Opinion
No. COA16-40
08-02-2016
IN THE MATTER OF: J.S.F., H.B.G., A.L.G.
Assistant Davidson County Attorney Christopher M. Watford for petitioner-appellee Davidson County Department of Social Services. Ewing Law Firm, P.C., by Robert W. Ewing for respondent-appellant mother. Wagner Law Firm, P.C., by Lisa Anne Wagner for respondent-appellant father. Attorney Laura Gail Bodenheimer for guardian ad litem.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Davidson County, Nos. 11 JT 90-92 Appeal by respondent-parents from orders entered 3 November 2015 by Judge J. Rodwell Penry, Jr., in Davidson County District Court. Heard in the Court of Appeals 5 July 2016. Assistant Davidson County Attorney Christopher M. Watford for petitioner-appellee Davidson County Department of Social Services. Ewing Law Firm, P.C., by Robert W. Ewing for respondent-appellant mother. Wagner Law Firm, P.C., by Lisa Anne Wagner for respondent-appellant father. Attorney Laura Gail Bodenheimer for guardian ad litem. ELMORE, Judge.
Respondent-mother appeals from orders terminating her parental rights to the minor children J.S.F. (John), H.B.G. (Heather), and A.L.G. (Alex). Respondent-father appeals from orders terminating his parental rights to the minor children Heather and Alex. We affirm the trial court's orders.
Pseudonyms are used to protect the identities of the juveniles and for ease of reading.
I. Background
Respondents, who were never married, are the natural parents of Heather and Alex. Respondent-mother is John's mother, and his father is unknown. In May 2011, the Davidson County Department of Social Services (DSS) became involved with the family after receiving concerns related to unstable housing, lack of food in the home, inadequate supervision of the children, and domestic violence. Services were provided to the family, and on 26 August 2011, after initially filing juvenile petitions alleging that the children were neglected and dependent, DSS voluntarily dismissed the matters.
Around three years later, on 23 May 2014, DSS filed new petitions alleging that the juveniles were neglected and dependent. In the petitions, DSS alleged several instances of domestic violence in the home between the parents, and between respondent-mother and the minor children. John reported that respondent-father had struck respondent-mother in the head with a pot and that respondent-mother had attempted to suffocate John. According to 911 records, the Lexington Police Department had responded to the home on twenty-five occasions over the last five months. The petitions also cited concerns for respondent-mother's mental health as well as respondents' housing instability and inability to properly care for the children. The same day, nonsecure custody orders were entered placing the juveniles in DSS custody. After a hearing, the trial court entered an order on 30 July 2014 adjudicating the children neglected. On 27 August 2014, the trial court entered a disposition order continuing the juveniles in DSS custody and requiring respondents to pay child support and engage in certain corrective services.
After a permanency planning hearing, the trial court entered an order on 29 October 2014 continuing the juveniles in the custody of DSS and establishing a plan of reunification. The trial court held a subsequent review and permanency planning hearing, after which the court changed the permanent plan to adoption in an order entered 30 April 2015.
On 9 June 2015, DSS filed petitions for termination of respondent-mother's parental rights to the juveniles, alleging that (1) respondent-mother neglected the juveniles; (2) respondent-mother willfully left the juveniles in foster care or placement outside of the home for more than twelve months without showing reasonable progress in correcting the conditions that led to the removal of the juveniles; (3) the juveniles had been placed in DSS's custody and respondent-mother, for a continuous period of six months next preceding the filing of the petitions, had willfully failed to pay a reasonable portion of the cost of care of the juveniles although physically and financially able to do so; and (4) respondent-mother is incapable of providing for the proper care and supervision of the juveniles such that they are dependent juveniles. See N.C. Gen. Stat. § 7B-1111(a)(1)-(3), (6) (2015).
DSS also petitioned for termination of respondent-father's parental rights to Heather and Alex, alleging the first three grounds for which DSS sought termination of respondent-mother's parental rights. The trial court held a hearing on the petitions and entered orders terminating respondents' parental rights on 3 November 2015, adjudicating the existence of the first three grounds alleged in DSS's petitions. Respondents timely appeal from the termination orders.
II. Analysis
A. Respondent-Mother's Appeal
We first address respondent-mother's contention that the trial court erred in concluding that she had the financial ability to pay a sum greater than zero in financial support for her children's cost of care and willfully failed to do so. She contends that her social security income was intended only to cover her needs and that that income could not be considered in determining if she had the ability to pay child support.
"The standard for review in termination of parental rights cases is whether the court's findings of fact are based upon clear, cogent and convincing evidence and whether the findings support the conclusions of law." In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000) (internal quotation marks and citation omitted).
Under N.C. Gen. Stat. § 7B-1111(a)(3) (2015), the trial court may terminate parental rights upon a finding that
[t]he juvenile has been placed in the custody of a county department of social services . . . 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."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." In re Clark, 303 N.C. 592, 604, 281 S.E.2d 47, 55 (1981). "[N]onpayment constitutes a failure to pay a reasonable portion 'if and only if respondent [is] able to pay some amount greater than zero.' " In re Clark, 151 N.C. App. 286, 289, 565 S.E.2d 245, 247 (2002) (quoting In re Bradley, 57 N.C. App. 475, 479, 291 S.E.2d 800, 802 (1982)).
Here, the trial court concluded that respondent-mother willfully failed to pay a reasonable portion of the juveniles' cost of care during the six months preceding the filing of the petitions. In support of this conclusion, the trial court found the following pertinent facts:
69. [DSS] provides financial support to care for the minor child for clothing, room and board, and other expenses. During the six months immediately preceding the filing of the petition, December 9, 2014 and June 9, 2015, [DSS] paid . . . $5,042.68 for the reasonable portion of the costs of care for the minor child during the same six month period.
70. [Respondent-mother] was ordered to pay child support on July 31, 2014. To date, [respondent-mother] has never made any payment, of any kind, to [DSS] towards the cost of care for the minor child and made absolutely no payment to support her minor children during the six months immediately preceding the filing of the petition to terminate parental rights.
71. [Respondent-mother] receives between $710.00 and $733.00 per month in social security disability income, and
received that amount each month during the life of the case. [Respondent-mother] also held past employment at McDonalds and Dollar General. Prior to April 2015, [respondent-mother's] money had been managed through a local non-profit agency, Crisis Ministries. . . .Respondent-mother does not challenge these findings, which are therefore deemed to be supported by competent evidence and binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (citations omitted).
72. Prior to April 2015, [respondent-mother] would make requests of Crisis Ministries to pay certain items, sometimes on a daily basis. [Respondent-mother] never requested Crisis Ministries provide money to [DSS] as financial support for her children through April of 2015, but would often make demands of Crisis Ministries to provide her money for cable bills, to purchase multiple cell phones, and to pay electricity bills at a residence where she claimed she did not reside. In April of 2015, [respondent-mother] became her own payee and was solely responsible for her finances. [Respondent-mother] received the same monthly income, but paid zero in financial support for her children during the months of April, May, and June 2015. The Court finds that [respondent-mother] had the ability to pay a sum greater than zero in financial support during the six months next preceding the filing of the petition, but paid nothing. Even if the Court were to establish a de minimus amount as a reasonable portion of the costs of care, [respondent-mother] still failed to provide the same.
73. [Respondent-mother] had the ability to pay some amount greater than zero toward the costs of care for the minor child but did not do so during the six months immediately preceding the filing of the petition; consequently, this Court finds that [respondent-mother's] failure to contribute anything to the support and upkeep of the minor child to be willful.
These findings were made in the order terminating respondent-mother's parental rights to John. The trial court made substantially similar findings in its orders terminating respondent-mother's parental rights to Heather and Alex.
Respondent-mother cites to no legal authority in support of her contention that a trial court cannot take social security income into account when determining whether a parent had the ability to pay a reasonable portion of the cost of care of the children. This Court recently rejected a similar argument in an unpublished decision. See In re J.P., No. COA14-857, 2015 WL 681131, at *4 (N.C. Ct. App. Feb. 17, 2015) ("Because each respondent-parent received social security income during the relevant time period, the trial court did not err in finding that respondents had the ability to pay some amount greater than zero.").
The findings of fact in this case demonstrate that respondent-mother was able to pay some amount of support greater than zero. The trial court found that respondent-mother sought to use her money "for cable bills, to purchase multiple cell phones, and to pay electricity bills at a residence where she claimed she did not reside[,]" but that she never sought to pay for the support of her children. Respondent-mother's receipt of monthly social security income demonstrates her ability to pay some amount greater than zero, and the trial court therefore did not err in concluding that respondent-mother's parental rights were subject to termination under N.C. Gen. Stat. § 7B-1111(a)(3). See In re T.D.P., 164 N.C. App. 287, 290-91, 595 S.E.2d 735, 737-38 (2004) (finding that the respondent was able to pay some amount greater than zero because he earned between $.40 and $1.00 per day), aff'd per curiam, 359 N.C. 405, 610 S.E.2d 199 (2005).
While respondent-mother challenges the trial court's conclusions that the grounds for termination listed in N.C. Gen. Stat. § 7B-1111(a)(1) and (2) existed in this case, we need not address these challenges given our decision to uphold the trial court's conclusion that respondent-mother's parental rights were subject to termination under N.C. Gen. Stat. § 7B-1111(a)(3). 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.") (citation omitted). As a result, we affirm the trial court's orders terminating respondent-mother's parental rights to the juveniles.
B. Respondent-Father's Appeal
Respondent-father's counsel filed a no-merit brief pursuant to Rule 3.1(d) of our Rules of Appellate Procedure, stating that after conscientious and thorough review of the record on appeal and all materials in the case file, she has concluded that there is no issue on which we might grant relief to her client.
In accordance with Rule 3.1(d), counsel provided respondent-father with copies of the no-merit brief, trial transcript, and record on appeal, and advised him of his right to file a brief with this Court pro se. Respondent-father has made no pro se filing in this appeal.
After careful review, we are unable to find any prejudicial error by the trial court in ordering termination of respondent-father's parental rights to Heather and Alex. Our review of the record reveals that the termination orders include sufficient findings of fact, supported by clear, cogent, and convincing evidence, to conclude that respondent-father had, for a continuous period of six months next preceding the filing of the petitions, willfully failed to pay a reasonable portion of the cost of care for the juveniles although physically and financially able to do so. See N.C. Gen. Stat. § 7B-1111(a)(3). The finding of this statutory ground alone supports termination of respondent-father's parental rights. See In re Humphrey, 156 N.C. App. at 540, 577 S.E.2d at 426. Finally, the trial court made appropriate findings in determining that termination of respondent-father's parental rights was in the best interests of Heather and Alex. See N.C. Gen. Stat. § 7B-1110(a) (2015).
III. Conclusion
For the foregoing reasons, we affirm the trial court's orders terminating respondents' parental rights.
AFFIRMED.
Judges HUNTER, JR. and McCULLOUGH concur.
Report per Rule 30(e).