motion, 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) (2011). “A finding that a parent has ability to pay support is essential to termination for nonsupport on this ground.” In re Ballard, 311 N.C. 708, 716–17, 319 S.E.2d 227, 233 (1984) (citing In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981)). No such finding was made in the present case. Nowhere in the court's findings of fact does the court address respondent's ability to pay support. The trial court's findings of fact do not support the conclusion that respondent willfully failed to pay child support. Accordingly, the trial court erred in terminating respondent's parental rights on this ground.
Respondent next argues the trial court erred in concluding that she willfully left J.M. and J.N.J. in foster care for a period of twelve months without making reasonable progress. Again, we agree.
A trial court may terminate parental rights where “[t]he parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile.” N.C. Gen.Stat. § 7B–1111(a)(2). “Willfulness is established when the respondent had the ability to show reasonable progress, but was unwilling to make the effort.” In re McMillon, 143 N.C.App. 402, 410, 546 S.E.2d 169, 175,disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001).
In the present case, there is no dispute that J.M. and J.N.J. had been in foster care for more than twelve months at the time the petitions to terminate parental rights were filed. However, the trial court's orders are devoid of findings of fact showing that respondent acted “willfully” or that she had the ability to show reasonable progress but was unwilling to make the effort. The trial court's findings of fact do not support the conclusion that respondent willfully left J.M. and J.N.J. in foster care. We conclude that the trial court erred in terminating respondent's parental rights on this ground. See In re C.C., 173 N.C.App. 375, 383–84, 618 S.E.2d 813, 819 (2005) (reversing when order included no finding of willfulness or that respondent was unwilling to make the effort).
In summary, the trial court erred in concluding that grounds existed to terminate respondent's parental rights on the basis that she willfully left the children in foster care and willfully failed to pay child support. In light of our decision, we do not address respondent's remaining arguments. The trial court's orders terminating respondent's parental rights are reversed.
Reversed. Judges McGEE and ELMORE concur.
Report per Rule 30(e).