In The Matter Of: N.R.B.

Decision Date01 March 2011
Docket NumberNo. 08 JT 152,NO. COA10-908,No. 08 JT 150,08 JT 150,08 JT 152,COA10-908
CourtNorth Carolina Court of Appeals
PartiesIN THE MATTER OF: N.R.B., Z.R.B., A.A.B., Minor Children.

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Appeal by A.P. from order entered 6 April 2010 by Judge Thomas G. Taylor in Gaston County District Court. Heard in the Court of Appeals 2 February 2011.

Thomas B. Kakassy, Appellate Counsel for Gaston County Department of Social Services, for petitioner-appellee Gaston County Department of Social Services.

Parker, Poe, Adams & Bernstein L.L.P., by Benjamin R. Sullivan, Jr., for guardian ad litem.

Janet K. Ledbetter, for respondent-appellant mother.

STEELMAN, Judge.

Where mother had the resources to pay for a portion of her children's care and she willfully failed to contribute any money toward the cost of their care, the trial court did not err in terminating her parental rights.

I. Factual and Procedural Background

A.P. ("mother") is the mother of three minor children, N.B., Z.B., and A.B. ("children"). In 2003, Gaston County Department of Social Services ("DSS") substantiated neglect and inappropriate supervision allegations against mother and provided services tomother from December 2003 to August 2004. In 2007, DSS discovered that mother had administered inappropriate physical discipline to the children. The children were placed in kinship care on 1 February 2008.

On 31 March 2008, DSS filed a petition alleging that each of the children were neglected and dependent. At the time DSS filed the petition, R.B., the presumed biological father of all three of the children, was incarcerated. J.M., mother's husband at the time N.B. was born, was N.B.'s legal father but was later excluded as N.B.'s biological father by DNA testing. On 31 March 2008, the trial court entered a non-secure custody order that placed N.B. in J.M.'s custody and A.B. and Z.B. in DSS custody. On 1 April 2008, the trial court entered an order appointing a guardian ad litem for mother. The record is devoid of information as to why this was done.

On 4 September 2008, the trial court entered an order incorporating the terms of a case plan agreed to by mother, R.B., and DSS as a result of a voluntary mediation that took place on 15 July 2008. The order adjudicated all three of the children neglected and dependent. As part of the case plan the parents were to resolve their substance abuse problems and maintain sobriety, complete a mental health program, comply with recommended services, obtain employment, provide for the children's basic needs, maintain appropriate housing, keep weekly contact with a social worker, and attend supervised visitation.

On 29 June 2009, the trial court entered an order establishing a concurrent permanent plan of reunification and adoption for the children. On 18 September 2009, DSS filed a petition to terminate mother's parental rights to all three of the children. Three grounds for termination were alleged: (1) the children were neglected; (2) mother had willfully left the children in foster care for more than twelve months without showing reasonable progress towards correcting the conditions that led to their removal from the home; and (3) the children had been in custody for the six months prior to the filing of the petition and mother had failed to pay a reasonable portion of the cost of their care, although she was able to do so. DSS filed a separate petition to terminate R.B.'s parental rights. That proceeding is not the subject of this appeal.

On 13 and 14 January 2010, the adjudication hearing was held. DSS worker Miranda Cline ("Cline"), counselor Diana Forsyth, and mother testified.

Cline testified that mother did not make progress toward completing her case plan. Mother obtained a mental health assessment, but did not consistently attend treatment with any provider. Mother obtained multiple medications from different doctors, and DSS was concerned that she was abusing her medications. Mother failed to consistently inform DSS of her therapy status, or to update DSS about her medications. Mother initially took the children to therapy, but discontinued that treatment due to a scheduling problem. Mother completed parentingclasses, but was unable to demonstrate any appropriate parenting skills during her visitation with the children.

Mother worked between thirty and thirty-two hours per week for her father's towing company for one and a half to two years prior to the termination of parental rights hearing. Although there was conflicting testimony as to the exact amount, it is clear mother earned between $800 and $1,800 per month. In addition, mother received $835 in disability payments each month. Although mother's monthly income totaled at least $1,635, mother never paid any sums toward the cost of the children's care after they were removed from her home on 29 January 2009.

On 8, 9, and 10 February 2010, the trial court conducted the disposition hearing. On 6 April 2010, the trial court entered a written order, nunc pro tunc 28 February 2010, terminating mother's parental rights. The trial court concluded that there were two grounds for termination: (1) that mother willfully left the children in foster care for more than twelve months and failed to make reasonable progress toward correcting the conditions that led to their removal from the home; and (2) the children had been in DSS custody for a period of six months preceding the filing of the petition and mother had willfully failed to pay a reasonable portion of the cost of their care, although she was able to do so. The trial court further concluded that it was in the children's best interests to terminate mother's parental rights. Mother appeals.

II. Standard of Review

In the adjudicatory stage, the burden is on the petitioner to prove that at least one ground for termination exists by clear, cogent, and convincing evidence. N.C. Gen. Stat. § 7B-1109(f) (2009); In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). Review in the appellate courts is limited to determining whether clear, cogent, and convincing evidence exists to support the findings of fact, and whether the findings of fact support the conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed, disc. review-denied, 353 N.C. 374, 547 S.E.2d 9 (2001). "'[F]indings of fact made by the trial court... are conclusive on appeal if there is evidence to support them.'" In re H.S.F., 182 N.C. App. 739, 742, 645 S.E.2d 383, 384 (2007) (quoting Hunt v. Hunt, 85 N.C. App. 484, 488, 355 S.E.2d 519, 521 (1987)).

III. Adjudication of Grounds for Termination

In her first argument, mother contends that the trial court erred in terminating her parental rights based upon insufficiency of the evidence. We disagree.

A court may terminate parental rights pursuant to N.C. Gen. § 7B-1111(a)(3)(2009) upon a finding that:

The juvenile has 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 although physically and financially able to do so.

"A finding that a parent has ability to pay support is essential to termination for nonsupport on this ground." In re Ballard, 311 N.C. 708, 716-17, 319 S.E.2d 227, 233 (1984) (citing In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981)). "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." In re Clark, 151 N.C. App. 286, 288, 565 S.E.2d 245, 247 (2002) (citation omitted), disc. review denied, 356 N.C. 302, 570 S.E.2d 501 (2002).

"[T]here 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." In re Huff, 140 N.C. App. at 293, 536 S.E.2d at 842. Rather, to support a conclusion that a parent willfully failed to pay a reasonable portion of the costs of care, case law "simply require[s] 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." Id. (citing 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)).

The trial court made the following findings of fact, which are among the findings of fact challenged by mother:

24. Respondent has been employed at Complete Wrecker Service since August 11, 2008 and is still employed there. Respondent testified that she earned approximately $300.00 per week. Respondent also receives approximately $835.00 per month in disability and has been receiving said disability since at least December of2008. Respondent has not contributed any meaningful support toward the cost of care of the Juveniles since they were removed from the trial placement in her home on or about January 29, 2009.
25.While the Juveniles have been in foster care, Respondent has failed to provide any monetary support for the Juveniles. Respondent has provided some clothes and gifts, but otherwise has not provided any monetary support for the Juveniles, including school supplies.
26. Respondent stated that she has income necessary to support herself, however, has not provided any income to [DSS] or the foster parents for support of the minor children.
27. The Court finds that the Respondent is financially able to provide support for the minor children, however, has failed to do so since at least January 29, 2009.

Cline testified that mother's...

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