In Re J.K.U. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-511
NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014
IN THE MATTER OF:
J.K.U. Guilford County
No. 12 JT 168
Appeal by respondent mother from order entered 24 January
2014 by Judge Angela Foster in Guilford County District Court.
Heard in the Court of Appeals 29 September 2014.
Mercedes O. Chut for petitioner-appellee Guilford County
Department of Social Services.
Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch,
for guardian ad litem.
Richard Croutharmel for respondent-appellant mother.
McCULLOUGH, Judge.
Respondent mother appeals from the trial court’s order
terminating her parental rights to the minor child, J.K.U.
(“Jack”)1. For the reasons discussed herein, we affirm the
trial court’s order.
I. Background
1
A pseudonym is used for ease of reading and to protect the
privacy of the juvenile.
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On 3 November 2011, Guilford County Department of Social
Services (“DSS”) received a neglect report alleging
inappropriate supervision, possible lack of care, and
inappropriate sexual contact between 11-year-old Jack and his
younger female cousin. On 4 November 2011, DSS conducted an
initial investigation of the allegations and the family denied
any inappropriate contact between the children. The children’s
mothers entered into a safety agreement to provide appropriate
supervision at all times and to cooperate with DSS.
On 26 January 2012, DSS received another report alleging
inappropriate sexual contact between Jack and his cousin.
Jack’s cousin stated that Jack “touched her private parts” and
that “it hurt.” Jack was interviewed by a police detective and
admitted that he engaged in some sexual behavior with his
cousin. Based on Jack’s statements to the detective, Jack and
respondent were provided temporary housing at a motel. Detailed
safety agreements were made with the children’s mothers
indicating there was to be no contact between the children. On
6 February 2012, DSS learned that the children had contact in
violation of the safety agreements.
On 8 February 2012, DSS filed a juvenile petition alleging
Jack was neglected and dependent and the trial court entered an
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order placing Jack in nonsecure custody with DSS. Respondent
entered into a case plan on 1 March 2012 and agreed to the
following conditions: (1) complete a parenting assessment and
follow the recommendations, complete parenting classes, attend
scheduled visits, and maintain contact with the social worker;
(2) complete a substance abuse assessment and follow
recommendations, and submit to random drug screens; (3) obtain
and maintain stable housing; (4) obtain a psychiatric evaluation
to determine if medication is needed, comply with individual
therapy, and comply with joint family therapy once recommended
by the child’s therapist; and (5) obtain and maintain stable
employment. By order entered 27 April 2012, Jack was
adjudicated dependent. The trial court ordered that custody of
Jack remain with DSS. Respondent was ordered to comply with her
case plan and cooperate with DSS.
The matter came on for a permanency planning hearing on 24
October 2012. By order filed 14 November 2012, the trial court
found respondent “has the ability to work the objectives in her
case plan when she decides to do so.” The permanent plan for
the case was reunification with a concurrent plan of adoption.
The trial court concluded it was in Jack’s best interest to
remain in the custody of DSS.
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Following a subsequent permanency planning hearing held on
26 April 2013, the trial court found respondent was not engaged
in her case plan. Specifically, respondent continued to test
positive for marijuana and was not participating in drug
treatment, she did not have safe and secure housing or income,
she was not participating in individual therapy on a consistent
basis, and she had not completed positive parenting classes. As
a result, the trial court changed the permanent plan to adoption
with a concurrent plan of reunification and ordered DSS to
proceed with filing a termination of parental rights petition.
On 24 June 2013, DSS filed a petition to terminate parental
rights alleging grounds existed to terminate respondent’s
parental rights based upon neglect, failure to make reasonable
progress, failure to pay a reasonable portion of the cost of
care, and dependency. See N.C. Gen. Stat. § 7B-1111(a)(1), (2),
(3), and (6) (2013). The termination hearing was held on 26
November 2013, after which the trial court found the existence
of all grounds alleged by DSS. The court determined that
termination of respondent’s parental rights was in Jack’s best
interest and entered an order terminating respondent’s parental
rights. Respondent appeals.
II. Discussion
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Respondent argues the trial court reversibly erred in
finding and concluding that grounds existed to terminate her
parental rights because the evidence failed to support the
findings and the findings failed to support the conclusions.
“The standard for 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.” In re Clark, 72 N.C. App. 118,
124, 323 S.E.2d 754, 758 (1984).
We note that although the trial court concluded that more
than one ground existed to terminate respondent’s parental
rights, we find it dispositive that the evidence supports
termination of her parental rights pursuant to N.C. Gen. Stat. §
7B-1111(a)(3), willful failure to pay a reasonable portion of
the cost of care. See In re Humphrey, 156 N.C. App. 533, 540,
577 S.E.2d 421, 426 (2003) (“A finding of any one of the
enumerated grounds for termination of parental rights under
N.C.G.S. 7B–1111 is sufficient to support a termination.”).
A trial court may terminate parental rights where:
The 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 such period
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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).
This Court as recognized that the use of “willfully” in the
statute “imports knowledge and a stubborn resistance[.]” In re
Matherly, 149 N.C. App. 452, 455, 562 S.E.2d 15, 18 (2002)
(quotation marks omitted). “Manifestly, one does not act
willfully in failing to make support payments if it has not been
within [her] power to do so.” In re Adoption of Maynor, 38 N.C.
App. 724, 726, 248 S.E.2d 875, 877 (1978). “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).
Here, respondent argues there is no finding that respondent
was able to pay some amount greater than zero. Respondent
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contends the trial court reversibly erred in failing to
specifically address respondent’s ability to pay. We disagree.
The trial court found that “[t]he mother is under an order
to pay child support for the juvenile but has failed to pay any
child support or otherwise contribute to the juvenile’s cost of
care since he has been in custody.” The trial court further
found that during the relevant six month period respondent
“willfully failed to pay a reasonable portion of the juvenile’s
cost of care under the circumstances despite having been
physically and financially able to do so.” These findings are
supported by the evidence as the social worker testified that
respondent entered into a voluntary support order to pay $50 per
month effective 1 January 2013, and respondent never paid any
child support. The social worker further testified that
respondent “is an able body and is under no physical or mental
disability to prevent her from working[.]”
Respondent’s ability to pay was established by her child
support order.
Because 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.
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In re Roberson, 97 N.C. App. 277, 281, 387 S.E.2d 668, 670
(1990) (citations omitted). Accordingly, the trial court’s
findings establish that respondent had the ability to pay some
amount greater than zero. The trial court did not err in
finding grounds exist to terminate respondent’s parental rights
pursuant to N.C. Gen. Stat. § 7B-1111(a)(3).
“After an adjudication that one or more grounds for
terminating a parent’s rights exist, the court shall determine
whether terminating the parent’s rights is in the juvenile’s
best interest.” N.C. Gen. Stat. § 7B-1110(a) (2013). The court
must consider the following factors and make written findings
regarding those that are relevant:
(1) The age of the juvenile.
(2) The likelihood of adoption of the
juvenile.
(3) Whether the termination of parental
rights will aid in the accomplishment of the
permanent plan for the juvenile.
(4) The bond between the juvenile and the
parent.
(5) The quality of the relationship between
the juvenile and the proposed adoptive
parent, guardian, custodian, or other
permanent placement.
(6) Any relevant consideration.
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Id. “We review the trial court’s decision to terminate parental
rights for abuse of discretion.” In re Anderson, 151 N.C. App.
94, 98, 564 S.E.2d 599, 602 (2002). “A trial court may be
reversed for abuse of discretion only upon a showing that its
actions are ‘manifestly unsupported by reason.’” Davis v.
Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) (quoting
Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980)).
In this case, respondent concedes that the trial court made
findings concerning the enumerated factors, but contends the
trial court failed to address the fact that Jack was of an age
that his consent to adoption was necessary. Respondent argues
the trial court abused its discretion in terminating her
parental rights because the evidence showed that Jack had a
strong bond with her, wanted to return to her custody, and was
unlikely to consent to adoption. We are not persuaded.
In this case, the trial court found that “[Jack] has a
strong bond with his mother[.]” However, the trial court also
found that “[Jack] deserves permanency.” Jack’s guardian ad
litem testified that Jack had expressed to her that he was tired
of the case “dragging out.” She further testified that he was
frustrated by “being in limbo.” Although Jack expressed a
desire to return to his mother, he also wanted permanence and
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stability. Moreover, the Juvenile Code does not require that
termination of parental rights lead to adoption in order for it
to be in the child’s best interest. See In re M.M., 200 N.C.
App. 248, 258, 684 S.E.2d 463, 470 (2009) (stating there’s no
requirement within N.C.G.S. § 7B-1110 that termination lead to
adoption), disc. review denied, 364 N.C. 241, 698 S.E.2d 401
(2010).
Here, the trial court properly considered the section 7B-
1110(a) factors and made written findings as required. The
trial court did not abuse its discretion in determining that
termination of respondent’s parental rights was in Jack’s best
interest. Accordingly, we affirm the trial court’s order
terminating respondent’s parental rights.
Affirmed.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).