In Re Garner

330 S.E.2d 33 (1985)

In re Donald Ray GARNER, a Minor Child.
In re Bobby DeWayne GARNER, a Minor Child.

No. 8419DC782.

Court of Appeals of North Carolina.

June 4, 1985.

Gavin & Pugh by W. Ed Gavin, Asheboro, for petitioner-appellee.

Bell & Browne, P.A. by Robert E. Wilhoit, Asheboro, as Guardian Ad Litem.

Pierre Oldham, Asheboro, for respondent-appellant.

PARKER, Judge.

In her sole assignment of error, respondent asserts that the order terminating her parental rights is not supported by the findings of fact and conclusions of law.

General Statute 7A-289.32 provides that a court may terminate parental rights on seven different grounds, and a finding of any one of those grounds will authorize a court to terminate the parent's rights. G.S. 7A-289.31(a); In re Moore, 306 N.C. 394, 293 S.E.2d 127 (1982). All such findings must, however, be based on "clear, cogent, and convincing evidence." G.S. 7A-289.30(e). The court in this case concluded that two grounds for termination existed. These were under subsection (2) and (4) which provide in part:

(2) The parent has ... neglected the child. The child shall be deemed to be... neglected if the court finds the child to be ... a neglected child within the meaning of G.S. 7A-517(21).

....

(4) The child has been placed in the custody of a county department of social services ... and the parent, for a continuous period of six months next preceding the filing of the petition, has failed to pay a reasonable portion of the cost of care for the child.

G.S. 7A-517(21) provides in part:

Neglected Juvenile.—A juvenile who does not receive proper care, supervision, or discipline from his parent ... or who is not provided necessary medical care or other remedial care recognized under State law, or who lives in an environment injurious to his welfare ....

In finding of fact No. 6, the court found "[t]hat each of the children has heretofore been adjudicated by Randolph District Court as being a neglected child." This finding was the sole finding of fact on the ground of neglect. The court then concluded as law that "Donald Ray Garner and Bobby DeWayne Garner are neglected children ...."

Our Supreme Court, in In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984), addressed this identical issue stating that "termination of parental rights for neglect may not be based solely on conditions which existed in the distant past but no longer exist." 311 N.C. at 714, 319 S.E.2d at 231-32. The Court stated:

We hold that evidence of neglect by a parent prior to losing custody of a child—including an adjudication of such neglect—is admissible in subsequent proceedings to terminate parental rights.

....

The respondent appellant next contends in support of this assignment of error that the trial court erroneously treated the prior adjudication of neglect standing alone as binding upon it and as determinative on the issue of neglect at the time of the termination proceeding. The respondent's contention in this regard has merit. 311 N.C. at 715, 319 S.E.2d at 231-232.

As in Ballard, the trial court in the instant case treated the prior adjudication as determinative on the issue of neglect at the time of the termination proceeding. This was error. The court was certainly entitled to consider the prior adjudication in the fact finding process, but Ballard requires new findings of fact based on "changed conditions ... in light of the history of neglect by the parents and the probability of a repetition of neglect." 311 N.C. at 714, 319 S.E.2d at 231.

Only one ground needs to be proven to uphold the termination order. G.S. 7A-289.31(a). Therefore, we must examine whether respondent failed to pay a reasonable portion of the cost of the care for the children.

The facts are undisputed that respondent had not contributed anything toward the support of her children since they were removed from her in 1981, and that she was incarcerated at the time of the termination hearing for writing numerous worthless checks. How long respondent had been incarcerated prior to the hearing is not clear from the record or termination order. The court, in finding of fact No. 13, found:

That the mother for a continuous period of six months next preceding the filing of the Petitions to terminate parental rights has failed to pay a reasonable portion of the cost of care for the children; indeed, the mother has not paid any amount toward the support of the two children since they have been in the custody of the Randolph County Department of Social Services.

The relevant time period under the statute is "for a continuous period of six months next preceding the filing of the petition." G.S. 7A-289.32(4). Respondent contends that she could not pay any support during some portion of this relevant time period because of her incarceration.

In determining what is a "reasonable portion," the parent's ability to pay is the controlling factor. In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981). In Clark, the Court stated:

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. What is within a parent's "ability" to pay or what is within the "means" of a parent to pay is a difficult standard which requires great flexibility in its application.

In the case sub judice, respondent paid nothing for the children's care over the relevant time period. This Court has previously held that "nonpayment 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 Bradley, the respondent-father was incarcerated and did not make any payments to support his children. Mr. Bradley was participating in the work-release program, but lost the privilege when he returned from work in an intoxicated condition. On appeal respondent argued the unreasonableness of requiring a prisoner to provide financial support while incarcerated. Rejecting this argument, the Court in Bradley enunciated the following rule:

Where, as here, the parent had an opportunity to provide for some portion of the cost of care of the child, and forfeits that opportunity by his or her own misconduct, such parent will not be heard to assert that he or she has no ability or means to contribute to the child's care and is therefore excused from contributing any amount. 57 N.C. at 479, 291 S.E.2d at 802-03.

The rule in Bradley was not a blanket statement that incarcerated parents can never assert an inability to provide support. Such a rule would be in conflict with the holding in Ballard that "[a] finding that a parent has ability to pay support is essential to termination for nonsupport on this ground." 311 N.C. at 716-17, 319 S.E.2d at 233. The ruling that respondent Bradley would not be heard to assert his inability to pay was based on his misconduct in returning intoxicated from his work release job which would have allowed him the opportunity to earn money to provide for his children, not on his mere incarceration. To conclude otherwise would produce extremely harsh results.

Under the holding in Bradley, the trial court should have made a specific finding that respondent was able to pay some amount greater than zero during the relevant time period. This Court has previously stated, in a termination case in which the respondent contended she was unable to pay any of the child care costs, that "the better practice would have been for the trial court to have made separate findings as to her failure to pay." In re Allen, 58 N.C.App. 322, 327-28, 293 S.E.2d 607, 611 (1982).

Pursuant to the foregoing authorities, we hold that the court erred (i) in concluding that the children were neglected based solely on the existence of the prior adjudication of neglect, and (ii) in failing to make adequate findings as to respondent's ability to pay some portion of the cost of foster care. Under G.S. 7A-289.31(a) if either ground had been properly found, the lower court's ruling could be sustained, but because both grounds were erroneously decided, the case must be remanded for findings as to whether or not the children are neglected and as to whether the respondent was "able to pay some amount greater than zero" during the relevant time period.

Reversed and remanded.

WEBB and BECTON, JJ., concur.

BECTON, Judge, concurring in the result.

Notwithstanding the views I expressed in my dissent In re Bradley, 57 N.C.App. at 479-481, 291 S.E.2d at 803-804, I believe that a remand in this case is proper. I, therefore, concur in the result.