Opinion
No. COA10-1128
Filed 15 March 2011 This case not for publication
Appeal by respondent from order entered 19 July 2010 by Judge Jeanie R. Houston in Wilkes County District Court. Heard in the Court of Appeals 2 February 2011.
No brief filed on behalf of petitioner-appellee. Mercedes O. Chut for respondent-appellant. Charlotte Gail Blake for guardian ad litem.
Wilkes County No. 10 JT 17.
Respondent father appeals from an order terminating his parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (2009) (abuse or neglect), § 7B-1111(a)(4) (failure to pay child support pursuant to judicial decree for one year or more), and § 7B-1111(a)(7) (abandonment for six months). We uphold the trial court's conclusion that grounds exist to terminate parental rights under N.C. Gen. Stat. § 7B-1111(a)(4). Because, however, the order does not indicate that the trial court considered the factors set out in N.C. Gen. Stat. § 7B-1110(a) (2009) in deciding whether termination of parental rights was in the child's best interest, we must reverse and remand for further findings of fact in accordance with § 7B-1110(a).
Facts
Petitioner, the biological mother of M.A.W. ("Melissa"), and respondent father, Melissa's biological father, were married in February 2001. Melissa was born in January 2004. Melissa's parents separated in June 2004 and were divorced in July 2005. On 17 August 2004, pursuant to a consent order, petitioner was awarded sole legal and physical custody of Melissa. Respondent father was granted visitation and ordered to pay child support in the amount of $475.00 per month. On 31 March 2010, respondent father was found in civil contempt due to his failure to comply with the child support order.
The pseudonym "Melissa" is used throughout this opinion to protect the minor's privacy and for ease of reading.
On 3 February 2010, petitioner filed a petition to terminate respondent father's parental rights. Petitioner alleged that three grounds existed for termination: (1) respondent father had neglected Melissa, N.C. Gen. Stat. § 7B-1111(a)(1); (2) petitioner had been awarded custody of Melissa by judicial decree, and respondent father for a period of one year or more preceding the filing of the petition had willfully failed without justification to pay for the care, support, and education of Melissa, as required by the decree, N.C. Gen. Stat. § 7B-1111(a)(4); and (3) respondent father had willfully abandoned Melissa for at least six consecutive months immediately preceding the filing of the petition, N.C. Gen. Stat. § 7B-1111(a)(7). Petitioner further alleged that it was in Melissa's best interests to terminate respondent father's parental rights.
A hearing was held on the petition on 6 July 2010. The trial court heard testimony by petitioner, respondent father, Melissa's grandparents, other family members, and Melissa's guardian ad litem. In an order entered on 19 July 2010, the trial court concluded that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (4), and (7) to terminate respondent father's parental rights. The trial court further concluded that termination was in Melissa's best interests. Respondent father timely appealed to this Court from the order terminating his parental rights.
Discussion
A termination of parental rights proceeding is a two stage process. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). In the adjudicatory stage, the trial court must find that at least one ground for the termination of parental rights exists. Id. Upon finding the existence of one or more grounds, the trial court turns to the dispositional stage and must determine whether termination is in the child's best interests. Id. This Court determines "whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law." In re D.J.D., D.M.D., S.J.D., J.M.D., 171 N.C. App. 230, 238, 615 S.E.2d 26, 32 (2005).
We first address N.C. Gen. Stat. § 7B-1111(a)(4). That provision permits termination of parental rights when:
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 said decree or custody agreement.
Here, with respect to N.C. Gen. Stat. § 7B-1111(a)(4), the trial court made the following pertinent findings of fact:
14. That by virtue of that Order entered in Wilkes File 04 CVD 2262 and filed August 17, 2004, the defendant has been under an Order to pay the sum of Four Hundred Seventy-Five Dollars ($475.00) per month for the support and maintenance of the juvenile. By February 24, 2010, the biological father had a current total child support arrearage of $15,293.93. By that said date, he had made no child support payments since February 2008. During that period of time, from February 2008 until February 24, 2010, the defendant was able-bodied, earned some income and had the means and ability to make child support payments. He failed to do so. At his child support hearing on the 24th day of February 2010, the biological father offered no just excuse for his failure to comply with the child support obligation or his failure to make any child support payments from February 2008 until that court date, February 24, 2010. At this termination hearing, the biological father offered no just cause or excuse for his failure to comply with his child support obligation.
15. That the father has worked and had funds available but has failed to use them to provide support for the child. He did not send packages or letters to the child. At this hearing, the biological father offered no just cause or excuse for his failure to provide for his child.
. . . .
17. That the petition for termination of the biological father's parental rights was filed February 3, 2010. The biological father, for a period of one year or more next preceding the filing of the petition in this cause, willfully failed without justification to pay for the care, support, and education of the juvenile as required by said Decree.
On appeal, respondent father makes no argument regarding the sufficiency of the evidence to support these findings of fact. They are, therefore, binding on appeal. See In re P.M., 169 N.C. App. 423, 424, 610 S.E.2d 403, 404-05 (2005) (concluding findings of fact were binding on appeal when mother "failed to specifically argue in her brief that they were unsupported by evidence").
With respect to these findings of fact and the accompanying conclusion of law that grounds for termination existed under N.C. Gen. Stat. § 7B-1111(a)(4), respondent father argues only that the trial court improperly shifted the burden of proof to respondent father when the court found that he "offered no just cause or excuse" for his failure to pay child support. We disagree.
Respondent father correctly points out that the burden of proof lies with the petitioner throughout the adjudicatory phase of a termination of parental rights hearing. See N.C. Gen. Stat. § 7B-1109(f) (2009); In re Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908. In this case, there is no dispute (1) that respondent father was subject to a judicial decree requiring the payment of child support to petitioner and (2) that respondent father had failed to comply with that decree for almost two years. The trial court's finding that this failure was "willful" and "without justification" was supported by its unchallenged findings that, during the relevant period of time, respondent father "was able-bodied, earned some income and had the means and ability to make child support payments" and "has worked and had funds available but has failed to use them to provide support for the child."
While the trial court was not required to find that respondent father had the ability to pay child support and still did not, that finding establishes "willfulness" and a lack of justification for the non-payment. The trial court's findings and the evidence were sufficient, therefore, to support the existence of grounds under N.C. Gen. Stat. § 7B-1111(a)(4). See In re J.D.S., 170 N.C. App. 244, 258, 612 S.E.2d 350, 359 (holding that respondent's de minimis financial support of child in violation of child support decree, notwithstanding respondent's ability to pay child support, established grounds for termination under N.C. Gen. Stat. § 7B-1111(a)(4)), cert denied, 360 N.C. 64, 623 S.E.2d 584 (2005); In re Roberson, 97 N.C. App. 277, 281, 387 S.E.2d 668, 670 (1990) (holding that failure to pay child support was willful where petitioner proved existence of enforceable support order during year before termination petition was filed and that respondent was earning between $1,300.00 and $1,700.00 per month during relevant time period).
The trial court's further statements — that respondent father did not provide justification or excuse for his failure to pay child support at either his child support hearing or at the termination hearing — are consistent with this Court's prior decisions interpreting N.C. Gen. Stat. § 7B-1111(a)(4) and its identically-worded predecessor statute. In In re J.D.S., 170 N.C. App. at 257-58, 612 S.E.2d at 359 (internal quotation marks and citations omitted), this Court, upholding an order terminating parental rights under N.C. Gen. Stat. § 7B-1111(a)(4), noted: "And, . . . respondent herein could have rebutted petitioner's evidence of his ability to pay by presenting evidence that he was in fact unable to pay support, but he did not do so. Instead, as the evidence and findings amply demonstrate about the present appeal, respondent chose to provide de minimis financial support notwithstanding his ability to do otherwise." See also Bost v. Van Nortwick, 117 N.C. App. 1, 16, 449 S.E.2d 911, 919 (1994) ("[I]n an action to terminate parental rights, the respondent parent may present evidence to prove he was unable to pay child support in order to rebut a finding of willful failure to pay. . . ."), appeal dismissed, 340 N.C. 109, 458 S.E.2d 183 (1995); In re Roberson, 97 N.C. App. at 281-82, 387 S.E.2d at 670 (upholding termination order after noting that "[r]espondent could have rebutted petitioner's evidence of his ability to pay by presenting evidence that he was in fact unable to pay support, but he did not do so" and, as to mental health issues, "respondent did not present evidence as to the seriousness or extent of his emotional difficulties sufficient to rebut petitioner's showing of willfulness").
The trial court, in this case, did not shift the burden of proof to respondent father. Instead it simply noted — as did this Court in the above cases — that respondent father had made no attempt to rebut petitioner's showing of willfulness and lack of justification. We, therefore, hold that the trial court did not err in concluding that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(4) to terminate respondent father's parental rights. Because of this conclusion, we need not address respondent father's arguments relating to the other grounds found by the trial court. See In re B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004) ("Having concluded that at least one ground for termination of parental rights existed, we need not address the additional ground . . . found by the trial court.").
Respondent father next contends that the trial court abused its discretion when it concluded that termination of his parental rights was in the best interests of Melissa. Once statutory grounds for termination have been established, the trial court must then "determine whether terminating the parent's rights is in the juvenile's best interest." N.C. Gen. Stat. § 7B-1110(a). Pursuant to § 7B-1110(a) the trial court must consider the following factors when determining whether termination is in the juvenile's best interests: (1) the age of the juvenile; (2) the likelihood of adoption; (3) the impact of termination on the permanent plan; (4) the bond between the juvenile and the parent; (5) the relationship between the juvenile and a proposed adoptive parent or other permanent placement; and (6) any other relevant considerations.
Here, the sole dispositional finding of fact in the termination order explicitly addressing the best interests of Melissa is that "in the opinion of the juvenile's guardian ad litem, it is in the juvenile's best interest that the Court issue an order terminating the biological father's parental right in and to the juvenile." The order also reflects the age of the child and has findings relating to the bond between Melissa and her mother. As to the bond between Melissa and respondent father, the trial court found that "the biological father's own actions thwarted the bond between himself and the juvenile," but the order does not ever address whether any bond at all existed. The order also does not address the likelihood of adoption or the relationship between Melissa and her stepfather, who would either be a prospective adoptive parent or "other permanent placement." Finally, the order provides no explanation why the trial court believed it was in Melissa's best interests to terminate respondent father's parental rights apart from the fact that the guardian ad litem had recommended it.
Because of the lack of adequate findings of fact, we must reverse the dispositional portion of the order and remand for further findings of fact. See In re E.M., ___ N.C. App. ___, ___, 692 S.E.2d 629, 631 ("Of the factors listed above, the court's order only reflects consideration of the juvenile's age and the permanent plan of adoption. The court's order does not consider the likelihood of adoption of the juvenile, the bond between the juvenile and the parent, or the quality of the relationship between any prospective adoptive parents, custodian, or guardian and the juvenile. We note that the record contains evidence from which the court could make findings as to these factors and we accordingly remand the matter to the trial court for entry of appropriate findings pursuant to N.C. Gen. Stat. § 7B-1110(a)."), cert. denied, 364 N.C. 325, 700 S.E.2d 749 (2010). We leave to the discretion of the trial court whether to take additional evidence on the factors set forth in N.C. Gen. Stat. § 7B-1110(a) or any other factors the court may deem pertinent to the best interests determination.
Because we reverse and remand the dispositional order, we do not address respondent father's contention regarding the adequacy of the guardian ad litem's investigation.
Reversed and remanded.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).