An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NO. COA13-1401 NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
IN THE MATTER OF:
C.L. Wake County No. 12 JT 71
Appeal by respondent-father from order entered 18 September
2013 by Judge Margaret P. Eagles in Wake County District Court.
Heard in the Court of Appeals 19 May 2014.
Wake County Attorney’s Office, by Deputy County Attorney Roger A. Askew, for petitioner Wake County Human Services.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Annick Lenoir-Peek for respondent-father.
Ellis & Winters LLP, by Kelly Margolis Dagger, for guardian ad litem.
DILLON, Judge.
Respondent-father appeals from the trial court’s order
terminating his parental rights to the juvenile C.L.1
1 We note that the order also terminated the parental rights of a second respondent-father to another juvenile, under the docket number 12 JT 70. The mother of both of the juveniles relinquished her parental rights and is not a party to this -2- Respondent-father contends the trial court erred by concluding
two grounds existed to terminate his parental rights. We
affirm.
Wake County Human Services (“WCHS”) has been involved with
the family since 2011. On 5 March 2012, WCHS intervened when
the juvenile’s sibling suffered a broken arm that appeared to be
non-accidental. The juvenile’s mother was arrested and charged
with felony child abuse. At that time, respondent-father
resided in Mexico, because he had been deported from the United
States following a criminal conviction for possession of a
firearm by a felon. The juvenile was placed in non-secure
custody.
On 17 August 2012, the juvenile and her sibling were
adjudicated neglected. The court ceased reunification efforts
with the parents on 9 April 2013 and implemented a concurrent
permanent plan of adoption and custody with a relative. On 30
April 2013, WCHS filed a petition to terminate respondent’s
parental rights. The petition alleged five grounds for
termination: (1) dependency; (2) neglect; (3) willful failure
to make reasonable progress; (4) willful failure to pay a
reasonable portion of the cost of care; and (5) willful
appeal. Accordingly, we focus our discussion herein on the facts and legal issues relevant to C.L. and respondent-father. -3- abandonment. N.C. Gen. Stat. § 7B-1111(a)(1)-(3), (6)-(7)
(2013).
On 2 August 2013, respondent-father filed a motion for
review and requested a kinship assessment and home study of his
parents as a placement for the juvenile. The matter came on for
hearing on both the motion for review and the termination
petition on 14 August 2013. On 18 September 2013, the trial
court entered an order, concluding that it was not in the
juvenile’s best interest to be placed with the paternal
grandparents. On the same date, the trial court entered an
order terminating respondent-father’s parental rights based on
neglect and failure to pay a reasonable portion of the cost of
care. N.C. Gen. Stat. § 7B-1111(a)(1), (3). Respondent-father
appeals.
In two arguments on appeal, respondent-father contends that
some of the trial court’s findings of fact are not supported by
adequate evidence and do not support the court’s conclusions of
law. In sum, respondent-father contends that his deportation
prevented him from being served and fully participating in the
juvenile case, and also excused him from paying a reasonable
portion of the cost of care for the juvenile. We disagree. -4- At the adjudicatory stage of a termination of parental
rights hearing, the burden is on the petitioner to prove by
clear and convincing evidence that at least one ground for
termination exists. N.C. Gen. Stat. § 7B-1109(f) (2013); In re
Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).
Review in the appellate courts is limited to determining whether
clear and convincing evidence exists to support the findings of
fact, and whether the findings of fact support the conclusions
of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840
(2000).
“When the trial court is the trier of fact, the court is
empowered to assign weight to the evidence presented at the
trial as it deems appropriate.” In re Oghenekevebe, 123 N.C.
App. 434, 439, 473 S.E.2d 393, 397 (1996). “‘[F]indings of fact
made by the trial court . . . are conclusive on appeal if there
is evidence to support them.’” In re H.S.F., 182 N.C. App. 739,
742, 645 S.E.2d 383, 384 (2007) (citation omitted). “‘[W]here
no exception is taken to a finding of fact by the trial court,
the finding is presumed to be supported by competent evidence
and is binding on appeal[.]’” In re S.D.J., 192 N.C. App. 478,
486, 665 S.E.2d 818, 824 (2008) (quoting Koufman v. Koufman, 330
N.C. 93, 97, 408 S.E.2d 729, 731 (1991)). -5- Although the trial court concluded two grounds existed to
terminate respondent-father’s parental rights, we find it
dispositive that the evidence supports termination of his
parental rights to the juvenile pursuant to N.C. Gen. Stat. §
7B-1111(a)(3), based on his failure to pay a reasonable portion
of the cost of the juvenile’s care during the six months
immediately preceding the filing of the petition. See In re
Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003) (a
finding of one statutory ground is sufficient to support the
termination of parental rights).
The requirement that a parent pay a reasonable portion of
the cost of care “applies to all parents irrespective of their
wealth or poverty. The parents’ economic status is merely a
factor used to determine their ability to pay such costs, but
their ability to pay is the controlling characteristic of what
is a reasonable amount for them to pay.” In re Biggers, 50 N.C.
App. 332, 339, 274 S.E.2d 236, 240 (1981) (decided under prior
statute). Accordingly, “‘[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 T.D.P., 164
N.C. App. 287, 289, 595 S.E.2d 735, 737 (2004) (citation
omitted). -6- If a parent provides no support for the juvenile, his
failure to provide a reasonable portion of the cost of care is
willful if the trial court finds he had the ability to “pay some
amount greater than zero during the relevant time period.” Id.
at 291, 595 S.E.2d at 738. “Where . . . the parent had an
opportunity to provide for some portion of the cost of care of
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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.
NO. COA13-1401 NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
IN THE MATTER OF:
C.L. Wake County No. 12 JT 71
Appeal by respondent-father from order entered 18 September
2013 by Judge Margaret P. Eagles in Wake County District Court.
Heard in the Court of Appeals 19 May 2014.
Wake County Attorney’s Office, by Deputy County Attorney Roger A. Askew, for petitioner Wake County Human Services.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Annick Lenoir-Peek for respondent-father.
Ellis & Winters LLP, by Kelly Margolis Dagger, for guardian ad litem.
DILLON, Judge.
Respondent-father appeals from the trial court’s order
terminating his parental rights to the juvenile C.L.1
1 We note that the order also terminated the parental rights of a second respondent-father to another juvenile, under the docket number 12 JT 70. The mother of both of the juveniles relinquished her parental rights and is not a party to this -2- Respondent-father contends the trial court erred by concluding
two grounds existed to terminate his parental rights. We
affirm.
Wake County Human Services (“WCHS”) has been involved with
the family since 2011. On 5 March 2012, WCHS intervened when
the juvenile’s sibling suffered a broken arm that appeared to be
non-accidental. The juvenile’s mother was arrested and charged
with felony child abuse. At that time, respondent-father
resided in Mexico, because he had been deported from the United
States following a criminal conviction for possession of a
firearm by a felon. The juvenile was placed in non-secure
custody.
On 17 August 2012, the juvenile and her sibling were
adjudicated neglected. The court ceased reunification efforts
with the parents on 9 April 2013 and implemented a concurrent
permanent plan of adoption and custody with a relative. On 30
April 2013, WCHS filed a petition to terminate respondent’s
parental rights. The petition alleged five grounds for
termination: (1) dependency; (2) neglect; (3) willful failure
to make reasonable progress; (4) willful failure to pay a
reasonable portion of the cost of care; and (5) willful
appeal. Accordingly, we focus our discussion herein on the facts and legal issues relevant to C.L. and respondent-father. -3- abandonment. N.C. Gen. Stat. § 7B-1111(a)(1)-(3), (6)-(7)
(2013).
On 2 August 2013, respondent-father filed a motion for
review and requested a kinship assessment and home study of his
parents as a placement for the juvenile. The matter came on for
hearing on both the motion for review and the termination
petition on 14 August 2013. On 18 September 2013, the trial
court entered an order, concluding that it was not in the
juvenile’s best interest to be placed with the paternal
grandparents. On the same date, the trial court entered an
order terminating respondent-father’s parental rights based on
neglect and failure to pay a reasonable portion of the cost of
care. N.C. Gen. Stat. § 7B-1111(a)(1), (3). Respondent-father
appeals.
In two arguments on appeal, respondent-father contends that
some of the trial court’s findings of fact are not supported by
adequate evidence and do not support the court’s conclusions of
law. In sum, respondent-father contends that his deportation
prevented him from being served and fully participating in the
juvenile case, and also excused him from paying a reasonable
portion of the cost of care for the juvenile. We disagree. -4- At the adjudicatory stage of a termination of parental
rights hearing, the burden is on the petitioner to prove by
clear and convincing evidence that at least one ground for
termination exists. N.C. Gen. Stat. § 7B-1109(f) (2013); In re
Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).
Review in the appellate courts is limited to determining whether
clear and convincing evidence exists to support the findings of
fact, and whether the findings of fact support the conclusions
of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840
(2000).
“When the trial court is the trier of fact, the court is
empowered to assign weight to the evidence presented at the
trial as it deems appropriate.” In re Oghenekevebe, 123 N.C.
App. 434, 439, 473 S.E.2d 393, 397 (1996). “‘[F]indings of fact
made by the trial court . . . are conclusive on appeal if there
is evidence to support them.’” In re H.S.F., 182 N.C. App. 739,
742, 645 S.E.2d 383, 384 (2007) (citation omitted). “‘[W]here
no exception is taken to a finding of fact by the trial court,
the finding is presumed to be supported by competent evidence
and is binding on appeal[.]’” In re S.D.J., 192 N.C. App. 478,
486, 665 S.E.2d 818, 824 (2008) (quoting Koufman v. Koufman, 330
N.C. 93, 97, 408 S.E.2d 729, 731 (1991)). -5- Although the trial court concluded two grounds existed to
terminate respondent-father’s parental rights, we find it
dispositive that the evidence supports termination of his
parental rights to the juvenile pursuant to N.C. Gen. Stat. §
7B-1111(a)(3), based on his failure to pay a reasonable portion
of the cost of the juvenile’s care during the six months
immediately preceding the filing of the petition. See In re
Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003) (a
finding of one statutory ground is sufficient to support the
termination of parental rights).
The requirement that a parent pay a reasonable portion of
the cost of care “applies to all parents irrespective of their
wealth or poverty. The parents’ economic status is merely a
factor used to determine their ability to pay such costs, but
their ability to pay is the controlling characteristic of what
is a reasonable amount for them to pay.” In re Biggers, 50 N.C.
App. 332, 339, 274 S.E.2d 236, 240 (1981) (decided under prior
statute). Accordingly, “‘[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 T.D.P., 164
N.C. App. 287, 289, 595 S.E.2d 735, 737 (2004) (citation
omitted). -6- If a parent provides no support for the juvenile, his
failure to provide a reasonable portion of the cost of care is
willful if the trial court finds he had the ability to “pay some
amount greater than zero during the relevant time period.” Id.
at 291, 595 S.E.2d at 738. “Where . . . the 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).
In this case, the trial court made the following findings
of fact addressing respondent’s failure to pay a reasonable
portion of the cost of care:
19. . . . [Respondent-father] did not provide documentation regarding employment but claimed to be employed. . . . The social worker contacted [respondent-father] on January 15, 2013, and asked for his address. . . . [Respondent-father] admitted that he has not paid child support although he is and has been employed and is compensated for that employment.
20. That Wake County Human Services incurs expenses for the care of the child . . . in the form of a foster care board payment of $475.00 plus the cost of daycare and Medicaid. -7- . . . .
32. That [the juvenile] knows her father but has not seen him for over a year and a half. [Respondent-father] admitted to knowing in November 2012 that the child was in the custody of Wake County Human Services and did not make contact with the social worker until January 2013. . . .
These findings establish that respondent-father worked, earned
an income, and had the ability to contribute more than zero
toward the cost of the juvenile’s care, but provided no support
for the juvenile during the relevant six-month period. Further,
the findings are supported by respondent-father’s own testimony
at the termination hearing. Although respondent-father argues
on appeal that his deportation prevented him from providing
support for the juvenile, he cannot rely on his own misconduct,
including a criminal conviction that resulted in his
deportation, as an excuse for his failure to support the
juvenile. See Bradley, 57 N.C. App. at 479, 291 S.E.2d at 802-
03. Finally, respondent-father’s claim that he was not aware
that the juvenile was in WCHS custody is similarly without
merit, as he testified that he was informed she was in WCHS
custody as of November 2012. Accordingly, we affirm the order
terminating respondent-father’s parental rights.
AFFIRMED. -8- Judges BRYANT and STEPHENS concur.
Report per Rule 30(e).