Opinion
No. COA09-1079.
Filed January 19, 2010.
Pitt County Nos. 00 JT 206-07.
Appeal by respondent-mother from orders entered 28 May 2009 by Judge Joseph A. Blick, Jr., in Pitt County District Court. Heard in the Court of Appeals 21 December 2009.
Pitt County Legal Department, by Nikki R. Walker, for petitioner-appellee Pitt County Department of Social Services. Michael J. Reece, for respondent-appellant mother. Pamela Newell Williams, for guardian ad litem.
Respondent-mother ("respondent") appeals from the district court's orders entered 28 May 2009 terminating her parental rights to her nine-year-old daughter, P.P. ("Patricia"), and her eight-year-old son, M.P. ("Michael") (collectively "the children"). Although the orders also terminated the parental rights of the putative fathers, they are not parties to the instant appeal. After careful review, we affirm.
We will refer to the juveniles by pseudonyms in order to protect their identities and for ease of reading.
On 12 December 2000, the Pitt County Department of Social Services ("DSS") filed juvenile petitions alleging that the children were neglected and dependent juveniles. DSS had been involved with respondent since 1997. Respondent has a long history of substance abuse, and DSS began providing services to her in 1998. Despite DSS's attempt at services, respondent tested positive for cocaine several times in 2000. Both Patricia, born in 1999, and Michael, born in 2000, had cocaine in their systems at birth. In October 2000, the children began living with respondent's former neighbors, the Smiths, because respondent was to be incarcerated. She remained incarcerated from November 2000 until January 2001 and was placed on probation after her release. When respondent was released, Patricia was one year old at the time and Michael was only a few days old. The children continued to reside with the Smiths after respondent's release.
Also a pseudonym.
In January 2001, respondent was evicted from her apartment. She tested positive for cocaine usage in March 2001, and failed to consistently attend substance abuse treatment. On 31 May 2001, the children were placed in DSS custody, but remained in a placement with the Smiths. In an order dated 4 October 2001, the children were adjudicated neglected, pursuant to respondent's consent at a hearing conducted on 18 and 19 July 2001.
After the adjudication and disposition hearing, respondent's behavior did not improve. She continued to use illegal drugs, continued to engage in criminal activity, failed to participate in mental health and substance abuse treatment, failed to maintain employment or housing, and failed to visit her children consistently. The trial court suspended respondent's visitation with the children at a 20 September 2001 review hearing. Respondent was arrested for a probation violation after the hearing. Her probation was revoked and her sentence was activated. She remained incarcerated until 28 May 2002. In a review order dated 17 April 2002, the trial court ordered respondent, inter alia, to comply with all substance abuse treatment, obtain negative results on drug screens, and avoid any additional criminal charges or incarceration in order to maintain a permanent plan of reunification.
The trial court conducted a permanency planning hearing on 7 and 14 November 2002. On 18 March 2003, the trial court entered an order relieving DSS of further reunification efforts and changed the children's permanent plan to adoption. Respondent appealed the permanency planning order. In an opinion filed on 21 December 2004, this Court vacated the permanency planning review order and remanded the case to the trial court for findings of fact and conclusions of law required by N.C. Gen. Stat. § 7B-507(b). In re R.P., P.P. M.P., 167 N.C. App. 654, 605 S.E.2d 743 (2004) (unpublished).
On 28 March 2006, DSS filed petitions to terminate respondent's parental rights. At the time of this filing, the trial court had not held a permanency planning hearing that was remanded from this Court. In response, respondent denied the material allegations contained in the petitions and moved the court to hold a "remand hearing." In an order dated 21 August 2006, the trial court denied respondent's motion. After a termination hearing on 7 September 2006, the trial court entered orders on 19 October 2006 terminating respondent's parental rights to the children. Respondent appealed from the termination orders. In an opinion filed on 5 June 2007, this Court vacated and remanded the orders, finding that the trial court erred in holding a termination of parental rights hearing without first holding the permanency planning hearing that had been remanded. In re P.P. M.P., 183 N.C. App. 423, 645 S.E.2d 398 (2007).
The trial court conducted a permanency planning hearing on 13 December 2007, and, in orders entered 8 January 2008, changed the permanent plan from reunification to adoption. During the pendency of the appeals, many circumstances surrounding the case had changed. The minor children were no longer with the Smiths, but had remained in the same foster home where they had been placed together since 4 November 2003. Additionally, respondent was living in Florida at the time of the hearing and had not returned to North Carolina. Respondent left North Carolina in 2003, because she had several outstanding warrants for her arrest in North Carolina. She had not contacted the children or contacted DSS since 2002. However, respondent had maintained employment in several positions including one as a nursing assistant, sought certification as a licensed practical nurse, claimed to be drug free, and had no criminal record in Florida.
In a subsequent permanency planning hearing on 11 December 2008, respondent testified via telephone. At the time of the hearing, respondent was employed at Vic's Comprehensive Counseling and was earning $12.45 per hour. She also moved into a house with her fiance and shared a mortgage payment of $1265.00 per month. DSS moved both children to separate therapeutic foster homes due to behavioral issues. In orders entered 9 January 2009, the trial court ordered respondent to provide the following: (1) copies of her tax returns for the past seven years; (2) criminal histories from the States of Florida and New York; and (3) copies of drug screens that she had taken.
On 15 December 2008, DSS again filed petitions to terminate respondent's parental rights based on the following grounds: (1) neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1); (2) willfully leaving the children in foster care for more than twelve months without showing reasonable progress to correct the conditions that led to removal pursuant to N.C. Gen. Stat. § 7B-1111(a)(2); (3) willfully failing to pay a reasonable portion of the cost of care for the juvenile pursuant to N.C. Gen. Stat. § 7B-1111(a)(3); (4) willful abandonment pursuant to N.C. Gen. Stat. § 7B-1111(a)(7); and (5) respondent's parental rights to another child have been terminated involuntarily by a court of competent jurisdiction and respondent lacks the ability or willingness to establish a safe home pursuant to N.C. Gen. Stat. § 7B-1111(a)(9). Respondent filed answers denying the material allegations contained in the petitions.
The trial court conducted a termination hearing on 29 April 2009. In orders entered on 28 May 2009, the trial court concluded that all five grounds alleged by DSS existed to terminate respondent's parental rights to the children. The trial court also terminated the parental rights of the purported or unknown fathers of the children. The trial court then concluded that it was in the children's best interests to terminate respondent's parental rights to the children. From these orders, respondent gave timely notice of appeal.
Proceedings to terminate parental rights are conducted in two parts: (1) the adjudication stage, governed by N.C. Gen. Stat. § 7B-1109, and (2) the disposition stage, governed by N.C. Gen. Stat. § 7B-1110. In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003). Pursuant to N.C. Gen. Stat. § 7B-1111(a) (2007), a trial court may terminate parental rights upon a finding of one of the ten enumerated grounds. "In [the adjudication] stage, the burden is on the petitioner to provide `clear, cogent, and convincing evidence' that the named grounds in N.C. Gen. Stat. § 7B-1111(a) (2005) exist." In re S.W., 187 N.C. App. 505, 506, 653 S.E.2d 425, 425-26 (2007). If the trial court determines that at least one ground for termination exists, then it proceeds to the disposition phase to determine whether termination is in the best interests of the children. N.C. Gen. Stat. § 7B-1110(a) (2007). In the instant case, respondent challenges only the adjudication portion of the trial court's termination orders.
On appeal, we review the trial court's orders to determine "whether the trial court's findings of fact were based on clear, cogent, and convincing evidence, and whether those findings of fact support a conclusion that parental termination should occur." In re Oghenekevebe, 123 N.C. App. 434, 435-36, 473 S.E.2d 393, 395 (1996) (citation omitted). Here, the trial court found that five grounds existed to terminate respondent's parental rights to the children. Although respondent-mother challenges each of the five grounds, "[a] single ground . . . is sufficient to support an order terminating parental rights." In re J.M.W. E.S.T.W., 179 N.C. App. 788, 789, 635 S.E.2d 916, 917 (2006). Therefore, if we find that the findings of fact support one of the grounds, we need not review the other grounds. See In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426-27 (2003).
As an initial matter, we note that although respondent makes a few general references to the findings of fact in her brief, she does not specifically challenge them. Because respondent has not argued her assignments of error relating to the trial court's findings of fact, we must deem these assignments of error abandoned. In Re Bishop, 92 N.C. App. 662, 664, 375 S.E.2d 676, 678 (1989) (citing N.C.R. App. P. 28(b)(5)). For this reason, the trial court's remaining findings of fact are binding on appeal. See Humphrey, 156 N.C. App. at 540, 577 S.E.2d at 426.
After reviewing the record, we find that the trial court's undisputed findings of fact are sufficient to support at least one ground for termination. North Carolina General Statute § 7B-1111(a)(3) lists willful failure to pay support as a ground for termination and provides the following:
The juvenile has 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 although physically and financially able to do so.
N.C. Gen. Stat. § 7B-1111(a)(3).
"In determining what constitutes a `reasonable portion' of the cost of care for a child, the parent's ability to pay is the controlling characteristic." In re Clark, 151 N.C. App. 286, 288, 565 S.E.2d 245, 247 (2002) (citation omitted). "[N]onpayment constitutes a failure to pay a reasonable portion `if and only if respondent [is] able to pay some amount greater than zero.'" Id. at 289, 565 S.E.2d at 247 (quoting In re Bradley, 57 N.C. App. 475, 479, 291 S.E.2d 800, 802 (1982)).
The trial court made the following findings of fact in support of this ground:
The trial court entered two separate orders terminating respondent's parental rights: one terminating her parental rights to Michael and one terminating her parental rights to Patricia. The two orders are nearly identical in substance, with any major differences being attributed to the differences between the two juveniles. All findings pertinent to this opinion are identical in both orders, but we have cited to the numbering in the order regarding Patricia.
70. The Respondent Mother has failed to provide any support or care for the juvenile. 71. The cost of care for the juvenile is about $581 per month.
72. The Respondent Mother is currently employed with Vic's Comprehensive Counseling and makes approximately $12.45 per hour.
73. The Respondent Mother was employed with Premier Limousine Enterprises, Inc. of Tampa, FL from June 2007 to November 2007, and she was employed by Trident International Marketing Company in November 2007.
74. The Respondent Mother currently pays a mortgage on a home in Palm Bay, Florida, of $1265 per month. She shares this mortgage payment with her fiance, David Rodriguez.
. . .
76. The Respondent Mother has never sent any gifts or other support to the juvenile.
. . .
92. Grounds exist to terminate the parental rights of Respondent Mother in accordance with [N.C. Gen. Stat. §] 7B-1111(a)(3) in that the respondent mother is physically and financially able to provide for this juvenile but has failed to do so. The Respondent Mother is currently employed at Vic's Comprehensive Counseling in Florida, making $12.45 per hour; she shares a mortgage payment with her fiance of over $1,000 per month; and she has previously been employed with Premier Limousine Enterprises, Inc. of Tampa, FL and Trident International Marketing Company.
Respondent essentially argues that the findings were insufficient to establish the existence of this ground because they did not provide enough detail regarding her overall income versus her expenditures. We acknowledge that the trial court's findings are not overly detailed regarding respondent's financial situation, but we nonetheless reject respondent's argument that such detail is essential. The trial court's uncontested findings of fact demonstrate that respondent was employed during the relevant statutory period, had relatively stable employment since moving to Florida, earned income during the statutory period, earned income sufficient to contribute to a mortgage payment, and did not contribute any amount to the cost of the children's care. We conclude that these findings were sufficient to establish that respondent was able to pay some amount greater than zero and failed to do so. See id. at 289, 565 S.E.2d at 247.
Accordingly, we find the trial court did not err in concluding that grounds existed to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(3). The remaining assignments of error are overruled.
Affirmed.
Judges STEPHENS and STROUD concur.
Report per Rule 30(e).