Opinion
No. COA09-1239.
Filed March 2, 2010.
Mecklenburg County Nos. 97 JA 764, 99 JT 344.
Appeal by respondent from order entered 14 May 2009 by Judge Hugh B. Lewis in Mecklenburg County District Court. Heard in the Court of Appeals 1 February 2010.
Kathleen Arundell Widelski, for petitioner-appellee. Mecklenburg County Department of Social Services, Youth and Family Services. Pamela Newell Williams, for Guardian Ad Litem. Richard E. Jester, for respondent-appellant mother.
When the trial court applied the appropriate evidentiary standards at the adjudicatory and dispositional phases in a termination of parental rights proceeding, there was no requirement that these phases be conducted at two separate hearings. The trial court's uncontested findings of fact support the conclusion that sufficient grounds existed to terminate Mother's parental rights based upon willful failure to pay child support. The trial court did not abuse its discretion in determining that termination of Mother's parental rights was in juvenile's best interest.
I. Factual and Procedural Background
This is the fifth time that DSS has attempted to terminate Mother's parental rights, and the fourth occasion that this matter has been before this Court. The long history of this case is set forth in In re Nesbitt, 147 N.C. App. 349, 555 S.E.2d 659 (2001); In re J.N., 170 N.C. App. 196, 613 S.E.2d 531 (2005) (unpublished) (J.N. I); and In re J.N., 182 N.C. App. 175, 641 S.E.2d 417 (2007) (unpublished) ( J.N. II), and is not repeated. The Mecklenburg County Department of Social Services, Youth and Family Services (DSS) has been involved with J.N. and Mother since 13 August 1997 when J.N. was placed in the custody of DSS.
On 11 January 2005, the trial court entered an order dismissing DSS's third petition to terminate Mother's parental rights and ordered DSS to make reasonable efforts to reunify J.N. with Mother. DSS began reunification efforts. Mother's case plan included: (1) following mental health treatment recommendations; (2) making attempts to secure employment and providing a list of potential employers; (3) having an adequately furnished home; (4) maintaining stable income; (5) paying rent and utilities by the due date; (6) not allowing anyone who would present a risk to J.N. to reside or habitually visit the home; (7) demonstrating to the juvenile's therapist a clear understanding of the juvenile's development, psychological, emotional and physical needs; and (8) attending and actively participating in parenting classes.
On 4 May 2006, the trial court held a review hearing. The trial court found: (1) "mother has not presented any pay stubs to verify employment;" (2) her rent was overdue; (3) she was on the verge of eviction; and (4) she required "redirection at times." Mother was ordered to actively pursue employment by showing proof of application with fifty potential employers, and to provide information regarding her community service hours performed. These things were to be accomplished prior to the next hearing. The permanent plan continued to be reunification between Mother and J.N. On 12 July 2006, the trial court entered an order finding that DSS had made reasonable efforts to eliminate the need for J.N. to be placed in foster care, and ordered Mother to submit to a parenting capacity evaluation.
On 6 March 2007, this Court, in J.N. II, affirmed the trial court's order dismissing the third petition to terminate Mother's parental rights. On 23 March 2007, a permanency planning hearing was held. The trial court found that: (1) Mother "consistently insisted on walking her own path;" (2) "consistently picked what parts of her case plan to follow and she has used religion as both a sword and an excuse in relation to her court-ordered tasks;" (3) she was at odds with her therapist; (4) she had been more interested in her body building than in complying with her court-ordered tasks; (5) had not made reasonable progress in addressing the issues that led to J.N.'s placement in foster care; and (6) that it was not possible for J.N. to return home immediately or within the next six months. The permanent plan for J.N. was changed to adoption.
In late 2007 and 2008, a termination of parental rights hearing was held, and Mother's parental rights were terminated. DSS requested that the order be vacated based upon rulings in other cases by this Court concerning the manner in which the summons was issued in this case. On 28 April 2008, a consent order was entered, which vacated the trial court's order.
On 25 May 2008, DSS filed another petition to terminate parental rights. On 16 May 2009, the trial court entered an order terminating Mother's parental rights based upon (1) neglect (N.C. Gen. Stat. § 7B-1111(a)(1)); (2) Mother had willfully left the juvenile in foster care for more than 12 months without showing to the satisfaction of the trial 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)); (3) Mother had willfully failed to pay child support (N.C. Gen. Stat. § 7B-1111(a)(3)); and (4) dependency (N.C. Gen. Stat. § 7B-1111(a)(6)).
Mother appeals.
II. Bifurcated Proceeding
In her first argument, Mother contends that the trial court erred in not bifurcating the adjudicatory and dispositional phases of the termination proceeding and by considering evidence of the best interests of J.N. during the adjudicatory phase of the hearing. We disagree.
A termination of parental rights proceeding is a two-phase process, an adjudicatory phase and a dispositional phase. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001) (citations omitted). "During the initial adjudication phase of the trial, the petitioner seeking termination must show by clear, cogent, and convincing evidence that grounds exist to terminate parental rights." In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 5 (citations omitted), disc. review denied, 358 N.C. 543, 599 S.E.2d 42 (2004). If petitioner establishes the existence of any one of the statutory grounds for termination listed in N.C. Gen. Stat. § 7B-1111, the trial court moves to the dispositional phase, where it determines whether it is in the juvenile's best interests to terminate the parental rights. Id. (citations omitted). "However, so long as the court applies the different evidentiary standards at each of the two [phases], there is no requirement that the [phases] be conducted at two separate hearings." Id., 591 S.E.2d at 6 (citing In re White, 81 N.C. App. 82, 344 S.E.2d 36, disc. review denied, 318 N.C. 283, 347 S.E.2d 470 (1986)).
Moreover, since a proceeding to terminate parental rights is heard by the judge, sitting without a jury, it is presumed, in the absence of some affirmative indication to the contrary, that the judge, having knowledge of the law, is able to consider the evidence in light of the applicable legal standard and to determine whether grounds for termination exist before proceeding to consider evidence relevant only to the dispositional [phase].
White, 81 N.C. App. at 85, 344 S.E.2d at 38.
In the instant case, Mother argues that the trial court improperly discussed J.N.'s demeanor before beginning the trial proceedings. The first several pages of the transcript contain a discussion between the trial court and the parties regarding J.N.'s presence in court, which had been ordered for a subsequent permanency planning hearing. J.N. was "very anxious and apprehensive about the prospect of seeing her mother." Mother makes the curious argument that the discussion of J.N.'s demeanor is somehow a discussion of J.N.'s best interests in regards to termination of parental rights. Mother has not cited any legal authority for this proposition and offers no proof that the trial court failed to apply the appropriate evidentiary standards. Mother appears to contend that by expressing concern regarding J.N.'s distress over having to appear in court, the trial court somehow skipped to the dispositional phase of the hearing.
This argument is without merit.
III. Findings of Fact
In her second argument, Mother contends that the trial court erred by finding that sufficient grounds existed to terminate her parental rights. We disagree.
In the adjudicatory phase, the burden is on the petitioner to prove that at least one ground for termination exists by clear, cogent, and convincing evidence. Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908; N.C. Gen. Stat. § 7B-1109(f) (2009). We review the adjudicatory phase to determine "whether the trial court's findings of fact are based on clear, cogent, and convincing evidence and whether those findings support the trial court's conclusion that grounds for termination exist pursuant to N.C. Gen. Stat. § 7B-1111." In re C.W. J.W., 182 N.C. App. 214, 219, 641 S.E.2d 725, 729 (2007) (citation omitted). Findings of fact supported by competent evidence are binding on appeal, even when there is evidence which supports contrary findings. In re Mills, 152 N.C. App. 1, 6, 567 S.E.2d 166, 169 (2002) (citation omitted), cert. denied, 356 N.C. 672, 577 S.E.2d 627 (2003).
Pursuant to N.C. Gen. Stat. § 7B-1111, the trial court may terminate parental rights where:
The juvenile has been placed in the custody of a county department of social services, . . . 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)(2009).
"The word `willful' means something more than an intention to do a thing. It implies doing the act purposely and deliberately. Manifestly, one does not act willfully in failing to make support payments if it has not been within his power to do so." In re Maynor, 38 N.C. App. 724, 726, 248 S.E.2d 875, 877 (1978) (emphasis in original) (citations omitted). "A parent's ability to pay is the controlling characteristic of what is a `reasonable portion' of cost of foster care for the child which the parent must pay." In re Clark, 303 N.C. 592, 604, 281 S.E.2d 47, 55 (1981). "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." Id. "[N]onpayment would constitute a failure to pay a `reasonable portion' if and only if respondent were able to pay some amount greater than zero." In re Bradley, 57 N.C. App. 475, 479, 291 S.E.2d 800, 802 (1982).
In the instant case, the trial court made the following relevant findings of fact:
19. During the period of time that Ms. McDuffie supervised the case:
a. From March 2007 through January 2008, the mother made no attempt to secure employment. . . .
c. The mother told Ms. McDuffie she was too intelligent and over-qualified for employment.
. . . .
e. The mother made no contributions towards the cost of the child's care.
. . . .
30. In December 2008, the mother reported that she put off job hunting until January 2009 and that she could not put the child before her body building ministry.
. . . .
37. During the time that Ms. Bottex supervised the case:
a. The mother went out of town at least three times to body building competitions.
. . . .
d. The mother did not make any contributions towards the child's cost of care.
38. In excess of $64,000.00 has been expended on the care of the child for foster care, clothing, tutoring and other services.
39. The mother was unemployed at the time of this hearing. She has not been employed since 2006.
. . . .
45. The mother lives on financial [aid] due to her attendance at Central Piedmont Community College. She has no other source of income. She is not disabled. Her church, Victory Christian Center assists her and last helped her financially in September 2008. The mother's husband had a pending Social Security disability case pending at the time of his death. The mother received a lump sum payment in August 2006 from Social Security.
46. The mother also relies on donations from other people, too numerous to [count], to help her with finances. . . . The mother receives up to $20.00 from these persons, some of the people she knows, some she does not. . . . The mother classifies the money that is given to her as donations to her ministry.
. . . .
48. The mother has participated in three body building competitions in 2008, four in 2007 and two in 2006.
49. The mother has traveled as far away as Louisiana and Georgia for the body building competitions.
50. The mother utilizes her financial [aid] to pay bills; and to pay entry fees and buy tickets for bus tickets to body building competitions.
. . . .
53. The mother has a cell phone.
54. The mother has not paid any contributions towards the cost of the child's care for the last two years. However, the mother has spend [sic] money on costumes, supplements, memberships, wigs, tanning, etc. for body building competitions.
Mother has not challenged any of the above findings of fact, thus they are presumed to be correct and supported by the evidence. In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982) (citations omitted). Mother further concedes that she had not paid support because "she has no belief at all that her paying of support will in any way alter the outcome of the case." We conclude the findings are competent evidence that Mother had an ability to pay some amount greater than zero of J.N.'s foster care costs. We hold that the trial court's findings support its conclusion that grounds existed to terminate Mother's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(3).
Because we hold that one ground for termination of parental rights exists, we need not address the additional grounds found by the trial court. In re Brim, 139 N.C. App. 733, 743, 535 S.E.2d 367, 373 (2000).
This argument is without merit.
IV. Conclusions of Law
In her third argument, Mother contends that the trial court erred when it concluded that it was in the best interests of J.N. to terminate Mother's parental rights because the findings of fact do not support this conclusion as a matter of law. We disagree.
Once the trial court has determined that a ground for termination exists, the court moves to the dispositional phase, where it must determine whether termination is in the best interest of the juvenile. N.C. Gen. Stat. § 7B-1110(a)(2009). The trial court is required to consider the following:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
(6) Any relevant consideration.
Id.
On appeal, the trial court's decision to terminate parental rights is reviewed for an abuse of discretion. In re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d 403, 407 (2003) (citation omitted). "A trial court may be reversed for abuse of discretion only upon a showing that its actions are `manifestly unsupported by reason.'" Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) ( quoting Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980)).
In the instant case, the trial court made the following findings of fact pertinent to whether termination of parental rights was in the best interests of the juvenile:
1. The child is bonded to her current foster parents and has lived with them continually since her placement in foster care. They are her psychological parents. She refers to them as her mother and father. [J.N.] is happy, talkative, well-mannered and charismatic. She is doing okay in school, but needs some tutoring. The foster parents are willing to adopt and [J.N.] wishes to be adopted by them.
2. During visits to the foster home and school, [J.N.] has always been well groomed.
3. [J.N.] did not want to have visits with the mother and the child has indicated consistently she does not want to live with the mother. [J.N.] does not wish to communicate with her mother.
4. The mother has not provided any monetary contributions towards the child's cost of care.
5. [J.N.] has received excellent [] care from her foster parents.
6. The mother and child are not bonded.
7. Termination of the mother's parental rights will aid in achieving the child's permanent plan of adoption.
8. The child stated that she would run away if placed with her mother. The mother doesn't appreciate the grief the child will experience upon being separated from the foster parents and is not equipped to handle the likely behaviors that would occur upon placing the child in her care.
Mother has not challenged any of the above findings, and they are presumed to be correct and supported by competent evidence. Moore, 306 N.C. at 404, 293 S.E.2d at 133. These uncontested findings demonstrate that the trial court properly considered the required factors listed in N.C. Gen. Stat. § 7B-1110(a). Terminating Mother's parental rights is a step toward furthering the plan of adoption. The trial court did not abuse its discretion in terminating Mother's parental rights. We affirm the trial court's order terminating the parental rights of respondent.
This argument is without merit.
Mother has failed to argue the remaining assignments of error, and they are deemed waived pursuant to Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure.
AFFIRMED.
Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).