Opinion
No. COA12–1330.
2013-06-4
In the Matter Of D.L.C. and J.L.C.
Mercedes O. Chut for Guilford County Department of Social Services petitioner-appellee. Smith, James, Rowlett & Cohen, L.L.P., by Margaret Rowlett, for Guardian ad Litem.
Appeal by respondent-mother and respondent-father from order entered 27 June 2012 by Judge Betty J. Brown in Guilford County District Court. Heard in the Court of Appeals 15 May 2013. Mercedes O. Chut for Guilford County Department of Social Services petitioner-appellee. Smith, James, Rowlett & Cohen, L.L.P., by Margaret Rowlett, for Guardian ad Litem.
Harrington, Gilleland, Winstead, Feindel & Lucas, LLP, by Anna S. Lucas, for respondent-mother appellant.
Richard Croutharmel for respondent-father appellant.
McCULLOUGH, Judge.
Respondent-father and respondent-mother (collectively, “respondents”) appeal from an order terminating their parental rights to their two children, J.L.C. and D.L.C. We affirm in part and reverse in part.
On 7 February 2011, the Guilford County Department of Social Services (“DSS”) filed a juvenile petition alleging that J.L.C., born February 2005, and D.L.C., born November 2010 were neglected and dependent juveniles. DSS took nonsecure custody of the children. By order filed 5 May 2011, the trial court adjudicated the children neglected and dependent based upon respondents' substance abuse issues and pending criminal charges.
On 29 August 2011, DSS filed a petition to terminate the parental rights of respondents under N.C. Gen.Stat. § 7B–1111(a)(1) (2011) (neglect); N.C. Gen.Stat. § 7B–1111(a)(3) (failure to pay a reasonable portion of the cost of care for the child); N.C. Gen.Stat. § 7B–1111(a)(6) (incapability of providing proper care and supervision of the child); and N.C. Gen.Stat. § 7B–1111(a)(7) (abandonment).
The trial court held a termination hearing in February, March, and April 2012. By order filed 27 June 2012, the trial court concluded that grounds for termination of respondent-father's parental rights existed under N.C. Gen.Stat. § 7B–1111(a)(3), and that grounds for termination of respondent-mother's parental rights existed under N.C. Gen.Stat. § 7B–1111(a)(7). The trial court concluded that it was in the children's best interest to terminate respondents' parental rights. On 24 July 2012, respondent-mother gave timely notice of appeal from the termination order. On 10 September 2012, the trial court entered an “Amended Order to Terminate Parental Rights” in which it reorganized its findings of fact and corrected typographical errors. On 18 September 2012, respondent-father gave notice of appeal from the amended termination order.
We initially note that respondent-father's notice of appeal is insufficient to confer jurisdiction on this Court with respect to the trial court's 27 June 2012 termination order. Once respondent-mother gave notice of appeal from the 27 June 2012 termination order, the trial court was divested of jurisdiction over the matter and lacked jurisdiction to enter the amended order on 10 September 2012. See In re Z.J.T.B., 183 N.C.App. 380, 383, 645 S.E.2d 206, 209 (2007) (“ ‘[P]ending disposition of an appeal, the trial court no longer continues to exercise jurisdiction over termination proceedings.” ’ (quoting In re A.B., 179 N.C.App. 605, 608 n. 2, 635 S.E.2d 11, 14 n. 2 (2006))); Lowder v. All Star Mills, Inc., 301 N.C. 561, 581, 273 S.E.2d 247, 259 (1981) (orders entered by trial court after proper notice of appeal has been given are void for want of jurisdiction). Thus, the 27 June 2012 termination order is the trial court's final order. Because respondent-father gave notice of appeal only from the improper 10 September 2012 order and did not give timely notice of appeal from the 27 June 2012 order, we must dismiss respondent-father's appeal. Recognizing that his notice of appeal is deficient, respondent-father filed a petition for writ of certiorari seeking review of the trial court's final judgment. In our discretion, we grant the writ for the purpose of addressing the claims raised by respondent-father. N.C.R.App. P. 21(a) (“The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]”).
The standard of 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. We then consider, based on the grounds found for termination, whether the trial court abused its discretion in finding termination to be in the best interest of the child.
In re Shepard, 162 N.C.App. 215, 221–22, 591 S.E.2d 1, 6 (2004) (internal quotation marks and citations omitted).
I. Respondent-father's Appeal
Respondent-father contends the trial court erred in concluding that grounds existed to terminate his parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(3). We agree.
A court may terminate parental rights upon finding that
[t]he juvenile[s] [have] 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[s] although physically and financially able to do so.
N.C. Gen.Stat. § 7B–1111(a)(3). “A finding that a parent has ability to pay support is essential to termination for nonsupport” pursuant to N.C. Gen.Stat. § 7B–1111(a)(3). In re Ballard, 311 N.C. 708, 716–17, 319 S.E.2d 227, 233 (1984). A parent's “nonpayment will be deemed a failure to pay a reasonable portion if and only if the [parent] could pay some amount greater than zero.” In re McDonald, 72 N.C.App. 234, 243, 324 S.E.2d 847, 853 (1985).
To support its conclusion that respondent-father failed to pay a reasonable portion of the cost of care for the children, the trial court made the following findings of fact:
18. The cost of care for [D.L.C.] for the last six months has been in excess of $2,500.00. The total cost of care of [D.L.C.] since he came into custody has been in excess of $5,413.71.
....
20. The father has been employed as a janitor since November 30, 2011 and has earned $.40 per day working 7 days per week in prison. The prison records reflect that all funds have been used for the canteen.
....
22. The cost of care for [J.L.C.] for the last six months has been in excess of $3[,]394.00. The total cost of care of [J.L.C.] since he came into custody has been in excess of $3,987.75.
....
24. The father although physically and financially able to pay some portion of the cost of care for the juveniles has failed to do so.
The trial court then concluded that:
[4.] a. 7B–1111 (a)(3): The juvenile[s] [have] been placed in DSS custody, and the putative father, for a continuous period of six months next preceding the filing of this action, has failed to pay a reasonable portion of the children's cost of care, although physically and financially able to do so.
Respondent-father challenges the trial court's findings of fact and contends the trial court's findings of fact are insufficient to support its conclusion. Respondent-father first argues finding of fact 24 is a conclusion of law and not a finding of fact. We agree.
Respondent-father refers to finding of fact 42 in the September termination order, which corresponds with finding of fact 24 in the June termination order.
The classification of a determination as either a finding of fact or a conclusion of law is admittedly difficult. As a general rule, however, any determination requiring the exercise of judgment or the application of legal principles is more properly classified a conclusion of law. Any determination reached through logical reasoning from the evidentiary facts is more properly classified a finding of fact.
In re Helms, 127 N.C.App. 505, 510, 491 S.E.2d 672, 675 (1997) (internal quotation marks and citations omitted). A finding of fact which is essentially a conclusion of law will be treated as a conclusion of law on appeal. In re M.R.D.C., 166 N.C.App. 693, 697, 603 S.E.2d 890, 893 (2004). Mislabeling a finding of fact as a conclusion of law is inconsequential if the remaining findings of fact support it. In re R.A.H., 182 N.C.App. 52, 60, 641 S.E.2d 404, 409 (2007).
We hold that the mislabeling in the trial court's order is not inconsequential because the remaining findings of fact do not support the conclusion. The one finding of fact that addresses respondent-father's ability to pay is number 20, which states that respondent-father held a janitorial job in prison since November 2011. The petition to terminate respondent-father's parental rights was filed on 29 August 2011, and thus the relevant six-month period is from 29 February 2011 to 29 August 2011. See In re Garner, 75 N.C.App. 137, 140, 330 S.E.2d 33, 35 (1985). Respondent-father's November 2011 janitorial job occurred after the filing of the termination petition. As respondent-father correctly argues, because finding of fact 20 refers to a time period other than the six months preceding the petition, it does not support the trial court's conclusion of law that respondent-father had the ability to pay a reasonable portion of cost of care for the relevant six-month time period. The trial court's remaining findings of fact do not address whether respondent-father had an ability to pay the cost of care for his children during the relevant six-month period, including, inter alia, whether he earned any money or whether he had any income or means that could be used to provide support for the children. Because of the lack of such findings, we hold the trial court erred in terminating respondent-father's parental rights under N.C. Gen.Stat. § 7B–1111(a)(3). McDonald, 72 N.C.App. at 244, 324 S.E.2d at 853 (“Where a trial court fails to make any findings as to the parents' ability to pay, the order will not support termination of parental rights” under N.C. Gen.Stat. § 7B–1111(a)(3).).
II. Respondent-mother's Appeal
Respondent-mother contends the trial court erred in concluding that grounds existed to terminate her parental rights under N.C. Gen.Stat. § 7B–1111(a)(7). We disagree.
Grounds for termination of parental rights exist where the parent has “willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion[.]” N.C. Gen.Stat. § 7B–1111 (a)(7). “Abandonment implies conduct on the part of the parent which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child.” In re Adoption of Searle, 82 N.C.App. 273, 275, 346 S.E.2d 511, 514 (1986) (citing Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597 (1962)).
Abandonment has also been defined as wilful neglect and refusal to perform the natural and legal obligations of parental care and support. It has been held that if a parent withholds his presence, his love, his care, the opportunity to display filial affection, and wilfully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child.
Pratt, 257 N.C. at 501, 126 S.E.2d at 608. In the context of termination of parental rights based upon willful abandonment, “ ‘the word “willful” encompasses more than an intention to do a thing; there must also be purpose and deliberation.” ’ In re T.C.B ., 166 N.C.App. 482, 485, 602 S.E.2d 17, 19 (2004) (quoting Searle, 82 N.C.App. at 275, 346 S.E.2d at 514). “[A] respondent's incarceration, standing alone, neither precludes nor requires a finding” of willful abandonment. In re McLemore, 139 N.C.App. 426, 431, 533 S.E.2d 508, 511 (2000) (citing In re Harris, 87 N.C.App. 179, 184, 360 S.E.2d 485, 488 (1987)).
The trial court made the following relevant findings of fact in support of its conclusion that grounds existed to terminate respondent-mother's parental rights based on her abandonment of J.L.C. and D.L.C.:
7.... [Respondent-mother's] whereabouts are currently unknown and have been unknown the majority of the time the children have been in DSS custody[.] The only time the Guilford County Department of Social Services knew [respondent-mother]'s whereabouts was when she was incarcerated.... [Respondent-mother] was [not] incarcerated on March 31, 2011, when the adjudicatory hearing in this matter was held but [respondent-mother] failed to attend that hearing. The Social Worker has had only telephone contact with [respondent-mother] on [one] occasion which was April 15, 2011. The Social Worker has never had a face-to-face visit with [respondent-mother].
8. [Respondent-mother] has not had any contact or visitation with the juveniles since the Guilford County Department of Social Services assumed custody of the juveniles....
....
12. On March 21, 2011, the mother knew that the children had been taken into foster care....
13. The mother did not attend court hearings for the children when she was not incarcerated because she had an outstanding order for her arrest.
14. The mother during the time that she was not incarcerated in 2011, did not go to DSS to enter into a case plan or otherwise make efforts to regain custody of her children.
Respondent-mother does not specifically challenge these findings of fact, and therefore, they are binding on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (unchallenged findings of fact are deemed supported by competent evidence and are binding on appeal). The above unchallenged findings of fact support the trial court's conclusion that grounds existed to terminate respondent-mother's parental rights based upon her willful abandonment of the children. The trial court's findings demonstrate respondent-mother's failure to visit with the children since the children came into DSS custody and support the conclusion that respondent-mother's purposeful and deliberate determination “to forego all parental duties and relinquish all parental claims to the child[ren]” constituted willful abandonment. Searle, 82 N.C.App. at 275, 346 S.E.2d at 514. Therefore, the trial court properly terminated respondent-mother's parental rights pursuant to N.C. Gen.Stat. § 7B1111 (a)(7).
In sum, we reverse the termination order as to the termination of respondent-father's parental rights, and we affirm the termination order as to the termination of respondent-mother's parental rights.
Affirmed in part, reversed in part. Judges ELMORE and DAVIS concur.
Report per Rule 30(e).