Opinion
No. COA12–373.
2012-11-20
In the Matter of S.M.D., A.D. and R.P.D.
Mercedes O. Chut for petitioner-appellee Guilford County Department of Social Services. Assistant Appellate Defender J. Lee Gilliam for respondent-appellant mother.
Appeal by respondent from order entered 13 December 2011 by Judge Sherry Alloway in Guilford County District Court. Heard in the Court of Appeals 29 October 2012. Mercedes O. Chut for petitioner-appellee Guilford County Department of Social Services. Assistant Appellate Defender J. Lee Gilliam for respondent-appellant mother.
Smith, James, Rowlett & Cohen, L.L.P., by Margaret Rowlett, for the guardian ad litem.
ELMORE, Judge.
C.D. (respondent) appeals from an order terminating her parental rights to S.M.D., A.D. and R.P.D (the juveniles). We affirm.
I. Background
The Guilford County Department of Social Services (petitioner) became involved with respondent and the juveniles when it received a report that S.M.D. and A.D. had been sexually abused by B.P., respondent's then boyfriend. On 14 October 2008, petitioner filed a petition alleging that the juveniles were abused, neglected and dependent due to the sexual abuse of the juveniles and the domestic violence between B.P. and respondent. Petitioner assumed non-secure custody of the juveniles that same day.
On 24 February 2009, the trial court entered an order concluding that all three children were abused, neglected and dependent. The court continued custody of the them with petitioner, and provided that respondent could have supervised visitation with the juveniles only at the recommendation of their therapist. Respondent entered into a service agreement with petitioner and worked toward resolving her deficiencies as a parent.
The trial court set the permanent plan for the juveniles as reunification, and indicated in an order entered 15 April 2010 that it anticipated the juveniles would return to respondent's care and custody within the next six months. However, the court later became uncertain whether return of the juveniles to respondent's care and custody would be possible due to the ongoing investigation into the abuse of the juveniles and the possibility of respondent being criminally charged. Nonetheless, the permanent plan remained reunification until 18 July 2011, when the trial court set the permanent plan as adoption with a concurrent plan for reunification.
On 15 August 2011, petitioner filed a petition to terminate respondent's parental rights to the juveniles. Petitioner alleged grounds existed to terminate respondent's parental rights based on neglect (N.C.Gen.Stat. § 7B–1111(a)(1)), failure to make reasonable progress to correct the conditions which led to the removal of the juveniles from her home (N.C.Gen.Stat. § 7B–1111(a)(2)), failure to pay a reasonable portion of the juveniles' cost of care (N.C.Gen.Stat. § 7B–1111(a)(3)), and dependency (N.C.Gen.Stat. § 7B–1111(a)(6)). After a seven-day hearing beginning on 17 October 2011 and concluding on 4 November 2011, the trial court entered an order on 13 December 2011 which terminated respondent's parental rights to all three children. The trial court concluded that all four grounds alleged in the petition existed to justify terminating respondent's parental rights, and that to do so was in the juveniles' best interests. Respondent timely appealed.
II. Arguments
A. Grounds for termination
Respondent argues that the trial court erred in concluding that grounds existed to terminate her parental rights under N.C. Gen.Stat. § 7B–1111 (a)(1), (2), (3) and (6).
“The standard for 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.” In re Clark, 72 N.C.App. 118, 124, 323 S .E.2d 754, 758 (1984). “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., 194 N.C.App. 142, 146, 669 S.E.2d 55, 59 (2008) (citations and quotation marks omitted), aff'd per curiam, 363 N .C. 368, 677 S.E.2d 455 (2009).
i. N.C. Gen.Stat. § 7B–1111(a)(3)
We will first address whether the trial court erred in concluding that grounds existed to terminate respondent's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(3), because she willfully failed to pay a reasonable portion of her child care.
According to the statute, a court may terminate parental rights upon finding that
[t]he juvenile[s] [have] 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[s] although physically and financially able to do so.
N.C. Gen.Stat. § 7B–1111(a)(3) (2011). “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 (1984), disc. review denied, 314 N.C. 115, 332 S.E.2d 490 (1985). Further, where a parent
had an opportunity to provide for some portion of the cost of care of the child, and forfeits that opportunity by his or her own misconduct, such parent will not be heard to assert that he or she has no ability or means to contribute to the child's care and is therefore excused from contributing any amount.
In re Bradley, 57 N.C.App. 475, 479, 291 S.E.2d 800, 802–03 (1982).
Here, the trial court made the following relevant findings of fact:
8. [Respondent] entered into a voluntary support agreement on July 14, 2009 and was ordered to pay $156 per month, plus $10 per month towards arrears. Payments were received regularly from October, 2009 until February 15, 2011. One payment in the amount of $25 was made on September 8, 2011 after the filing of this petition. Her current arrears are $2,874.64.
9. [Respondent] was fired from her job on January 24, 2011, for engaging in a fight with a co-worker. She was unemployed until July 5, 2011 when she began working at the Red Dot Grocery.
10. The cost of care for [S.M.D.] for the last six months has been in excess of $3,486. The cost of care of [S.M.D.] since she came into custody has been in excess of $33,650.43.
11. The cost of care for [A.D.] for the last six months has been in excess of $3,486. The total cost of care of [A.D.] since she came into custody has been in excess of $22,271.26.
12. The cost of care for [R.P.D.] for the last six months has been in excess of $4,104. The total cost of care of [R.P.D.] since he came into custody has been in excess of $20,644.36.
13. [Respondent] did not pay a reasonable portion of the cost of care for her juveniles in the six months preceding the filing of the petition.
Based on these findings, the trial court concluded that:
[18]c. The juveniles are in DSS custody, and the mother, for a continuous period of six months next preceding the filing of this action, has failed to pay a reasonable portion of the children's cost of care, although physically and financially able to do so. Her failure to pay was willful in that she was terminated from her job at McDonald's for her willful actions of engaging in a fight. After obtaining employment she did not pay until after the filing of the petition for TPR.
Here, the petition to terminate respondent's parental rights was filed on 15 August 2011, and thus the relevant six-month period is from 15 February 2011 to 15 August 2011. Respondent concedes that she was unemployed between 15 February 2011 and 5 July 2011, and does not challenge the trial court's finding that she paid nothing toward the cost of care for the juveniles during the relevant six-month period or that the juveniles were in the custody of a county department of social services.
However, respondent argues that the finding that her unemployment was willful, because she willfully engaged in a fight that caused her to lose her job, is not supported by clear and convincing evidence. Respondent contends that the “uncontradicted evidence” in the record was that she struck another employee in self-defense. We disagree.
According to the record, respondent testified that she got into an argument with a subordinate because she didn't want to perform her job duties, and respondent told her to go home. Respondent further testified that she “grabbed” the subordinate because “she got up in my face like she was going to hit me [.]” Respondent contends this is the only evidence regarding the fight, and thus it is uncontroverted that she acted in self-defense and lost her job only because McDonald's policy prohibits managers from putting their hands on other employees.
However, respondent's account of the incident was contradicted by the testimony of Sylvia Austin, the guardian ad litem for the juveniles. Austin testified that
[w]hen I talked to [respondent] on the phone when it first happened, that is not how she presented it. That [the subordinate] was up in [respondent's] face. [Respondent] said [the subordinate] was calling her names, slut, whore, things like that, and [respondent] went after her.
Moreover, respondent contradicted herself at trial when on cross-examination she stated that she was fired because she got angry, not because she allegedly acted in self-defense.
Thus, we are unable to agree that respondent should be excused for paying nothing toward the cost of care for the juveniles because she had no ability or means to contribute to the cost of that care. The evidence at the hearing supports the trial court's finding that respondent was fired from her job at McDonald's because she engaged in a fight with a co-worker. As such, we conclude that the trial court was correct in determining that respondent had an ability to pay at least some amount towards the cost of care for the juveniles, and only lost that ability due to her own willful misconduct. The trial court's findings support its conclusion, that grounds existed to terminate respondent's parental rights to the juveniles because she willfully failed to pay a reasonable portion of the cost of care for the juveniles pursuant to N.C. Gen.Stat. § 7B1111 (a)(3).
ii. N.C. Gen.Stat. § 7B–1111 (a)(1), (2), and (6)
Further, because we have concluded that the trial court did not err in determining that grounds existed to terminate respondent's parental rights pursuant to N.C. Gen.Stat. § 7B–1111 (a)(3), we will not address respondent's remaining arguments regarding whether grounds to terminate her parental rights also existed under N.C. Gen.Stat. § 7B–1111(a)(1), (2) or (6). In re P.L.P., 173 N.C.App. 1, 8, 618 S.E.2d 241, 246 (2005) (holding “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 per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006).
B. Best interest of the juveniles
Respondent next argues that the trial court abused its discretion when it concluded that termination of her parental rights was in the juveniles' best interests. We disagree.
“We review the trial court's decision to terminate parental rights for abuse of discretion.” In re Anderson, 151 N.C.App. 94, 98, 564 S.E.2d 599, 602 (2002). “A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason .... [or] upon a showing that [the trial court's decision] was so arbitrary that it could not have been the result of a reasoned decision.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). When determining whether it is in the best interests of a child to terminate parental rights, the trial court must consider and make written findings regarding relevant factors enumerated in N.C. Gen.Stat. § 7B–1110(a) (2011).
Here, the trial court's order indicates that it considered each of the enumerated factors of section 7B–1110(a) as shown by the following findings:
[II.]20. With respect to what is in the best interest of the juvenile[s], the Court has considered the following factors:
a. The juveniles are 13, 13 and 11[and] are personable and adoptable.
b. The permanent plan for the juveniles is adoption and terminating the mother's rights is necessary in order for the juveniles to be adopted.
c. There is a great likelihood of adoption for [R.P.D.] and it is not as clear for the girls.
d. The bond between the juveniles and their mother is strong. The bond between the siblings is strong.
e. The bond between [R.P.D.] and his foster mother is strong. [R.P.D.] has been in the same foster home for over three years now. He is well bonded with his family.
f. Adoptive parents have not been identified for [S.M.D. and A.D .] but [R.P.D.]'s foster mother has expressed a desire to adopt them. Both girls are in relatively new placements and have been able to bond well.
g. The other relevant considerations are set out in Paragraph II .7 above and incorporated by reference as if fully set out herein. [Respondent] has not and will not protect her children. She continues to choose men over her children and continues to put her needs first.
h. These other relevant considerations outweigh the difficulties there might be in placing the children.
i. Findings 20.g. and h. not supported by evidence
However, respondent contends that findings 20.g. and h. are not supported by competent evidence. Specifically, respondent argues that there was no evidence that she allowed her relationships with men to interfere with her relationship with her children. Again, we disagree.
From her argument, it appears as though respondent misunderstands the nature of the problem that she created when she hid her relationships with men from the trial court, petitioner and her counselors. While in her relationships with men may not have directly interfered with her relationship with the juveniles, her lack of honesty and transparency with the trial court, petitioner and her counselors, as evidenced in the record, calls into question her trustworthiness and any progress she may have made on her case plan in the three years since the juveniles were removed from her home. Thus, we conclude that the trial court was correct in determining that the fact respondent hid these relationships suggests that she continued to choose men over her children.
ii. Termination grounds as dispositive to best interest
In the alternative, respondent further argues that even if findings 20.g. and h. are supported by competent evidence, the trial court erred in using termination grounds in determining best interest. Respondent bases her argument on the premise that finding of fact 20.g. incorporates the findings of fact from paragraph II.7. Thus, in essence, respondent argues that the trial court erred in considering “neglect grounds” when determining whether termination of respondent's rights would be in the juveniles' best interests. Again, we disagree.
The findings of fact set forth in paragraph II.7 of the trial court's order include findings that: (a) respondent was not honest with one of her counselors; (b) respondent did not timely disclose her relationships with men during the case; (c) respondent's failure to disclose her relationships was of great concern to the trial court given her history of choosing abusive men and the fact that any man in a relationship with respondent would have to cooperate with DSS and work with her on her case plan; (d) respondent did not voluntarily report her 2010 pregnancy to her social worker; and (e) respondent did not report her 2011 pregnancy, which ended in a miscarriage, until she testified at the termination hearing.
However, these findings of fact are not “grounds” as argued by respondent, and a trial court is not prohibited from using adjudicatory findings of fact as other relevant considerations when determining whether termination of parental rights is in a juvenile's best interest. See In re Blackburn, 142 N.C.App. 607, 613, 543 S.E.2d 906, 910 (2001) (“Evidence heard or introduced throughout the adjudicatory stage, as well as any additional evidence, may be considered by the court during the dispositional stage.”). Further, upon review of the record, we conclude that the findings of fact set forth in paragraph II.7 of the trial court's order were sufficiently supported by evidence at the hearing. SeeN.C. Gen.Stat. § 7B–1110(a) (2011) (“The court may consider any evidence, including hearsay evidence as defined in G.S. 8C–1, Rule 801, that the court finds to be relevant, reliable, and necessary to determine the best interests of the juvenile.”).
iii. Severing harm outweighs other considerations
Lastly, respondent contends that the juveniles' bond with her, their desire to live with her again, and their uncertain adoptability should trump all of these other considerations. Again, we disagree.
No single factor set forth in N.C. Gen.Stat. § 7B–1110 trumps any other factor in determining the best interests of the juvenile, and the trial court was “entitled to give greater weight to other facts that it found[.]” In re C.L.C., 171 N.C.App. 438, 448, 615 S.E.2d 704, 709 (2005), aff'd per curiam and disc. review improvidently allowed, 360 N.C. 475, 628 S.E.2d 760 (2006). Thus, in sum, we are unable to agree that the trial court's conclusion, that it is in the juveniles' best interests to terminate respondent's parental rights, was manifestly unsupported by reason or so arbitrary that it was not the result of a reasoned decision.
III. Conclusion
Accordingly, we affirm the trial court's order terminating respondent's parental rights to her juveniles S.M.D., A.D. and R.P.D.
Affirmed. Judges STEELMAN and STROUD concur.
Report per Rule 30(e).