Opinion
No. COA16-18
07-19-2016
IN RE: D.L.F., A.F., D.A.G.
Harnett County Department of Social Services, by Staff Attorney Duncan B. McCormick, for petitioner-appellee. Leslie Rawls, for respondent-appellant mother. Marie H. Mobley, for guardian ad litem-appellee.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Harnett County, Nos. 13 JT 189-91 Appeal by respondent-mother from order entered 29 September 2015 by Judge Paul A. Holcombe, III, in Harnett County District Court. Heard in the Court of Appeals 20 June 2016. Harnett County Department of Social Services, by Staff Attorney Duncan B. McCormick, for petitioner-appellee. Leslie Rawls, for respondent-appellant mother. Marie H. Mobley, for guardian ad litem-appellee. CALABRIA, Judge.
Respondent-mother ("mother") appeals from an order terminating her parental rights to the minor children D.L.F. ("Daniel"), A.F. ("Alice"), and D.A.G. ("Denise"). We affirm the trial court's order.
Pseudonyms are used to protect the identities of the juveniles and for ease of reading.
The Harnett County Department of Social Services ("DSS") began its involvement with mother in November 2012 when Alice was admitted to the hospital after ingesting prescription medication that was in mother's possession. On 28 December 2012, DSS received a report alleging that mother had no electricity in the home for over one month and there was no type of heating device in the home. On 10 June 2013, a report was made alleging that the children were complaining of being hungry and that their home lacked water and electricity. The report indicated that the children were "filthy" and "ate up with bug bites," and that mother had the children using the bathroom in the yard.
On 6 August 2013, mother entered into an in-home services plan agreeing to obtain a safe home and gainful employment, to use income to support herself and her children, and to seek mental health treatment. The children were placed with the maternal grandmother after DSS conducted a kinship assessment, and mother agreed to be supportive of the children in their kinship placement.
On 14 November 2013, DSS filed juvenile petitions alleging that the juveniles were neglected and dependent. DSS alleged that mother had not completed any portion of her in-home services agreement and had gone weeks at a time without visiting with the children. The same day, the trial court entered nonsecure custody orders placing the juveniles in DSS's custody. After a hearing held 14 February 2014, the trial court entered an order adjudicating the juveniles to be neglected and dependent. On 14 March 2014, the trial court entered a dispositional order continuing the juveniles in the custody of DSS.
After a 1 August 2014 permanency planning hearing, the trial court entered an order establishing a permanent plan of reunification with mother. After the trial court held a permanency planning review hearing, the trial court entered an order on 25 November 2014, changing the permanent plan to adoption.
On 17 December 2014, DSS filed a motion to terminate mother's parental rights, alleging that: (1) the juveniles were neglected; (2) mother willfully left the juveniles in foster care or placement outside of the home for more than twelve months without showing reasonable progress in correcting the conditions that led to the removal of the juveniles; and (3) the juveniles had been placed in DSS's custody and mother, for a continuous period of six months next preceding the filing of the motion, had willfully failed to pay a reasonable portion of the cost of care of the juveniles although physically and financially able to do so. See N.C. Gen. Stat. § 7B-1111(a)(1)-(3) (2015). Following a hearing, the trial court entered an order on 29 September 2015 terminating mother's parental rights, finding the existence of all three grounds alleged in DSS's motion. Mother appealed.
The trial court also terminated parental rights of the juveniles' fathers. The fathers do not appeal.
Mother argues that none of the grounds alleged in DSS's termination motion existed, and that the trial court therefore erred in finding the existence of those grounds and terminating mother's parental rights. We disagree.
"The standard for review in termination of parental rights cases is whether the court's findings of fact are based upon clear, cogent and convincing evidence and whether the findings support the conclusions of law." In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000) (internal quotation marks and citation omitted).
Under N.C. Gen. Stat. § 7B-1111(a)(3), the trial court may terminate parental rights upon a finding that
[t]he juvenile has been placed in the custody of a county department of social services . . . 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."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 Clark, 303 N.C. 592, 604, 281 S.E.2d 47, 55 (1981). "[N]onpayment constitutes a failure to pay a reasonable portion if and only if respondent [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) (internal quotation marks and citation omitted) (second alteration in original).
In the instant case, DSS alleged the relevant period during which mother failed to pay a reasonable portion of the cost of the juveniles' care was between 17 June and 17 December 2014. The trial court concluded that mother willfully failed to pay a reasonable portion of the juveniles' cost of care during this time period. In support of this conclusion, the trial court found the following:
49. The mother was employed during the relevant six month period. Specifically, during the summer of 2014 the mother worked washing cars. She earned an average of $250 per week when she was working.Mother challenges the court's finding that she "had an ability to pay some amount more than zero during the relevant six month period." Mother does not challenge the remaining findings, which are therefore deemed to be supported by competent evidence and are binding on appeal. See In re J.A.A. & S.A.A., 175 N.C. App. 66, 68, 623 S.E.2d 45, 46 (2005).
50. The mother was physically and mentally able to work during the relevant period of time. She worked some jobs that may have ended just before the relevant six month period. She worked some jobs that may have started just after the relevant six month period. The mother worked as a waitress and a cook at Waffle House between February and June 2014. She worked at a diner and a Dairy Freeze in December 2014 and January 2015.
51. On September 8, 2014, a court entered an order directing the mother to pay $191.00 per month in child support.
52. The mother had an ability to pay some amount more than zero during the relevant six month time period. The mother did not pay child support during the relevant six month period.
Mother's contention that the trial court erroneously found that she was able to pay some portion of the juveniles' cost of care during the relevant time period ignores the fact that the issue had previously been decided in the trial court's 8 September 2014 child support order. See In re S.T.B., 235 N.C. App. 290, 296, 761 S.E.2d 734, 738 (2014) ("[T]he issue of [the father's] ability to pay is addressed and resolved by the fact that he was subject to a child support order that required him to pay $50 per month for the benefit of his children."). The 8 September 2014 order established that mother had the ability to pay support and ordered her to pay the amount of $191 per month. Furthermore, the trial court's finding that mother "was physically and mentally able to work during the relevant period of time" established that no intervening circumstances rendered null the court's previous findings in the child support order regarding mother's ability to pay. As a result, the "record evidence and the trial court's findings establish that [mother] had the ability to pay some amount greater than zero for the support of the children," id. at 297, 761 S.E.2d at 738-39, and the trial court did not err in determining that mother's parental rights to the children were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(3).
Although mother challenges the trial court's conclusions that the grounds for termination listed in N.C. Gen. Stat. § 7B-1111(a)(1) and (2) existed in this case, we need not address these challenges given our decision to uphold the trial court's conclusion that mother's parental rights were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(3). See In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003) ("A finding of any one of the enumerated grounds for termination of parental rights under [N.C. Gen. Stat. §] 7B-1111 is sufficient to support a termination."). The trial court's order terminating mother's parental rights is affirmed.
AFFIRMED.
Judges DILLON and INMAN concur.
Report per Rule 30(e).