IN THE MATTER OF: Mecklenburg County &nbs
p;
AREANNA DESHAUN GRAHAM No. 00 J 1217
Associate County Attorney Tyrone C. Wade, for petitioner-
appellee Mecklenburg County Department of Youth & Family
Services.
Crews & Klein P.C., by Katherine Freeman, and Sheila G.
Passenant, Attorney Advocate, Guardian ad Litem Program, for
appellee Guardian ad Litem.
Joseph F. Dodge for respondent-appellant Felicia Graham.
THOMAS, Judge.
Respondent, Felicia Graham, appeals from the order terminating
her parental rights to her daughter Areanna Deshaun Graham.
Petitioner Mecklenburg County Department of Social Services
(DSS) has moved to dismiss the record on appeal based on Graham's
failure to comply with the requirements for proceeding on appeal in
forma pauperis, as prescribed by N.C.R. App. P. 6(b) and N.C. Gen.
Stat. § 1-288 (1999). Although noncompliance with Rule 6(b) is a
jurisdictional defect, we elect to treat Graham's appeal as a
petition for writ of certiorari, thereby mooting the motion to
dismiss. See Matter of Johnson, 70 N.C. App. 383, 386, 320 S.E.2d
301, 304 (1984). Areanna was born on 13 May 1998. Paternity has not been
determined. Areanna was placed in foster care upon an adjudication
of neglect and dependency on 5 April 2000. In a 3 May 2000
dispositional order, Graham was directed to undertake domestic
violence counseling through the Women's Commission, submit to a
substance abuse assessment and psychological evaluation, and follow
the case plan and recommendations of DSS's Division of Youth and
Family Services.
Graham failed to attend a 12 July 2000 review hearing but was
represented by counsel. The court found that Graham had not
complied with the requirements of her case plan and that her
address was unknown. She was ordered to provide financial
information within thirty days to allow the court to assess care or
support payments.
Graham again failed to attend a review hearing on 10 October
2000. The court found she had not attended her scheduled
visitations with Areanna and suspended further visits until Graham
appeared in court.
The petition to terminate Graham's parental rights was filed
on 5 December 2000, on the following grounds: (1) Graham neglected
Areanna; (2) Graham willfully abandoned Areanna for at least six
consecutive months; (3) Graham willfully failed to pay a reasonable
portion of the cost of Areanna's foster care for a continuous
period of more than six months; and (4) Graham was incapable of
providing for the proper care and supervision of Areanna and such
incapacity was reasonably likely to continue for the foreseeablefuture. See N.C. Gen. Stat. §§ 7B-1111(a)(1), (3), (6), (7)
(1999).
Graham did attend a review hearing 31 January 2001. The court
advised her that she could “do the things previously ordered by the
court” and that “her efforts will be considered” at the termination
hearing. She was denied further visitation with Areanna.
The hearing on DSS's petition was held 11 April and 24 May
2001. The trial court entered an order terminating Graham's
parental rights on the four grounds alleged in the DSS petition.
The order contains the following findings of fact based on “clear,
cogent and convincing evidence[:]
3. That the juvenile was placed in the
custody of [DSS] on February 3, 2000 and
adjudicated a neglected and dependent juvenile
on April 5, 2000.
4. That at the time the juvenile was placed
in the custody of [DSS], she, along with an
older sibling, had resided with the mother
along with the mother's domestic partner in an
environment where there was domestic violence.
8. That after DSS became involved in Gaston
County, the mother relocated to Mecklenburg
County. The case was transferred to
Mecklenburg and thereafter DSS in Mecklenburg
began to provide services for respondent and
the children.
9. That respondent mother failed to cooperate
with the recommendations of [DSS] and this
juvenile along with an older sibling were
eventually removed from the home . . . .
10. That prior to relocating to Mecklenburg
County, respondent mother had left the
juveniles with a relative on July 2, 1999 and
did not reappear until October of that year.
11. That during her period of absence, the
mother did not contact the relative or inquireas to the welfare of the juveniles.
15. That the mother re-appeared in October
and asked that the juveniles be returned to
her care; however, due to the mother's living
environment and the concerns of the relative,
she refused the request. The mother admitted
she had used controlled substances and was
dancing as a stripper during her absence.
16. That the children were later returned to
the mother . . . .
17. That it was thereafter that the mother .
. . relocated to Mecklenburg County.
18. That after the petition was filed in
Mecklenburg County, DSS developed a case plan
to work toward reunification.
19. That several issues were included in the
case plan by the Department. [Graham] was to
obtain an assessment at the McLeod Center and
follow any recommendations, obtain a
psychological evaluation and participate in
domestic violence counseling. She was to
visit on a regular and consistent basis . . .
.
20. That the mother failed to fully comply
with the recommendations of [DSS]. She
stopped attending visits and her whereabouts
became unknown. There was no contact for a
significant period of time and her visits were
suspended.
21. That [Graham] reappeared in December,
2000 after the termination petition had been
filed.
22. That [Graham] began domestic violence
counseling, but failed to follow through and
complete the program.
23. That there is credible evidence that
[Graham] is engaged in pornographic behavior
and does not have the ability to provide the
necessary care the juvenile needs. [Graham]
denied credible evidence to the contrary and
the Court does not find the mother's testimony
credible based upon the totality of the
evidence presented.
24. That respondent mother has not maintained
consistency in employment or housing. She was
employed for a period of time and quit her
job, but offered no credible evidence for why
she quit the job to take a lesser paying job.
The testimony from the social worker is that
respondent mother was fired.
26. That no one has contacted the agency
inquiring as to the welfare of the juvenile.
27. That it has cost $6,500 each year to
maintain the juvenile in foster care.
28. That respondent parents have paid nothing
to defray the cost of maintaining the juvenile
in foster care.
The court concluded that each of the grounds for terminating
Graham's parental rights alleged by DSS existed, as follows:
6. . . . [R]espondent [ has] neglected the
above named juvenile . . . as that term is
defined by N.C.G.S. § 7B-101(15) in that [she]
ha[s] failed to provide proper care,
supervision and discipline for the juvenile .
. . .
7. . . . [Areanna] has been placed in the
custody of the Mecklenburg County [DSS] and
respondent, . . . for a continuous period of
more than six (6) months [] preceding the
filing of this petition, ha[s] willfully
failed for such period to pay a reasonable
portion of the cost of care for said juvenile.
8. . . . [R]espondent [ is] incapable of
providing for the proper care and supervision
of the juvenile such that the juvenile is a
dependent juvenile within the meaning of
N.C.G.S. § 7B-101(9) and there is a reasonable
probability that such incapability will
continue for the foreseeable future.
9. . . . [R]espondent[ has] willfully
abandoned the juvenile for at least six (6)
consecutive months immediately preceding the
filing of this petition . . . .
The court further concluded that termination of Graham's parentalrights was in the best interest of Areanna.
In her brief to this Court, Graham asserts the trial court
erred in finding that she had abandoned the child, that she had
willfully failed to pay for the child's care, and that she was
incapable of providing for the proper care and supervision of the
child. Graham fails to address her assignment of error challenging
the court's conclusion that she had neglected Areanna.
Accordingly, her challenge to this conclusion of law is deemed
abandoned. See N.C.R. App. P. 28(b)(6). Although this single
ground for termination is sufficient to uphold the district court's
order, we will consider an alternative ground on the merits. See
In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990).
Graham has failed to except to any of the trial court's
findings of fact, offering only broadside assignments of error
claiming that the trial court erred in terminating her parental
rights for neglect, for dependency, for abandonment, and for
failure to pay a reasonable portion of the cost associated with
Areanna's foster care. See Matter of Caldwell, 75 N.C. App. 299,
301-02, 330 S.E.2d 513, 515 (1985). Accordingly, the court's
findings of fact are deemed conclusive and binding on appeal. Id.
at 301, 330 S.E.2d 515 (citing In re Apa, 59 N.C. App. 322, 296
S.E.2d 811 (1982)). The question before us is whether the court's
findings support its conclusions of law. Id.
As a ground for termination, the district court concluded that
Graham “willfully failed for such period to pay a reasonable
portion of the cost of care” for Areanna over a period of at leastsix months. N.C. Gen. Stat. § 7B-1111(a)(3). The court found that
Graham “was employed for a period of time and quit her job, but
offered no credible testimony for why she quit the job to take a
lesser paying job.” The court further found "[t]hat it has cost
$6,500 each year to maintain Areanna in foster care[,]” and that
Graham “ha[s] paid nothing to defray the cost of maintaining the
juvenile in foster care.” The court's findings are sufficient to
support the conclusion that Graham had the ability to pay some
amount more than zero and thus willfully failed to pay a reasonable
portion of the cost of Areanna's foster care. See In re McMillon,
143 N.C. App. 402, 410-11, 546 S.E.2d 169, 175, disc. review
denied, 354 N.C. 218, 554 S.E.2d 341 (2001), (citing In re Huff,
140 N.C. App. 288, 292-93, 536 S.E.2d 838, 841-42 (2000), appeal
dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9
(2001)). Indeed, Graham's appellate brief offers the following
characterization of her “consistent employment” over the relevant
period:
[Graham] was employed at a daycare center from
October 10, 2000 until April 18, 2001 . . .
As of the date of the first hearing on the
termination petition, [Graham] had maintained
continuous gainful employment for over seven
months. In addition [Graham] was gainfully
employed at Hardee's at the time of the second
termination hearing.
While she emphasizes that the trial court never entered a support
order, the record reflects her failure to supply the trial court
with the necessary financial information as ordered on 12 July
2001.
Because we find a basis for the termination of Graham'sparental rights under N.C. Gen. Stat. § 7B-1111(a)(3), we need not
address the remaining grounds found by the trial court. See
Taylor, 97 N.C. App. at 64, 387 S.E.2d at 233-34; Matter of Moore,
306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982), appeal dismissed,
459 U.S. 1139, 74 L. Ed. 2d 987 (1983).
Graham does not address her assignment of error regarding the
finding that termination was in Areanna's best interests. Although
we treat the assignment of error as abandoned pursuant to Rule
28(b)(6), we further find no abuse of discretion by the trial
court. See In re Brim, 139 N.C. App. 733, 744, 535 S.E.2d 367, 373
(2000).
AFFIRMED.
Judges WALKER and BIGGS concur.
Report per Rule 30(e).
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