Opinion
No. COA11–1432.
2012-05-1
In the Matter of A.E.F., S.R.F., and H.L.F.
Duncan B. McCormick for petitioner-appellee Harnett County Department of Social Services. Charlotte Gail Blake for respondent-appellant father.
Appeal by respondent from order entered 14 September 2011 by Judge Charles P. Bullock in Harnett County District Court. Heard in the Court of Appeals 17 April 2012. Duncan B. McCormick for petitioner-appellee Harnett County Department of Social Services. Charlotte Gail Blake for respondent-appellant father.
Pamela Newell for the guardian ad litem.
ERVIN, Judge.
Respondent–Father Michael F., Jr., appeals from an order terminating his parental rights in A.E.F., S.R.F., and H.L .F. On appeal, Respondent–Father argues that the trial court erred by finding that his parental rights were subject to termination and that the children's best interests would be served by a decision to terminate his parental rights. After careful consideration of Respondent–Father's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.
We will refer to A.E.F. throughout the remainder of this opinion as “Audrey,” a pseudonym used for ease of reading and to protect the juvenile's privacy.
We will refer to S.R.F. throughout the remainder of this opinion as “Sara,” a pseudonym used for ease of reading and to protect the juvenile's privacy.
We will refer to H.L.F. throughout the remainder of this opinion as “Hilda,” a pseudonym used for ease of reading and to protect the juvenile's privacy.
I. Factual Background
The Harnett County Department of Social Services filed petitions alleging that Audrey, Sara, and Hilda were neglected juveniles and obtained nonsecure custody of the three children on 8 February 2010. On 29 April 2010, the trial court entered an adjudication and disposition order in which it concluded that Audrey, Sara, and Hilda were neglected juveniles and should remain in DSS custody. On 17 December 2010, the trial court released DSS from any further responsibility for attempting to reunite the children with their parents, established a permanent plan of adoption for the children, and ordered DSS to take appropriate steps to implement the permanent plan.
On 5 January 2011, DSS filed a motion to terminate the parents' parental rights in Audrey, Sara, and Hilda. In its petition, DSS alleged that the parents' parental rights were subject to termination on the grounds that they had neglected the juveniles pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) and that they had willfully failed to pay a reasonable portion of the cost of the children's care pursuant to N.C. Gen.Stat. § 7B–1111(a)(3). After holding hearings on 27 May 2011, 8 July 2011, and 5 August 2011, the trial court entered an order terminating the parents' parental rights in the children on 14 September 2011. In its order, the trial court concluded that both parents' parental rights were subject to termination because they had neglected the juveniles and that Respondent–Father's parental rights were also subject to termination because he had willfully failed to pay a reasonable portion of the cost of the children's care. Respondent–Father noted an appeal to this Court from the trial court's order.
II. Legal Analysis
A. Grounds for Termination
On appeal, Respondent–Father argues that the trial court erred by concluding that his parental rights in the children were subject to termination pursuant to N.C. Gen.Stat. § 7B–1111(a)(3) on the grounds that DSS had failed to prove that he was financially and physically able to support the children and on the grounds that he did, in fact, support them. We do not find Respondent–Father's argument persuasive.
The standard of 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. 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 (citations and 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 novo by the appellate court.” In re S.N., X.Z., 194 N.C.App. 142, 146, 669 S.E.2d 55, 59 (2008) (citations and quotation marks omitted), aff'd, 363 N.C. 368, 677 S.E.2d 455 (2009).
A court may terminate a parent's parental rights upon finding that:
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). “A finding that a parent has ability to pay support is essential to termination for nonsupport” pursuant to N.C. Gen.Stat. § 7B–1111(a)(3). In re Ballard, 311 N.C. 708, 716–17, 319 S.E.2d 227, 233 (1984). A parent's “nonpayment will be deemed a failure to pay a reasonable portion if and only if the [parent] could pay some amount greater than zero.” In re McDonald, 72 N.C.App. 234, 243, 324 S.E.2d 847, 853 (citation omitted), disc. review denied, 314 N.C. 115, 332 S.E.2d 490 (1985).
The record developed at the hearing clearly demonstrates that the children had continuously been in DSS custody since 8 February 2010. As a result, the only disputed issue at the hearing was whether Respondent–Father had willfully failed to pay a reasonable cost of the care that Audrey, Sara, and Hilda received while in DSS custody. In its order, the trial court found as a fact with respect to the willfulness issue that:
56. [Respondent–Father] signed a support agreement on October to pay the sum of $238.00 per support the aforesaid juvenile child support action [Respondent–Father] had been on May 13, 2010. During months period from January 5, 2010, did not make any support for his children.
57. During the continuous period of six [6] months next preceding the filing of the motion to terminate the parent's rights, [Respondent–Father] failed to pay a reasonable portion of the cost of care for his children.
58. During the aforesaid six [6] months period, [Respondent–Father] was living with the mother, some member of his family or a family friend. He had the benefit of room, board and subsistence. He had the ability to earn funds to pay some amount greater than zero [–0–]. His failure to do so was willful on his part.
59. The court notes that the father made a child support payment of $300.00 on March 15, 2011. The father had the ability to make payments of child support during the aforesaid six [6] months period in an amount greater than zero [–0–].
Respondent–Father has not advanced any specific challenge to these findings of fact, making them binding upon us for purposes of appellate review. In re J.H.K., ––– N.C.App. ––––, ––––, 715 S .E.2d 563, 568 (2011).
According to Respondent–Father, DSS failed to prove that he had the physical or financial ability to pay any portion of the cost of the juveniles' care, much less that he willfully failed to do so. However, in a verified answer to the motion to terminate his parental rights, Respondent–Father admitted that, within the six months prior to the filing of the motion, he had obtained a job through a staffing service with Control, Inc. In addition, as the trial court noted in its findings of fact, Respondent–Father had the capacity to earn money while having only limited expenses for housing and subsistence, a set of facts that made it possible for him to pay something greater than zero for the support of the children. Finally, the fact that Respondent–Father signed a voluntary support agreement provides additional evidence that he had the ability to provide some support for Audrey, Sara, and Hilda. In re Becker, 111 N.C.App. 85, 94, 431 S.E.2d 820, 826 (1993) (stating that, “[s]ince the father entered into a voluntary support agreement to pay $150.00 per month, DSS did not need to provide detailed evidence of his ability to pay support during the relevant time period”). As a result, the record clearly supports the trial court's determination that Respondent–Father had the ability to pay some portion of the cost of the care provided to the children and did not do so.
In addition, Respondent–Father argues that the trial court's findings of fact fail to recognize that he did, in fact, provide support to the children by providing them with lunch during his visits with them and by giving them birthday and Christmas gifts. However, the “ ‘cost of care’ [for purposes of N.C. Gen.Stat. § 7B–1111(a)(3) ] refers to the amount it costs the Department of Social Services to care for the child, namely, foster care.” In re Montgomery, 311 N.C. 101, 113, 316 S.E.2d 246, 254 (1984). Thus, the fact that Respondent–Father gave gifts to the children and provided them with lunch during visitation sessions has no bearing on the extent, if any, to which he paid a reasonable portion of the cost of the care provided to the children.
Finally, Respondent–Father suggests that the trial court's findings “are significant for what the trial court failed to address[,]” a list which includes Respondent–Father's educational background, work experience, and his ability to pay support while he was incarcerated in the fall of 2010. Although the trial court's findings of fact do not, in fact, address these issues, a “trial court is not required to make findings of fact on all the evidence presented, nor state every option it considered. Rather, it must only make brief, pertinent and definite findings and conclusions about the matters in issue.” In re J.A.A. & S.A.A., 175 N.C.App. 66, 75, 623 S.E.2d 45, 51 (2005) (citations and quotation marks omitted). As a result, for all of these reasons, we conclude that the trial court's findings and the record support the trial court's conclusion that Respondent–Father's parental rights were subject to termination pursuant to N.C. Gen.Stat. § 7B–1111(a)(3). In light of this determination, we need not address Respondent–Father's challenge to the trial court's conclusion that his parental rights were also subject to termination pursuant to N.C. Gen.Stat. § 7B–1111(a)(1). In re P.L.P., 173 N.C.App. 1, 8, 618 S.E.2d 241, 246 (2005) (holding that, “where the trial court finds multiple grounds on which to base a termination of parental rights, and an appellate court determines there is at least one ground to support a conclusion that parental rights should be terminated, it is unnecessary to address the remaining grounds” (citation and quotation marks omitted)), aff'd, 360 N.C. 360, 625 S.E.2d 779 (2006).
B. Disposition
Secondly, Respondent–Father argues that the trial court abused its discretion by determining that it was in the best interest of the children to terminate his parental rights. In support of this contention, Respondent–Father argues that the trial court failed to adequately consider the conflicting evidence regarding the likelihood that Hilda and Audrey could be adopted. We cannot agree with Respondent–Father's argument.
“The decision to terminate parental rights is vested within the sound discretion of the trial judge and will not be overturned on appeal absent a showing that the [trial court's] actions were manifestly unsupported by reason.” In re J.A.A., 175 N.C.App. at 75, 623 S.E.2d at 51 (citation omitted). When determining whether the best interests of a child would be served by the termination of a parent's parental rights, the trial court must consider the several factors set forth in N.C. Gen.Stat. § 7B–1110, including the “likelihood of adoption of the juvenile.” N.C. Gen.Stat. § 7B–1110(a)(2).
In this case, the trial court made the following findings of fact regarding the likelihood that the children would be adopted:
9. The foster parents for each of the foregoing children have expressed an interest in adopting them. DSS considers all the placements to now be adoptive placements.
10. The likelihood of adoption for all the juveniles is good. The social worker testified that in her opinion, all the juveniles are very adoptable.
These unchallenged findings of fact, which are binding on us for purposes of appellate review, establish that the trial court adequately considered the likelihood that the juveniles would be adopted in making its “best interests” determination. Although Respondent–Father contends that the trial court failed to resolve what he asserts to have been a contradiction between the information contained in the guardian ad litem's report concerning the extent to which Audrey and Hilda's foster parents were willing to adopt them and the guardian ad litem's trial testimony concerning that particular subject, the trial court fully resolved this issue by finding as a fact that “the foster parents for each of the [ ] children have expressed an interest in adopting them.” Furthermore, the trial court's dispositional findings adequately support its conclusion that termination of Respondent–Father's parental rights would be in the children's best interests. As a result, we do not find Respondent–Father's challenge to the trial court's dispositional decision persuasive.
III. Conclusion
Thus, for the reasons set forth above, we conclude that neither of Respondent–Father's challenges to the trial court's termination order have merit. As a result, the trial court's order should be, and hereby is, affirmed.
AFFIRMED. Judges ROBERT C. HUNTER and STROUD concur.
Report per Rule 30(e).