In re S.S.H. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-1037
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
IN THE MATTER OF: Davidson County
Nos. 10 JT 133-34, 11 JT 134
S.S.H., J.K.H., T.J.H.
Appeal by respondent-mother from orders entered 26 June
2013 by Judge Jimmy L. Myers in Davidson County District Court.
Heard in the Court of Appeals 14 April 2014.
Assistant County Attorney Christopher M. Watford for
petitioner-appellee Davidson County Department of Social
Services.
Assistant Appellate Defender Joyce L. Terres for
respondent-appellant mother.
Laura Bodenheimer for guardian ad litem.
HUNTER, JR., Robert N., Judge.
Respondent-mother appeals from the district court’s orders
terminating her parental rights to the juveniles S.S.H.
(“Sarah”), J.K.H. (“Jacob”), and T.J.H. (“Thomas”).1 We affirm.
1
Pseudonyms are used for ease of reading and to protect the
identity of the juveniles.
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On 14 September 2010, the Davidson County Department of
Social Services (“DSS”), took nonsecure custody of Sarah and
Jacob and filed juvenile petitions alleging that they were
neglected and dependent. The petitions alleged that respondent-
mother was not attending to eight-month-old Jacob’s respiratory
condition; that after Jacob’s admission to the hospital, his
treating physician felt it was not safe to discharge Jacob into
respondent-mother’s care; that respondent-mother and the father
had a history of domestic violence; that the father’s
whereabouts were unknown; and that respondent-mother had failed
to seek routine medical care for Sarah.
In an order entered on 13 January 2011, the trial court
adjudicated Sarah and Jacob dependent, based on the stipulations
of the parties. The trial court entered a separate disposition
order, in which it retained custody with DSS, implemented a
permanent plan of reunification, and ordered respondent-mother
to comply with certain directives.
Respondent-mother gave birth to Thomas in April 2011. On 6
October 2011, DSS obtained nonsecure custody of Thomas and filed
a petition alleging that he was neglected and dependent. The
petition alleged that respondent-mother had several outstanding
warrants for her arrest for failure to appear in response to
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multiple criminal charges in Davidson County. The petition
further alleged that on 28 September 2011, when law enforcement
officers confronted respondent-mother, she threatened to drop
five-month-old Thomas on the ground to keep the officers at bay.
The officers also observed her smoking a cigarette, dropping
ashes on Thomas, and blowing smoke in his face. Respondent-
mother resisted, but was eventually arrested and charged with
child abuse, resisting an officer, injury to personal property,
and assault on a government official with a deadly weapon. The
petition further alleged that respondent-mother refused to make
arrangements for Thomas’s care after her arrest, tested positive
for marijuana at Thomas’s birth, and was not participating in
services with DSS.
In an order entered on 15 December 2011, the trial court
adjudicated Thomas neglected and dependent, based on the
stipulation of the parties. The trial court entered a separate
disposition order on 29 February 2012, in which it retained
custody with DSS, implemented a permanent plan of reunification,
and ordered respondent-mother to comply with certain directives.
On 28 November 20112 and 21 September 2012, DSS filed three
petitions to terminate the parental rights of respondent-mother.
2
DSS amended one of the petitions on or about 22 January 2013 to
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DSS alleged the following grounds for termination against
respondent-mother: (1) neglect; (2) failure to make reasonable
progress; and (3) willful failure to pay a reasonable portion of
the cost of care for the juveniles. See N.C. Gen. Stat § 7B-
1111(a)(1)-(3) (2013). The court conducted a termination of
parental rights hearing on 30 May 2013. In three separate
orders entered on 26 June 2013, the court found the existence of
the following grounds for termination against respondent-mother
as to all three children: (1) failure to make reasonable
progress; and (2) willful failure to pay a reasonable portion of
the cost of care for the juveniles. See N.C. Gen. Stat. § 7B-
1111(a)(2), (3). The trial court also found neglect as a ground
for termination as to Thomas. See N.C. Gen. Stat. § 7B-
1111(a)(1). At disposition, the trial court concluded that it
was in the juveniles’ best interests to terminate the parental
rights of respondent-mother.3 Respondent-mother appeals.
Respondent-mother challenges the trial court’s
determinations concerning the grounds for termination. Pursuant
to N.C. Gen. Stat. § 7B-1111(a), a trial court may terminate
parental rights based upon a finding of one of the eleven
reflect the correct name of Sarah’s father.
3
The trial court also terminated the parental rights of the
juveniles’ fathers, but they do not appeal.
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statutorily enumerated grounds. If this Court determines that
the findings of fact support one ground for termination, we need
not review the other challenged grounds. In re Humphrey, 156
N.C. App. 533, 540, 577 S.E.2d 421, 426–27 (2003). We review
the trial court’s order 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).
After reviewing the record, we conclude that the trial
court’s findings of fact are sufficient to support the ground of
failure to pay a reasonable portion of the cost of care for the
juveniles. The pertinent statute provides the following as a
ground for termination:
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).
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“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 (citation omitted), disc. review
denied, 356 N.C. 302, 570 S.E.2d 501 (2002). “[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)).
In the instant case, the trial court concluded that each
child had been placed in DSS custody and that respondent-mother
for a continuous period of six months preceding the filing of
each petition had willfully failed to pay a reasonable portion
of the cost of care for each child despite being physically and
financially able to do so. The trial court made the following
findings of fact to support this ground for termination:4
4
The pertinent findings of fact in each order are nearly
identical to each other, but have different numbering. We
therefore have set out the findings from Sarah’s order and
decline to set out the other two sets of findings. The first
number refers to the order pertaining to Sarah, the second
number to that of Jacob, and the third to that of Thomas. Any
differences in the findings are attributable to the differences
between the children, and do not affect the substance of the
finding or the ground for termination. For instance, the total
cost of care in findings 40, 38, and 31 is slightly different
for each child, and the order pertaining to Sarah is the only
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38/36/29. [Respondent-mother] is able-bodied
and the Court is unaware of any
disability that prevents her from
participating in gainful
employment. [Respondent-mother]
reported to social worker Ramirez
that she had been doing exotic
dancing for income.
. . . .
40/38/31. For the six months prior to the
filing of the petition in this
matter, [DSS] paid $8,598.00 for
room and board and $120.00 in
clothing allowance for the benefit
of the minor child. In that same
time, the Department has received
no payments from the respondent
parents, and has not received any
payment as of the date of the
affidavit filed in this matter
which was received into evidence
as Petitioner’s Exhibit 33. The
Department has advanced a total of
$44,508.22 for the actual cost of
care of the minor child as of the
date of this affidavit.
41/39/32. On or about January 28, 2011 [as
to Sarah and Jacob; January 26,
2012 as to Thomas], the Court
established that [respondent-
mother] was to pay $50.00 per
month as current support and $5.00
toward arrears. The total monthly
obligation of $55.00 is a
reasonable and just amount for the
order that references an amended petition, because an amended
petition was only filed in her juvenile case. The only major
substantive difference is noted in brackets in finding 41/39/32:
respondent-mother’s support agreement for Thomas was entered
into on a different date than that of Sarah and Jacob.
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cost of care for the minor child,
especially in light of the actual
cost of care as set forth above.
[Respondent-mother] has the
ability to pay this amount. A
copy of the order was received
into evidence as Petitioner’s
Exhibit 38.
. . . .
43/41/34. For the six months prior to filing
the petition in this matter,
[respondent-mother] paid nothing.
[She] was found in civil contempt
of the January 28, 2011 order on
August 5, 2011 and July 12, 2012,
a copy of those contempt orders
were received into evidence as
Petitioner’s Exhibits 39 and 40.
During the six months immediately
preceding the filing of the
amended petition, [respondent-
mother] only paid a $100.00 purge
payment. [She] has willfully
failed to pay a reasonable portion
of the cost of care for [her]
minor child during the six months
immediately preceding the filing
of the original petition and the
amended petition in this matter.
Respondent-mother has failed to specifically challenge any of
these findings of fact as lacking evidentiary support.
Consequently, they are presumed to be supported by competent
evidence and are binding on appeal. See In re M.D., 200 N.C.
App. 35, 43, 682 S.E.2d 780, 785 (2009).
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Respondent-mother argues that the trial court failed to
establish that she had the ability to pay or earn income during
the relevant time period. However, respondent-mother’s ability
to pay was established by her child support orders. See In re
Becker, 111 N.C. App. 85, 94, 431 S.E.2d 820, 826 (1993)
(finding that since the respondent-father entered into a
voluntary support agreement, “DSS did not need to provide
detailed evidence of his ability to pay support during the
relevant time period”). In addition to the findings regarding
the support orders, the trial court made findings that
respondent-mother was able-bodied, that she was not under any
disability that prevented her from participating in gainful
employment, and that she had earned income through exotic
dancing. Contrary to respondent-mother’s argument, the trial
court’s findings are linked to the relevant statutory time
period and establish that she either earned income or was
capable of doing so. Thus, the trial court’s findings establish
that respondent-mother had the ability to pay some amount
greater than zero. See In re Tate, 67 N.C. App. 89, 95, 312
S.E.2d 535, 539-40 (1984) (rejecting respondent’s argument that
there was insufficient evidence of her ability to provide
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support where evidence showed that she was “an able-bodied woman
capable of working” and voluntarily left several jobs).
Based on the foregoing, we conclude that the trial court
did not err in terminating respondent-mother’s parental rights
pursuant to N.C. Gen. Stat. § 7B-1111(a)(3), so we affirm the
orders of the trial court.
Affirmed.
Judges ERVIN and DAVIS concur.
Report per Rule 30(e).