Opinion
No. COA12–1572.
2013-06-18
In the Matter of C.J.B. and J.M.B.
Regina Floyd–Davis for petitioner New Hanover Department of Social Services. Windy H. Rose for respondent-father.
Appeal by respondent-father from order entered 24 October 2012 by Judge Jeffrey E. Noecker in New Hanover County District Court. Heard in the Court of Appeals 6 May 2013. Regina Floyd–Davis for petitioner New Hanover Department of Social Services. Windy H. Rose for respondent-father.
Deana K. Fleming for guardian ad litem.
BRYANT, Judge.
Where there was insufficient evidence supporting the termination of respondent-father's parental rights based on willful failure to pay a reasonable portion of the cost of care for a continuous period of six months preceding the filing of the petition to terminate parental rights, we reverse the order of the trial court.
Facts and Procedural History
On 5 August 2011, petitioner New Hanover County Department of Social Services filed a juvenile petition alleging Charles and Jacob (“the juveniles”) to be neglected juveniles in that they “[did] not receive proper care, supervision or discipline from the juvenile's parent, guardian, custodian, or caretaker” and that they had been “abandoned.” An order for nonsecure custody was entered that same day placing the juveniles in nonsecure custody with petitioner.
Pseudonyms have been used throughout this opinion to protect the identities of the juveniles.
On 26 October 2011, the trial court entered an order on adjudication and disposition finding the juveniles to be neglected as defined by section 7B–101(15) of the North Carolina General Statutes and ordering juveniles to remain in petitioner's legal custody. A review hearing was held on 8 December 2011, and a permanency planning hearing was held on 31 May 2012—both resulting in orders that continued to keep the juveniles in petitioner's legal custody.
On 6 August 2012, petitioner filed a petition to terminate the parental rights of respondent-father. The petition alleged that
A. [Respondent-father] has willfully left the Juveniles in foster care or placement outside of the home for more than twelve months without showing to the satisfaction of the Court that reasonable progress under the circumstances had been made in correcting the conditions of neglect which led to the removal of the Juveniles....
B. [Respondent-father] has neglected the Juveniles within the meaning of [N.C. Gen.Stat. § 7B–101(15) ]....
C. The [juveniles] [have] been in the custody of a County Department of Social Services, a licensed child placing facility, a child caring institution, or a foster home, and [respondent-father], for a continuous period of six months immediately prior to the filing of the [termination of parental rights] petition, has willfully failed, for such period, to pay a reasonable portion of the cost of care for the children although physically and financially able to do so.
Following a hearing held on 17 September 2012, the trial court entered an order on 24 October 2012 terminating the parental rights of respondent-father. The order made the following pertinent findings of fact:
1. [The juveniles] were born on March 30, 2010 in Wilmington, North Carolina. The twins have been in the legal custody of [petitioner] since 05 August 2011.
...
9. That [respondent-father] entered into a Voluntary Support Agreement and Order, ... wherein child support was established in the amount of two hundred, thirty-six dollars ($236.00) per month beginning 01 August 2010. [Repondent-father] has not made a payment since February of 2012, and as of 31 March 2012, is in arrears in the amount of four thousand, six hundred, twenty-three dollars and fifty-three cents ($4,623.53) ....
10. That [respondent-father] has been regularly employed and financially stable since April of 2012, at least four (4) months prior to the filing of the Petition to Terminate Parental Rights. He has been employed at First Class Moving Company with an income of approximately four hundred dollars ($400.00) per week. He also has employment with First Stage of America with a monthly income of six hundred dollars ($600.00). [Respondent-father]'s testimony is closely corroborative of the monthly amount he submitted to Social Worker Barbour, which was approximately twenty-three hundred dollars ($2,300)....
11. That [respondent-father] has been physically and financially able to make some payment towards his child support obligations; however, he has willfully not done so. He indicates through testimony that he has been paying court fees/obligations, probation fees/obligations and paying others to transport him to work and/or visitations.... He indicates his intent to retain an attorney to assist in the reinstatement of his driver's license. Since birth, [respondent-father] purchased each boy a toy truck, and on one occasion, prior to [petitioner's] intervention, purchased pampers for the boys.
12. [Respondent-father] does not suffer from any disability which would prevent him from earning an income. In fact, he has held consistent employment since April of 2012. He was employed prior to his incarceration, but did not pay reasonable support at any time during the [juveniles'] lives. In fact he has only paid child support for one (1) month of the thirteen (13) months that his children have been in the legal custody of [petitioner]. This, despite, the fact, that the existing child support obligation Order has been in effect since August 1, 2010, one year prior to the children coming into care.
...
16. [Petitioner] has proven by clear, cogent and convincing evidence that the Juveniles have been placed in the custody of [petitioner] and [respondent-father] has, for a continuous period of more than six months next preceding the filing of the petition, willfully failed to pay a reasonable portion of the cost of care for the Juveniles, although [respondent-father] was physically and financially able to do so.
The trial court then concluded that grounds existed to terminate respondent-father's parental rights:
that [juveniles] have been placed in the custody of a county department of social services, and [respondent-father] for a continuous period of more than six months next preceding the filing of the petition, has willfully failed for such period to pay a reasonable portion of the cost of care for [juveniles] although physically and financially able to do so.
The termination of respondent-father's parental rights to the juveniles was concluded to be in the juveniles' best interests. Respondent-father's parental rights were terminated. Respondent-father appeals.
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Respondent-father's sole issue on appeal is whether the trial court erred by terminating his parental rights to juveniles based on section 7B–1111(a)(3) of the North Carolina General Statutes which provides that:
(a) The court may terminate the parental rights upon a finding of one or more of the following:
...
(3) 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 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.G.S. § 7B–1111(a)(3) (2011).
“A proceeding to terminate parental rights consists of two stages: (1) the adjudicatory stage [ ], and (2) the dispositional stage[.]” In re V.L.B., 168 N.C.App. 679, 683, 608 S.E.2d 787, 790 (2005) (citation omitted).
A different standard of review applies to each stage. In the adjudicatory stage, the burden is on the petitioner to prove by clear, cogent, and convincing evidence that one of the grounds for termination of parental rights set forth in N.C. Gen.Stat. § 7B–111(a) exists. The standard for appellate review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether those findings of fact support its conclusions of law.... If the petitioner meets its burden of proving at least one ground for termination of parental rights exists under N.C. Gen.Stat. § 7B–1111(a), the court proceeds to the dispositional phase and determines whether termination of parental rights is in the best interests of the child. The standard of review of the dispositional stage is whether the trial court abused its discretion in terminating parental rights.
In re C.C., 173 N.C.App. 375, 380–81, 618 S.E.2d 813, 817 (2005) (citations omitted).
Respondent-father contends that he was incarcerated from October 2011 to April 2012 and that petitioner failed to provide any evidence that respondent-father was able to pay any amount greater than zero during his incarceration. Accordingly, respondent-father challenges findings of fact 11 and 16 which provide the following:
11. That [respondent-father] has been physically and financially able to make some payment towards his child support obligations; however, he has willfully not done so. He indicates through testimony that he has been paying court fees/obligations, probation fees/obligations and paying others to transport him to work and/or visitations.... He indicates his intent to retain an attorney to assist in the reinstatement of his driver's license. Since birth, [respondent-father] purchased each boy a toy truck, and on one occasion, prior to [petitioner's] intervention, purchased pampers for the boys.
...
16. [Petitioner] has proven by clear, cogent and convincing evidence that the Juveniles have been placed in the custody of [petitioner] and [respondent-father] has, for a continuous period of more than six months next preceding the filing of the petition, willfully failed to pay a reasonable portion of the cost of care for the Juveniles, although [respondent-father] was physically and financially able to do so.
Because the petition for terminating respondent-father's parental rights was filed 6 August 2012, the relevant time pursuant to § 7B–1111(a)(3) would be from 6 February 2012 to 6 August 2012. Therefore, based on respondent-father's challenge on appeal, the critical question before us is whether there was clear, cogent, and convincing evidence that respondent-father, for a continuous six month period prior to the filing of the petition for termination of parental rights willfully failed to pay a reasonable portion of the cost of care although physically and financially able to do so.
“In determining what is a ‘reasonable portion,’ the parent's ability to pay is the controlling factor.... A parent is required to pay that portion of the cost of foster care for the child that is fair, just and equitable based upon the parent's ability or means to pay.” In re Garner, 75 N.C.App. 137, 140, 330 S.E.2d 33, 35 (1985) (citation omitted). “The parents' economic status is merely a factor used to determine their ability to pay such costs, but their ability to pay is the controlling characteristic of what is a reasonable amount for them to pay.” In re T.D.P., 164 N.C.App. 287, 290, 595 S.E.2d 735, 738 (2004) (citation omitted) (emphasis added). “[N]onpayment constitutes a failure to pay a reasonable portion if and only if respondent[-father is] able to pay some amount greater than zero.” In re Clark, 151 N.C.App. 286, 289, 565 S.E.2d 245, 247 (2002) (citation and quotation marks omitted).
The record before this Court indicates that respondent-father was in and out of incarceration sporadically throughout the lives of the juveniles. However, respondent-father's argument that he was incarcerated continuously from October 2011 until April 2012 is not supported by the record. Rather, the record indicates that during the relevant six month time period prior to the filing of the petition for termination of parental rights, respondent-father was incarcerated from 20 February 2012 until sometime in April 2012.
The trial court found that respondent-father had been regularly employed and financially stable since April of 2012, at least four months prior to the filing of the Petition to Terminate Parental Rights—a finding which respondent-father does not challenge, and therefore, is binding on appeal.
He has been employed at First Class Moving Company with an income of approximately four hundred dollars ($400.00) per week. He also has employment with First Stage of America with a monthly income of six hundred dollars ($600.00). [Respondent-father]'s testimony is closely corroborative of the monthly amount he submitted to Social Worker Barbour, which was approximately twenty-three hundred dollars ($2,300)....
An unchalleged finding of fact also states that respondent-father “was employed prior to his incarceration, but did not pay reasonable support at any time during the [juveniles'] lives.” (emphasis added).
[Respondent-father] does not suffer from any disability which would prevent him from earning an income.... In fact he has only paid child support for one (1) month of the thirteen (13) months that his children have been in the legal custody of [petitioner]. This, despite the fact, that the existing child support obligation Order has been in effect since August 1, 2010, one year prior to the children coming into care.
However, the trial court failed to make any findings regarding respondent-father's ability to pay during the time he was incarcerated for the first two months of the relevant time period.
Respondent-father relies on the holding in In re Faircloth, 161 N.C.App. 523, 588 S.E.2d 561 (2003), for the assertion that the trial court failed to consider respondent-father's inability to pay support during the time he was incarcerated. In Faircloth, the order terminating the rights of the respondent-mother contained absolutely no findings of fact regarding whether she was employed at any time during the six months preceding the filing of the petition to terminate her parental rights or whether she was otherwise financially able to pay. Id. at 526, 588 S.E.2d at 564. Our Court held that “[a]bsent such findings or evidence in the record that respondent-mother could pay some amount greater than zero towards the cost of care for children during that period of time, the trial court did not have clear, cogent, and convincing evidence to determine respondent's financial ability.” Id.
We are unable to distinguish the reasoning in Faircloth from the instant case. Here, the trial court only entered findings regarding respondent-father's ability to pay during four months prior to the filing of the petition to terminate his parental rights. There were no findings made by the trial court and no evidence in the record regarding respondent-father's ability to pay a reasonable portion of the cost of care for the juveniles from 6 February 2012 until April 2012, when he was incarcerated. Like we held in Faircloth, the trial court in the instant case did not have clear, cogent, and convincing evidence to determine respondent-father's financial ability during the continuous six months preceding the filing of the petition. While we acknowledge that the trial court's findings are clearly supported by evidence in the record of respondent's failure to pay while able to do so for a four month period, the statute requires willful failure to pay for a continuous period of six months.
Based on the foregoing, we hold that there was insufficient evidence supporting the trial court's findings that, for the six months preceding the filing of the petition for termination of parental rights, respondent-father willfully failed “to pay a reasonable portion of the cost of care for the juvenile[s] although physically and financially able to do so.” N.C.G.S. § 7B–1111(a)(3). The order of the trial court is reversed.
Reversed Chief Judge MARTIN and Judge DAVIS concur.
Report per Rule 30(e).