In Re J.K.U.

• Court: Court of Appeals of North Carolina
• Decided: October 21, 2014
• Docket: 14-511
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-511 NORTH CAROLINA COURT OF APPEALS

Filed: 21 October 2014

IN THE MATTER OF:

J.K.U. Guilford County No. 12 JT 168

Appeal by respondent mother from order entered 24 January

2014 by Judge Angela Foster in Guilford County District Court.

Heard in the Court of Appeals 29 September 2014.

Mercedes O. Chut for petitioner-appellee Guilford County Department of Social Services.

Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch, for guardian ad litem.

Richard Croutharmel for respondent-appellant mother.

McCULLOUGH, Judge.

Respondent mother appeals from the trial court’s order

terminating her parental rights to the minor child, J.K.U.

(“Jack”)1. For the reasons discussed herein, we affirm the

trial court’s order.

I. Background

1 A pseudonym is used for ease of reading and to protect the privacy of the juvenile. -2- On 3 November 2011, Guilford County Department of Social

Services (“DSS”) received a neglect report alleging

inappropriate supervision, possible lack of care, and

inappropriate sexual contact between 11-year-old Jack and his

younger female cousin. On 4 November 2011, DSS conducted an

initial investigation of the allegations and the family denied

any inappropriate contact between the children. The children’s

mothers entered into a safety agreement to provide appropriate

supervision at all times and to cooperate with DSS.

On 26 January 2012, DSS received another report alleging

inappropriate sexual contact between Jack and his cousin.

Jack’s cousin stated that Jack “touched her private parts” and

that “it hurt.” Jack was interviewed by a police detective and

admitted that he engaged in some sexual behavior with his

cousin. Based on Jack’s statements to the detective, Jack and

respondent were provided temporary housing at a motel. Detailed

safety agreements were made with the children’s mothers

indicating there was to be no contact between the children. On

6 February 2012, DSS learned that the children had contact in

violation of the safety agreements.

On 8 February 2012, DSS filed a juvenile petition alleging

Jack was neglected and dependent and the trial court entered an -3- order placing Jack in nonsecure custody with DSS. Respondent

entered into a case plan on 1 March 2012 and agreed to the

following conditions: (1) complete a parenting assessment and

follow the recommendations, complete parenting classes, attend

scheduled visits, and maintain contact with the social worker;

(2) complete a substance abuse assessment and follow

recommendations, and submit to random drug screens; (3) obtain

and maintain stable housing; (4) obtain a psychiatric evaluation

to determine if medication is needed, comply with individual

therapy, and comply with joint family therapy once recommended

by the child’s therapist; and (5) obtain and maintain stable

employment. By order entered 27 April 2012, Jack was

adjudicated dependent. The trial court ordered that custody of

Jack remain with DSS. Respondent was ordered to comply with her

case plan and cooperate with DSS.

The matter came on for a permanency planning hearing on 24

October 2012. By order filed 14 November 2012, the trial court

found respondent “has the ability to work the objectives in her

case plan when she decides to do so.” The permanent plan for

the case was reunification with a concurrent plan of adoption.

The trial court concluded it was in Jack’s best interest to

remain in the custody of DSS. -4- Following a subsequent permanency planning hearing held on

26 April 2013, the trial court found respondent was not engaged

in her case plan. Specifically, respondent continued to test

positive for marijuana and was not participating in drug

treatment, she did not have safe and secure housing or income,

she was not participating in individual therapy on a consistent

basis, and she had not completed positive parenting classes. As

a result, the trial court changed the permanent plan to adoption

with a concurrent plan of reunification and ordered DSS to

proceed with filing a termination of parental rights petition.

On 24 June 2013, DSS filed a petition to terminate parental

rights alleging grounds existed to terminate respondent’s

parental rights based upon neglect, failure to make reasonable

progress, failure to pay a reasonable portion of the cost of

care, and dependency. See N.C. Gen. Stat. § 7B-1111(a)(1), (2),

(3), and (6) (2013). The termination hearing was held on 26

November 2013, after which the trial court found the existence

of all grounds alleged by DSS. The court determined that

termination of respondent’s parental rights was in Jack’s best

interest and entered an order terminating respondent’s parental

rights. Respondent appeals.

II. Discussion -5- Respondent argues the trial court reversibly erred in

finding and concluding that grounds existed to terminate her

parental rights because the evidence failed to support the

findings and the findings failed to support the conclusions.

“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).

We note that although the trial court concluded that more

than one ground existed to terminate respondent’s parental

rights, we find it dispositive that the evidence supports

termination of her parental rights pursuant to N.C. Gen. Stat. §

7B-1111(a)(3), willful failure to pay a reasonable portion of

the cost of care. 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.G.S. 7B–1111 is sufficient to support a termination.”).

A trial court may terminate parental rights where:

The juvenile has been placed in the custody of a county department of social services, . . . 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 -6- 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).

This Court as recognized that the use of “willfully” in the

statute “imports knowledge and a stubborn resistance[.]” In re

Matherly, 149 N.C. App. 452, 455, 562 S.E.2d 15, 18 (2002)

(quotation marks omitted). “Manifestly, one does not act

willfully in failing to make support payments if it has not been

within [her] power to do so.” In re Adoption of Maynor, 38 N.C.

App. 724, 726, 248 S.E.2d 875, 877 (1978). “A parent’s ability

to pay is the controlling characteristic of what is a

‘reasonable portion’ of cost of foster care for the child which

the parent must pay.” In re Clark, 303 N.C. 592, 604, 281

S.E.2d 47, 55 (1981). “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.” Id.

“[N]onpayment would constitute a failure to pay a ‘reasonable

portion’ if and only if respondent were able to pay some amount

greater than zero.” In re Bradley, 57 N.C. App. 475, 479, 291

S.E.2d 800, 802 (1982).

Here, respondent argues there is no finding that respondent

was able to pay some amount greater than zero. Respondent -7- contends the trial court reversibly erred in failing to

specifically address respondent’s ability to pay. We disagree.

The trial court found that “[t]he mother is under an order

to pay child support for the juvenile but has failed to pay any

child support or otherwise contribute to the juvenile’s cost of

care since he has been in custody.” The trial court further

found that during the relevant six month period respondent

“willfully failed to pay a reasonable portion of the juvenile’s

cost of care under the circumstances despite having been

physically and financially able to do so.” These findings are

supported by the evidence as the social worker testified that

respondent entered into a voluntary support order to pay $50 per

month effective 1 January 2013, and respondent never paid any

child support. The social worker further testified that

respondent “is an able body and is under no physical or mental

disability to prevent her from working[.]”

Respondent’s ability to pay was established by her child

support order.

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. -8-

In re Roberson, 97 N.C. App. 277, 281, 387 S.E.2d 668, 670

(1990) (citations omitted). Accordingly, the trial court’s

findings establish that respondent had the ability to pay some

amount greater than zero. The trial court did not err in

finding grounds exist to terminate respondent’s parental rights

pursuant to N.C. Gen. Stat. § 7B-1111(a)(3).

“After an adjudication that one or more grounds for

terminating a parent’s rights exist, the court shall determine

whether terminating the parent’s rights is in the juvenile’s

best interest.” N.C. Gen. Stat. § 7B-1110(a) (2013). The court

must consider the following factors and make written findings

regarding those that are relevant:

(1) The age of the juvenile.

(2) The likelihood of adoption of the juvenile.

(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.

(4) The bond between the juvenile and the parent.

(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.

(6) Any relevant consideration. -9- Id. “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.’” Davis v.

Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) (quoting

Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980)).

In this case, respondent concedes that the trial court made

findings concerning the enumerated factors, but contends the

trial court failed to address the fact that Jack was of an age

that his consent to adoption was necessary. Respondent argues

the trial court abused its discretion in terminating her

parental rights because the evidence showed that Jack had a

strong bond with her, wanted to return to her custody, and was

unlikely to consent to adoption. We are not persuaded.

In this case, the trial court found that “[Jack] has a

strong bond with his mother[.]” However, the trial court also

found that “[Jack] deserves permanency.” Jack’s guardian ad

litem testified that Jack had expressed to her that he was tired

of the case “dragging out.” She further testified that he was

frustrated by “being in limbo.” Although Jack expressed a

desire to return to his mother, he also wanted permanence and -10- stability. Moreover, the Juvenile Code does not require that

termination of parental rights lead to adoption in order for it

to be in the child’s best interest. See In re M.M., 200 N.C.

App. 248, 258, 684 S.E.2d 463, 470 (2009) (stating there’s no

requirement within N.C.G.S. § 7B-1110 that termination lead to

adoption), disc. review denied, 364 N.C. 241, 698 S.E.2d 401

(2010).

Here, the trial court properly considered the section 7B-

1110(a) factors and made written findings as required. The

trial court did not abuse its discretion in determining that

termination of respondent’s parental rights was in Jack’s best

interest. Accordingly, we affirm the trial court’s order

terminating respondent’s parental rights.

Affirmed.

Judges CALABRIA and STEELMAN concur.

Report per Rule 30(e).