In the Matter of Huff

• Decision Date: 07 September 1996
• Docket Number: A-289
• Citation: 536 S.E.2d 838
• Court: North Carolina Court of Appeals
• Parties: (N.C.App. 2000) In the Matter of X. HUFF NO. COA99-1256 Filed: 17 October 2000 The Woodall Law Firm, P.A. by E. Marshall Woodall, for petitioner-appellee. Bain & McRae by Alton D. Bain, for respondent-appellant Tampatha C. Huff. Richard E. Jester, for respondent-appellant James J. Huff. McLeod & Harrop by Donald E. Harrop, Jr., as Guardian ad Litem. Appeal by respondents from order entered 6 January 1999 by Judge William A. Christian in Harnett County District Court. Heard in the Court of Appeals 15 August 2000. Smith,Judge. The Harnett County Department of Social Services (petitioner) filed a petition to terminate the parental rights of respondents (the parents) Tampatha C. Huff (the mother) and James J. Huff (the father) to their child, Xavier J. Huff (the child). The trial court ordered termination of respondents' parental rights, and respondents appeal from that order. We affirm. The child, born 22 December 1994, was initially removed from respondents' home and placed in foster care in September 1995. The child was subsequently adjudicated a neglected juvenile and his physical and legal custody were awarded to petitioner on 20 October 1995. Placement of the child was reviewed at five hearings between March 1996 and October 1997. At the fourth review hearing in April1997, physical placement of the child was given to his paternal grandparents, with whom he presently resides. On 7 August 1997, petitioners filed a petition to terminate the parental rights of respondents pursuant to Article 24B, Chapter 7A of our General Statutes. The petition alleged that grounds for terminating respondents' parental rights existed under three separate subsections of N.C.G.S. 732 (1996): subsection (2) (neglect or abuse), subsection (3) (child willfully left in foster care for 12 months), and subsection (4) (parents' willful failure to pay reasonable portion of cost of care for the child). A proceeding for termination of parental rights involves two stages. At the adjudication stage

536 S.E.2d 838 (N.C.App. 2000)

In the Matter of X. HUFF

NO. COA99-1256

NORTH CAROLINA COURT OF APPEALS

Filed: 17 October 2000

The Woodall Law Firm, P.A. by E. Marshall Woodall, for petitioner-appellee.

Bain & McRae by Alton D. Bain, for respondent-appellant Tampatha C. Huff.

Richard E. Jester, for respondent-appellant James J. Huff.

McLeod & Harrop by Donald E. Harrop, Jr., as Guardian ad Litem.

Appeal by respondents from order entered 6 January 1999 by Judge William A. Christian in Harnett County District Court.

Heard in the Court of Appeals 15 August 2000.

Smith,Judge.

The Harnett County Department of Social Services (petitioner) filed a petition to terminate the parental rights of respondents (the parents) Tampatha C. Huff (the mother) and James J. Huff (the father) to their child, Xavier J. Huff (the child). The trial court ordered termination of respondents' parental rights, and respondents appeal from that order.

We affirm.

The child, born 22 December 1994, was initially removed from respondents' home and placed in foster care in September 1995. The child was subsequently adjudicated a neglected juvenile and his physical and legal custody were awarded to petitioner on 20 October 1995. Placement of the child was reviewed at five hearings between March 1996 and October 1997. At the fourth review hearing in April1997, physical placement of the child was given to his paternal grandparents, with whom he presently resides. On 7 August 1997, petitioners filed a petition to terminate the parental rights of respondents pursuant to Article 24B, Chapter 7A of our General Statutes. The petition alleged that grounds for terminating respondents' parental rights existed under three separate subsections of N.C.G.S. 7A-289.32 (1996): subsection (2) (neglect or abuse), subsection (3) (child willfully left in foster care for 12 months), and subsection (4) (parents' willful failure to pay reasonable portion of cost of care for the child).

A proceeding for termination of parental rights involves two stages. At the adjudication stage, the petitioner must show by clear, cogent, and convincing evidence that one or more of the grounds warranting termination, as set forth in G.S. 7A-289.32, exist. N.C.G.S. 7A-289.30(e) (1996). If one or more of the specific grounds listed in the statute are shown, then the court moves to the disposition stage to determine whether it is in the best interests of the child to terminate the parental rights. N.C.G.S. 7A-289.31 (1996). The standard for review in termination of parental rights cases is whether the court's "findings of fact are based upon clear, cogent and convincing evidence" and whether the "findings support the conclusions of law." See In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996) (citation omitted).

The trial court determined that termination of parental rights was warranted pursuant to all three of the grounds alleged in thepetition. The trial court then concluded that it was in the best interests of the child to terminate parental rights, and ordered the termination of respondents' parental rights on 6 January 1999. Respondents appeal from that order, bringing forth 24 assignments of error which we have condensed into six main issues for review.

I.

Respondents first assign error to the trial court's finding that termination of parental rights was warranted pursuant to subsection (4) of G.S. 7A-289.32. This subsection provides for termination of parental rights where [t]he child has been placed in the custody of a county Department of Social Services . . . or a foster home, and the parent, for a continuous period of six months next preceding the filing of the petition, has wilfully failed for such period to pay a reasonable portion of the cost of care for the child although physically and financially able to do so.

G.S. 7A-289.32(4). Subsection (4) requires a parent "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." In re Clark, 303 N.C. 592, 604, 281 S.E.2d 47, 55 (1981).

In the present case, the pertinent six-month period preceding the filing of the petition is 7 February 1997 to 7 August 1997. During this time, neither parent made any payments toward the cost of care for the child. At the hearing, neither parent offered any specific reasons for their failure to pay support. When the father was asked why he failed to pay any support, he answered, "I don't think I know how to answer that question, sir." When the motherwas asked the same question, she stated that she did not make any support payments because she and her husband "were trying to get [their] finances . . . in order."

Respondents do not dispute the following factual findings of the trial court. The parents initially obligated themselves to pay child support for the child while in foster care by signing a service agreement on 6 December 1995. Despite the fact that social workers advised the parents that failure to pay support could be grounds for termination of their parental rights, the parents failed to pay any support through December 1996, at which time the parents moved to Asheboro, North Carolina. After moving, the parents failed to provide their new address to the Child Support Enforcement Office (the CSEO). Despite making numerous efforts to contact the parents, the CSEO heard nothing from the parents until approximately 17 months later, when the parents came to the CSEO for paternity testing. After canceling one appointment to discuss child support, the parents eventually signed a Voluntary Support Agreement on 26 June 1998.

The cost of foster care placement for the six-month period immediately preceding the filing of the petition was $828.00. Neither parent made any support payments during the relevant six- month period. Furthermore, neither parent made any support payments whatsoever until over a year after the petition to terminate parental rights was filed. On 30 October 1998, afterbeing found guilty of criminal contempt for non-payment of court- ordered support, the mother paid the sum of $239.70 toward care for the child. The father has yet to make any payments, and there is a criminal contempt citation currently pending against the father for his failure to make any payments.

"On review, this Court must determine whether the trial court's findings of fact were based on clear, cogent, and convincing evidence." In re Oghenekevebe, 123 N.C. App. 434, 435- 36, 473 S.E.2d 393, 395 (1996) (citation omitted). We believe there was ample evidence from which the trial court could find that the parents willfully failed to pay a reasonable portion of the cost of care for the child.

Respondents attempt to rely on Bost v. Van Nortwick, 117 N.C. App. 1, 449 S.E.2d 911 (1994), for the proposition that a "willful" failure to pay support cannot be shown where a parent is "unable" to pay child support due to an inability to maintain employment. Respondents argue that they were unable to make any support payments because they were supporting two minor children, they were attempting to reduce their debt, and they were unable to maintain steady employment. Initially, we note that both parents were employed for at least half of the relevant six-month period. We also note that, in fact, the parents were caring for only one minor child during this time (the second minor child referred to by respondents was not born until 13 June 1998).

More importantly, respondents' reliance on Bost is misplaced. Bost involved the specific situation in which a parent is unable topay support due to a "psychological or emotional illness." Id. at 16, 449 S.E.2d at 919. The father in that case was unable to pay child support because his "severe alcoholism" rendered him unable to maintain permanent employment. Id. at 16, 449 S.E.2d at 920. The Court held that in such cases a parent's failure to pay support may be justified. Id. at 17, 449 S.E.2d at 920. While it is clear that respondents have had some difficulty in maintaining employment, respondents have not indicated that any unemployment during the relevant six-month period was a result of some "psychological or emotional illness" that would warrant a finding that their failure to pay support was not "willful" under the reasoning in Bost. In fact, any unemployment during this period appears to have occurred only after the parents voluntarily terminated previous jobs.

Also, despite respondents' arguments to the contrary, there is no requirement that the trial court make a finding as to what specific amount of support would have constituted a "reasonable portion" under the circumstances. The cases cited by respondents simply require that the trial court make specific findings that a parent was able to pay some amount greater than the amount the parent, in fact, paid during the relevant time period. See In re Garner, 75 N.C. App. 137, 141, 330 S.E.2d 33, 36 (1985); In re Manus, 82 N.C. App. 340, 349-50, 346 S.E.2d 289, 295 (1986). In the case at bar, the trial court satisfied this requirement.

The parents failed to pay any portion of the cost of care for the child during the relevant six-month period. Although the"reasonable portion" standard is often a difficult standard to apply, see Clark, 303 N.C. at 604, 281 S.E.2d at 55, we have no difficulty concluding that zero is not a reasonable portion under the circumstances here. We hold that the trial court did not err in concluding that the parents were able to pay some amount above zero. This assignment of error is overruled. Furthermore, because we hold that termination was proper pursuant to subsection (4) of G.S. 7A-289.32, it is unnecessary to address respondents' assignments of error pertaining to the other two subsections of the statute on which the trial court based its decision. See In re Davis, 116 N.C. App. 409, 413, 448 S.E.2d 303, 305, disc. review denied, 338 N.C. 516, 452 S.E.2d 808 (1994).

II.

Re...