Opinion
No. COA14–857.
02-17-2015
In The Matter of: J.P., C.P., P.P., and G.P.
Cumberland County Department of Social Services, by Christopher L. Carr, for petitioner-appellee. Levine & Stewart, by James E. Tanner III, for respondent-appellant mother. Richard Croutharmel, for respondent-appellant father. Beth A. Hall, for guardian ad litem.
Cumberland County Department of Social Services, by Christopher L. Carr, for petitioner-appellee.
Levine & Stewart, by James E. Tanner III, for respondent-appellant mother.
Richard Croutharmel, for respondent-appellant father. Beth A. Hall, for guardian ad litem.
STROUD, Judge.
Respondent-mother and respondent-father appeal from an order terminating their parental rights to their four sons, J.P. (“Jacob”), C.P. (“Charles”), P.P. (“Paul”), and G.P. (“Greg”). Because the trial court's findings of fact are sufficient to support at least one ground for termination, failure to pay a reasonable portion of the juveniles' costs of care, we affirm the trial court's order.
Pseudonyms are used to protect the identity of the juveniles and for ease of reading.
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I. Background
On 23 April 2010, the Cumberland County Department of Social Services (“DSS”) filed a juvenile petition alleging that Jacob, Charles, and Paul were neglected and dependent. DSS alleged that respondents' home was infested with roaches and was unsanitary and unfit for the children. DSS further alleged that respondents suffered from various mental health issues. On 23 April 2010, DSS obtained non-secure custody of the three juveniles. On 20 July 2010, the trial court adjudicated the three juveniles dependent pursuant to respondents' stipulation and ordered that the juveniles remain in DSS custody.
On 11 February 2011, Greg was born to respondents. On 21 November 2011, DSS filed a juvenile petition alleging that Greg was neglected and dependent. DSS alleged that respondents lacked the appropriate parenting skills to care for Greg. On 21 November 2011, DSS obtained non-secure custody of Greg. On 26 March 2012, in a permanency planning order in Jacob, Charles, and Paul's case, the trial court directed DSS to cease reunification efforts and set the permanent plan for the three children as adoption or custody with a court-approved caretaker. On 4 June 2012, the trial court adjudicated Greg neglected and dependent and directed DSS to cease reunification efforts and to proceed with terminating respondents' parental rights as to Greg. Respondents appealed this order. On 1 October 2012, in a permanency planning order, the trial court directed DSS to proceed with terminating respondents' parental rights as to Jacob, Charles, and Paul “at the appropriate time.” On 19 February 2013, this Court affirmed the trial court's 4 June 2012 order. In re G.P.,–––N.C.App. ––––, 738 S.E.2d 453 (2013) (unpublished).
On or about 28 June 2013, DSS filed a petition to terminate respondents' parental rights as to all four juveniles and alleged, in addition to neglect and dependency, that respondents (1) had willfully failed to pay a reasonable portion of the juveniles' cost of care although physically and financially able to do so; and (2) had willfully left the juveniles in placement outside the home for more than twelve months without demonstrating reasonable progress in correcting the conditions which led to the removal of the juveniles. SeeN.C. Gen.Stat. § 7B–1111(a)(1)–(3), (6) (2013). The trial court conducted a three-day hearing beginning 25 March 2014. At the hearing, respondent-mother testified that she receives $539 per month in social security benefits and works at least forty hours per week at a rate of $7.65 per hour. She also testified that she was unemployed from 14 April 2013 to 30 December 2013 due to health issues. Respondent-father testified that he receives $672 per month in social security benefits.
On or about 2 May 2014, the trial court found the existence of all four grounds for termination alleged by DSS and terminated respondents' parental rights. On 16 May 2014, respondent-father filed a notice of appeal, and on 23 May 2014, respondent-mother filed a notice of appeal.
II. Standard of Review
Termination of parental rights proceedings are conducted in two stages: adjudication and disposition. In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). “In the adjudication stage, the trial court must determine whether there exists one or more grounds for termination of parental rights under N.C. Gen.Stat. § 7B–1111(a).” In re D.H.,–––N.C.App. ––––, ––––, 753 S.E.2d 732, 734 (2014) ; see alsoN.C. Gen.Stat. § 7B–1109(e) (2013). This Court reviews a trial court's conclusion that grounds exist to terminate parental rights to determine whether clear, cogent, and convincing evidence exists to support the court's findings of fact, and whether the findings of fact support the court's conclusions of law. In re Huff, 140 N.C.App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed and disc. rev. denied, 353 N.C. 374, 547 S.E.2d 9 (2001). “If the trial court's findings of fact are supported by ample, competent evidence, they are binding on appeal, even though there may be evidence to the contrary.” In re S.C.R., 198 N.C.App. 525, 531, 679 S.E.2d 905, 909 (quotation marks omitted), appeal dismissed,363 N.C. 654, 686 S.E.2d 676 (2009). However, “[t]he trial court's conclusions of law are fully reviewable de novoby the appellate court.” In re S.N., X.Z.,194 N.C.App. 142, 146, 669 S.E.2d 55, 59 (2008) (quotation marks omitted), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).
III. Failure to Pay a Reasonable Portion of Costs
On appeal, respondents challenge all four of the trial court's grounds for termination of their parental rights. But if we determine that the findings of fact support one ground for termination, we need not review the other challenged grounds. See In re Humphrey, 156 N.C.App. 533, 540, 577 S.E.2d 421, 426–27 (2003). After reviewing the record, we conclude that the trial court's findings of fact are sufficient to support at least one ground for termination, failure to pay a reasonable portion of the juveniles' costs of care pursuant to N.C. Gen.Stat. § 7B–1111(a)(3), which provides:
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). In determining what constitutes a “reasonable portion” of the cost of care for a child, the parent's ability to pay is the controlling characteristic. In re Clark, 151 N.C.App. 286, 288, 565 S.E.2d 245, 247, disc. rev. denied,356 N.C. 302, 570 S.E.2d 501 (2002). “[N]onpayment constitutes a failure to pay a reasonable portion if and only if respondent is able to pay some amount greater than zero.”Id.at 289, 565 S.E.2d at 247 (quotation marks omitted). Although “what is within a parent's ability to pay or what is within the means of a parent to pay is a difficult standard which requires great flexibility in its application,” the requirement to pay a reasonable portion of costs applies “irrespective of the parent's wealth or poverty.” In re T.D.P., 164 N.C.App. 287, 290, 595 S.E.2d 735, 738 (2004) (quotation marks omitted), aff'd per curiam,359 N.C. 405, 610 S.E.2d 199 (2005).
A child support order is not necessary to require a parent to pay a portion of the costs of care; ignorance of this duty is not a valid defense. Id.at 289, 595 S.E.2d at 737.
Here, the trial court made the following findings of fact:
35. The Respondent Mother and the Respondent Father each receive SSI/SSA benefits. The Respondent Mother receives approximately $539 .00 per month in benefits. The Respondent Mother earns $7.65 per hour working 40 hours per week, sometimes working double shifts. The Respondent Mother is a payee for the Respondent Father's SSI. The Respondent Mother brings home approximately $700.00 to $800.00 per month after taxes. The Respondent Mother has been employed for some time; however, the Respondent Father has not maintained any employment. The Respondent Father receives $632.00 per month in SSI/SSA benefits. The total monthly income would be around $2,000.00 per month with an additional $157.00 in food stamps. Their expenses include rent of $525.00, pet food at $30.00, a high electric bill of $305.00, and expenses to the Maternal Grandmother between $100.00 to $140.00. That leaves approximately $700.00 to $800.00 per month in disposable income. That the Respondent Father indicated that his past criminal history makes finding employment difficult. That the Respondent Father indicated that he had a past charge for assault on a female and that charge was dismissed. The Respondent Father has not put effort toward addressing his issues and finding at least some type of employment to provide for his family.
....
41. That neither of the Respondents has provided substantial financial support for the juveniles since they came into the custody of [DSS]. That there are no known reasons why the Respondents cannot provide financial support for the juveniles. That the Respondents are physically and financially able to provide support to the juveniles. That each of the Respondents are able to provide some amount greater than zero but have willfully failed to do so.
On appeal, respondents do not contest the trial court's finding that they did not provide any financial support.
Relying on In re Anderson,respondent-father first contends that Finding of Fact 35 is a mere recitation of DSS's allegations A28, B28, and D28 in its petition to terminate parental rights. 151 N.C.App. 94, 96–97, 564 S.E.2d 599, 601–02 (2002). DSS's allegations A28, B28, and D28 state that
[t]he Respondents lack income sufficient to support four (4) children. The Respondent Mother and the Respondent Father receive SSI. The Respondent Mother is a payee for the Respondent Father's SSI. The Respondent Mother has been employed at a Hardee['s] restaurant for some time; however, the Respondent Father has not maintained any employment. The Respondent Father has not put effort toward addressing his issues and finding at least some type of employment to provide for his family.
Yet this case is not comparable to Anderson.There, we found the adjudication order to be inadequate where it contained only three findings of fact. Id.at 97, 564 S.E.2d at 602. The first two findings addressed the fact that DSS had filed a petition for termination of parental rights and that the respondent had been properly served. Id., 564 S.E.2d at 602. The third and last finding of fact began, “The grounds allegedfor terminating the parental rights are as follows:” and then listed in subsections a combination of grounds and case history. Id., 564 S.E.2d at 602 (emphasis added). We held:
As indicated by the word “alleged,” the findings are not the “ultimate facts” required by [North Carolina Rule of Civil Procedure] 52(a) to support the trial court's conclusions of law, but rather are mere recitations of allegations. As a result, we are unable to conduct a proper review of the findings.
Id., 564 S.E.2d at 602.
In contrast, the order here is a twenty-one page, single-spaced order with many detailed findings of fact which go far beyond the allegations of the petition. It is true that much of the evidence presented was consistent with the allegations of the petition, but that does not mean that the findings of fact were based on the allegations of the petition alone. The evidence presented at the hearing both supported those allegations and provided much more detail about respondents' ability to pay. The trial court's findings accurately reflected this evidence. Respondent-father testified that he receives $672 per month in social security benefits. Respondent-mother testified that she receives $539 per month in social security benefits and works at least forty hours per week at a rate of $7.65 per hour. Finding of Fact 35 is supported by clear, cogent, and convincing evidence and is not simply a mere recitation of DSS's allegation. See id.at 96–97, 564 S.E.2d at 601–02.
Respondent-father next contends that he was unable to pay some amount greater than zero, because his only source of income is $632 per month in social security benefits. Respondentmother similarly contends that she was unable to pay some amount greater than zero during the six-month period before DSS filed its petition on or about 28 June 2013, because she was unemployed from 14 April 2013 to 30 December 2013 due to health issues. It is true that respondent-mother was unable to work for a portion of the six-month period prior to the filing of the petition, but she was receiving social security income for the entire relevant time period. A parent's obligation to pay applies “irrespective of the parent's wealth or poverty.” T.D.P., 164 N.C.App. at 290, 595 S.E.2d at 738. Although neither respondent was able to provide full support for all four children, that is not the standard required; they were required to pay some reasonable amount of support, greater than zero, commensurate with their abilities. See id.at 290–91, 595 S.E.2d at 738. They chose to pay $30 per month for “pet food” but paid nothing toward the support of their children. Because each respondent-parent received social security income during the relevant time period, the trial court did not err in finding that respondents had the ability to pay some amount greater than zero. See id., 595 S.E.2d at 738.
Respondents also contend that the trial court erred in concluding that they willfully failed to pay a reasonable portion of costs, because the trial court never specifically ordered them to pay child support. But it has long been established that a child support order is not necessary to require a parent to pay a portion of the costs of care. Id.at 289, 595 S.E.2d at 737 (“Very early in our jurisprudence, it was recognized that there could be no law if knowledge of it was the test of its application. Too, that respondent did not know that fatherhood carries with it financial duties does not excuse his failings as a parent; it compounds them.”). Accordingly, we hold that the trial court did not err in concluding that respondents willfully failed to pay a reasonable portion of the costs of care for the juveniles.
Respondent-father further argues that the trial court “erred in viewing the parents as a combined entity with regards to paying financial support.” He points out that he had only social security income, while respondent-mother had both social security and earned income. In addition, he claims that if they had “contributed some of their disposable income to paying financial support to the children,” it is not clear to which party the support would be attributed. We agree with respondent-father that the trial court must consider each parent's abilities individually, but the findings of fact show that the court did just that. The findings address the income and ability to earn for each parent individually. The findings necessarily address the respondents' living expenses together because they reside in the same household. And since the respondents paid nothing at all toward the expenses of the children, the trial court had no need to consider the hypothetical question of how any support paid would be attributed. This argument is also without merit.
Because we hold that the findings of fact support one ground for termination, we need not review the other challenged grounds. See Humphrey, 156 N.C.App. at 540, 577 S.E.2d at 42627.
IV. Conclusion
For the foregoing reasons, we affirm the trial court's order terminating respondents' parental rights.
AFFIRMED.
Judges CALABRIA and McCULLOUGH concur.
Report per Rule 30(e).
Opinion
Appeal by respondent-mother and respondent-father from order entered on or about 2 May 2014 by Judge Edward A. Pone in District Court, Cumberland County. Heard in the Court of Appeals 2 December 2014.