Termination of Parental Rights_findings and evidence_ability to pay support_six preceding
months
The findings and evidence were not sufficient for termination of a mother's parental
rights on the ground that she willfully failed to pay a reasonable portion of the cost of care of the
children where the court did not specifically address whether she was employed or otherwise able
to pay support during the six months preceding the filing of the petition.
David Kennedy for petitioner-appellee Cumberland County
Department of Social Services.
Attorney Advocate Robin Weaver-Hurmence, Guardian Ad Litem.
Janet K. Ledbetter for respondent-appellant Tesha Lewis.
HUNTER, Judge.
Tesha Faircloth Lewis (“respondent-mother”) appeals from an
order terminating her parental rights to three of her minor
children. For the reasons stated herein, we reverse.
Respondent-mother and James Faircloth, Sr. (“respondent-
father”) are the parents of four minor children: James Faircloth,
Jr. (d.o.b. 4 June 1987), Dakota Faircloth (d.o.b. 22 September
1990), Amanda Faircloth (d.o.b. 7 August 1992), and Margaret
Faircloth (d.o.b. 26 January 1995) (“the Faircloth children”). On
5 August 1997, the Cumberland County Department of Social Services
(“CCDSS”) filed a juvenile petition alleging that the Fairclothchildren were abused and neglected juveniles. The Faircloth
children were placed in the custody of CCDSS, and such custody was
continued by a series of orders until an adjudicatory hearing was
commenced on 15 December 1998. At the conclusion of that hearing,
the Faircloth children were adjudicated abused and neglected
juveniles. Only respondent-father appealed the adjudicatory order
at that time. On appeal, this Court reversed and remanded the case
for a new hearing because the trial court had applied an erroneous
legal standard in denying respondent-father's request to call the
Faircloth children as witnesses. See In re Faircloth, 137 N.C.
App. 311, 527 S.E.2d 679 (2000).
Thereafter, CCDSS filed a Petition to Terminate the Parental
Rights of Respondents on 3 August 2000. Separate hearings were
held for each parent. Respondent-father's termination hearing was
held on 26 July 2001, resulting in termination of his parental
rights by order entered on 16 November 2001. Respondent-father
subsequently appealed the termination order, which was affirmed by
this Court on 5 November 2002. See In re Faircloth, 153 N.C. App.
565, 571 S.E.2d 65 (2002).
Respondent-mother's termination hearing was held on 6 May
2002. Based on the evidence presented at the hearing, the
following pertinent findings of fact were made by the trial court:
13. The mother has been employed and is
physically able and financially able to pay
support and to pay a reasonable portion of the
cost of care for the children.
14. At the time the Termination Petition was
filed on 8/3/00, the mother had paid $0.00
towards support of the children.
15. On or about 1/15/01 the mother apparently
tried to deliver to the social worker a $20
check for each child, payable to the children.
16. The checks were returned to the mother
along with a letter giving specific
instructions to her on how to provide money to
the children or how to pay support for them.
Since that time she has provided no money or
support.
The trial court concluded that these findings supported the
following ground for terminating respondent-mother's parental
rights:
That the minor children have been placed
in [CCDSS] custody since July 30, 1997, and
that the Respondent mother, for a continuous
period of six months next preceding the filing
of th[e] petition, has willfully failed to pay
a reasonable portion of the cost of care for
the minor children although physically and
financially able to do so. §7B-1111(a)(3).
However, while the trial court further concluded that termination
of her parental rights was in the best interests of the three
younger Faircloth children, the same was not concluded as to the
eldest child, James. Thus, the trial court ordered legal and
physical custody of James returned to respondent-mother.
Respondent-mother argues the trial court's findings of facts
were insufficient to support termination of her parental rights
with respect to her three younger children. A trial court's
findings of fact in an order substantiating termination of parental
rights must be supported by clear, cogent, and convincing evidence.
See N.C. Gen. Stat. § 7B-1109(f) (2001). If termination is
supported by such evidence, the court's findings are binding on
appeal, even if there is evidence to the contrary. In re
Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988). In the case sub judice, the trial court concluded that its
findings supported Section 7B-1111(a)(3) as the only ground for
termination of respondent's parental rights. This section
provides:
The juvenile has been placed in the custody of
a county department of social services, a
licensed child-placing agency, a child-caring
institution, or a foster home, and the parent,
for a continuous period of six months next
preceding the filing of the petition or
motion, has willfully failed for such period
to pay a reasonable portion of the cost of
care for the juvenile although physically and
financially able to do so.
N.C. Gen. Stat. § 7B-1111(a)(3) (2001). Respondent-mother contends
the trial court's findings of fact were insufficient to establish
that she was financially able to pay for the cost of foster care
for the Faircloth children during the six months preceding the
petition being filed. We agree.
A parent's ability to pay is the
controlling characteristic of what is a
“reasonable portion” of cost of foster care
for the child which the parent must pay. A
parent is required to pay that portion of the
cost of foster care for the child that is
fair, just and equitable based upon the
parent's ability or means to pay.
In re Clark, 303 N.C. 592, 604, 281 S.E.2d 47, 55 (1981). During
the termination hearing, respondent-mother testified on cross-
examination that her approximate income per month varied:
“Sometimes I can make a thousand dollars a month, sometimes I can
make more. It just depends.” However, further elaboration upon
this testimony on re-direct examination established that
respondent-mother's income also depended on whether she was even
employed. Specifically, respondent-mother testified as follows: A. . . . . I work with Jackie's Custom
Painting now.
Q. Okay. And how long have you had
that job?
A. With Jackies's [sic] Custom
Painting, I've worked with them off and on
with them for the past -- since '99.
Q. But it has not been full-time,
steady employment, has it?
A. It varies. Construction is -- you
know, it's painting, so it varies.
This was the extent of the relevant testimony establishing
respondent-mother's ability to pay.
Based on the evidence, the trial court found that “[t]he
mother has been employed and is physically and financially able to
pay support and to pay a reasonable portion of the cost of care for
the children.” The trial court further found that “[a]t the time
the Termination Petition was filed on 8/3/00, the mother had paid
$0.00 towards support of the children.” “[N]onpayment . . .
constitute[s] a failure to pay a 'reasonable portion' if and only
if respondent were able to pay some amount greater than zero.” In
re Bradley, 57 N.C. App. 475, 479, 291 S.E.2d 800, 802 (1982).
Yet, while the evidence established that respondent-mother has been
employed at various times since 1999, it did not specifically
address whether she was employed at any time between 3 February
2000 and 3 August 2000 (the six months preceding the filing of the
petition), or whether she was otherwise financially able to pay.
(See footnote 1)
Absent such findings or evidence in the record that respondent-
mother could pay some amount greater than zero towards the cost of
care for children during that period of time, the trial court did
not have clear, cogent, and convincing evidence to determine
respondent's financial ability.
In conclusion, there was insufficient evidence to support
terminating respondent-mother's parental rights pursuant to Section
7B-1111(a)(3). We therefore reverse the trial court's termination
order as to the three younger Faircloth children. Further, because
we hold the order terminating respondent-mother's parental rights
must be reversed, we need not reach her remaining arguments. See
In re Phifer, 67 N.C. App. 16, 28, 312 S.E.2d 684, 691 (1984).
Reversed.
Judges TIMMONS-GOODSON and ELMORE concur.
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