In re C.L.H.

• Court: Supreme Court of North Carolina
• Decided: February 5, 2021
• Docket: 213A20
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2021-NCSC-1

No. 213A20

Filed 5 February 2021

IN THE MATTER OF: C.L.H.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 22

January 2020 by Judge Christy E. Wilhelm in District Court, Cabarrus County. This

matter was calendared for argument in the Supreme Court on 6 January 2021 but

determined on the record and brief without oral argument pursuant to Rule 30(f) of

the North Carolina Rules of Appellate Procedure.

No brief for petitioner-appellee mother.

No brief for appellee Guardian ad Litem.

Anné C. Wright for respondent-appellant father.

EARLS, Justice.

¶1 Respondent appeals from the trial court’s order terminating his parental rights

to C.L.H. (Cash).1 After careful review, we conclude that this case is in large part

controlled by In re K.N., 373 N.C. 274, 837 S.E.2d 861 (2020), necessitating that we

reverse in part and vacate and remand in part.

¶2 Respondent is the biological father of Cash, and petitioner is Cash’s biological

1 A pseudonym is used in this opinion to protect the juvenile’s identity and for ease of

reading. See N.C. R. App. P. 42(b)(1). IN RE C.L.H.

Opinion of the Court

mother. Cash was born in 2009 following a brief relationship between respondent and

petitioner. Respondent and petitioner never married. On 19 August 2011, respondent

and petitioner entered into a parenting agreement by which petitioner was granted

primary custody of Cash, and respondent was granted visitation. Respondent and

petitioner also entered into a child support consent order by which respondent agreed

to pay petitioner $433 per month and fifty percent of any uninsured medical bills

after the first $250 was paid by petitioner. However, neither the facts alleged in the

termination petition and admitted in the answer nor the trial court’s factual findings

indicate whether the child support consent order was in effect during the year

preceding the filing of the termination petition. The last known contact between

respondent and Cash was in April 2018.

¶3 On 1 May 2018, the trial court held a hearing after petitioner filed a motion in

the cause for modification of custody and to hold respondent in contempt. Petitioner

stated that she filed the motion because of concerns she had regarding events that

occurred during Cash’s visitation with respondent. Specifically, petitioner testified

that Cash was visiting respondent on 25 February 2018 when she received a phone

call claiming that she needed to pick up Cash because respondent had a medical issue.

At the time, respondent was living in a camper behind his parents’ home, and Cash

would stay in the grandparents’ home while visiting with respondent. When

petitioner arrived at the grandparents’ home, she found that respondent had been IN RE C.L.H.

taken to the hospital. Petitioner testified that she went into respondent’s camper to

retrieve Cash’s belongings and that it was “smoky” and smelled “chemically.” On 13

June 2018, the trial court entered an order in which it found as fact that Cash found

respondent unresponsive and sought help because respondent was “overdosing on

heroin.” The trial court found respondent to be unfit to provide for Cash’s physical,

emotional, and financial well-being and granted petitioner sole physical and legal

custody of Cash. The trial court also terminated respondent’s visitation with Cash.

¶4 On 30 January 2019, petitioner filed a petition to terminate respondent’s

parental rights to Cash. Petitioner alleged that grounds existed to terminate

respondent’s parental rights for neglect, willful failure to pay child support,

dependency, and willful abandonment. N.C.G.S. § 7B-1111(a)(1), (4), (6)–(7) (2019).

On 10 April 2019, respondent filed an answer in which he opposed the termination of

his parental rights. On 22 January 2020, the trial court entered an order in which it

determined grounds existed to terminate respondent’s parental rights pursuant to

N.C.G.S. § 7B-1111(a)(1), (4), and (6). The trial court further determined that it was

in Cash’s best interests that respondent’s parental rights be terminated. Respondent

appeals.

¶5 Respondent argues that the trial court erred by concluding that grounds

existed to terminate his parental rights. “Our Juvenile Code provides for a two-step

process for termination of parental rights proceedings consisting of an adjudicatory IN RE C.L.H.

stage and a dispositional stage.” In re Z.A.M., 374 N.C. 88, 94, 839 S.E.2d 792, 796–

97 (2020) (citing N.C.G.S. §§ 7B-1109, -1110 (2019)). “At the adjudicatory stage, the

petitioner bears the burden of proving by ‘clear, cogent, and convincing evidence’ the

existence of one or more grounds for termination under section 7B-1111(a) of the

General Statutes.” In re A.U.D., 373 N.C. 3, 5–6, 832 S.E.2d 698, 700 (2019) (quoting

N.C.G.S. § 7B-1109(f) (2019)). We review a trial court’s adjudication of grounds to

terminate parental rights “to determine whether the findings are supported by clear,

cogent and convincing evidence and the findings support the conclusions of law.” In

re E.H.P., 372 N.C. 388, 392, 831 S.E.2d 49, 52 (2019) (quoting In re Montgomery, 311

N.C. 101, 111, 316 S.E.2d 246, 253 (1984)). “The trial court’s conclusions of law are

reviewable de novo on appeal.” In re C.B.C., 373 N.C. 16, 19, 832 S.E.2d 692, 695

(2019).

¶6 In this case, the trial court determined that grounds existed to terminate

respondent’s parental rights based on neglect, willful failure to pay child support, and

dependency. N.C.G.S. § 7B-1111(a)(1), (4), and (6). We begin our analysis with

consideration of whether grounds existed to terminate respondent’s parental rights

for neglect, pursuant to N.C.G.S. § 7B-1111(a)(1).

¶7 A trial court may terminate parental rights where it concludes the parent has

neglected the juvenile within the meaning of N.C.G.S. § 7B-101. N.C.G.S. § 7B-

1111(a)(1). A neglected juvenile is defined, in pertinent part, as a juvenile “whose IN RE C.L.H.

parent, guardian, custodian, or caretaker does not provide proper care, supervision,

or discipline; . . . or who lives in an environment injurious to the juvenile’s welfare.”

N.C.G.S. § 7B-101(15) (2019).

Termination of parental rights based upon this statutory ground requires a showing of neglect at the time of the termination hearing or, if the child has been separated from the parent for a long period of time, there must be a showing of past neglect and a likelihood of future neglect by the parent.

In re D.L.W., 368 N.C. 835, 843, 788 S.E.2d 162, 167 (2016) (citing In re Ballard, 311

N.C. 708, 713–15, 319 S.E.2d 227, 231–32 (1984)). “When determining whether such

future neglect is likely, the district court must consider evidence of changed

circumstances occurring between the period of past neglect and the time of the

termination hearing.” In re Z.V.A., 373 N.C. 207, 212, 835 S.E.2d 425, 430 (2019)

(citing In re Ballard, 311 N.C. at 715, 319 S.E.2d at 232)).2

¶8 Here, Cash was not in respondent’s custody at the time of the termination

hearing and had not been since at least 13 June 2018, when the trial court awarded

petitioner sole physical and legal custody of Cash. The last known contact between

respondent and Cash was in April 2018, approximately 18 months before the

2 As we have noted in our recent opinion in In re R.L.D., No. 122A20, slip op. at 5 n.3

(N.C. Dec. 11, 2020), it is not necessary in every case that a petitioner make a showing of past neglect and of a probability of future neglect to support a determination that a parent’s parental rights in a juvenile are subject to termination on the basis of neglect pursuant to N.C.G.S. § 7B-1111(a)(1). Such a determination is also permissible in the event that there is a showing of current neglect as defined in N.C.G.S. § 7B-101(15). IN RE C.L.H.

termination hearing. Additionally, because this case does not arise from involvement

by the Department of Social Services, no petition alleging neglect was ever filed, and

Cash was never adjudicated to be a neglected juvenile.

¶9 The sole finding of fact potentially supporting a conclusion that respondent had

previously neglected Cash was finding of fact 17(a). In finding of fact 17(a), the trial

court found that

[r]espondent was unable to care for [Cash] during the February 2018 incident, whether it was due to a drug overdose or some other medical condition, for some period of time the child was not cared for and there does not appear that there was a proper plan in place for alternative care.

Respondent argues that the portion of finding of fact 17(a) which states that Cash

was not cared for during the February 2018 incident is not supported by clear, cogent,

and convincing evidence. We agree. The only evidence in the record concerning Cash’s

care during this incident was that he stayed in his grandparents’ home when visiting

with respondent, that his paternal grandfather was the person who called for help

with respondent’s medical issue, and that petitioner was called to pick up Cash from

the grandparents’ home. There was no evidence presented that Cash was not cared

for during this incident. Accordingly, we disregard this portion of finding of fact 17(a).

See In re J.M.J.-J., 374 N.C. 553, 559, 843 S.E.2d 94, 101 (2020) (disregarding

adjudicatory findings of fact not supported by clear, cogent, and convincing evidence).

¶ 10 We further note that the trial court’s findings of fact, even if supported, shed IN RE C.L.H.

little light on how this incident, and the alleged absence of care, impacted Cash. See

In re K.L.T., 374 N.C. 826, 831, 845 S.E.2d 28, 34 (2020) (“In order to constitute

actionable neglect, the conditions at issue must result in ‘some physical, mental, or

emotional impairment of the juvenile or a substantial risk of such impairment.’ ”

(citation omitted)). Further, assuming arguendo that the incident and alleged lack of

care constituted prior neglect, the trial court did not find that there would be a

likelihood of future neglect should Cash be returned to respondent’s care, nor do the

trial court’s sparse findings of fact support such a conclusion. See In re K.N., 373 N.C.

at 282, 837 S.E.2d at 867 (stating that in light of the juvenile’s prior adjudication of

neglect and his resulting removal from the home, “we must evaluate whether there

are sufficient findings of fact in the termination order to support the trial court’s

ultimate conclusion that there is a likelihood of future neglect by respondent”).

Therefore, we hold the trial court erred by concluding that grounds existed pursuant

to N.C.G.S. § 7B-1111(a)(1) to terminate respondent’s parental rights.

¶ 11 We next consider whether the trial court properly concluded that grounds

existed to terminate respondent’s parental rights for dependency, pursuant to

N.C.G.S. § 7B-1111(a)(6). A trial court may terminate parental rights based on

dependency when “the parent is incapable of providing for the proper care and

supervision of the juvenile, such that the juvenile is a dependent juvenile within the

meaning of [N.C.G.S. §] 7B-101, and that there is a reasonable probability that the IN RE C.L.H.

incapability will continue for the foreseeable future.” N.C.G.S. § 7B-1111(a)(6). A

dependent juvenile is defined as “[a] juvenile in need of assistance or placement

because (i) the juvenile has no parent, guardian, or custodian responsible for the

juvenile’s care or supervision or (ii) the juvenile’s parent, guardian, or custodian is

unable to provide for the juvenile’s care or supervision and lacks an appropriate

alternative child care arrangement.” N.C.G.S. § 7B-101(9). The incapability under

N.C.G.S. § 7B-1111(a)(6) “may be the result of substance abuse, intellectual

disability, mental illness, organic brain syndrome, or any other cause or condition

that renders the parent unable or unavailable to parent the juvenile and the parent

lacks an appropriate alternative child care arrangement.” N.C.G.S. § 7B-1111(a)(6).

To adjudicate the ground of dependency, the trial court “must address both (1) the

parent’s ability to provide care or supervision, and (2) the availability to the parent

of alternative child care arrangements.” In re K.R.C., 374 N.C. 849, 859, 845 S.E.2d

56, 63 (2020) (citation omitted).

¶ 12 Here, the sole express finding of fact made by the trial court regarding this

statutory ground was that “the ground of dependency exists in that there was no

proper plan for care of the minor child.” Arguably, the trial court’s finding of fact 17(a)

concerning the February 2018 incident and the lack of an alternative plan of care for

Cash was also related to this statutory ground. However, the trial court made no

finding of fact, and there was no evidence presented, that at the time of the IN RE C.L.H.

termination hearing respondent suffered from any condition which rendered him

incapable of providing proper care or supervision to Cash. The only evidence

presented that possibly supported a conclusion that respondent was incapable of

parenting Cash was the incident in February 2018, which occurred over 18 months

prior to the termination hearing. See In re Z.D., 258 N.C. App. 441, 452, 812 S.E.2d

668, 676 (2018) (holding that the evidence was insufficient to support termination of

respondent’s parental rights based on dependency where “[r]espondent’s mental

health and parenting abilities pertain[ed] more to the historic facts of the case that

occurred at least a year prior to the hearing, and the order contain[ed] no specific

findings regarding [r]espondent’s condition, mental health, and alleged incapability

at the time of the hearing”). Accordingly, we hold that the trial court erred by

concluding that grounds existed pursuant to N.C.G.S. § 7B-1111(a)(6) to terminate

respondent’s parental rights.

¶ 13 Finally, we consider the trial court’s conclusion that grounds existed pursuant

to N.C.G.S. § 7B-1111(a)(4) to terminate respondent’s parental rights for his willful

failure to pay for the child’s care without justification. A trial court may terminate a

parent’s parental rights pursuant to this statutory ground when

[o]ne parent has been awarded custody of the juvenile by judicial decree or has custody by agreement of the parents, and the other parent whose parental rights are sought to be terminated has for a period of one year or more next preceding the filing of the petition or motion willfully failed without justification to pay for the care, support, and IN RE C.L.H.

education of the juvenile, as required by the decree or custody agreement.

N.C.G.S. § 7B-1111(a)(4). We agree with the Court of Appeals that, when seeking to

terminate parental rights pursuant to this statutory ground, “petitioner must prove

the existence of a support order that was enforceable during the year before the

termination petition was filed.” In re I.R.L., 263 N.C. App. 481, 485, 823 S.E.2d 902,

905 (2019) (quoting In re Roberson, 97 N.C. App. 277, 281, 387 S.E.2d 668, 670

(1990)). When the trial court fails to make findings of fact “indicating that a child

support order existed or that [the parent] failed to pay support ‘as required by’ the

child support order,” its findings are insufficient to support the conclusion that

grounds for termination exist pursuant to N.C.G.S. § 7B-1111(a)(4). Id. at 486, 823

S.E.2d at 906.

¶ 14 In In re I.R.L., the Court of Appeals concluded that the trial court’s findings

were insufficient to support a conclusion that the father’s parental rights were subject

to termination pursuant to N.C.G.S. § 7B-1111(a)(4). Id. The Court of Appeals noted

that

while both parties testified that a child support order was entered in December 2014 ordering [the] father to pay $50.00 per month in child support, the trial court’s termination order [was] devoid of any findings indicating that a child support order existed or that [the f]ather failed to pay support “as required by” the child support order.

Id. Here, the trial court made no findings of fact that a child support order existed in IN RE C.L.H.

the year prior to the filing of the petition to terminate respondent’s parental rights.

Consequently, we conclude that the trial court’s findings of fact are insufficient to

support the termination of respondent’s parental rights based on N.C.G.S. § 7B-

1111(a)(4).

¶ 15 The dissent, urging affirmance of the trial court’s decision, attempts to

distinguish In re I.R.L. by pointing out that the trial court’s order in that case was

“devoid of any findings indicating that a child support order existed or that [the

respondent] failed to pay support ‘as required by’ the child support order.” In re I.R.L.,

263 N.C. App. at 486, 823 S.E.2d at 906. However, as discussed above, the trial court’s

order in the instant case is similarly deficient. The dissent also points to the fact that

“the only evidence [in In re I.R.L.] supporting the existence of a child support order

was the testimony of both parties.” However, the source of the evidence, as opposed

to its existence in the record, does not affect our decision on this issue. When

reviewing an order terminating parental rights, our task as an appellate court is “to

determine whether the findings are supported by clear, cogent and convincing

evidence and the findings support the conclusions of law.” In re Z.A.M., 374 N.C. at

94, 839 S.E.2d at 797 (quoting In re C.B.C., 373 N.C. at 19, 832 S.E.2d at 695). Just

as in this case, the trial court in In re I.R.L. failed to find as a fact that a child support

order existed, and that the respondent had violated it, despite the existence of

evidence in the record that would have supported such a finding. In re I.R.L., 263 IN RE C.L.H.

N.C. App. at 486, 823 S.E.2d at 906. The source of that evidence, so long as it is clear,

cogent, and convincing, is not relevant to our analysis. There is no material

distinction between this case and In re I.R.L.

¶ 16 We note that here there appears to be evidence in the record which might

support a conclusion that grounds existed to terminate respondent’s parental rights

pursuant to this statutory ground. First, petitioner alleged in the termination

petition, and respondent admitted in his answer, that the parties had entered into a

child support consent order.3 Neither the allegation nor the admission, however,

establish that the support order was in effect during the year prior to the filing of the

termination petition. See N.C.G.S. § 7B-1111(a)(4) (permitting termination of

parental rights if a parent has failed to pay support as required by a decree or custody

agreement “for a period of one year or more next preceding the filing of the petition

or motion”). Second, petitioner testified that there was a child support order in place

at the time of the termination hearing.

¶ 17 Also on this ground, the trial court found as fact, and respondent does not

dispute, that respondent “paid no support, whether child support or other monetary

support for the benefit of the minor child since September 2015.” Respondent does,

3 The admitted allegation reads: “Within the same Cabarrus County file, the Petitioner and Respondent entered into a child support consent order wherein the Respondent agreed to pay the Plaintiff the sum of $433 per month and fifty percent (50%) of any uninsured medical bills after the first $250 is paid by the Petitioner.” IN RE C.L.H.

however, argue that the trial court failed to make any findings of fact regarding

whether his failure to pay support was willful, and, thus, the trial court’s conclusion

on this issue was not supported by its factual findings. It is not necessary to resolve

this argument because we have determined that the trial court failed to make factual

findings that respondent failed to pay for the care, support, and education of the

juvenile within the year prior to the filing of the termination petition “as required by

the decree or custody agreement.” See N.C.G.S. § 7B-1111(a)(4). We note, however,

that the existence of the child support order in effect at the relevant time, if it had

been included in the factual findings, would support a conclusion that respondent had

the ability to pay some portion of the cost of care for the juvenile. In re J.D.S., 170

N.C. App. 244, 257, 612 S.E.2d 350, 358 (quoting In re Roberson, 97 N.C. App. 277,

281, 387 S.E.2d 668, 670 (1990)), cert. denied, 360 N.C. 64, 623 S.E.2d 584 (2005) (“In

a termination action pursuant to this ground, petitioner must prove the existence of

a support order that was enforceable during the year before the termination petition

was filed. . . . Because a proper decree for child support will be based on the supporting

parent’s ability to pay as well as the child’s needs, . . . there is no requirement that

petitioner independently prove or that the termination order find as fact respondent’s

ability to pay support during the relevant statutory time period.” (alterations in

original)). Where, as in this matter, the “trial court’s adjudicatory findings were

insufficient to support its conclusion that termination of the parent’s rights was IN RE C.L.H.

warranted, but the record contained additional evidence that could have potentially

supported a conclusion that termination was appropriate,” we “vacate[ ] the trial

court’s termination order and remand[ ] the case for further proceedings, including

the entry of a new order containing findings of fact and conclusions of law addressing

the issue of whether [the] ground for termination existed.” In re K.N., 373 N.C. at

284, 837 S.E.2d at 869.4

¶ 18 The dissent, urging the opposite result, argues that the trial court’s findings of

fact 11 and 17(c) were supported by the record and support the trial court’s conclusion

to terminate respondent-father’s parental rights pursuant to N.C.G.S. § 7B-

1111(a)(4). However, neither those nor any of the other findings of the trial court

establish the existence of a child support order at the relevant time. In arguing that

the record evidence supports the result below, it appears that the dissent is conflating

the record with the factual findings of the trial court. However, it is our role to review

4 The dissent incorrectly suggests that on the question of whether a remand is necessary for factual findings, this case is controlled by In re A.U.D., 373 N.C. 3, 10–11, 832 S.E.2d 698, 702–03 (2019). In that case, we declined to remand to the trial court for written findings on specific factors that the trial court must consider during the best interests phase of the proceeding. In re A.U.D., 373 N.C. 3, 11, 832 S.E.2d 698, 703 (2019). Critically, N.C.G.S. § 7B-1110(a) does not require written findings as to each factor. Id. at 10, 832 S.E.2d at 703. Because the trial transcript demonstrated that the trial court had carefully considered each factor, satisfying the statutory requirement, we concluded that remand for written findings on each factor “would be an elevation of form over substance.” Id. at 11, 832 S.E.2d at 703. In any case, even were we to adopt the dissent’s view that written findings are never required for uncontested facts, the uncontested evidence in this case does not establish that a child support order was in place during the relevant time period—namely, the year preceding the filing of the termination petition. See N.C.G.S. § 7B-1111(a)(4). IN RE C.L.H.

the trial court’s factual findings to determine whether they support the trial court’s

conclusions of law. See, e.g., In re E.H.P., 372 N.C. at 392, 831 S.E.2d at 52. As the

Court of Appeals has stated, “[i]t is the role of the trial court and not [the appellate

court] to make findings of fact regarding the evidence.” In re F.G.J., 200 N.C. App.

681, 693, 684 S.E.2d 745, 754 (2009); see also In re K.N., 373 N.C. at 283, 837 S.E.2d

at 868 (rejecting argument of petitioner that evidence in the record supported

affirmance of trial court’s ultimate conclusions and instead looking to “the trial

court’s actual findings”).

¶ 19 This principle has long been followed by our courts. As Justice Exum explained

forty years ago:

The purpose of the requirement that the court make findings of those specific facts which support its ultimate disposition of the case is to allow a reviewing court to determine from the record whether the judgment–and the legal conclusions which underlie it–represent a correct application of the law. The requirement for appropriately detailed findings is thus not a mere formality or a rule of empty ritual; it is designed instead “to dispose of the issues raised by the pleadings and to allow the appellate courts to perform their proper function in the judicial system.”

Coble v. Coble, 300 N.C. 708, 712, 268 S.E. 2d 185, 189 (1980) (quoting Montgomery

v. Montgomery, 32 N.C. App. 154, 158, 231 S.E.2d 26, 29 (1977) and citing Crosby v.

Crosby, 272 N.C. 235, 158 S.E. 2d 77 (1967)). In deciding whether a trial court’s award

of alimony followed the requirements of applicable statutes, this Court explained:

The requirement of special fact-finding did not begin with IN RE C.L.H.

implementation of our present Rules of Civil Procedure. In Martin v. Martin, 263 N.C. 86, 138 S.E. 2d 801 (1964) (per curiam), this Court reviewed a trial court order which directed alimony pendente lite and child support payments. The trial court made only limited findings of [fact] about the defendant’s financial circumstances. The hearing had been on affidavits and defendant submitted his own uncontradicted affidavit indicating his dire financial situation. However, no findings of fact concerning the matters in the affidavit were made. This Court stated, in remanding to the trial court:

If the facts set out in defendant’s affidavit are true, the payments required of defendant are clearly excessive, unrealistic and beyond the limits of judicial discretion. The court made no specific findings with respect to the matters set out in the affidavit, and it does not appear whether they were considered. 263 N.C. at 87–88, 138 S.E. 2d at 802 (emphasis added).

Quick v. Quick, 305 N.C. 446, 452–53, 290 S.E.2d 653, 658 (1982). In the termination

of parental rights context, this has long been the rule as well. See, e.g., In re T.P.,

197 N.C. App. 723, 730, 678 S.E.2d 781, 787 (2009) (“We have little doubt after

studying the record that there existed evidence from which the trial court could have

made findings and conclusions to support its orders for termination of parental rights.

Unfortunately, the skeletal orders in the record are inadequate to allow for

meaningful appellate review.”); In re B.G., 197 N.C. App. 570, 574, 677 S.E.2d 549,

552 (2009) (“Although there may be evidence in the record to support a finding that

Respondent acted inconsistently with his custodial rights, it is not the duty of this

Court to issue findings of fact.”). The dissent’s position would have us make factual IN RE C.L.H.

findings for the trial court on a fundamental and material fact, which is not how we

have applied the standard of review in these cases. As we did recently in In re K.N.,

and In re N.D.A., we are compelled to remand for further factual findings on this

ground. See In re K.N., 373 N.C. at 284, 837 S.E.2d at 868; In re N.D.A., 373 N.C. 71,

84, 833 S.E.2d, 768, 777 (2019).

¶ 20 In summary, the portions of the trial court’s order concluding that respondent’s

parental rights were subject to termination under N.C.G.S. § 7B-1111(a)(1) and (6)

are reversed. The portion of the trial court’s order adjudicating grounds for

termination under N.C.G.S. § 7B-1111(a)(4) is vacated and remanded for further

proceedings not inconsistent with this opinion, including the entry of a new order

containing findings of fact and conclusions of law addressing whether there was a

child support order in place that was enforceable during the year before the

termination petition was filed and the issue of whether respondent willfully failed to

pay support for Cash without justification. The trial court may, in the exercise of its

discretion, receive additional evidence on remand if it elects to do so. See In re K.N.,

373 N.C. at 285, 837 S.E.2d at 869.

REVERSED IN PART; VACATED AND REMANDED IN PART. Justice BARRINGER dissenting.

¶ 21 Based on a review of the record, respondent-father did not preserve for appeal

the issue of whether petitioner-mother proved the existence of a child support order

to terminate respondent-father’s parental rights under N.C.G.S. § 7B-1111(a)(4).

Moreover, even if respondent-father had preserved the issue for appeal, the trial

court’s findings are sufficient to support the conclusion that grounds for termination

existed pursuant to N.C.G.S. § 7B-1111(a)(4).

¶ 22 N.C.G.S. § 7B-1111(a)(4) states:

(a) The court may terminate the parental rights upon a finding of one or more of the following:

....

(4) One parent has been awarded custody of the juvenile by judicial decree or has custody by agreement of the parents, and the other parent whose parental rights are sought to be terminated has for a period of one year or more next preceding the filing of the petition or motion willfully failed without justification to pay for the care, support, and education of the juvenile, as required by the decree or custody agreement.

¶ 23 Here, respondent-father admitted that a child support order existed.

Specifically, respondent-father admitted to the following allegation in his answer to

petitioner-mother’s petition for termination:

Within [Cabarrus County File Number: 11-CVD-961], the Petitioner and Respondent entered into a child support consent order wherein the Respondent agreed to pay the Plaintiff the sum of $433 per month and fifty percent (50%) of any uninsured medical bills after the first $250 is paid IN RE C.L.H.

Barringer, J., dissenting

by the Petitioner.

¶ 24 Respondent-father never moved to amend his answer or otherwise present to

the trial court any reason to disregard this admitted allegation. See N.C. R. App. P.

10(a)(1). It is well-established law in this state that an admission in an answer binds

the answering party and renders the fact uncontested. See Harris v. Pembaur, 84

N.C. App. 666, 670 (1987) (“Facts alleged in the complaint and admitted in the answer

are conclusively established by the admission.” (citing Champion v. Waller, 268 N.C.

426 (1966))).

¶ 25 In re I.R.L., 263 N.C. App. 481 (2019)1 is incorrectly relied upon by respondent-

father and the majority. On the contrary, the controlling precedent established by

this Court is found in In re A.U.D., 373 N.C. 3, 10–11 (2019), where this Court held

that “a remand by this Court to the trial court for written findings on these

uncontested issues—a disposition for which our dissenting colleague appears to be

advocating—would be an elevation of form over substance and would serve only to

delay the final resolution of this matter for the children.” Affirming the trial court’s

termination of parental rights in this case does not involve improperly finding facts

that a child support order exists, as the majority contends. Here, the fact of the

1 While the majority relies on this decision from the Court of Appeals, it is worth

noting that decisions from the Court of Appeals are only persuasive, not binding authority on this Court in cases not previously adopted. IN RE C.L.H.

existence of a child support order is uncontested by respondent-father’s admission in

his answer to petitioner-mother’s allegation in her petition for termination.2 To

remand this case and direct the trial court to make findings of fact on a fact already

uncontested by both parties is “an elevation of form over substance.” Id.

¶ 26 Moreover, In re I.R.L. is distinguishable from the instant case. In that case,

the “trial court’s termination order [was] devoid of any findings indicating that a child

support order existed or that [the f]ather failed to pay support ‘as required by’ the

child support order,” and the only evidence supporting the existence of a child support

order was the testimony of both parties. Id. at 486.

¶ 27 In this case, the trial court determined that “[t]he Respondent-father paid no

support, whether child support or other monetary support for the benefit of the minor

child since September 2015, over four years next preceding the filing of this

[termination].” Respondent-father did not challenge finding of fact 11 in the trial

court’s termination order. Unchallenged findings of fact are “deemed supported by

2 Moreover, a review of the record indicates that the parties apparently considered the

issue of whether there was a child support order to be settled. Petitioner-mother, in her testimony during direct examination responded that there was a child support order in place for the minor child. On cross examination of the petitioner-mother, the respondent-father’s attorney did not question her regarding her testimony regarding the child support order. On direct examination, the respondent-father testified that he paid money in accordance with “the legal agreement we had.” IN RE C.L.H.

competent evidence and are binding on appeal.” In re T.N.H., 372 N.C. 403, 407

(2019). Therefore, finding of fact 11 is binding on this Court.

¶ 28 Finding of fact 11 is also supported by sufficient evidence. Respondent-father

admitted that “Petitioner[-mother] and Respondent[-father] entered into a child

support consent order wherein the Respondent[-father] agreed to pay the [Petitioner-

mother] the sum of $433 per month.” The uncontroverted evidence showed that there

was a child-support order in place for Cash, the biological child of petitioner-mother

and respondent-father, and that the last payment respondent-father made was in

September 2015.

¶ 29 The record additionally supports the trial court’s finding of fact 17(c) that

respondent-father willfully failed to pay child support. Respondent-father testified

that he intentionally withheld financial support from Cash. Respondent-father

testified that he was employed. When asked about his financial assistance after the

25 February 2018 incident and the loss of his visitation rights, respondent-father

responded as follows: “I’m not going to give the money when I’m not even allowed to

spend time with my son.” Also, respondent-father did not give any justification for his

failure to pay child support after the 25 February 2018 incident and admitted he was

currently employed as a subcontractor and had worked as a contractor for most of his

life. On this record, there is sufficient evidence to find that respondent-father had

willfully and without justification failed to pay child support for four years. IN RE C.L.H.

¶ 30 Respondent-father argues that finding of fact 17(c) should be treated as a

conclusion of law and raises that the trial court used the same language in its third

conclusion of law. The majority seems to implicitly adopt this argument. However, a

finding that an act is willful is determined by the trier of fact whether it be a jury or

the trial court. In re K.N.K., 374 N.C. 50, 53 (2020) (“The willfulness of a parent’s

actions is a question of fact for the trial court.”); see also Brandon v. Brandon, 132

N.C. App. 646, 651 (1999) (“Where the trial court sits as the finder of fact, ‘and where

different reasonable inferences can be drawn from the evidence, the determination of

which reasonable inference shall be drawn is for the trial [court].’ ” (alteration in

original)). Plainly, the determination of whether a parent is acting willfully is a

finding of fact and not a conclusion of law. In re J.S., 374 N.C. 811, 818 (2020). Finding

of fact 17(c) is therefore properly classified as a finding of fact in the trial court’s

termination order.

¶ 31 In conclusion, respondent-father’s admission in his answer to petitioner-

mother’s allegation that he had entered into a consent child support order makes its

existence an uncontested fact. Additionally, the trial court’s findings of fact 11 and

17(c) were supported by sufficient evidence in the record and support the trial court’s

conclusion to terminate respondent-father’s parental rights pursuant to N.C.G.S.

§ 7B-1111(a)(4) for willfully failing to pay child support without justification.

¶ 32 For these reasons, the decision of the trial court should be upheld on the ground IN RE C.L.H.

for termination pursuant to N.C.G.S. § 7B-1111(a)(4).3 Accordingly, I respectfully

dissent.

Chief Justice NEWBY and Justice BERGER join in this dissenting opinion.

3 Since I would affirm the trial court’s termination pursuant to N.C.G.S § 7B- 1111(a)(4) and only one termination ground is required under N.C.G.S. § 7B-1111(a), it is unnecessary to reach the remaining grounds found by the trial court.