An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-574
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
IN THE MATTER OF:
Guilford County
C.T.L., Nos. 11 JT 441
C.T.L., JR., 11 JT 442
Z.J.J., 11 JT 443
Z.T.L. 11 JT 444
Appeal by respondents from order entered 8 February 2013 by
Judge H. Thomas Jarrell, Jr. in Guilford County District Court.
Heard in the Court of Appeals 25 November 2013.
Mercedes O. Chut for petitioner-appellee.
Levine & Stewart, by James E. Tanner III, for respondent-
appellant mother.
Ryan McKaig for respondent-appellant father.
Smith, James, Rowlett & Cohen, L.L.P., by Margaret Rowlett,
for guardian ad litem-appellee.
GEER, Judge.
Respondent mother appeals from the trial court's order
terminating her parental rights to C.T.L. ("Carl"), C.T.L., Jr.
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("Cody"), Z.J.J. ("Zoey"), and Z.T.L. ("Zora").1 Respondent
father also appeals the order, which terminated his parental
rights to Carl. The fathers of the remaining juveniles are not
parties to this appeal. We conclude that at least one ground
existed to terminate respondents' parental rights and that the
trial court did not abuse its discretion in terminating
respondents' parental rights given the facts of this case. We,
therefore, affirm.
Facts
On 6 June 2011, the Chatham County Department of Social
Services ("DSS") filed juvenile petitions asserting that the
children were neglected and dependent. The petitions alleged
that respondent parents had a history of domestic violence; that
respondent mother had been arrested for a number of outstanding
charges, had mental health issues, had no money, and had no
water in her home; and that respondent father had a criminal
history including drug convictions and misdemeanor child abuse
charges. The children were taken into nonsecure DSS custody.
The trial court adjudicated the children dependent in an
order entered 1 September 2011. The court also transferred
jurisdiction to Guilford County based on findings that
1
Pseudonyms are used to protect the privacy of the children
and for ease of reading.
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respondent mother, respondent father, and the children were
residing in Greensboro.
On 1 June 2012, Guilford County DSS filed a petition to
terminate respondent parents' parental rights to the children,
alleging as grounds for termination neglect, willful failure to
pay a reasonable portion of the cost of care for the children,
and willful abandonment pursuant to N.C. Gen. Stat. § 7B-
1111(a)(1), (3), and (7) (2011). With respect to respondent
father, DSS also alleged a failure to legitimate pursuant to
N.C. Gen. Stat. § 7B-1111(a)(5).
The trial court conducted a termination of parental rights
hearing on 15 January 2013 and in an order entered on 8 February
2013, found the existence of neglect and willful failure to pay
a reasonable portion of the cost of care for the children as
grounds for termination for both parents. See N.C. Gen. Stat. §
7B-1111(a)(1), (3). The trial court also found respondent
father had failed to legitimate his son as an additional ground
for terminating respondent father's rights. See N.C. Gen. Stat.
§ 7B-1111(a)(5). At disposition, the trial court concluded that
it was in the children's best interests to terminate the
parental rights of respondents. Respondents each timely
appealed to this Court.
Discussion
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Termination of parental rights involves a two-stage
process. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d
906, 908 (2001). At the adjudicatory stage, "the petitioner has
the burden of establishing by clear and convincing evidence that
at least one of the statutory grounds listed in N.C. Gen. Stat.
§ 7B–1111 exists." In re Anderson, 151 N.C. App. 94, 97, 564
S.E.2d 599, 602 (2002).
"If the trial court determines that grounds for termination
exist, it proceeds to the dispositional stage, and must consider
whether terminating parental rights is in the best interests of
the child." Id. at 98, 564 S.E.2d at 602. The trial court's
decision to terminate parental rights is reviewed under an abuse
of discretion standard. In re Nesbitt, 147 N.C. App. 349, 352,
555 S.E.2d 659, 662 (2001). "'An abuse of discretion occurs
when the trial court's ruling is so arbitrary that it could not
have been the result of a reasoned decision.'" In re Robinson,
151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002) (quoting
Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101,
109, 493 S.E.2d 797, 802 (1997)).
In reviewing both the adjudication and the disposition,
findings of fact supported by competent evidence are binding on
appeal even if evidence has been presented contradicting those
findings. In re N.B., I.B., A.F., 195 N.C. App. 113, 116, 670
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S.E.2d 923, 925 (2009). "Where no exception is taken to a
finding of fact by the trial court, the finding is presumed to
be supported by competent evidence and is binding on appeal."
Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
I
Although the trial court found multiple grounds for
termination, a trial court's termination of parental rights
order will be upheld so long as at least one of the grounds for
termination found by the trial court is supported by clear,
cogent, and convincing evidence. In re Bradshaw, 160 N.C. App.
677, 682, 587 S.E.2d 83, 87 (2003). Because we conclude that
the trial court's determination that grounds existed to
terminate both respondent mother's and respondent father's
parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(3) is
supported by the findings of fact, and those findings were based
upon competent evidence, we do not address the remaining grounds
identified by the trial court.
Under N.C. Gen. Stat. § 7B-1111(a)(3), a court may
terminate parental rights 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
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the cost of care for the juvenile although
physically and financially able to do so.
"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). "[N]onpayment constitutes a
failure to pay a reasonable portion 'if and only if respondent
[is] able to pay some amount greater than zero.'" Id. at 289,
565 S.E.2d at 247 (quoting In re Bradley, 57 N.C. App. 475, 479,
291 S.E.2d 800, 802 (1982)).
The trial court made the following findings pertaining to
this ground for termination:
[8(B).] . . . [Respondent mother] reported
that she worked at Liberty Tax from 01/12
thru 04/12, and also that she worked for a
brief period of time for Servicemaster and
also for Furniture Market. . . .
. . . .
[8(B).]2 [Respondent father] reports that
he is currently in school studying welding
and working part-time.
. . . .
11. No parent has paid anything toward the
cost of care or otherwise supported these
juveniles since they came into DSS custody.
2
The trial court's order included two separate findings of
fact each numbered "8," with the first finding of fact 8 and its
subparagraphs addressing respondent mother's compliance with her
case plan and the second finding of fact 8 and its subparagraphs
addressing respondent father's compliance with his case plan.
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Neither [respondent mother] nor [respondent
father] suffer from any disability which
prevents them from earning at least some
income.
. . . .
15. Grounds exist to terminate the parental
rights of [respondent mother] pursuant to
N.C.G.S. §7B-1111(a)(3): The juveniles have
been placed in the legal custody of the
Guilford County [DSS] and the mother of the
juveniles, for a continuous period of six
months next preceding the filing of the
Petition, has willfully failed for such
period to pay a reasonable portion of the
cost of care for the juveniles although
physically and financially able to do so.
[Respondent mother] reports that she has
worked for three different employers during
the pendency of this case. During that
time, she has paid no support for the
benefit of the juveniles.
. . . .
17. Grounds exist to terminate the parental
rights of [respondent father] with respect
to [Carl] pursuant to N.C.G.S. §7B-
1111(a)(3): The juvenile has been placed in
the legal custody of the Guilford County
[DSS] and [respondent father], for a
continuous period of six months next
preceding the filing of the Petition, 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. [Respondent
father] has been gainfully employed, but he
has not paid anything towards the support of
the juvenile [Carl].
Respondent father, however, without citing any legal
authority, argues that he made a sufficient contribution to
-8-
Carl's cost of care by bringing necessities to visits with Carl.
However, "cost of care" under N.C. Gen. Stat. § 7B-1111(a)(3)
contemplates the monetary cost of foster care that DSS is
required to pay for the juvenile and does not contain any offset
for the provision of gifts by a parent. See In re Montgomery,
311 N.C. 101, 113, 316 S.E.2d 246, 254 (1984) (holding "'cost of
care' refers to the amount it costs the Department of Social
Services to care for the child, namely, foster care").
Furthermore, respondent father testified that he was being paid
approximately $1,825.00 per month, and he lived with his mother
during the pendency of this case, thereby reducing his living
expenses.
The trial court could, therefore, properly find that
respondent father could pay some amount towards the care of his
child, but did not do so. Respondent father makes no argument
that the trial court's findings are insufficient to support the
trial court's conclusion that grounds existed under N.C. Gen.
Stat. § 7B-1111(a)(3) to terminate his parental rights.
Respondent mother does not dispute the finding that she
paid no amount of support for the cost of care of the children
despite having been employed on and off during the pendency of
the case. Instead, she argues that the trial court's conclusion
is not supported because (1) the trial court's finding that she
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was not under any disability was not supported by the evidence,
(2) there was no evidence concerning her income relative to her
expenses at any time during the case or during the six months
immediately preceding the filing of the petition, and (3) she
was never ordered or requested to pay monetary child support
during the time periods she was working.
Respondent mother argues that the trial court's finding on
the issue of neglect that she had "untreated mental issues"
conflicts with the finding on the issue of willful failure to
pay child support that she was not under any disability, and
that each of these findings is unsupported by the evidence. We
disagree.
That respondent mother had untreated mental issues is
supported by her testimony that she had tried to commit suicide
the month before trial, resulting in an inpatient psychiatric
hospitalization, but that she had quit her therapy sessions that
were required by the DSS plan. Despite respondent mother's
mental health issues, however, the evidence shows, and
respondent mother does not dispute, that she was able to work,
as the trial court found. She maintained a full time seasonal
position for several months and had two other jobs during the
pendency of this case. The evidence in no way suggests that she
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left these positions due to mental health concerns or that her
mental health issues interfered with her employment.
Therefore, the trial court's determination that respondent
mother did not suffer from "any disability which prevents [her]
from earning at least some income" is supported by the evidence
and is not inconsistent with the finding that she had untreated
mental health issues. (Emphasis added.) Although respondent
mother additionally argues that she had applied for disability,
her application for disability was still pending at the time of
the hearing.
As for respondent mother's remaining arguments, she has not
cited any authority to support her assertion that the trial
court was required to make findings as to her expenses or that
she was requested or ordered to pay child support. Indeed, this
Court has expressly held that "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." In re Huff, 140 N.C. App. 288, 293, 536 S.E.2d
838, 842 (2000). The trial court is only required to "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. The trial court met this
requirement.
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Therefore, we conclude that the evidence supports the trial
court's finding that respondent mother was physically and
financially able to pay some amount of support but failed to do
so. See In re Tate, 67 N.C. App. 89, 95, 312 S.E.2d 535, 539
(1984) (rejecting respondent's argument that there was
insufficient evidence of her ability to provide support where
evidence showed that she was "an able-bodied woman capable of
working" and voluntarily left several jobs); In re J.E.M., Jr.,
___ N.C. App. ___, ___, 727 S.E.2d 398, 401 (2012) (holding that
grounds existed to terminate father's parental rights for
willful failure to pay costs of child care when father made no
payments while child in DSS custody despite being "'gainfully
employed from time to time'").
II
Next, respondents argue that the trial court abused its
discretion in concluding that the termination of their parental
rights was in the best interests of the juveniles. We disagree.
The trial court considered all of the factors required by
N.C. Gen. Stat. § 7B-1110(a) (2011). Specifically, the trial
court found that the children ranged in age from four to 11
years old; their relatively young ages made them adoptable and
the likelihood of the children being adopted was high; the
maternal grandmother indicated a willingness to adopt Cody, Zoey
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and Zora; Carl's foster mother expressed her desire to adopt
Carl; neither parent adequately complied with their case plan in
order to reunify with the children in a reasonable amount of
time and termination would assist in the permanent placement by
allowing the possibility of adoption; the children have a good
relationship with respondent mother, respondent father, and all
the adoptive families; and the children are bonded with their
current caretakers. Respondents do not contend that the trial
court failed to consider the statutorily mandated factors or
that the findings are unsupported by the evidence.
Respondent mother argues, however, that the trial court
abused its discretion by failing to consider alternatives to a
termination of parental rights and adoption. Specifically, she
argues that the children's maternal grandmother was willing to
care for all four children and that such an arrangement would
have left the family unit intact. During the dispositional
phase, a court may consider a relative's willingness and desire
to take custody of a child as grounds for why it would not be in
the child's best interest to terminate respondent's parental
rights. See In re J.A.A. & S.A.A., 175 N.C. App. 66, 75, 623
S.E.2d 45, 51 (2005).
Here, the maternal grandmother served as a placement for
respondent mother's two daughters, Zora and Zoey, and was
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considered to be an adoptive placement for them. Carl and Cody
were previously placed with the maternal grandmother but were
moved to different foster homes in 2011. At the hearing, the
maternal grandmother testified that she wished to have all four
children placed with her; that she believed respondent mother
loved her children and was capable of getting them back; and
that she was willing to serve as a placement if respondent
mother was not able to get the children back.
The trial court was thus aware of the maternal
grandmother's position, but decided it was in the best interest
of the children to have "permanence that they can count on" and
that "[t]ermination will allow adoption to be a possibility for
these children, which is the most permanent plan." The trial
court also found that Carl was very bonded with his foster
mother and that he stated that he could live with his foster
family for "'a hundred more years.'" Based on the foregoing, we
cannot say that the trial court abused its discretion by
terminating respondent mother's parental rights to the children.
Respondent father argues that the trial court abused its
discretion in terminating his parental rights because he could
have achieved reunification within a reasonable period of time.
Respondent father emphasizes that he has worked with DSS to
accomplish his goal of reunification with Carl by obtaining a
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mental health assessment, employment, and housing, and that he
has shown his devotion to Carl by maintaining contact with DSS
and providing support to Carl in the form of clothing and food.
He argues that this Court has stressed the importance of
preserving families whenever possible. See Bost v. Van
Nortwick, 117 N.C. App. 1, 8, 449 S.E.2d 911, 915 (1994) ("[A]
finding that the children are well settled in their new family
unit . . . does not alone support a finding that it is in the
best interest of the children to terminate respondent's parental
rights.").
Respondent father's argument amounts to an invitation that
we substitute our judgment for that of the trial court.
However, the decision regarding how to weigh the factors rests
solely with the trial court. After proper consideration of the
statutorily mandated factors, the trial court ultimately
concluded that it was in Carl's best interest to terminate
respondent father's parental rights. Based on our review of the
record, we cannot conclude that the trial court abused its
discretion in making this determination. We, therefore, affirm
the order of the trial court.
Affirmed.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).