Opinion
No. COA13–80.
2013-06-4
In the Matter of A.T.I., D.S.W.
E. Marshall Woodall and Duncan B. McCormick for petitioner-appellee Harnett County Department of Social Services. Marie H. Mobley for guardian ad litem.
Appeal by respondent-mother from order entered 26 October 2012 by Judge Addie H. Rawls in Harnett County District Court. Heard in the Court of Appeals 13 May 2013. E. Marshall Woodall and Duncan B. McCormick for petitioner-appellee Harnett County Department of Social Services. Marie H. Mobley for guardian ad litem.
Richard Croutharmel for respondent-appellant mother.
DILLON, Judge.
Respondent-mother appeals from the district court's order terminating her parental rights to the minor children A.T.I. (Aaron) and D.S.W. (Danny). The notice of appeal filed by respondent-mother was defective; however, she subsequently filed a petition for writ of certiorari, which has not been opposed. We, therefore, allow this petition and consider the merits of this appeal.
Pseudonyms are used for ease of reading and to protect the juveniles' privacy.
Danny was born on 7 October 2005, and Aaron was born on 4 November 2010. Prior to the parents' arrest for child abuse in December 2011, respondent-mother lived with Aaron's father, who cared for the children while she worked full-time.
On 14 November 2011, respondent-mother called 911 after Aaron had a seizure and appeared to stop breathing. The child was taken to the hospital and diagnosed with acute and chronic subdural hematomas with midline shift, metaphyseal bucket fractures of the humeri, and retinal hemorrhages in both eyes. His injuries were non-accidental in nature and at various stages of healing, indicating repeated acts of abuse. Doctors further diagnosed twelve-month-old Aaron with failure to thrive, finding that he had gained no weight in the preceding six months and was developmentally delayed. His parents had also discontinued his reflux medication and had not obtained his nine- and twelvemonth immunizations. Danny was found to have bruises around his left eye, on the back and side of his neck, and under his eye. Respondents disavowed knowledge of any injury to Aaron prior to his seizure and attributed Danny's condition to an incident at school.
The Harnett County Department of Social Services (HCDSS) filed juvenile petitions on 23 November 2011, alleging that Aaron was abused and neglected and that Danny was neglected. HCDSS also sought a determination that respondent-mother and respondent-father were responsible individuals as defined by N.C. Gen.Stat. § 7B–101(18a) (2011), based on their abuse and/or serious neglect of the juveniles.
On 3 February 2012, the district court entered adjudications of abuse and neglect as to Aaron and neglect as to Danny. In a disposition order entered 23 March 2012, the court ceased reunification efforts, finding that Aaron's injuries were “aggravating circumstances” and that further efforts toward reunification would be “futile” and “inconsistent with both of the juveniles' health, safety, and the need for a safe, permanent home within a reasonable period of time.” SeeN.C. Gen.Stat. § 7B–507 (b)(1), (2) (2011). After a hearing on 13 April 2012, the court established a permanent plan of adoption for the children and ordered HCDSS to initiate proceedings to terminate respondents' parental rights.
HCDSS filed a motion to terminate respondents' parental rights on 31 May 2012, alleging, inter alia, that respondent-mother had neglected the children and had willfully failed to pay a reasonable portion of their cost of care during the six-month period immediately prior to the motion's filing. N.C. Gen.Stat. § 7B–1111 (a)(1), (3) (2011). The court heard evidence on 24 August and 14 September 2012 and entered an order terminating respondent-mother's parental rights on 26 October 2012. The court found both grounds for termination alleged by HCDSS and concluded that each ground was alone sufficient to warrant termination. On appeal, respondent-mother challenges the court's adjudications of neglect under N.C. Gen.Stat. § 7B–1111(a)(1) and willful failure to pay a reasonable portion of the cost of care for the children under N.C. Gen.Stat. § 7B1111 (a)(3).
In reviewing an adjudication of grounds to terminate parental rights under N.C. Gen.Stat. § 7B–1109 (2011), we must determine whether the court's findings of fact are supported by competent evidence and whether those findings, in turn, support the court's conclusions of law. In re S.R.G., 195 N.C.App. 79, 83, 671 S.E .2d 47, 50 (2009), cert denied,363 N.C. 804, 691 S.E.2d 19 (2010). Uncontested findings “are deemed to be supported by sufficient evidence and are binding on appeal.” In re M.D., 200 N.C.App. 35, 43, 682 S.E.2d 780, 785 (2009). Conclusions of law are reviewed de novo. In re S.N., 194 N.C.App. 142, 146, 669 S .E.2d 55, 59 (2008), aff'd, 363 N.C. 368, 677 S.E.2d 455 (2009).
“The trial court may terminate parental rights if the juvenile has been placed in the custody of a county department of social services, and the parent ‘has willfully failed for such [six-month] period to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so.’ “ In re J.E.M., ––– N.C.App. ––––, ––––, 727 S.E.2d 398, 401 (2012) (quoting N.C. Gen.Stat. § 7B–1111(a)(3)). “In the context of N.C. Gen.Stat. § 7B–1111(a)(3), this Court has stated that the word ‘willful’ ‘imports knowledge and a stubborn resistance[;] ... one does not willfully fail to do something which it is not in his power to do.’ “ In re J.K.C. and J.D.K., ––– N.C.App. ––––, ––––, 721 S.E.2d 264, 271 (2012) (quoting In re Matherly, 149 N.C.App. 452, 455, 562 S.E.2d 15, 18 (2002)). A parent's “nonpayment will be deemed a failure to pay a reasonable portion if and only if [she] could pay some amount greater than zero.” In re McDonald, 72 N.C.App. 234, 243, 324 S.E.2d 847, 853 (1984), disc. review denied, 314 N.C. 115, 332 S.E.2d 490 (1985).
In support of its adjudication under N.C. Gen.Stat. § 7B–1111(a)(3), the court made the following findings of fact:
53. Social worker [Amanda] Hartman, at one of her early discussions with the mother, advised her to contact certain named individuals about either signing a voluntary support agreement ... or [to] make an appointment with a DSS representative to establish the matter of child support for her children.
54. At the time of the mother's arrest on December 14, 2011, she was working and had been working at Cook Out Restaurant in Dunn, [N.C.].... [H]er employer terminated that employment arrangement. During the first week in February 2012, the mother commenced employment with the Burger King Restaurant in Dunn, [N.C.,] and was working at that restaurant at the time of the termination hearing. The mother's ... weekly gross wage [is] approximately $297.50.
55. During the period from her release from jail to the time of the hearing, the mother lived with her maternal grandmother.... There is no evidence that the mother paid any expenses of the home that was supplied for her by her grandmother.
56. The juveniles herein are in separate foster homes and were for that period of six (6) months from November 30, 2011 to May 31, 2012, the day that the petitioner filed the motion seeking termination of the mother's parental rights. The costs of care of the juveniles for the aforesaid six (6) month [ ] period was: [Aaron: $2,850.00; Danny: $4,557.98.]
57. Respondent mother was under an order ... to pay the sum of $189.00 by order effective May 1, 2012.
58. At the time of this hearing. had paid two (2) payments of $189. [on 6 June and 5 July 2012]. currently in arrears of her child payments in the amount of $1,323.00.
59. During the aforesaid six (6) month[ ] period ... respondent mother did not pa[y] any sum to DSS or the State Child Support Agency to help defray the cost of the care and maintenance of her children.... For said period, the mother had the ability to pay something greater than zero in terms of money and the delivery of some clothes.
Respondent-mother does not challenge any of these findings of fact but objects to the court's ultimate finding and conclusion that her failure to pay a reasonable portion of the juveniles' cost of care during the relevant six-month period was “willful.” Accordingly, we are bound by the uncontested findings for purposes of our review. In re M.D., 200 N.C.App. at 43, 682 S.E.2d at 785.
The reference to clothes alludes to finding of fact number 51: “After the motion to terminate was filed, the mother ... delivered to DSS some needed school supplies, shoes and clothes ... [the value of the same being less than $100 as it relates to both children]. The initial items she brought to the children were things that belonged to them already.”
We hold that the court's findings are sufficient to establish respondent-mother's willful failure to pay a reasonable portion of the children's cost of care under N.C. Gen.Stat. § 7B–1111(a)(3). For the six-month period that preceded HCDSS's filing of the motion on 31 May 2012, respondent-mother paid no child support. For most of this period, she was gainfully employed and had minimal living expenses. See In re Huff, 140 N.C.App. 288, 292–93, 536 S.E.2d 838, 842–43 (2000) (finding sufficient evidence where “both parents were employed for at least half of the relevant six-month period”), appeal dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001). The findings also reflect that HCDSS made repeated efforts to obtain payment from respondent-mother. The evidence showed that social worker Hartman spoke to respondent-mother about child support on 20 January 2012 and encouraged her to complete a voluntary support agreement rather than await a court order. HCDSS sent her a demand letter for support on 8 February 2012. After respondent-mother failed to show up for two scheduled appointments at the child support office, the office initiated court proceedings against her. When respondent-mother arrived for a visitation on 9 April 2012, Hartman again inquired about child support, and respondent-mother said she “had not talked with ... anyone with child support.” Only after Hartman walked respondent-mother to the child support office did she sign a voluntary support agreement.
Contrary to respondent-mother's assertion, the fact that she entered into a voluntary support agreement does not preclude an adjudication for failure to pay a reasonable portion of the cost of care. See, e.g., In re Becker, 111 N.C.App. 85, 94, 431 S.E.2d 820, 826 (1993). While respondent-mother notes that she signed up for wage garnishment, she made no payments of her own accord prior to the initial garnishment on 6 June 2012, after the motion to terminate her parental rights was filed. It further appears the garnishment was discontinued after a second payment on 5 July 2012. In any event, payments made after 31 May 2012 “are irrelevant, since the termination statute specifically limits consideration to the amount of support paid for the six months next preceding the filing of the petition in termination.” In re Phifer, 67 N.C.App. 16, 27, 312 S.E.2d 684, 690 (1984).
Having upheld the adjudication under N.C. Gen.Stat. § 7B–1111(a)(3), we need not address the second ground for termination found by the court. In re P.L.P., 173 N.C.App. 1, 8, 618 S.E.2d 241, 246 (2005), aff'd per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006). Because respondent-mother makes no argument regarding the court's disposition, we affirm the termination order.
AFFIRMED. Judge STROUD and Judge HUNTER, JR., concur.
Report per Rule 30(e).