Biggers, In re, 8019DC447

• Docket Nº: No. 8019DC447
• Citation: 274 S.E.2d 236, 50 N.C.App. 332
• Case Date: January 20, 1981
• Court: Court of Appeal of North Carolina (US)

Page 236

274 S.E.2d 236 50 N.C.App. 332, 22 A.L.R.4th 766 In re BIGGERS, Two Minor Children. No. 8019DC447. Court of Appeals of North Carolina. Jan. 20, 1981.

Williams, Willeford, Boger, Grady & Davis by Samuel F. Davis, Jr., Concord and Forbis & Grossman by Steven A. Grossman, Kannapolis, for petitioner-appellee.

Johnson, Belo & Plummer by James C. Johnson, Jr., Concord, for respondent-appellant.

VAUGHN, Judge.

Respondent urges reversal of the judgment on two bases: the unconstitutionality of G.S. 7A-289.32 and the insufficiency of the evidence to permit the termination of parental rights under the statute. We disagree with respondent's contentions on both points and affirm.

At the outset, we must consider the inconsistency appearing in conclusion of law number three in which Judge Warren stated that grounds for termination existed "under G.S. 7A-289.32, subsections (1) and (3), as amended by Chapter 669 of the 1979 Session Laws...." Since the amendment repealed subsection (1) of the statute, Judge Warren must have meant to refer to the grounds given in subsections (2) and (4) instead, as evidenced by conclusions of law numbers one and two, supra. As only one of seven findings is necessary to order termination under G.S. 7A-289.32, however, we shall disregard conclusion of law number three as surplusage unnecessary to sustain the order. In addition, the 1979 amendment deleted the words "physically" preceding "abused or neglected" in subsection (2). Since that [50 N.C.App. 338] deletion did not change the meaning of "neglected," which is the

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relevant portion here, the applicability of the amendment to the proceeding is not raised even though the petition was filed before its effective date. We shall, therefore, proceed with our analysis of the statute as it is amended.

G.S. 7A-289.32 provides seven grounds upon which parental rights can be terminated. Judge Warren's conclusions of law numbers one and two, supra, sufficiently identify two of those grounds as applicable to this case: G.S. 7A-289.32(2) and (4). Respondent contends that the statute is generally unconstitutional because it violates the equal protection clause of the fourteenth amendment of the federal constitution. In this proceeding, however, the only question for our determination is the constitutionality of G.S. 7A-289.32(2) and (4). Though respondent has failed to articulate her constitutional arguments, we have carefully considered her general objections and find them to be of no avail.

Our Supreme Court has explained the scope of constitutional equal protection.

The equal protection clauses of the United States and North Carolina Constitutions impose upon lawmaking bodies the requirement that any legislative classification "be based on differences that are reasonably related to the purposes of the Act in which it is found." Morey v. Doud, 354 U.S. 457, 465, 77 S.Ct. 1344, 1350, 1 L.Ed.2d 1485, 1491 (1957); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); State v. Greenwood, 280 N.C. 651, 187 S.E.2d 8 (1972). Such classifications will be upheld provided the classification is founded upon reasonable distinctions, affects all persons similarly situated or engaged in the same business without discrimination, and has some reasonable relation to the public peace, welfare and safety. State v. Greenwood, supra; Clark's Charlotte, Inc. v. Hunter, 261 N.C. 222, 134 S.E.2d 364 (1964).

In re Moore, 289 N.C. 95, 104, 221 S.E.2d 307, 313 (1976); Duggins v. Board of Examiners, 294 N.C. 120, 240 S.E.2d 406 (1978). Here, only G.S. 7A-289.32(4) would even seem to be susceptible to an equal protection claim. It provides for the termination of parental rights upon the finding that:

The child has been placed in the custody of a county department of social services, a licensed child-placing [50 N.C.App. 339] agency, or a child-caring institution, 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.

The basis for an equal protection claim against this subsection would be that it discriminates against parents, according to their financial circumstances, by authorizing termination of their rights for the economic failure to pay for their child's foster care costs. See 70 Colum.L.Rev. 465, 469 n. 28 (1970). Such a claim cannot be sustained because subsection (4) does not make any distinction between parents similarly situated.

G.S. 7A-289.32(4) requires parents to pay a reasonable portion of the child's foster care costs, and this requirement applies to all parents irrespective of their wealth or poverty. The parents' economic status is merely a factor used to determine their ability to pay such costs, but their ability to pay is the controlling characteristic of what is a reasonable amount for them to pay. In the instant case, the court considered the parent's ability to pay in deciding what was a "reasonable portion" in the 1977 order awarding custody of the Biggers children to the Department. It found that Mr. Bigger made $100.00 per week and thus ordered him to pay $25.00 per week for his children's support while they were in the Department's custody. Respondent later agreed to pay $100.00 a month for the children's care (plan of care agreement, 6 October 1978). At the time, she was employed at Craftsman Fabrics, and the amount agreed to was surely based upon her ability to pay according to her wages and the needs of the children. Finally, in the termination order itself, the court found that respondent, despite her agreement to do so and her ability to be gainfully employed, had failed to pay "any sums whatsoever " for her children's support while they were in foster care for over two years.

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All parents have the duty to support their children within their means, and the State, as the parens patriae of all children, may enforce that duty to prevent children from becoming...