In re of D.L.C.
| Decision Date | 04 June 2013 |
| Docket Number | No. COA12–1330.,COA12–1330. |
| Citation | 745 S.E.2d 375 |
| Parties | In the Matter Of D.L.C. and J.L.C. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by respondent-mother and respondent-father from order entered 27 June 2012 by Judge Betty J. Brown in Guilford County District Court. Heard in the Court of Appeals 15 May 2013.
Mercedes O. Chut for Guilford County Department of Social Services petitioner-appellee.
Smith, James, Rowlett & Cohen, L.L.P., by Margaret Rowlett, for Guardian ad Litem.
Harrington, Gilleland, Winstead, Feindel & Lucas, LLP, by Anna S. Lucas, for respondent-mother appellant.
Richard Croutharmel for respondent-father appellant.
Respondent-father and respondent-mother (collectively, “respondents”) appeal from an order terminating their parental rights to their two children, J.L.C. and D.L.C. We affirm in part and reverse in part.
On 7 February 2011, the Guilford County Department of Social Services (“DSS”) filed a juvenile petition alleging that J.L.C., born February 2005, and D.L.C., born November 2010 were neglected and dependent juveniles. DSS took nonsecure custody of the children. By order filed 5 May 2011, the trial court adjudicated the children neglected and dependent based upon respondents' substance abuse issues and pending criminal charges.
On 29 August 2011, DSS filed a petition to terminate the parental rights of respondents under N.C. Gen.Stat. § 7B–1111(a)(1) (2011) (neglect); N.C. Gen.Stat. § 7B–1111(a)(3) (); N.C. Gen.Stat. § 7B–1111(a)(6) (); and N.C. Gen.Stat. § 7B–1111(a)(7) (abandonment).
The trial court held a termination hearing in February, March, and April 2012. By order filed 27 June 2012, the trial court concluded that grounds for termination of respondent-father's parental rights existed under N.C. Gen.Stat. § 7B–1111(a)(3), and that grounds for termination of respondent-mother's parental rights existed under N.C. Gen.Stat. § 7B–1111(a)(7). The trial court concluded that it was in the children's best interest to terminate respondents' parental rights. On 24 July 2012, respondent-mother gave timely notice of appeal from the termination order. On 10 September 2012, the trial court entered an “Amended Order to Terminate Parental Rights” in which it reorganized its findings of fact and corrected typographical errors. On 18 September 2012, respondent-father gave notice of appeal from the amended termination order.
We initially note that respondent-father's notice of appeal is insufficient to confer jurisdiction on this Court with respect to the trial court's 27 June 2012 termination order. Once respondent-mother gave notice of appeal from the 27 June 2012 termination order, the trial court was divested of jurisdiction over the matter and lacked jurisdiction to enter the amended order on 10 September 2012. See In re Z.J.T.B., 183 N.C.App. 380, 383, 645 S.E.2d 206, 209 (2007) ; Lowder v. All Star Mills, Inc., 301 N.C. 561, 581, 273 S.E.2d 247, 259 (1981) (). Thus, the 27 June 2012 termination order is the trial court's final order. Because respondent-father gave notice of appeal only from the improper 10 September 2012 order and did not give timely notice of appeal from the 27 June 2012 order, we must dismiss respondent-father's appeal. Recognizing that his notice of appeal is deficient, respondent-father filed a petition for writ of certiorari seeking review of the trial court's final judgment. In our discretion, we grant the writ for the purpose of addressing the claims raised by respondent-father. N.C.R.App. P. 21(a) ().
The standard of 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. We then consider, based on the grounds found for termination, whether the trial court abused its discretion in finding termination to be in the best interest of the child.
In re Shepard, 162 N.C.App. 215, 221–22, 591 S.E.2d 1, 6 (2004) (internal quotation marks and citations omitted).
Respondent-father contends the trial court erred in concluding that grounds existed to terminate his parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(3). We agree.
A court may terminate parental rights upon finding that
[t]he juvenile[s] [have] been placed in the custody of a county department of social services, a licensed child-placing agency, a child-caring institution, 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 to pay a reasonable portion of the cost of care for the juvenile[s] although physically and financially able to do so.
N.C. Gen.Stat. § 7B–1111(a)(3). “A finding that a parent has ability to pay support is essential to termination for nonsupport” pursuant to N.C. Gen.Stat. § 7B–1111(a)(3). In re Ballard, 311 N.C. 708, 716–17, 319 S.E.2d 227, 233 (1984). A parent's “nonpayment will be deemed a failure to pay a reasonable portion if and only if the [parent] could pay some amount greater than zero.” In re McDonald, 72 N.C.App. 234, 243, 324 S.E.2d 847, 853 (1985).
To support its conclusion that respondent-father failed to pay a reasonable portion of the cost of care for the children, the trial court made the following findings of fact:
18. The cost of care for [D.L.C.] for the last six months has been in excess of $2,500.00. The total cost of care of [D.L.C.] since he came into custody has been in excess of $5,413.71.
....
20. The father has been employed as a janitor since November 30, 2011 and has earned $.40 per day working 7 days per week in prison. The prison records reflect that all funds have been used for the canteen.
....
22. The cost of care for [J.L.C.] for the last six months has been in excess of $3[,]394.00. The total cost of care of [J.L.C.] since he came into custody has been in excess of $3,987.75.
....
24. The father although physically and financially able to pay some portion of the cost of care for the juveniles has failed to do so.
The trial court then concluded that:
[4.] a. 7B–1111 (a)(3): The juvenile[s] [have] been placed in DSS custody, and the putative father, for a continuous period of six months next preceding the filing of this action, has failed to pay a reasonable portion of the children's cost of care, although physically and financially able to do so.
Respondent-father challenges the trial court's findings of fact and contends the trial court's findings of fact are insufficient to support its conclusion. Respondent-father first argues finding of fact 24 1 is a conclusion of law and not a finding of fact. We agree.
The classification of a determination as either a finding of fact or a conclusion of law is admittedly difficult. As a general rule, however, any determination requiring the exercise of judgment or the application of legal principles is more properly classified a conclusion of law. Any determination reached through logical reasoning from the evidentiary facts is more properly classified a finding of fact.
In re Helms, 127 N.C.App. 505, 510, 491 S.E.2d 672, 675 (1997) (internal quotation marks and citations omitted). A finding of fact which is essentially a conclusion of law will be treated as a conclusion of law on appeal. In re M.R.D.C., 166 N.C.App. 693, 697, 603 S.E.2d 890, 893 (2004). Mislabeling a finding of fact as a conclusion of law is inconsequential if the remaining findings of fact support it. In re R.A.H., 182 N.C.App. 52, 60, 641 S.E.2d 404, 409 (2007).
We hold that the mislabeling in the trial court's order is not inconsequential because the remaining findings of fact do not support the conclusion. The one finding of fact that addresses respondent-father's ability to pay is number 20, which states that respondent-father held a janitorial job in prison since November 2011. The petition to terminate respondent-father's parental rights was filed on 29 August 2011, and thus the relevant six-month period is from 29 February 2011 to 29 August 2011. See In re Garner, 75 N.C.App. 137, 140, 330 S.E.2d 33, 35 (1985). Respondent-father's November 2011 janitorial job occurred after the filing of the termination petition. As respondent-father correctly argues, because finding of fact 20 refers to a time period other than the six months preceding the petition, it does not support the trial court's conclusion of law that respondent-father had the ability to pay a reasonable portion of cost of care for the relevant six-month time period. The trial court's remaining findings of fact do not address whether respondent-father had an ability to pay the cost of care for his children during the relevant six-month period, including, inter alia, whether he earned any money or whether he had any income or means that could be used to provide support for the children. Because of the lack of such findings, we hold the trial court erred in terminating respondent-father's parental rights under N.C. Gen.Stat. § 7B–1111(a)(3). McDonald, 72 N.C.App. at 244, 324 S.E.2d at 853 ().
To continue reading
Request your trial