In re Clark
Decision Date | 02 July 2002 |
Docket Number | No. COA01-1287.,COA01-1287. |
Citation | 151 NC App. 286,565 S.E.2d 245 |
Parties | In re Lehonna Soissette' CLARK, A Minor Child. |
Court | North Carolina Court of Appeals |
Stanley G. Abrams, Wilson, for respondent appellant.
Beaman and King, P.A., by Charlene Boykin King, Wilson, for the Wilson County Department of Social Services, petitioner appellee.
Womble Carlyle Sandridge & Rice, by Karen Ousley Hogan, Winston-Salem, Attorney for the Best Interest of the Child, By and Through Guardian ad Litem, appellee.
Anthony Clark ("respondent") appeals from an order terminating his parental rights. For the reasons stated herein, we reverse the order of the trial court.
Respondent is the natural father of Lehonna Soissette' Clark ("Lehonna"), born 9 December 1999. On 26 April 2000, the trial court adjudicated Lehonna to be a dependent and neglected child based on evidence that respondent was incarcerated and that Lehonna's mother had a substance abuse problem which rendered her incapable of properly caring for the child. Lehonna was removed from her mother's care and placed into the legal custody of the Wilson County Department of Social Services ("DSS"), which in turn placed Lehonna in the physical custody of a maternal cousin.
On 5 December 2000, DSS filed a petition to terminate respondent's parental rights. The trial court heard the matter on 9 May 2001 and made the following two findings of fact concerning respondent:
Based on these findings, the trial court concluded that respondent had "failed to pay a reasonable portion of the cost of care for the child although physically and financially able to do so" and was "incapable of providing for the proper care and supervision of the child" and that "such inability [would] continue for the foreseeable future." The trial court thereafter determined that it was in Lehonna's best interests that respondent's parental rights be terminated and entered an order accordingly. From this order, respondent appeals.
Respondent argues that the trial court erred in concluding that sufficient grounds existed to terminate his parental rights.
Section 7B-1111 of the North Carolina General Statutes authorizes a court to terminate parental rights on nine different grounds, and a finding of any one of these grounds is sufficient to support the termination of parental rights. See N.C. Gen.Stat. § 7B-1111 (2001). Such findings must be based, however, on "clear, cogent, and convincing evidence." N.C. Gen.Stat. §§ 7B-1109(f), 7B-1111(b). The court here concluded that two grounds for termination existed. These were under subsections (a)(3) and (a)(6), which provide that parental rights over a child may be terminated where:
N.C. Gen.Stat. § 7B-1111 (a)(3), (a)(6). A dependent juvenile is one "in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement." N.C. Gen.Stat. § 7B-101(9) (2001).
Respondent contends that there was insufficient evidence to support the trial court's conclusion that he failed to pay a reasonable portion of the cost of Lehonna's care or that he was incapable of caring for his child. Respondent's argument has merit.
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. See In re Clark, 303 N.C. 592, 604, 281 S.E.2d 47, 55 (1981)
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