In re: A.H.D.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-382

Filed 07 February 2023

Randolph County, Nos. 20 JT 20, 20 JT 21

IN THE MATTER OF: A.H.D., V.I.D.

Appeal by respondent-father from orders entered 7 January 2022 by Judge

Robert M. Wilkins in District Court, Randolph County. Heard in the Court of Appeals

10 January 2023.

Kimberly Connor Benton for respondent-father.

No brief filed for petitioner-mother.

STROUD, Chief Judge.

Father appeals from two orders terminating his parental rights as to each of

his two children on the grounds he willfully failed to pay child support for a year or

more preceding the filing of the termination petitions pursuant to N.C. Gen. Stat. §

7B-1111(a)(4) (2019). Because the Petitions gave Father adequate notice as to the

acts, omissions, or conditions at issue in the case, they are a sufficient basis for the

termination proceeding. Although the trial court failed to make Findings of Fact

based upon the proper standard of proof of clear, cogent, and convincing evidence, the

record includes sufficient evidence upon which the trial court could make the required
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findings to support termination of Father’s parental rights under § 7B-1111(a)(4), so

we must reverse and remand.

I. Background

On or about 14 January 2020, Mother filed two “Verified Petition[s] For

Termination of Parental Rights” to terminate Father’s parental rights as to their two

children, Ariel and Vanessa.1 (Capitalization altered.) After including information

about Mother’s and Father’s residences and the names and birthdates of the children,

the Petitions alleged, in relevant part, Mother had “physical custody” of both children

and alleged the following identical “grounds for termination” of Father’s parental

rights:

b. That for more than one (1) year [Father] has had no
contact with the minor child. [Father] has not visited or
contacted the minor child since May 6, 2018;
c. That for more than one (1) year, [Father] has failed and
refused to pay child support. He has not paid child support
since May 6, 2018;
d. That [Father] is therefore subject to termination of his
parental rights pursuant to North Carolina General
Statutes § 7B[.]

On or about 5 March 2020, Father filed responses admitting his and Mother’s

residences and the children’s names and birthdates but denying all other allegations.

The trial court held a hearing in the termination proceeding on 1 November

2021. The trial court indicated at the start of the hearing that it first wanted “to hear

1 We use pseudonyms to protect the children’s identity.

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testimony and evidence about whether there are any grounds for termination of

parental rights” and then would receive testimony of the children’s best interests

after that “if appropriate[.]”

During the portion of the hearing focused on the grounds for terminating

parental rights, Mother and Father testified. Mother first testified she took physical

custody of the children after the parents separated on 6 May 2018 because Father

went to jail for committing a crime against Mother’s sister. Following the separation,

Father had no contact with the children because “[h]e never asked.” Mother also

testified she got a custody order granting her permanent custody in June 2018; she

had a child support order entered in July 2018. The child support order required

Father to pay approximately $1,100 per month. Mother testified between 2018 and

2020 when she filed the Petitions, Father had “just refused to pay” leading to “over

$20,000.00 in arrears[,]” although after the Petitions were filed he made “three or

four payments” of “at most $500” as a result of “[c]hild support enforcement[.]”

At the grounds portion of the termination hearing, Father testified about his

employment and child support payments. Father operated his own store before his

arrest, but Mother sold all the contents of his store right after he went to jail. Upon

his pre-trial release from jail at the end of May 2018, Father took about six months

“to get started back up” running “another small business[,]” and he continued doing

that work until he was convicted of the crime against Mother’s sister in February

2021 and sentenced to over a decade in prison. Father testified he gave Mother cash

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payments around the “end of 2018” that were “for the benefit of the children[.]”

Father also said he gave Mother “cash a few times” in 2019, but he was not able to

pay the full $1,100 per month required by the child support order. Beyond his

employment and child support, Father testified he tried to reach out to Mother and

the children “[a]t least a couple times a week” but Mother told him to stop calling her.

Father could not have visits with the children or contact them because of the

conditions of his house arrest.

Following that testimony, both attorneys made arguments on the grounds for

termination. The arguments by Mother’s attorney focused on the ground Father had

failed to pay child support. Father’s attorney first argued the abandonment ground

did not apply because: the trial court lacked clear, cogent, and convincing evidence

given the conflicting testimony; his pre-trial release conditions prevented him from

having contact with the children; and he did not have Mother’s new address where

he could send letters to the children. As to the willful failure to pay child support

ground, Father’s attorney argued there was no evidence of the child support order

beyond Mother’s testimony and there was too much “confusing” and “conflicting”

testimony about payments Father made for there to be clear, cogent, and convincing

evidence of a willful failure to pay.

Following those arguments, the trial court ruled the abandonment ground was

not supported because “there [was] a question as to how wilful [sic] his failure to have

contact with the children would have been” given the testimony about pre-trial

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release conditions and the lack of “legal documents” on such conditions. The trial

court found the willful failure to pay child support ground “exist[ed]” based on

Father’s non-compliance “with the terms of the child support order that was

reportedly entered approximately July 2018.” The trial court then moved on to the

best interest stage without making any additional oral findings or indicating the

standard of proof it was employing for the Findings of Fact.

At the best interest stage, the guardian ad litem (“GAL”) for both children,

Mother, Mother’s new husband, and Father testified. The GAL testified about his

investigative steps and recommendation, and the court received his report into

evidence. Mother testified about: Father’s relationship with the children; Father

yelling and making demeaning comments towards her in front of the children; her

new husband, and his relationship with the children, including his plan to adopt

them; the relationship her family had with the children; and her employment and

child care arrangements. Mother’s new husband testified about: his relationship

with the children, his plan to adopt the children following the termination

proceedings, and his family’s relationship with the children. Finally, Father testified

about: his relationship with the children, his family’s relationship with the children,

and his lack of child support payments.

After that testimony, Mother’s attorney, Father’s attorney, and the GAL made

arguments on best interests. The trial court then reviewed the required factors under

N.C. Gen. Stat. § 7B-1110 and ruled it was in the children’s best interests to

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terminate Father’s parental rights.

On 7 January 2022, the trial court entered two Orders, one for each child,

terminating Father’s parental rights. Each Order began with the trial court making

Findings of Fact as to adjudicatory grounds and then as to dispositional best

interests, but the trial court did not state the standard of proof for the Findings of

Fact. In the adjudicatory grounds portion of each Order, the trial court made

Findings on custody and the child’s name and residence; the history of Mother and

Father’s relationship; and Father’s subsequent incarceration. The trial court then

made two Findings on child support that were identical in each Order:

8. [Mother] testified that in July, 2018, a child support
order was put in place for [Father] to pay child support.
[Father] has failed and refused for more than one (1) year
to pay child support pursuant to the child support order for
the use and benefit of the minor child. [Father] has not paid
child support since May 6, 2018, and he is more than
$20,000.00 in arrears.

9. Pursuant to 7B-1111(a)(4), [Mother] has custody of the
minor child by agreement of the parties, and [Father],
whose parental rights are sought to be terminated for a
period of one year or more next preceding the filing of the
Petition, has willfully and without justification failed to
pay for the care, support, education of the minor child as
required and decreed by the child support order. Therefore,
there are grounds to terminate parental rights against
[Father].

The trial court then made best interests Findings as to both children addressing:

their relationships with Mother, Father, and Mother’s new husband; Mother’s

allegations about Father’s abusive actions towards Mother; the GAL’s

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recommendation; and the plan for Mother’s new husband to adopt the children.

Based on these Findings, the trial court concluded all parties were “properly

before” it; “[t]here exist grounds for the termination of parental rights” of Father; and

“[i]t would be in the best interest of the minor” children if Father’s parental rights

were terminated. Based upon those Findings and Conclusions, the trial court

terminated Father’s parental rights. Father timely filed written notice of appeal.2

II. Analysis

On appeal, Father challenges both the termination Petitions and the

adjudicatory portion of the termination Orders. Father argues the Petitions “failed

to allege grounds existed to terminate” his “parental rights” under N.C. Gen. Stat. §

7B-1111(a)(4). As to the Orders, Father first contends the trial court violated his

“constitutional rights by failing to make findings of fact based upon clear, cogent, and

convincing evidence[,]” as required at the adjudicatory stage of a termination

proceeding. Father then asserts the trial court “erred in finding” he “had willfully

failed to pay child support for more than twelve months prior to the filing of the

termination of parental rights petition” such that it erred in terminating his rights

2 The trial court entered the termination orders on 7 January 2022. Father did not file his written
notice of appeal until 18 February 2022, which was more than 30 days after the trial court entered the
orders on appeal. See N.C. Gen. Stat. § 7B-1001(b) (2021) (“Notice of appeal . . . shall be made within
30 days after entry and service of the order[.]”). But Father was not served with the termination orders
until 21 January 2022, so he filed notice of appeal within 30 days “after entry and service of the order”
as required. N.C. Gen. Stat. § 7B-1001(b) (emphasis added); see also In re J.M.K., 261 N.C. App. 163,
165, 165 n.2, 820 S.E.2d 106, 107, 107 n.2 (2018) (explaining the father timely filed notice of appeal
even though more than 30 days had passed since the order was entered because the father was not
served until 7 days before he filed the notice of appeal).

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under N.C. Gen. Stat. § 7B-1111(a)(4). We address each contention in turn.

A. Sufficiency of Termination Petitions

Father first argues the Petitions in this case “failed to allege grounds existed

to terminate” his parental rights under N.C. Gen. Stat. § 7B-1111(a)(4). Specifically,

Father contends the Petitions were “insufficient to put him on notice his rights were

subject to termination under this” statutory ground because, like in a case from this

Court, In re I.R.L., 263 N.C. App. 481, 823 S.E.2d 902 (2019), the Petitions: “failed

to reference a specific statutory ground under” N.C. Gen. Stat. § 7B-1111; “failed to

allege there was a judicial decree or support order requiring” Father “to financially

support” the children; and “failed to allege” Father “willfully failed to pay any

support.”

Petitions in termination of parental rights cases must state “[f]acts that are

sufficient to warrant a determination that one or more of the grounds for terminating

parental rights exist.” N.C. Gen. Stat. § 7B-1104(6) (2019). “[W]hile there is no

requirement that the factual allegations be exhaustive or extensive, they must put a

party on notice as to what acts, omissions or conditions are at issue.” In re B.C.B.,

374 N.C. 32, 34, 839 S.E.2d 748, 751 (2020) (citation and quotation marks omitted).

The allegations in a petition do not need to include the “precise statutory provision

ultimately found by the trial court” as long as the petition includes sufficient factual

allegations. In re A.H., 183 N.C. App. 609, 614-15, 644 S.E.2d 635, 638-39 (2007)

(indicating a citation to the precise statutory provision is not required before finding

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adequate notice based on the facts alleged); see In re B.L.H., 190 N.C. App. 142, 147,

660 S.E.2d 255, 257 (2008) (“Where the factual allegations in a petition to terminate

parental rights do not refer to a specific statutory ground for termination, the trial

court may find any ground for termination under N.C.G.S. § 7B–1111 as long as the

factual allegations in the petition give the respondent sufficient notice of the

ground.”). For example, in In re A.H., this Court found the termination petition was

sufficient even though it “did not specifically” include citation to the statutory

grounds for termination because the petition’s language “directly parallel[ed]” the

statutory language in making factual allegations. In re A.H., 183 N.C. App. at 615,

644 S.E.2d at 638-39.

Here, the trial court terminated Father’s parental rights for both children

based on N.C. Gen. Stat. § 7B-1111(a)(4). N.C. Gen. Stat. § 7B-1111(a)(4) permits

termination of parental rights when:

One parent has been awarded custody of the juvenile by
judicial decree or has custody by agreement of the parents,
and the other parent whose parental rights are sought to
be terminated has for a period of one year or more next
preceding the filing of the petition or motion willfully failed
without justification to pay for the care, support, and
education of the juvenile, as required by the decree or
custody agreement.

N.C. Gen. Stat. § 7B-1111(a)(4). As a result, the Petitions here needed to put Father

on notice that Mother sought to terminate his parental rights due to his willful failure

to pay child support. See In re B.C.B., 374 N.C. at 34, 839 S.E.2d at 751 (explaining

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a petition to terminate parental rights “must put a party on notice as to what acts,

omissions or conditions are at issue”).

Here, the Petitions included the following identical “grounds for termination”:

b. That for more than one (1) year [Father] has had no
contact with the minor child. [Father] has not visited or
contacted the minor child since May 6, 2018;
c. That for more than one (1) year, [Father] has failed and
refused to pay child support. He has not paid child support
since May 6, 2018;
d. That [Father] is therefore subject to termination of his
parental rights pursuant to North Carolina General
Statutes § 7B[.]

While the Petitions’ language is not “exhaustive or extensive,” see generally id.

(indicating allegations do not need to be exhaustive or extensive), the Petitions

indicated Father had “failed and refused to pay child support” for approximately a

year-and-a-half, (emphasis added), thereby fulfilling the requirement of notice of the

specific ground on which Mother sought to terminate Father’s parental rights,

namely willful failure to pay child support for more than a year pursuant to N.C. Gen.

Stat. § 7B-1111(a)(4). See N.C. Gen. Stat. § 7B-1111(a)(4). Notably, of all eleven

statutory grounds to terminate parental rights, only § 7B-1111(a)(4) addresses the

failure to pay the other parent in order to support the child pursuant to a court order

or custody agreement, i.e. child support. N.C. Gen. Stat. § 7B-1111(a).

Father’s argument to the contrary does not convince us. Father argues the

Petitions here are “substantially like” the petitions in another case from this Court,

In re I.R.L. Specifically he alleges the Petitions here, like the ones in In re I.R.L.,

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failed to allege: the specific statutory ground for termination; a judicial decree or

support order requiring Father to financially support the children; and willful failure

to pay.

In In re I.R.L., the mother alleged the father had “failed to provide substantial

financial support or consistent care for the minor child[,]” and the trial court

terminated the father’s parental rights for willful failure to pay child support under

N.C. Gen. Stat. § 7B-1111(a)(4). In re I.R.L., 263 N.C. App. at 486, 823 S.E.2d at 906.

This Court found that petition insufficient to put the father on notice his parental

rights could be terminated under § 7B-1111(a)(4) based on a combination of four

factors. See id. First, the petition did not make a “reference to the specific statutory

ground of N.C. Gen. Stat. § 7B-1111(a)(4)[.]” Id. Second, the petition was “entirely

silent as to whether a judicial decree or support order required [the f]ather to pay for

[the child’s] care or support.” Id. Third, the petition failed “to include any allegations

asserting [the f]ather’s failure to pay was willful.” Id. Fourth, “[a]n allegation that

a parent failed to provide financial support or consistent care may be an assertion

under the ground of abandonment.” Id. (citation and quotation marks omitted).

Here, only two of the factors are present. The Petitions here do not reference

the specific statutory ground in that they do not cite to § 7B-1111(a)(4), but this factor

alone does not have significant weight because of our caselaw indicating “a petition

will not be held inadequate simply because it fails to allege the precise statutory

provision[.]” In re A.H., 183 N.C. App. at 614, 644 S.E.2d at 638. The only other

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factor from In re I.R.L. present in the Petitions here is the lack of allegation about a

“judicial decree or support order” requiring Father to pay child support. See In re

I.R.L., 263 N.C. App. at 486, 823 S.E.2d at 906. While it would be better practice to

include such an allegation specifically, Father does not include any caselaw saying

the failure to plead the child support order alone renders a petition insufficient. Thus,

even the two factors that make this case similar to In re I.R.L. have less significance

here. See id.

Additionally, the other two factors from In re I.R.L., see id., weigh in favor of

the sufficiency of the Petitions here. The Petitions allege Father willfully failed to

pay through their use of the word “refused[.]” The word “refused” indicates an active

decision not to pay. See Joyner v. Garrett, 279 N.C. 226, 233, 182 S.E.2d 553, 558

(1971) (“In Black’s Law Dictionary (4th Ed., 1951) refusal is defined as ‘the declination

of a request or demand, or the omission to comply with some requirement of law, as

the result of a positive intention to disobey.’” (second emphasis added)). Put another

way, an active decision not to pay is a willful decision not to pay.

Beyond the allegation of willfulness, the Petitions here also differ from In re

I.R.L. because their language cannot be construed as an allegation of a separate

ground. See In re I.R.L., 263 N.C. App. at 486, 823 S.E.2d at 906 (finding petition

insufficient in part because the language could be an assertion of the ground of

abandonment in addition to the willful failure to pay child support). In In re I.R.L.

the petition spoke only of a failure to provide financial support, id., but here the

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Petitions specifically allege Father “refused to pay child support.” While other

grounds in § 7B-1111(a) can be based on the failure to pay support, see, e.g. N.C. Gen.

Stat. § 7B-1111(a)(5)(d) (permitting termination of a father’s parental rights when

the child was born out of wedlock and the father did not “[p]rovide[] substantial

financial support”), and even the failure to pay child support, see In re I.R.L., 263 N.C.

App. at 486, 823 S.E.2d at 906 (indicating the failure to pay child support could

support an allegation of abandonment by citing to this Court’s case in In re C.J.H.,

240 N.C. App. 489, 504, 772 S.E.2d 82, 92 (2015)), no other ground involves the willful

failure to pay child support.

Therefore, by alleging Father “refused to pay child support[,]”the Petitions are

sufficient to give Father adequate notice “as to what acts, omissions or conditions are

at issue.” In re B.C.B., 374 N.C. at 34, 839 S.E.2d at 751. As a result, the Petitions

are sufficient and can be the basis for a termination of parental rights proceeding.

See id.

B. Challenges to Adjudicatory Portion of Termination Orders

In addition to challenging the sufficiency of the Petitions, Father argues the

trial court committed multiple errors in the Orders terminating his parental rights.

Father first asserts the trial court erred by “failing to make findings of fact based

upon clear, cogent, and convincing evidence[,]” which it was constitutionally required

to do at the adjudicatory stage. Father then argues the trial court erred in

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terminating his rights under N.C. Gen. Stat. § 7B-1111(a)(4). After discussing the

standard of review, we address Father’s arguments.

1. Standard of Review

When reviewing the adjudicatory stage of a termination of parental rights

proceeding, we must “determine whether the findings are supported by clear, cogent

and convincing evidence and [whether] the findings support the conclusions of law.”

In re D.W.P., 373 N.C. 327, 330, 838 S.E.2d 396, 400 (2020) (citation and quotation

marks omitted).

2. Failure to Make Findings Based on Clear, Cogent, and Convincing
Evidence

We first address Father’s argument the trial court violated his “constitutional

rights by failing to make findings of fact based upon clear, cogent, and convincing

evidence[.]” Our statutes mandate that adjudicatory Findings “shall be based on

clear, cogent, and convincing evidence.” N.C. Gen. Stat. § 7B-1109(f) (2019). This

“statutory burden of proof . . . protects a parent’s constitutional due process rights as

enunciated by the United States Supreme Court[.]” In re J.C., 380 N.C. 738, 742, 869

S.E.2d 682, 685 (2022) (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 71 L. Ed. 2d

599 (1982); Adams v. Tessener, 354 N.C. 57, 63, 550 S.E.2d 499 (2001)). In order to

satisfy the requirement of § 7B-1109(f), and therefore appropriately protect parents’

constitutional rights, see id., a trial court must “announce[] the ‘clear, cogent, and

convincing’ standard of proof either in making findings of fact in the written

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termination order or in making such findings in open court.” In re B.L.H., 376 N.C.

118, 126, 852 S.E.2d 91, 97 (2020) (emphasis in original).

Here, the trial court failed to meet that standard. Both written Orders only

state the trial court made “the following findings of fact[.]” The written Orders do not

include any standard of proof, including the required clear, cogent, and convincing

standard. See N.C. Gen. Stat. § 7B-1109(f). The trial court also did not announce the

standard of proof in open court when making its ruling at the adjudicatory portion of

the hearing. Therefore, the trial court erred by not announcing it was making

Findings based on the clear, cogent, and convincing standard of proof. See, e.g., In re

M.R.F., 378 N.C. 638, 642, 862 S.E.2d 758, 762 (2021) (“In the present case, however,

the trial court failed to announce the standard of proof for its adjudicatory findings

either in open court or in its written order. Therefore, the trial court failed to comply

with the statutory mandate.” (emphasis in original)).

When a trial court errs by not making findings using the clear, cogent, and

convincing standard of proof, the reviewing court must at a minimum reverse for that

error. See In re J.C., 380 N.C. at 743, 747, 869 S.E.2d at 686, 688; In re M.R.F., 378

N.C. at 642-43, 862 S.E.2d at 762-63. A case reversed on these grounds can be

remanded to the trial court for it to “review and reconsider the record before it by

applying the clear, cogent, and convincing standard to make findings of fact . . . unless

‘the record of th[e] case is insufficient to support findings which are necessary to

establish any of the statutory grounds for termination.’” In re J.C., 380 N.C. at 746,

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869 S.E.2d at 688 (quoting In re M.R.F., 378 N.C. at 648, 862 S.E.2d at 766) (emphasis

in original). Two examples are illustrative of the difference between a case that can

be reversed and remanded to the trial court and a case that must be reversed without

remand. In In re J.C., our Supreme Court reversed and remanded because it could

not “say that remand of this case for the trial court’s consideration of the evidence in

the record utilizing the proper clear, cogent, convincing standard of proof would be

futile, so as to compel us to conclude that the record of this case is insufficient to

support findings which are necessary to establish any of the statutory grounds for

termination.” In re J.C., 380 N.C. at 747, 869 S.E.2d at 688 (citations, quotation

marks, and emphasis omitted). By contrast, in In re M.R.F., our Supreme Court was

“compelled to simply, without remand, reverse the trial court’s order” because of the

“petitioner’s failure to present sufficient evidence to support any of the alleged

grounds for the termination of the parental rights of respondent father[.]” In re

M.R.F., 378 N.C. at 642-43, 862 S.E.2d at 762-63 (emphasis in original).

Thus, we must determine whether “the record of this case is insufficient to

support findings which are necessary to establish any of the statutory grounds for

termination.” In re J.C., 380 N.C. at 746, 869 S.E.2d at 688 (citations, quotation

marks, and emphasis omitted). If Mother did not present sufficient evidence of the

ground for termination—willful failure to pay child support under N.C. Gen. Stat. §

7B-1111(a)(4)—we must reverse without remand. See In re M.R.F., 378 N.C. at 642-

43, 862 S.E.2d at 762-63. If she presented sufficient evidence of that ground, we will

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reverse and remand for the trial court to “review and reconsider the record before it

by applying the clear, cogent, and convincing standard to make findings of fact.” In

re J.C., 380 N.C. at 746, 869 S.E.2d at 688. Father’s remaining arguments on appeal

address the sufficiency of the evidence and Findings on § 7B-1111(a)(4), so we turn to

those arguments now.

3. Sufficiency of the Evidence and Findings as to § 7B-1111(a)(4)

Father makes multiple specific arguments as part of his general argument that

the trial court erred by terminating his parental rights under § 7B-1111(a)(4). All of

his arguments relate to the sufficiency of the evidence presented by Mother or the

sufficiency of the Findings made by the trial court to support its conclusion that

Father’s parental rights were subject to termination under § 7B-1111(a)(4). Under §

7B-1111(a)(4), the petitioner must present evidence and the trial court must make

findings of fact on two elements:

(1) that an order or parental agreement requiring the
payment of child support was in effect . . . and (2) that the
party whose parental rights were sought to be terminated
had [willfully] not paid child support as required by the
order or parental agreement within the year preceding the
entry of the petition.

In re S.R., 283 N.C. App. 149, 158-59, 872 S.E.2d 406, 413 (2022) (citing In re C.L.H.,

376 N.C. 614, 620, 853 S.E.2d 434, 439 (writing quoted language in the context of

what the petitioner must show before going on to discuss the first requirement in the

context of whether the “trial court’s findings of fact were []sufficient to support the

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termination” of parental rights); N.C. Gen. Stat. § 7B-1111(a)(4) (including the

requirement that the failure to pay be willful).

Father’s arguments relate to both elements. As to the existence of a child

support order, Father first argues “[t]here was no evidence presented to prove the

existence of a valid child support order.” Father also argues the trial court’s Findings

were insufficient to establish the existence of a child support order, and thus the

Findings did not support terminating Father’s parental rights under § 7B-1111(a)(4),

because the only Finding “to address the existence of a child support order[,]” is not

“valid” and must be “disregarded” since it only recounts Mother’s testimony. Turning

to the second element, Father contends “there was insufficient evidence to support

the court’s conclusion [Father’s] failure [to] pay child support was without

justification” and the trial court “failed to make any findings of fact regarding the

willfulness of his failure to pay child support.” Thus, on the two elements Father

contests—the existence of a child support order and the willfulness of his failure to

pay—he argues both Mother presented insufficient evidence and the trial court’s

Findings are insufficient to support its Conclusion that his parental rights can be

terminated.

Since we must already at least reverse because of the trial court’s failure to

make Findings by clear, cogent, and convincing evidence, we need only address

whether Mother presented sufficient evidence as to each element. As explained

above, we can remand based on the trial court’s failure to state the proper standard

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Opinion of the Court

of proof as long as Mother presented sufficient evidence to support termination under

§ 7B-1111(a)(4). The same is true if the trial court’s Findings are insufficient to

support its Conclusion of Law that Father’s rights could be terminated on that

ground; as long as Mother presented sufficient evidence, we can remand for entry of

a new order. See In re C.L.H., 376 N.C. 614, 622-23, 853 S.E.2d 434, 441 (2021)

(“Where, as in this matter, the ‘trial court’s adjudicatory findings were insufficient to

support its conclusion that termination of the parent’s rights was warranted, but the

record contained additional evidence that could have potentially supported a

conclusion that termination was appropriate,’ we ‘vacate[] the trial court’s

termination order and remand[ ] the case for further proceedings, including the entry

of a new order containing findings of fact and conclusions of law addressing the issue

of whether [the] ground for termination existed.’” (quoting In re K.N., 373 N.C. 274,

284, 837 S.E.2d 861, 869 (2020) (brackets in original)). Thus, as to each of the two

elements Father contests, if Mother presented sufficient evidence of the element, we

can reverse and remand the case rather than reverse it outright. See In re J.C., 380

N.C. at 746, 869 S.E.2d at 688 (allowing remand only if sufficient evidence has been

presented); In re C.L.H., 376 N.C. at 622-23, 853 S.E.2d at 441 (same).

Looking at the first element, Mother presented sufficient evidence of “an order

or parental agreement requiring the payment of child support[.]” In re S.R., 283 N.C.

App. at 158, 872 S.E.2d at 413. Although our record does not include a child support

order, Mother testified about the existence of the child support order, which dated

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Opinion of the Court

back to July 2018:

Q. Okay. From 5/6/2018 until today has [Father] paid any
child support in this case?

A. He did not pay any until he was forced to by child
support. I did have a child support order, but like soon after
(inaudible). But, nothing was ever paid on that. I did get
taxes back, his taxes back once, and then there was –
...

THE COURT: Right. So, back to this child support; you got
a child support order approximately June of 2018?

A. I believe it was in July.

THE COURT: Right. July - approximately July of 2018 you
got a child support order. How much did they order him to
pay?

A. $1,098.00 a month.

THE COURT: $1,098.00, okay. Is that here in Randolph
County?

A. Yes, sir.

Mother’s testimony provides sufficient evidence on the issue of the existence of

a child support order as the first element of the termination of Father’s parental

rights under § 7B-1111(a)(4). In In re C.L.H., our Supreme Court had to determine

whether there was “evidence in the record which might support a conclusion that

grounds existed to terminate respondent’s parental rights pursuant to” § 7B-

1111(a)(4) that would allow for vacatur and remand given the trial court did not make

a finding that the respondent failed to pay as required by a child support order. In

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Opinion of the Court

re C.L.H., 376 N.C. at 621-23, 853 S.E.2d at 440-41. The In re C.L.H. Court found

such evidence in the record in part because “petitioner testified that there was a child

support order in place at the time of the termination hearing.” Id. at 621-22, 853

S.E.2d at 440. Similarly here, Mother’s testimony about the existence of a child

support order is sufficient evidence to meet her burden of presenting evidence for the

first element under § 7B-1111(a)(4). See id.; In re S.R., 283 N.C. App. at 158-59, 872

S.E.2d at 413 (delineating elements of § 7B-1111(a)(4)).

We also note Father testified, and he never disputed that he was required to

pay child support under a court order. Father acknowledged the existence of a child

support order but simply claimed he was unable to pay at certain times. For example,

Father was asked on cross-examination if he had ever moved the court to reduce his

child support when his income went down, and Father stated, “I tried to, yes.” Father

also stated he “went to court once and got it continued.” Father did not dispute the

existence of a child support order but admitted he had unsuccessfully tried to reduce

his child support obligation. Despite Mother’s testimony about the child support

order and Father’s own testimony acknowledging his child support obligation, Father

asks us to place a higher burden on Mother than the law provides by requiring Mother

to present a copy of the child support order as evidence. See In re C.L.H., 376 N.C. at

621-22, 853 S.E.2d at 440 (finding testimony a child support order was in place at the

time of the termination hearing sufficient to support termination for willful failure to

pay child support).

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Opinion of the Court

The trial court noted Mother’s testimony about the existence of a child support

order in the Finding Father challenges, Finding 8. In each Order terminating

Father’s parental rights, Finding 8 states:

[Mother] testified that in July, 2018, a child support order
was put in place for [Father] to pay child support. [Father]
has failed and refused for more than one (1) year to pay
child support pursuant to the child support order for the
use and benefit of the minor child. [Father] has not paid
child support since May 6, 2018, and he is more than
$20,000.00 in arrears.

Since we must reverse and remand for entry of a new order based upon the

failure to identify the standard of proof, we also note that this Finding is defective as

it is a recitation of testimony and not a true finding of fact. As Father argues,

“[a]ccording to well-established North Carolina law, recitations of the testimony of

each witness do not constitute findings of fact by the trial judge.” In re A.C., 378 N.C.

377, 383-84, 861 S.E.2d 858, 867 (2021) (citation, quotation marks, and brackets

omitted). The first line of Finding 8 merely recites Mother’s testimony and thus it is

not a Finding of Fact this Court would have been able to rely upon if we had to

evaluate the overall validity of the trial court’s termination Orders. See id. (noting

our Supreme Court “disregarded the language” that merely recited testimony by a

witness when “determining the validity of the trial court’s termination order”). Again

this discussion does not impact our decision on whether to remand because Mother

presented sufficient evidence to support a finding that a child support order was put

in place in July 2018. See In re J.C., 380 N.C. at 746, 869 S.E.2d at 688; In re C.L.H.,

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Opinion of the Court

376 N.C. at 622-23, 853 S.E.2d at 441. But we note this issue for the benefit of the

trial court on remand. The trial court’s Findings of Fact on remand should not simply

recite the testimony on this crucial fact; the existence of a child support order is

necessary for termination of parental rights under § 7B-1111(a)(4), see In re S.R., 283

N.C. App. at 158, 872 S.E.2d at 413, and the trial court would need to make this

finding by clear, cogent and convincing evidence to support the order of termination.

See N.C. Gen. Stat. § 7B-1109(f) (requiring trial court to make all findings of fact

based on this standard).

Turning to the second element of § 7B-1111(a)(4), we must determine whether

Mother presented evidence sufficient to support a Finding that Father willfully failed

to pay for a year preceding the filing of the Petitions. See In re S.R., 283 N.C. App.

at 158-59, 872 S.E.2d at 413 (delineating this second element); see also N.C. Gen.

Stat. § 7B-1111(a)(4) (clarifying the failure to pay must be willful). In the context of

termination of parental rights for willful failure to pay child support under § 7B-

1111(a)(4), the word “‘willful’ . . . has been defined as ‘disobedience which imports

knowledge and a stubborn resistance, doing the act . . . without authority—careless

whether he has the right or not—in violation of law’” and “as ‘doing an act purposely

and deliberately.’” Bost v. Van Nortwick, 117 N.C. App. 1, 14, 449 S.E.2d 911, 919

(1994) (second ellipses in original) (quoting In re Roberson, 97 N.C. App. 277, 280-81,

387 S.E.2d 668, 670 (1990)) (defining “willful” under the old version of the statute,

N.C. Gen. Stat. § 7A-289.32(5)); see In re J.D.S., 170 N.C. App. 244, 257, 612 S.E.2d

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Opinion of the Court

350, 358 (2005) (indicating N.C. Gen. Stat. § 7A-289.32(5) is “now codified as G.S. §

7B-1111(a)(4)”). Father here argues there was “insufficient evidence” to support a

Finding “his failure to pay child support was willful” because he lacked the ability to

pay.

Focusing on Father’s argument about the lack of evidence on his ability to pay,

our Supreme Court recently noted with approval this Court’s longstanding precedent

that “[b]ecause a proper decree for child support will be based on the supporting

parent’s ability to pay as well as the child’s needs, . . . there is no requirement that

[the] petitioner independently prove or that the termination order find as fact [the]

respondent’s ability to pay support during the relevant statutory time period.” In re

C.L.H., 376 N.C. at 622, 853 S.E.2d at 440-41 (ellipses in original) (quoting In re

J.D.S., 170 N.C. App. at 257, 612 S.E.2d at 358, which in turn quoted In re Roberson,

97 N.C. App. at 281, 387 S.E.2d at 670) (so noting after explaining it was not

necessary to reach the issue of whether a failure to pay was willful because the case

was already being remanded on the grounds the trial court failed to make a finding

on the existence of a child support order). Thus, because Mother here testified to the

existence of a valid child support order, she did not need to “independently prove”

Father had an ability to pay in order to present sufficient evidence to support a

Finding that Father willfully failed to pay. Id.

Father’s arguments about his lack of ability to pay do not change our decision

that Mother presented sufficient evidence of willful failure to pay, although the trial

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Opinion of the Court

court will need to make new Findings on remand, as discussed above. Father first

indicates he “offered evidence to rebut” Mother’s evidence of his ability to pay. Father

testified he was unable to pay the full amount of child support during the relevant

time period. But Father also testified he was self-employed from late 2018 until 2021,

which corresponded with the time Father was on pre-trial release from jail, and that

testimony indicates Father had the ability to pay at least some money during the

time period. Mother testified, however, Father paid nothing between 2018 and when

she filed the Petitions in January 2020. This testimony thus provides evidence

Father had at least some ability to pay during the relevant time period.

But this testimony revealing Father had some ability to pay is ultimately not

relevant for the current decision of whether we can remand the case or must reverse

it outright. While Father could “present evidence to prove he was unable to pay child

support in order to rebut a finding of willful failure to pay[,]” Bost, 117 N.C. App. at

16, 449 S.E.2d at 919, to determine whether we can remand the case, we only need to

determine whether Mother presented sufficient evidence on which the trial court

could have found Father willfully failed to pay. See In re J.C., 380 N.C. at 746, 869

S.E.2d at 688; In re C.L.H., 376 N.C. at 622-23, 853 S.E.2d at 441. The trial court

has the duty of determining the credibility and weight of all the evidence, and only

the trial court can make the findings of fact resolving any conflicts in the evidence.

See, e.g., In re D.W.P., 373 N.C. 327, 330, 838 S.E.2d 396, 400 (2020) (“[I]t is the duty

of the trial judge to pass upon the credibility of the witnesses and the weight to be

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Opinion of the Court

given their testimony and the reasonable inferences to be drawn therefrom. The trial

judge’s decisions as to the weight and credibility of the evidence, and the inferences

drawn from the evidence are not subject to appellate review.” (citations, quotation

marks, and brackets omitted)). As we have explained, Mother presented such

sufficient evidence when she testified a valid child support order required Father to

pay. See In re C.L.H., 376 N.C. at 622, 853 S.E.2d at 440-41.

In his other argument, Father contends we should interpret § 7B-1111(a)(4)

“in pari materia” with N.C. Gen. Stat. § 5A-21’s provisions on civil contempt for

failure to pay child support because “terminating parental rights is far more severe”

than holding a parent in civil contempt and doing so is necessary “[t]o protect a

parent’s constitutional rights[.]” Specifically, Father asserts, based on this Court’s

decision in Cty. of Durham ex rel. Durham DSS v. Burnette, 262 N.C. App. 17, 821

S.E.2d 840 (2018), the trial court should have looked at his “current circumstances”

with regard to ability to pay “regardless of when the original child support order was

entered.” Father contends the trial court “made no efforts” to undertake that inquiry

in this case. We do not need to address this argument from Father because it focuses

on the sufficiency of the trial court’s Findings rather than on the sufficiency of the

evidence Mother presented, the latter of which determines whether we can remand

the case. See In re J.C., 380 N.C. at 746, 869 S.E.2d at 688; In re C.L.H., 376 N.C. at

622-23, 853 S.E.2d at 441.

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Opinion of the Court

Thus, Mother presented sufficient evidence of both elements of § 7B-1111(a)(4).

Because Mother presented sufficient evidence upon which the trial court could have

made Findings to support a conclusion that Father’s parental rights could be

terminated under N.C. Gen. Stat. § 7B-1111(a)(4), we can remand the case rather

than reverse it outright. See In re J.C., 380 N.C. at 746, 869 S.E.2d at 688; In re

C.L.H., 376 N.C. at 622-23, 853 S.E.2d at 441. The trial court is not required to make

any particular finding on remand; the trial court instead must make the findings,

based upon clear, cogent, and convincing evidence, it determines are appropriate

based on the evidence. See, e.g., In re N.W., 381 N.C. 851, 857, 874 S.E.2d 498, 504

(2022) (“Although the trial court does have responsibility for evaluating the

credibility of the witnesses, weighing the evidence, and determining the relevant

facts, its findings of fact must be based upon clear, cogent, and convincing evidence[.]”

(citations omitted)); In re J.C., 380 N.C. at 746, 869 S.E.2d at 688 (“[U]pon remand a

trial court must review and reconsider the record before it by applying the clear,

cogent, and convincing standard to make findings of fact.”).

III. Conclusion

We reverse and remand this case to the trial court. While the Petitions

provided Father sufficient notice of the grounds on which his parental rights could be

terminated, we reverse because the trial court failed to announce, either in open court

or in the written Orders terminating Father’s parental rights, it was making Findings

using the required clear, cogent, and convincing standard of proof. Because Mother

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Opinion of the Court

presented sufficient evidence on which the trial court could have terminated Father’s

parental rights under N.C. Gen. Stat. § 7B-1111(a)(4), we remand the case rather

than reverse it outright. On remand, the trial court shall consider “the record before

it in order to determine whether [Mother] has demonstrated by clear, cogent, and

convincing evidence” that Father’s parental rights could be terminated. In re J.C.,

380 N.C. at 747, 869 S.E.2d at 688 (remanding case with such instructions where

trial court did not announce the proper clear, cogent, and convincing standard of

proof).

REVERSED AND REMANDED.

Judges ZACHARY and COLLINS concur.

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