In re H.J.A. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-507
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
IN THE MATTER OF:
H.J.A. and T.M.A. Mecklenburg County
Nos. 08 J 326
09 J 368
Appeal by Respondent-Appellant Mother from orders entered
11 February 2013 by Judge Louis A. Trosch in District Court,
Mecklenburg County. Heard in the Court of Appeals 10 December
2013.
Twyla Hollingsworth-Richardson, for Petitioner-Appellee
Mecklenburg County Department of Social Services, Youth and
Family Services.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Joyce L. Terres, for Respondent-Appellant Mother.
Poyner Spruill, LLP, by Kathryn R. Paradise, for Guardian
ad Litem.
McGEE, Judge.
The trial court terminated the parental rights of
Respondent-Mother (“Mother”) to H.J.A. and T.M.A. (“the
juveniles”) in an order entered 7 February 2012. Mother
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appealed the termination order and the permanency planning order
of 6 January 2011, in which the trial court ordered the
Mecklenburg County Department of Social Services (“DSS”) to
cease reunification efforts with Mother. This Court held that
the findings in the permanency planning order were insufficient
to support the conclusion to cease reunification efforts. In re
H.J.A. and T.M.A., ___ N.C. App. ___, ___, 735 S.E.2d 359, 363
(2012). This Court reversed the permanency planning order and
remanded for additional findings of fact. Id.Because this Court reversed the permanency planning order,
it also reversed the termination of parental rights order. “As
we must reverse and remand the order ceasing reunification
efforts as to respondent-mother, we must also reverse and remand
the order terminating her parental rights to the juveniles.”
Id. at ___, 735 S.E.2d at 363-64. This Court did not address
arguments regarding the termination order. Id. at ___, 735
S.E.2d at 364.
The trial court held a hearing on 17 January 2013 and
entered an amended permanency planning order on 11 February
2013. The trial court also entered an order in which it found
that additional findings on the termination of parental rights
were unnecessary. The trial court concluded: “The 7 February
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2012 Termination of Parental Rights order continues to be the
order of this court.” The trial court incorporated by
reference the 7 February 2012 termination order and attached a
copy of it to the order. Mother appeals.
I. Whether the Trial Court Erred in Incorporating By Reference
the 7 February 2012 Termination Order
Mother argues the trial court erred by “reaffirming” the 7
February 2012 termination order after it was reversed and
remanded by this Court. We disagree.
The trial court’s 11 February 2013 order states:
Regarding the Termination of Parental Rights
order of 7 February 2012, the [Court of
Appeals] did not identify any issues
regarding any of the findings made in that
order and the court’s ultimate decision to
terminate [] [M]other’s parental rights.
This court also notes the Termination of
Parental Rights hearing was a separate
action from the Permanency Planning Review
hearing. Therefore, with no noted issues on
the merits or any clear direction from the
[Court of Appeals], this court does not find
any additional finding to its Termination of
Parental Rights order are necessary and it
maintains its decision to terminate the
parental rights of the respondent parents
(see the 7 February 2012 Termination of
Parental Rights order attached and
incorporated herein by reference).
Mother contends that “reverse” is synonymous with “vacate,”
and when an order is reversed, it cannot be “reaffirmed.” As a
preliminary matter, we note that the order the trial court
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entered 11 February 2013 did not reaffirm the 7 February 2012
order, but rather incorporated by reference the 7 February 2012
order. We therefore review whether the trial court erred in
incorporating by reference its 7 February 2012 order.
Mother cites In re I.B.M., ___ N.C. App. ___, 731 S.E.2d
444, 446, disc. review denied, 366 N.C. 400, 735 S.E.2d 191(2012) (“I.B.M. III”), in which the Property Tax Commission
noted that it was bound by the “law of the case” as to certain
findings. This Court speculated that the Property Tax
Commission may have “construed the fact that IBM I used the term
‘vacate’ and that IBM II used the word ‘reverse’ as creating
some sort of meaningful difference in the portions of its final
decision approved or disapproved by this Court.” I.B.M. III,
___ N.C. App. at ___, 731 S.E.2d at 448. This Court stated: “As
a practical matter, the terms ‘vacate’ and ‘reverse’ are
synonymous as used in most cases.” Id. at ___, 731 S.E.2d at
449 (emphasis added). The portion of I.B.M. III Mother quoted
in her brief is dicta because it was “unnecessary to the
resolution of the case.” Durham Hosiery Mill Ltd. Partnership
v. Morris, ___ N.C. App. ___, ___, 720 S.E.2d 426, 429 (2011).
“Language in an opinion not necessary to the decision is obiter
dictum and later decisions are not bound thereby.” Id.-5-
Mother also cites In re A.R.P., ___ N.C. App. ___, 721
S.E.2d 725, 727-28 (2012), in which the trial court made
“neither a conclusion of law that respondent’s parental rights
should be terminated nor a conclusion that termination is in the
best interest of the children.” This Court reversed the trial
court’s termination order because “we have no complete order
addressing all of the facts and substantive issues.” Id. at
___, 721 S.E.2d at 728. “Essentially, the trial court’s order
is asking us to piece together a complete order terminating
respondent’s parental rights from” a reversed order, a second
order addressing only willfulness, and a transcript not included
in the record. Id.
Even assuming arguendo, without deciding, that reversal
renders an order void, Mother cites no case holding that, on
remand, the trial court cannot incorporate by reference a
previously reversed order. This Court in In re A.R.P. did not
reverse because the trial court incorporated a reversed order.
Rather, we reversed because there was no complete order to
review. Id. By contrast, in the present case, the trial
court’s 11 February 2013 order contained findings of fact,
conclusions of law, and incorporated its 7 February 2012 order
by reference. We therefore have before us a “complete order
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addressing all of the facts and substantive issues.” Id.
Mother has not shown error on this basis.
II. Whether Mandate Required a New Petition or Trial
Mother also argues that “when the entire termination of
parental rights order was reversed, the case returned to the
same status as before the termination trial occurred” and a new
petition and trial were required. We disagree.
When a case has been remanded from this Court, the general
rule is that a trial court “must follow the mandate of an
appellate court in a case without variation or departure.” In
re R.A.H., 182 N.C. App. 52, 57, 641 S.E.2d 404, 407 (2007). In
the present case, the trial court followed this Court’s mandate
without variation or departure.
This Court instructed the trial court only to make
additional findings of fact in the reunification order. We did
not suggest that a new petition and trial were required. This
Court’s opinion gave a discrete set of instructions. We noted
“there was sufficient evidence in the record to support proper
findings as to [the conclusion on reunification,] and it appears
from the trial judge’s statements at the hearing that he meant
to make these findings.” In re H.J.A. and T.M.A., ___ N.C. App.
at ___, 735 S.E.2d at 363. Further delay of the resolution of
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this case is not necessary. While the most cautious practice
may be to enter a new order terminating parental rights on
remand, Mother has not shown error on this basis.
III. Grounds to Terminate Parental Rights
Mother argues “the trial court erred by concluding that
grounds exist to terminate Mother’s parental rights pursuant to
N.C. Gen. Stat. § 7B-1111(a)(3)” (2011). We disagree.
A. Standard of Review
We review an adjudication order to determine “(1) whether
the findings of fact are supported by clear and convincing
evidence, and (2) whether the legal conclusions are supported by
the findings of fact.” In re A.R., ___ N.C. App. ___, ___, 742
S.E.2d 629, 631 (2013). “If such evidence exists, the findings
of the trial court are binding on appeal, even if the evidence
would support a finding to the contrary.” Id. “Findings of
fact are also binding if they are not challenged on appeal.”
Id.B. Rule
The trial court may terminate parental rights upon finding
that:
The juvenile has been placed in the custody
of a county department of social
services . . . for a continuous period of
six months next preceding the filing of the
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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) (2011). “A finding that a
parent has ability to pay support is essential to termination
for nonsupport on this ground.” In re Ballard, 311 N.C. 708,
716-17, 319 S.E.2d 227, 233 (1984). Mother challenges the
following finding as unsupported by evidence: “[Mother] had the
ability to pay some amount greater than zero towards the
juveniles’ care.” Mother points to a social worker’s testimony
that Mother’s expenses exceeded her income.
However, Mother was employed at a restaurant from February
2011 to July 2011. From her income at that restaurant, she was
able to pay rent for her apartment. About a week before the
hearing, Mother left the restaurant to work at a fast food
restaurant to earn more money. Mother testified that she pays
her rent without assistance. She also pays for gas, lights,
food costs, phone, and lawn mowing bills. She pays a neighbor
for transportation to work. Mother also testified that her
boyfriend has given her money in the past. When asked whether
she provided any money to DSS to assist in the care of the
juveniles, Mother answered that no one asked her to provide
funds. She further answered that she could buy clothes for one
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of the juveniles, but she would never see the juvenile wearing
those clothes.
The finding that Mother had the ability to pay some amount
greater than zero toward the juveniles’ care was supported by
clear and convincing evidence in the record. Even though there
may be evidence in the record to support a contrary finding, the
trial court’s finding remains binding on appeal when it is
supported by competent evidence. In re A.R., ___ N.C. App. at
___, 742 S.E.2d at 631.
Mother further contends that the trial “court did not
specifically find that any failure to pay on [Mother’s] part was
done willfully.” Mother cites In re Maynor, 38 N.C. App. 724,
248 S.E.2d 875 (1978), for support of her argument. However,
the trial court labeled as a conclusion of law the following
statement:
That pursuant to N.C.G.S. § 7B-1111(a)(3),
the juveniles ha[ve] been placed in the
custody of [DSS], and the respondent parents
for a continuous period of six months next
preceding the filing of the Petition to
Terminate Parental Rights, have 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.
Willfulness in failing to pay a reasonable portion of the
cost of care constitutes a finding of fact. In re Huff, 140
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N.C. App. 288, 292, 536 S.E.2d 838, 841 (2000) (characterizing
failure to pay a reasonable portion of the cost of care as a
finding of fact); see also In re M.R.D.C., 166 N.C. App. 693,
697, 603 S.E.2d 890, 892-93 (2004) (“Facts are things in space
and time that can be objectively ascertained by one or more of
the five senses or by mathematical calculation.”). The trial
court’s designation of the willfulness of Mother’s failure to
pay as a conclusion of law, rather than a finding of fact, is
not binding on this Court. In re Hogan, 32 N.C. App. 429, 433,
232 S.E.2d 492, 494 (1977) (“We will ignore the incorrect
designation[.]”). Mother has not shown the trial court erred on
this basis because the trial court did make a finding as to
Mother’s willfulness.
Because we affirm the trial court’s order terminating
Mother’s parental rights on the ground stated in N.C.G.S. § 7B-
1111(a)(3), we need not address Mother’s arguments concerning
other grounds for termination of parental rights. In re T.D.P.,
164 N.C. App. 287, 291, 595 S.E.2d 735, 738 (2004).
Affirmed.
Judges McCULLOUGH and DILLON concur.
Report per Rule 30(e).