In re S.T.B. , 235 N.C. App. 290 ( 2014 )

NO. COA14-213
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
IN THE MATTER OF:
Iredell County
Nos. 12 JT 57, 178
S.T.B., JR. and O.N.B.
Appeal by respondent from order entered 6 November 2013 by
Judge Deborah Brown in Iredell County District Court. Heard in
the Court of Appeals 22 July 2014.
Lauren Vaughan for Iredell County Department of Social
Services, petitioner-appellee.
Melanie Stewart Cranford for Guardian ad Litem, petitioner-
appellee.
Jeffrey L. Miller for father, respondent-appellant.
ERVIN, Judge.
Respondent-Father S.B. appeals from an order terminating
his parental rights in S.T.B., Jr., and O.N.B.1 On appeal,
Respondent-Father contends that the trial court lacked
jurisdiction over this case given that the termination petition
was filed and verified by a person who lacked the authority to
take those actions, that the trial court erred by determining
that his parental rights in Opal were subject to termination
1
S.T.B., Jr., and O.N.B. will be referred to throughout the
remainder of this opinion as “Sam” and “Opal,” pseudonyms used
for ease of reading and to protect the juveniles’ privacy.
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pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) on the grounds that
Opal had not been in foster care pursuant to an order of the
court for twelve months as of the date upon which the
termination petition was filed, that the trial court erred by
terminating his parental rights in Sam pursuant to N.C. Gen.
Stat. § 7B-1111(a)(2) on the grounds that the relevant findings
of fact lacked adequate evidentiary support and failed to
support the trial court’s finding that this ground for
termination existed, and that the trial court erred by
terminating his parental rights in both children pursuant to
N.C. Gen. Stat. § 7B-1111(a)(3) on the grounds that the relevant
findings of fact lacked adequate evidentiary support and failed
to support the trial court’s finding that this ground for
termination existed. After careful consideration of Respondent-
Father’s challenges to the trial court’s order in light of the
record and the applicable law, we conclude that the trial
court’s order should be affirmed.
I. Factual Background
On 23 March 2012, the Iredell County Department of Social
Services filed a petition alleging that Sam was a neglected and
dependent juvenile based on illegal drug use by Respondent-
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Mother Samantha K.,2 Respondent-Mother’s incarceration, and the
fact that Sam tested positive for cocaine at birth. DSS took
nonsecure custody of Sam contemporaneously with the filing of
the initial petition, while Opal was in the care of Respondent-
Father’s mother at that time. Although DSS alleged that
Respondent-Father was Sam’s father in the initial petition,
Sam’s paternity had not been scientifically confirmed or
judicially established as of the date upon which the initial
petition was filed.
After a hearing held on 2 May 2012, Sam was determined to
be a dependent juvenile. Following a dispositional hearing held
on 3 July 2012, Respondent-Father was determined to be Sam’s
father based upon DNA testing results, Sam was retained in DSS
custody, and Respondent-Father was ordered to pay child support,
submit to random drug testing, and comply with the provisions of
his case plan.
On 1 August 2012, DSS filed a petition alleging that Opal
was a neglected juvenile. At a hearing held on 28 August 2012,
Opal was adjudicated to be a neglected juvenile based upon a
stipulation entered into between the parties. At the conclusion
of the resulting dispositional proceeding, Opal was placed in
2
As a result of the fact that she did not note an appeal to
this Court from the trial court’s termination order, Respondent-
Mother’s parental rights in the children have been finally
adjudicated.
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DSS custody and Respondent-Father was ordered to comply with the
provisions of his case plan, submit to random drug tests, obtain
and maintain stable housing and employment, complete parenting
classes, maintain regular contact with DSS, refrain from
engaging in criminal activity, and pay child support.
On 20 November 2012, a review and permanency planning
hearing was held. At the conclusion of that proceeding, DSS was
relieved of further responsibility for attempting to reunify Sam
and Opal with their parents and the permanent plan for the two
children was changed to adoption.
On 21 May 2013, Kathy K. Martin, a program specialist with
the Guardian ad Litem program, filed and verified a petition
seeking to have Respondent-Mother’s and Respondent-Father’s
parental rights in Sam and Opal terminated on the grounds of
neglect as authorized by N.C. Gen. Stat. § 7B-1111(a)(1);
leaving the children in foster care for more than twelve months
without making reasonable progress toward correcting the
conditions that led to the children’s removal from the home as
authorized by N.C. Gen. Stat. § 7B-1111(a)(2); failing to pay a
reasonable portion of the cost of the care that the children had
received as authorized by N.C. Gen. Stat. § 7B-1111(a)(3); and
willfully abandoning the children as authorized by N.C. Gen.
Stat. § 7B-1111(a)(7).
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After conducting a hearing concerning the issues raised in
the termination petition on 24 July 2013, the trial court
entered an order on 6 November 2013 finding that Respondent-
Father’s parental rights in Sam and Opal were subject to
termination on the grounds that he had allowed the children to
remain in foster care for more than twelve months without making
reasonable progress in addressing the conditions that led to
their removal from the home pursuant to N. C. Gen. Stat. § 7B-
1111(a)(2) and that he had failed to pay a reasonable portion of
the cost of the care that had been provided to the children
pursuant to N.C. Gen. Stat. § 7B-1111(a)(3) and concluding that
the termination of Respondent-Father’s parental rights would be
in the children’s best interest. Respondent-Father noted an
appeal to this Court from the trial court’s order.
II. Substantive Legal Analysis
A. Subject Matter Jurisdiction
In his initial challenge to the trial court’s order,
Respondent-Father contends that the trial court lacked
jurisdiction over the subject matter of this case on the grounds
that the petition seeking to have Respondent-Father’s parental
rights in the children terminated had been filed by a person who
had no standing to file or verify such a petition. More
specifically, Respondent-Father contends that the trial court
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lacked the authority to address the issues raised in the
termination petition because it was filed and verified by “Kathy
K. Martin, Guardian ad Litem (“GAL”) Program Specialist, by and
through the undersigned Attorney Advocate,” rather than by David
Hartness, who served as the volunteer guardian ad litem
appointed to represent the children and who did most of the work
performed in connection with the representation of Sam and Opal
in this proceeding. We do not find Respondent-Father’s argument
persuasive.
“Standing is jurisdictional in nature and ‘[c]onsequently,
standing is a threshold issue that must be addressed, and found
to exist, before the merits of [the] case are judicially
resolved.’” In re Miller, 162 N.C. App. 355, 357, 590 S.E.2d
864, 865 (2004) (quoting In re Will of Barnes, 157 N.C. App.
144, 155, 579 S.E.2d 585, 592 (2003), reversed on other grounds,
358 N.C. 143, 592 S.E.2d 688 (2004)). According to N.C. Gen.
Stat. §§ 7B-1103(a)(6) and 7B-1104, a petition seeking the
termination of a parent’s parental rights in one or more
children may be filed by “[a]ny guardian ad litem appointed to
represent the minor juvenile pursuant to [N.C. Gen. Stat. §] 7B-
601 who has not been relieved of this responsibility” and must
“be verified by the petitioner[.]” In view of the fact that the
extent of a trial court’s jurisdiction over the subject matter
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of a particular case raises a question of law, we will review
Respondent-Father’s challenge to Ms. Martin’s standing to file
and verify the termination petition using a de novo standard of
review. In re E.J., __ N.C. App. __, __, 738 S.E.2d 204, 206
(2013).
As N.C. Gen. Stat. § 7B-601(a) reflects, “[t]he guardian ad
litem and attorney advocate have standing to represent the
juvenile in all actions under this Subchapter where they have
been appointed” and must be appointed “pursuant to the program
established by Article 12 of this Chapter[.]” N.C. Gen. Stat. §
7B-601(a).
When read in pari materia, these statutes
[that address guardian ad litem appointment,
duties, and administration] manifest the
legislative intent that representation of a
minor child in proceedings under [N.C. Gen.
Stat. §] 7B-601 and [N.C. Gen. Stat. §] 7B-
1108 is to be . . . by the GAL program
established in Article 12 of the Juvenile
Code. Under Article 12 volunteer GALs, the
program attorney, the program coordinator,
and clerical staff constitute the GAL
program.
In re J.H.K., 365 N.C. 171, 175, 711 S.E.2d 118, 120 (2011); see
also In re A.N.L., 213 N.C. App. 266, 269-70, 714 S.E.2d 189,
192 (2011) (holding that a child “was adequately represented by
the [guardian ad litem p]rogram pursuant to N.C. Gen. Stat. §
7B-601(a)” despite the absence of the volunteer guardian ad
litem from the hearing given that the attorney advocate “was
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present . . . during both portions of the proceedings” and
“actively participated by questioning witnesses and offering
recommendations for adjudication and disposition”). As a
result, the Supreme Court has rejected an interpretation of the
relevant statutory provisions that failed to recognize the fact
that the participants in the guardian ad litem program function
as a team instead of a collection of individuals, J.H.K., 365
N.C. at 177, 711 S.E.2d at 121, noting that the General Assembly
did not specify duties to be performed by each specific member
of the team. Id. at 176, 711 S.E.2d at 121. The argument that
Respondent-Father has advanced in support of his challenge to
the trial court’s jurisdiction over the subject matter of this
case, which lacks support in any specific prior decision of
either the Supreme Court or this Court and which interprets N.C.
Gen. Stat. § 7B-1103(a)(6) to mean that the only member of the
guardian ad litem team authorized to file and verify a
termination petition is the volunteer guardian ad litem, is
directly contrary to the interpretive approach adopted in J.H.K.
As a result, given that the General Assembly intended for Sam
and Opal to be represented by the guardian ad litem program and
for the participants in that program to function as a team, we
conclude that the termination petition at issue in this case was
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properly filed and verified and that Respondent-Father’s
argument to the contrary lacks merit.
B. Grounds for Termination
Secondly, Respondent-Father argues that the trial court
erred by concluding that his parental rights in Sam and Opal
were subject to termination on the grounds that he failed to pay
a reasonable portion of the cost of the care that Sam and Opal
received while in foster care as authorized by N.C. Gen. Stat. §
7B-1111(a)(3). More specifically, Respondent-Father argues that
the trial court erred by determining that his parental rights in
Sam and Opal were subject to termination pursuant to N.C. Gen.
Stat. § 7B-1111(a)(3) on the grounds that the trial court did
not find, and the record evidence did not show, that he had
willfully failed to pay a reasonable portion of the cost of the
care that Sam and Opal received during the six month period
immediately preceding the filing of the termination petition
despite having the ability to do so. Respondent-Father’s
argument lacks merit.
A parent’s parental rights in a child are subject to
termination in the event that
[t]he 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
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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). “The word ‘willful’ means
something more than an intention to do a thing. It implies
doing the act purposely and deliberately. Manifestly, one does
not act willfully in failing to make support payments if it has
not been within his power to do so.” In re Adoption of Maynor,
38 N.C. App. 724, 726, 248 S.E.2d 875, 877 (1978) (emphasis in
original) (citations omitted). “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). In evaluating the validity of Respondent-Father’s
contention that the trial court erred by determining that his
parental rights in Sam and Opal were subject to termination
pursuant to N.C. Gen. Stat. § 7B-1111(a)(3), we must examine
“whether the findings of fact are supported by clear, cogent and
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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).
In its termination order, the trial court determined that
Respondent-Father, “for a continuous period of six months next
preceding the filing of the TPR petition, ha[d] willfully failed
for such period to pay a reasonable portion of the cost of care
for the juveniles, although physically and financially able to
do so[.]” In support of this conclusion, the trial court found
as fact that:
53. Since the juveniles have been in the
custody of the Department, the
Respondent Father has never brought any
gifts for the juveniles, has never paid
any child support for the benefit of
the juveniles, and has not sent any
cards or letters to the juveniles.
. . . .
55. The Respondent Mother is under a child
support order which orders her to pay
$50 per month for the benefit of each
of the juveniles. The Respondent
Father is also under a child support
order which orders him to pay $50 per
month for the benefit of each of the
juveniles. Neither parent has paid any
amount towards their respective child
support obligations, and the Court is
unaware of any disability which would
prevent the parents from paying some
amount toward these obligations.
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As a result of the fact that Respondent-Father has refrained
from challenging either of these findings as lacking in
sufficient evidentiary support, they are deemed to be supported
by competent evidence and are binding on appeal. In re M.D.,
200 N.C. App. 35, 43, 682 S.E.2d 780, 785 (2009).
Although Respondent-Father contends in his brief that the
evidence contained in the record developed at the termination
hearing and the trial court’s findings of fact did not suffice
to adequately establish that he had the ability to pay any
portion of the cost of Sam’s and Opal’s care during the relevant
six month period and points to findings in prior orders
concerning his continued unemployment and his failure to make
certain payments required under a probationary judgment, this
argument overlooks the fact that the issue of his ability to pay
is addressed and resolved by the fact that he was subject to a
child support order that required him to pay $50 per month for
the benefit of his children. As this Court has previously
stated, given that “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.” In re Roberson, 97 N.C. App. 277, 281,
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387 S.E.2d 668, 670 (1990) (citations omitted). In addition to
finding that Respondent-Father was subject to a child support
order that required him to pay $50 per month for the benefit of
the children, the trial court also found that it was not aware
that Respondent-Father was subject to any disability that would
prevent him from paying some amount of support. As a result,
given that record evidence and the trial court’s findings
establish that Respondent-Father had the ability to pay some
amount greater than zero for the support of the children, the
trial court did not err by determining that Respondent-Father’s
parental rights in Sam and Opal were subject to termination
pursuant to N.C. Gen. Stat. § 7B-1111(a)(3).3
III. Conclusion
Thus, none of Respondent-Father’s arguments adequately
support his request that the trial court’s termination order be
overturned. As a result, the trial court’s order should be, and
hereby is, affirmed.
3
Although Respondent-Father also argues that the trial court
erred by concluding that his parental rights in Sam and Opal
were subject to termination pursuant to N.C. Gen. Stat. § 7B-
1111(a)(2), we need not address this aspect of his challenge to
the trial court’s termination order given our decision to uphold
the trial court’s decision that Respondent-Father’s parental
rights in Sam and Opal were subject to termination pursuant to
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) (holding that a
finding that one ground for the termination of a parent’s
parental rights exists is sufficient to support a termination
order).
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AFFIRMED.
Judges McGEE and STEELMAN concur.