In re TDP

Decision Date18 May 2004
Docket NumberNo. COA03-222.,COA03-222.
Citation164 NC App. 287,595 S.E.2d 735
PartiesIn re T.D.P.
CourtNorth Carolina Court of Appeals

John F. Campbell, Fayetteville, for petitioner-appellee.

Womble Carlyle Sandridge & Rice, by Stuart A. Brock, and Robin Weaver-Hurmence, for Guardian ad Litem-appellee.

Katharine Chester, Siler City, for respondent-appellant.

TIMMONS-GOODSON, Judge.

Respondent appeals the trial court order terminating his parental rights as to his two-year-old daughter ("T.D.P."). For the reasons stated herein, we affirm the trial court's order.

The facts and procedure pertinent to the instant appeal are as follows: On 17 September 2001, Cumberland County Department of Social Services ("DSS") filed a petition seeking termination of respondent's parental rights ("the petition"). DSS alleged that respondent neglected T.D.P., that respondent willfully left T.D.P. in foster care for more than twelve months without showing reasonable progress had been made to correct those conditions which led to T.D.P.'s removal, that respondent failed to pay a reasonable portion of the cost of foster care for T.D.P. for six months prior to the petition although respondent was financially able to do so, and that respondent was incapable as a result of substance abuse to provide proper care and supervision for T.D.P. On 1 April 2002, the trial court entered an order terminating respondent's parental rights as to T.D.P. Respondent appeals.

The issue on appeal is whether the trial court erred in terminating respondent's parental rights. Respondent argues that there was insufficient evidence to support the trial court's decision. We disagree.

"A termination of parental rights proceeding is a two-stage process." In re Howell, 161 N.C.App. 650, 656, 589 S.E.2d 157, 160 (2003). The trial court first examines the evidence and determines whether sufficient grounds exist under N.C. Gen.Stat. § 7B-1111 to warrant termination of parental rights. Id. The trial court's findings must be supported by clear, cogent, and convincing evidence. Id. at 656-57, 589 S.E.2d at 160-61. If the trial court determines that any one of the grounds for termination listed in § 7B-1111 exists, the trial court may then terminate parental rights consistent with the best interests of the child. Id. at 657, 589 S.E.2d at 161. The trial court's decision to terminate parental rights is discretionary, and "this Court `should affirm the trial court where the court's findings of fact are based upon clear, cogent and convincing evidence and the findings support the conclusions of law.' " In re Yocum, 158 N.C.App. 198, 203, 580 S.E.2d 399, 403 (quoting In re Allred, 122 N.C.App. 561, 565, 471 S.E.2d 84, 86 (1996)),aff'd per curium, 357 N.C. 568, 597 S.E.2d 674 (2003).

In the instant case, the trial court made the following pertinent findings of fact:

X.
The Respondent Father is currently incarcerated in the North Carolina Department of Corrections. He is incarcerated upon convictions of common law robbery and second degree kidnapping. Respondent Father's earliest release date is November 2003 and his maximum release date is January 2004.
....
XII.
Respondent Father is employed at the prison unit as a cook. He earns very little money. He has used his money to buy personal items but has not sent any money for the minor child, nor has he even sent her a card.

Based upon these findings, the trial court made the following pertinent conclusions of law:

That the juvenile has been placed in the custody of the Cumberland County Department of Social Services for a continuous period of six months next preceding the filing of the petition and the Respondent Father has willfully failed for such period to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so pursuant to NCGS § 7B-1111(a)(3).
....
That grounds exist for termination of the parental rights of the Respondent Father.

Respondent argues that the trial court's conclusion to terminate his parental rights pursuant to N.C. Gen.Stat. § 7B-1111(a)(3) (2003) was not supported by a finding of fact based upon clear, cogent, and convincing evidence. We disagree.

As respondent correctly points out, "[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). Respondent first asserts that the trial court erred in failing to make such a finding. However, finding of fact number twelve clearly evidences that the trial court found that respondent had an ability to pay. Therefore, respondent's assertion is without merit. Furthermore, respondent's assertion that a support order is necessary to require him to pay a portion of the cost of T.D.P.'s foster care is also without merit. See In re Wright, 64 N.C.App. 135, 139, 306 S.E.2d 825, 827 (1983)

("Very early in our jurisprudence, it was recognized that there could be no law if knowledge of it was the test of its application. Too, that respondent did not know that fatherhood carries with it financial duties does not excuse his failings as a parent; it compounds them.").

Respondent's final assertion is that the trial court's finding of fact was unsupported by clear, cogent, and convincing evidence because respondent's failure to pay was not willful. Respondent contends that he lacked the means to pay any reasonable portion of the cost of T.D.P.'s foster care. Although respondent admits that he has worked continuously while incarcerated, he also contends that because his wages ranged from only $.40 to $1.00 per day, it is unreasonable to require him to pay a portion of T.D.P.'s foster care. In support of this assertion, respondent cites In re Clark, where this Court stated that "[i]n determining what constitutes a `reasonable portion' of the cost of care for a child, the parent's ability to pay is the controlling characteristic[,][and][a] parent is required to pay that portion of the cost of foster care ... that is fair, just and equitable based upon the parent's ability or means to pay." 151 N.C.App. 286, 288-89, 565 S.E.2d 245, 247 (citations omitted) (quotations omitted), disc. review denied, 356 N.C. 302, 570 S.E.2d 501 (2002). While the foregoing quotations are correct statements of law, they fail to encompass our holding in Clark or the law of this state regarding termination of parental rights pursuant to N.C. Gen.Stat. § 7B-1111(a)(3).

In Clark, as in the instant case, it was "undisputed that respondent ... paid nothing to DSS for [his daughter's] care." Id. at 289, 565 S.E.2d at 247. Recognizing that "nonpayment constitutes a failure to pay a reasonable portion `if and only if respondent [is] able to pay some amount greater than zero,' " we held that "[b]ecause there was no clear and convincing evidence that respondent had any ability to pay an amount greater than zero, the trial court erred in concluding that respondent failed to pay a reasonable portion of the cost of his child's care." Id. (quoting In re Bradley, 57 N.C.App. 475, 479, 291 S.E.2d 800, 802 (1982)).

In the instant case, there was clear and convincing evidence that respondent had an ability to pay an amount greater than zero. As discussed above, the trial court noted that although respondent's wages were meager, he was nevertheless being paid for his work in the prison kitchen. Respondent therefore had an ability to pay some portion of the costs of T.D.P.'s foster care.

Although " `[w]hat 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,' " the requirement of § 7B-1111(a)(3) " `applies irrespective of the parent's wealth or poverty.' " In re Montgomery, 311 N.C. 101, 113, 316 S.E.2d 246, 254 (1984) (quoting In re Clark, 303 N.C. 592, 604, 281 S.E.2d 47, 55 (1981)). "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 re Biggers, 50 N.C.App. 332, 339, 274 S.E.2d 236, 240 (1981) (emphasis added). Thus, because the trial court in the instant case correctly found that respondent was able to pay some amount greater than zero during the relevant time period, we hold that sufficient grounds existed for termination of respondent's parental rights under N.C. Gen.Stat. § 7B-1111(a)(3). Therefore, we need not address respondent's arguments concerning other grounds for termination of his parental rights. In re Pierce, 67 N.C.App. 257, 261, 312 S.E.2d 900, 903 (1984). Furthermore, because we conclude that the trial court properly determined that grounds for termination existed under N.C. Gen.Stat. § 7B-1111(a)(3), we also hold that the trial court did not abuse its discretion in finding that it was in T.D.P.'s best interest to terminate respondent's parental rights. In re Becker, 111 N.C.App. 85, 97, 431 S.E.2d 820, 828 (1993). Respondent's assignments of error are therefore overruled.

Affirmed.

Judge McCULLOUGH, concurs.

Judge WYNN, dissents.

WYNN, Judge, dissenting.

A poor man with no living immediate family members who is incarcerated for longer than 12 months should face no greater risk of having his parental rights terminated for his child than a similarly incarcerated individual who has financial means. I respectfully disagree with the majority's conclusion that the trial court had clear, cogent and convincing evidence before it, as required by N.C. Gen. Stat. § 7B-1111, to support its findings and conclusions terminating the parental rights of T.D.P.'s father.

The uncontroverted facts indicate T.D.P. was born on 4 October 1999. Her father signed the birth certificate and was an active participant in her life. Indeed, the record shows that until his arrest on 9 February 2000, T.D.P.'s father maintained a loving and caring relationship with his...

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