In re H.J.A.

• Court: Court of Appeals of North Carolina
• Decided: January 7, 2014
• Docket: 13-507
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-507 NORTH CAROLINA COURT OF APPEALS

Filed: 7 January 2014

IN THE MATTER OF:

H.J.A. and T.M.A. Mecklenburg County Nos. 08 J 326 09 J 368

Appeal by Respondent-Appellant Mother from orders entered

11 February 2013 by Judge Louis A. Trosch in District Court,

Mecklenburg County. Heard in the Court of Appeals 10 December

2013.

Twyla Hollingsworth-Richardson, for Petitioner-Appellee Mecklenburg County Department of Social Services, Youth and Family Services.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Joyce L. Terres, for Respondent-Appellant Mother.

Poyner Spruill, LLP, by Kathryn R. Paradise, for Guardian ad Litem.

McGEE, Judge.

The trial court terminated the parental rights of

Respondent-Mother (“Mother”) to H.J.A. and T.M.A. (“the

juveniles”) in an order entered 7 February 2012. Mother -2- appealed the termination order and the permanency planning order

of 6 January 2011, in which the trial court ordered the

Mecklenburg County Department of Social Services (“DSS”) to

cease reunification efforts with Mother. This Court held that

the findings in the permanency planning order were insufficient

to support the conclusion to cease reunification efforts. In re

H.J.A. and T.M.A., ___ N.C. App. ___, ___, 735 S.E.2d 359, 363

(2012). This Court reversed the permanency planning order and

remanded for additional findings of fact. Id.

Because this Court reversed the permanency planning order,

it also reversed the termination of parental rights order. “As

we must reverse and remand the order ceasing reunification

efforts as to respondent-mother, we must also reverse and remand

the order terminating her parental rights to the juveniles.”

Id. at ___, 735 S.E.2d at 363-64. This Court did not address

arguments regarding the termination order. Id. at ___, 735

S.E.2d at 364.

The trial court held a hearing on 17 January 2013 and

entered an amended permanency planning order on 11 February

2013. The trial court also entered an order in which it found

that additional findings on the termination of parental rights

were unnecessary. The trial court concluded: “The 7 February -3- 2012 Termination of Parental Rights order continues to be the

order of this court.” The trial court incorporated by

reference the 7 February 2012 termination order and attached a

copy of it to the order. Mother appeals.

I. Whether the Trial Court Erred in Incorporating By Reference the 7 February 2012 Termination Order

Mother argues the trial court erred by “reaffirming” the 7

February 2012 termination order after it was reversed and

remanded by this Court. We disagree.

The trial court’s 11 February 2013 order states:

Regarding the Termination of Parental Rights order of 7 February 2012, the [Court of Appeals] did not identify any issues regarding any of the findings made in that order and the court’s ultimate decision to terminate [] [M]other’s parental rights. This court also notes the Termination of Parental Rights hearing was a separate action from the Permanency Planning Review hearing. Therefore, with no noted issues on the merits or any clear direction from the [Court of Appeals], this court does not find any additional finding to its Termination of Parental Rights order are necessary and it maintains its decision to terminate the parental rights of the respondent parents (see the 7 February 2012 Termination of Parental Rights order attached and incorporated herein by reference).

Mother contends that “reverse” is synonymous with “vacate,”

and when an order is reversed, it cannot be “reaffirmed.” As a

preliminary matter, we note that the order the trial court -4- entered 11 February 2013 did not reaffirm the 7 February 2012

order, but rather incorporated by reference the 7 February 2012

order. We therefore review whether the trial court erred in

incorporating by reference its 7 February 2012 order.

Mother cites In re I.B.M., ___ N.C. App. ___, 731 S.E.2d

444, 446, disc. review denied, 366 N.C. 400, 735 S.E.2d 191

(2012) (“I.B.M. III”), in which the Property Tax Commission

noted that it was bound by the “law of the case” as to certain

findings. This Court speculated that the Property Tax

Commission may have “construed the fact that IBM I used the term

‘vacate’ and that IBM II used the word ‘reverse’ as creating

some sort of meaningful difference in the portions of its final

decision approved or disapproved by this Court.” I.B.M. III,

___ N.C. App. at ___, 731 S.E.2d at 448. This Court stated: “As

a practical matter, the terms ‘vacate’ and ‘reverse’ are

synonymous as used in most cases.” Id. at ___, 731 S.E.2d at

449 (emphasis added). The portion of I.B.M. III Mother quoted

in her brief is dicta because it was “unnecessary to the

resolution of the case.” Durham Hosiery Mill Ltd. Partnership

v. Morris, ___ N.C. App. ___, ___, 720 S.E.2d 426, 429 (2011).

“Language in an opinion not necessary to the decision is obiter

dictum and later decisions are not bound thereby.” Id. -5- Mother also cites In re A.R.P., ___ N.C. App. ___, 721

S.E.2d 725, 727-28 (2012), in which the trial court made

“neither a conclusion of law that respondent’s parental rights

should be terminated nor a conclusion that termination is in the

best interest of the children.” This Court reversed the trial

court’s termination order because “we have no complete order

addressing all of the facts and substantive issues.” Id. at

___, 721 S.E.2d at 728. “Essentially, the trial court’s order

is asking us to piece together a complete order terminating

respondent’s parental rights from” a reversed order, a second

order addressing only willfulness, and a transcript not included

in the record. Id.

Even assuming arguendo, without deciding, that reversal

renders an order void, Mother cites no case holding that, on

remand, the trial court cannot incorporate by reference a

previously reversed order. This Court in In re A.R.P. did not

reverse because the trial court incorporated a reversed order.

Rather, we reversed because there was no complete order to

review. Id. By contrast, in the present case, the trial

court’s 11 February 2013 order contained findings of fact,

conclusions of law, and incorporated its 7 February 2012 order

by reference. We therefore have before us a “complete order -6- addressing all of the facts and substantive issues.” Id.

Mother has not shown error on this basis.

II. Whether Mandate Required a New Petition or Trial

Mother also argues that “when the entire termination of

parental rights order was reversed, the case returned to the

same status as before the termination trial occurred” and a new

petition and trial were required. We disagree.

When a case has been remanded from this Court, the general

rule is that a trial court “must follow the mandate of an

appellate court in a case without variation or departure.” In

re R.A.H., 182 N.C. App. 52, 57, 641 S.E.2d 404, 407 (2007). In

the present case, the trial court followed this Court’s mandate

without variation or departure.

This Court instructed the trial court only to make

additional findings of fact in the reunification order. We did

not suggest that a new petition and trial were required. This

Court’s opinion gave a discrete set of instructions. We noted

“there was sufficient evidence in the record to support proper

findings as to [the conclusion on reunification,] and it appears

from the trial judge’s statements at the hearing that he meant

to make these findings.” In re H.J.A. and T.M.A., ___ N.C. App.

at ___, 735 S.E.2d at 363. Further delay of the resolution of -7- this case is not necessary. While the most cautious practice

may be to enter a new order terminating parental rights on

remand, Mother has not shown error on this basis.

III. Grounds to Terminate Parental Rights

Mother argues “the trial court erred by concluding that

grounds exist to terminate Mother’s parental rights pursuant to

N.C. Gen. Stat. § 7B-1111(a)(3)” (2011). We disagree.

A. Standard of Review

We review an adjudication order to determine “(1) whether

the findings of fact are supported by clear and convincing

evidence, and (2) whether the legal conclusions are supported by

the findings of fact.” In re A.R., ___ N.C. App. ___, ___, 742

S.E.2d 629, 631 (2013). “If such evidence exists, the findings

of the trial court are binding on appeal, even if the evidence

would support a finding to the contrary.” Id. “Findings of

fact are also binding if they are not challenged on appeal.”

Id.

B. Rule

The trial court may terminate parental rights upon finding

that:

The juvenile has been placed in the custody of a county department of social services . . . for a continuous period of six months next preceding the filing of the -8- 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.

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 on this ground.” In re Ballard, 311 N.C. 708,

716-17, 319 S.E.2d 227, 233 (1984). Mother challenges the

following finding as unsupported by evidence: “[Mother] had the

ability to pay some amount greater than zero towards the

juveniles’ care.” Mother points to a social worker’s testimony

that Mother’s expenses exceeded her income.

However, Mother was employed at a restaurant from February

2011 to July 2011. From her income at that restaurant, she was

able to pay rent for her apartment. About a week before the

hearing, Mother left the restaurant to work at a fast food

restaurant to earn more money. Mother testified that she pays

her rent without assistance. She also pays for gas, lights,

food costs, phone, and lawn mowing bills. She pays a neighbor

for transportation to work. Mother also testified that her

boyfriend has given her money in the past. When asked whether

she provided any money to DSS to assist in the care of the

juveniles, Mother answered that no one asked her to provide

funds. She further answered that she could buy clothes for one -9- of the juveniles, but she would never see the juvenile wearing

those clothes.

The finding that Mother had the ability to pay some amount

greater than zero toward the juveniles’ care was supported by

clear and convincing evidence in the record. Even though there

may be evidence in the record to support a contrary finding, the

trial court’s finding remains binding on appeal when it is

supported by competent evidence. In re A.R., ___ N.C. App. at

___, 742 S.E.2d at 631.

Mother further contends that the trial “court did not

specifically find that any failure to pay on [Mother’s] part was

done willfully.” Mother cites In re Maynor, 38 N.C. App. 724,

248 S.E.2d 875 (1978), for support of her argument. However,

the trial court labeled as a conclusion of law the following

statement:

That pursuant to N.C.G.S. § 7B-1111(a)(3), the juveniles ha[ve] been placed in the custody of [DSS], and the respondent parents for a continuous period of six months next preceding the filing of the Petition to Terminate Parental Rights, have willfully failed for such period to pay a reasonable portion of the cost of care for the juveniles although physically and financially able to do so.

Willfulness in failing to pay a reasonable portion of the

cost of care constitutes a finding of fact. In re Huff, 140 -10- N.C. App. 288, 292, 536 S.E.2d 838, 841 (2000) (characterizing

failure to pay a reasonable portion of the cost of care as a

finding of fact); see also In re M.R.D.C., 166 N.C. App. 693,

697, 603 S.E.2d 890, 892-93 (2004) (“Facts are things in space

and time that can be objectively ascertained by one or more of

the five senses or by mathematical calculation.”). The trial

court’s designation of the willfulness of Mother’s failure to

pay as a conclusion of law, rather than a finding of fact, is

not binding on this Court. In re Hogan, 32 N.C. App. 429, 433,

232 S.E.2d 492, 494 (1977) (“We will ignore the incorrect

designation[.]”). Mother has not shown the trial court erred on

this basis because the trial court did make a finding as to

Mother’s willfulness.

Because we affirm the trial court’s order terminating

Mother’s parental rights on the ground stated in N.C.G.S. § 7B-

1111(a)(3), we need not address Mother’s arguments concerning

other grounds for termination of parental rights. In re T.D.P.,

164 N.C. App. 287, 291, 595 S.E.2d 735, 738 (2004).

Affirmed.

Judges McCULLOUGH and DILLON concur.

Report per Rule 30(e).