IN THE SUPREME COURT OF NORTH CAROLINA
No. 380A19
Filed 14 August 2020
IN THE MATTER OF: J.A.E.W.
On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) to review an order entered
27 June 2019 by Judge Wes W. Barkley in District Court, Burke County. This matter
was calendared in the Supreme Court on 29 July 2020 but was determined on the
record and briefs without oral argument pursuant to Rule 30(f) of the North Carolina
Rules of Appellate Procedure.
N. Elise Putnam, and Mona E. Leipold for petitioner-appellee Burke County
Department of Social Services.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by J. Gray
Wilson and Michael W. Mitchell, for appellee Guardian ad Litem.
Robert W. Ewing, for respondent-appellant father.
EARLS, Justice.
Respondent-father appeals from the trial court’s order terminating his
parental rights to J.A.E.W. (Jennifer).1 We affirm.
Jennifer was born in December of 2003. On 19 August 2014, the Burke County
Department of Social Services (DSS) obtained non-secure custody of Jennifer and
filed a juvenile petition alleging that Jennifer was a neglected and dependent
1 A pseudonym is used to protect the identity of the juvenile and for ease of reading.
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Opinion of the Court
juvenile. The petition alleged that on 9 February 2014, law enforcement officers
responded to a residence where Jennifer, Jennifer’s half-brother, her maternal
grandmother, and her mother were present.2 The mother and maternal grandmother
appeared to be under the influence of an impairing substance, and the maternal
grandmother had been involved in a physical altercation with another minor child
while in the presence of Jennifer and Jennifer’s half-brother. As a result, Jennifer
and her half-brother were placed with a relative.
The petition further alleged that on 26 March 2014, the Catawba County
Department of Social Services visited the mother’s home and found her to be under
the influence. On 19 June 2014, the mother was charged with prostitution. On 19
August 2014, law enforcement officers executed a search warrant for the mother’s
home and discovered the mother had removed Jennifer and her half-brother from the
kinship placement. The mother was selling counterfeit heroin, appeared to be
impaired, and admitted to using opiates, benzodiazepines, and marijuana. Needles
and cocaine were located within reach of the children. At the time Jennifer came into
DSS custody, respondent-father was incarcerated and had a projected release date of
2 February 2016.
The trial court held a hearing on the juvenile petition on 25 September 2014.
On 20 November 2014, the trial court entered a consolidated adjudication and
2 Jennifer’s half-brother is not a subject of this appeal.
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Opinion of the Court
disposition order determining Jennifer to be a dependent juvenile. Custody of
Jennifer was continued with DSS.
In a permanency planning order entered on 27 August 2015, the trial court
found that respondent “writes letters and sends cards” to Jennifer. The permanent
plan was reunification with respondent, concurrent with adoption and guardianship.
In a permanency planning order entered 28 January 2016, the trial court found that
respondent kept in regular contact with DSS through letters.
Following a hearing held on 5 May 2016, the trial court entered a permanency
planning order on 19 May 2016. The trial court found that respondent was released
from incarceration on 2 February 2016. The day following his release, he provided
DSS his contact information and new address. The trial court further found that on
11 April 2016 respondent signed a family case plan and agreed to: (1) obtain and
maintain stable housing, (2) obtain and maintain legal employment, (3) refrain from
taking part in any illegal activities, (4) remain out of jail or prison, (5) obtain and
utilize reliable transportation, and (6) maintain regular and consistent contact with
Jennifer. Respondent was authorized two hours per month of supervised visitation
with Jennifer. The permanent plan remained reunification with respondent,
concurrent with a plan of adoption and guardianship.
On 1 August 2016, DSS filed a motion requesting that all contact and visitation
between Jennifer and respondent stop until Jennifer’s therapist “recommends that it
resumes,” citing concerns raised by Jennifer’s therapist that respondent had sexually
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Opinion of the Court
abused Jennifer. On 25 August 2016, the trial court entered an order finding that
the Wilkes County Department of Social Services was conducting an investigation of
respondent’s alleged sexual abuse of Jennifer, that was expected to be completed in
the next sixty days. The trial court suspended visitation and contact between
respondent and Jennifer and held that if the allegations were “not substantiated and
[Jennifer’s] therapist recommends visitation and telephone contact should resume,
then visitation will resume as ordered in the previous order.”
Prior to the completion of Wilkes County DSS’s investigation, the trial court
held a hearing on 22 September 2016 and entered a permanency planning order on
18 October 2016. The trial court found that since being released from jail, respondent
had been charged with driving while under the influence. He was employed by Tyson
Foods and was living with a girlfriend in a friend’s home. Although DSS requested
his girlfriend’s information in order to complete a background check, respondent
refused to provide it.
After a hearing held on 15 December 2016, the trial court entered a
permanency planning order on 19 January 2017 finding that respondent was not
complying with his case plan; a fact that he admitted. He also admitted to living with
“people that are inappropriate.” The primary permanent plan was changed to
adoption. On 11 January 2017, the Wilkes County Department of Social Services
closed its investigation of respondent with a determination that the allegations of
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Opinion of the Court
abuse were unsubstantiated. Supervised visitation between respondent and Jennifer
resumed on 26 January 2017.
Following a hearing held on 9 February 2017, the trial court entered a
permanency planning order on 23 March 2017 finding that respondent’s employer
informed DSS that respondent had been fired from his job on 4 January 2017 for gross
misconduct and would not be allowed to return. Respondent last reported that he
was living with friends in Wilkes County but had purchased a trailer. However,
because respondent failed to provide DSS with the address to either residence, DSS
had been unable to verify their safety. The trial court further found that Jennifer’s
therapist recommended respondent complete a parenting assessment, parenting
classes, and therapy on how to parent a child with limited intellectual ability.
Respondent refused to complete any of the therapist’s recommendations, stating that
he had “done enough” to be able to be reunited with Jennifer. The trial court
suspended visitations with respondent based on his failure to engage in parenting
classes.
Following a 1 June 2017 hearing, the trial court entered a permanency
planning order on 24 August 2017 finding that respondent had failed to make
progress on his case plan. The permanent plan was changed to a primary plan of
adoption and secondary plan of guardianship, and the trial court ceased reunification
efforts with respondent.
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Opinion of the Court
The trial court held subsequent permanency planning review hearings on
21 September 2017, 12 December 2017, 22 March 2018, and 9 August 2018.
Respondent continued to fail to make progress on his case plan. Following the
hearing held on 12 December 2017, the trial court entered a permanency planning
order on 8 February 2018 allowing respondent to communicate with Jennifer’s
therapist “about [Jennifer’s] needs/wishes.” At the permanency planning review
hearing held on 22 March 2018, however, the trial court found that respondent had
not contacted the therapist. The therapist recommended that there only be phone
contact between respondent and Jennifer. In the order entered after the 9 August
2018 hearing, respondent was permitted to have supervised phone calls with Jennifer
“as long [as] the contact is therapeutically recommended by the juvenile’s therapist.”
The trial court held a hearing on 10 January 2019 and entered a permanency
planning order on 24 January 2019. The trial court found that respondent reported
that he was employed as an electrical apprentice. Although respondent had
completed one section of the Triple P online parenting class, he had not completed
the in-person course, as had been requested. The trial court further found that
respondent failed to have contact with DSS since 30 April 2018. Respondent had
been having supervised phone calls with Jennifer, but Jennifer asked for the phone
calls to cease in August 2018 “due to her father not understanding that she wants to
be adopted.”
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Opinion of the Court
On 15 March 2019, DSS filed a petition to terminate respondent’s parental
rights. DSS alleged that respondent had neglected Jennifer and there was a
reasonable likelihood that Jennifer would be neglected if placed in respondent’s
custody, see N.C.G.S. § 7B-1111(a)(1) (2019), respondent had willfully left Jennifer in
foster care or placement outside the home for more than twelve months without
making reasonable progress to correct the conditions that led to her removal, see
N.C.G.S. § 7B-1111(a)(2) (2019), respondent had for a continuous period of six months
preceding the filing of the petition willfully failed to pay a reasonable portion of the
cost of care for Jennifer although physically and financially able to do so, see N.C.G.S.
§ 7B-1111(a)(3) (2019), and respondent had willfully abandoned Jennifer, see
N.C.G.S. § 7B-1111(a)(7) (2019).
Following a hearing held on 13 June 2019, the trial court entered an order on
27 June 2019 concluding that the evidence supported all four grounds alleged in the
petition. The trial court also determined that it was in Jennifer’s best interests that
respondent’s parental rights be terminated, and the court terminated his parental
rights. See N.C.G.S. § 7B-1110(a) (2019). Respondent appeals.
Although respondent-father’s notice of appeal specifies that his appeal had
been noted to the Court of Appeals, rather than to this Court, we elect to treat
respondent-father’s brief as a certiorari petition and to issue a writ
of certiorari authorizing review of respondent-father’s challenges to the trial court’s
termination order on the merits given the seriousness of the issues that are
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implicated by the trial court’s termination order. In re N.D.A., 373 N.C. 71, 73–74,
833 S.E.2d 768, 771 (2019).
On appeal, respondent argues that the trial court erred in adjudicating that
grounds existed to terminate his parental rights. Specifically, respondent challenges
the trial court’s conclusions that grounds existed under N.C.G.S. § 7B-1111(a)(1) and
(7) to terminate his parental rights even though he remained in contact with Jennifer
when permitted to do so by her therapist; that grounds existed under N.C.G.S. § 7B-
1111(a)(2) when he had corrected the conditions that led to Jennifer’s removal and
his efforts placed him in a position to regain custody of Jennifer; and that grounds
existed under N.C.G.S. § 7B-1111(a)(3) to terminate his parental rights when the
findings of fact were insufficient to demonstrate that he had the ability to pay for
Jennifer’s cost of care.
At the adjudicatory stage, the petitioner bears the burden of proving by
“clear, cogent, and convincing evidence” the existence of one or more grounds for
termination under section 7B-1111(a) of the General Statutes. N.C.G.S. § 7B-1109(e),
(f) (2019). We review a trial court’s adjudication under N.C.G.S. § 7B-1109 “to
determine whether the findings are supported by clear, cogent and convincing
evidence and the findings support the conclusion of law.” In re Montgomery, 311 N.C.
101, 111, 316 S.E.2d 246, 253 (1984) (citing In re Moore, 306 N.C. 394, 404, 293 S.E.2d
127, 132 (1982)).
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Opinion of the Court
A trial court is authorized to order the termination of parental rights based
on an adjudication of one or more statutory grounds. See In re Moore, 306 N.C. at
404, 293 S.E.2d at 133 (holding that an appealed order should be affirmed when any
of the grounds found by the trial court is supported by findings of fact based on clear,
cogent, and convincing evidence). See also, In re S.E., 373 N.C. 360, 367, 838 S.E.2d
328, 333 (2020) (declining to address additional arguments when evidence
established the ground of parent’s failure to pay reasonable portion of the costs of
care). Here we only address the ground of willfully failing to pay a reasonable portion
of the cost of care of a juvenile who is in the custody of a county department of social
services if the parent is physically and financially able to do so. N.C.G.S. § 7B-
1111(a)(3) (2019). The relevant statutory time period for this ground is the six
months prior to the filing of the TPR petition. Id.
It is undisputed that respondent failed to make any child support payments
during the almost five years that Jennifer was in the DSS’s custody. He also did not
buy Jennifer clothing or other necessities while she was in foster care. Respondent
testified that he had steady employment in the year and a half prior to the
termination-of-parental-rights hearing, earning between ten and twelve dollars an
hour. He further admitted that at times he “had money saved in the bank,” and that
at the time of the hearing he was “financially able to take care of [Jennifer].”
Therefore, clear, cogent, and convincing evidence supports the trial court’s conclusion
that respondent willfully failed to pay a reasonable portion of Jennifer’s cost of care
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Opinion of the Court
despite his physical and financial ability to do so. Indeed, “[n]ot only was this ground
proven by clear, cogent and convincing evidence, there was no evidence to the
contrary.” In re Moore, 306 N.C. at 405, 293 S.E.2d at 133.
Nevertheless, Respondent contends that the trial court’s decision with
respect to this ground for termination was erroneous because respondent also
testified that he did not earn enough to live on and because the trial court needed to
make findings regarding his living expenses before being able to conclude as a factual
matter that he had the means and ability to contribute an amount more than zero to
his child’s cost of care. However, while there must be a finding that the parent has
the ability to pay support, see In re Ballard, 311 N.C. 708, 716–17, 319 S.E.2d 227,
233 (1984), in the circumstances of this case, the trial court did not need to make
findings regarding respondent’s own living expenses. It is enough here, when
respondent made no payments whatsoever to cover the costs of Jennifer’s care, that
the trial court found that respondent was employed with some income. Respondent’s
living expenses might be relevant evidence to be taken into account if he had made
some child support payments during the applicable time period and the issue was
whether the amount he contributed to the cost of Jennifer’s care was reasonable, but
here the trial court found that he had income and made no contributions at all. Cf.
In re J.E.M., 221 N.C. App. 361, 364, 727 S.E.2d 398, 401 (2012) (quoting In re Huff,
140 N.C. App. 288, 293, 536 S.E.2d 838, 842 (2000)) (reaching the same conclusion in
analogous circumstances).
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Opinion of the Court
Respondent was working in the six months prior to the filing of the petition,
earned some income, and testified that he had the financial means to support
Jennifer. He was able to pay some amount greater than zero, and it is undisputed
that he failed to do so. Therefore, the trial court properly terminated respondent
father’s rights based on an adjudication under N.C.G.S. § 7B-1111(a)(3) that he
willfully failed to pay child support in the six months prior to the filing of the
termination-of-parental-rights petition. As respondent does not challenge the trial
court's ultimate conclusion that termination of his parental rights to Jennifer is in
her best interest, we affirm the trial court's order.
AFFIRMED.
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