IN THE MATTER OF:
M.K. Brunswick County
No. 02 J 136
McDaniel & Anderson, L.L.P., by John M. Kirby, for petitioner-
Guardian ad Litem-appellee.
Fairley, Jess, Isenberg & Green, by Elva L. Jess, for the
Brunswick County Department of Social Services-appellee.
Michelle F. Lynch, for respondent-appellant.
CALABRIA, Judge.
C.U. (“respondent-mother”) appeals the order of the Brunswick
County District Court terminating her parental rights and the
rights of J.K. (“respondent-father”) (collectively “respondents”)
with respect to their juvenile-child (“M.K.”). We affirm.
M.K. was born on 14 November 2000. When M.K. was two months
old, the Brunswick County Department of Social Services (“DSS”)
became involved with this family when their inspections revealed
that respondents left M.K. in soiled diapers, rarely bathed her,
and left her in a swing for extended periods. On 15 May 2001,
respondent-mother signed a protection plan allowing M.K. to stay
with her paternal aunt. About one week later, respondent-mothernotified DSS that she had moved to Maryland. On 6 June 2001, DSS
learned that respondent-father intended to take M.K. to Maryland to
be with respondent-mother. On 7 June, DSS petitioned for and
obtained custody of M.K. and subsequently placed her in foster
care.
On 23 July 2001, a Guardian ad Litem was appointed for M.K.
and a hearing was held with all parties represented by counsel.
M.K. was adjudicated neglected and remained in the custody of DSS.
Evidence at the hearing showed that conditions in the respondents'
home improved over the course of several sessions with a Family
Preservation worker but deteriorated after the sessions ended.
Respondents continued to leave M.K. in a swing for such extended
periods of time that her limbs had stiffened and her upper body
muscles had not properly developed. In addition, the back of her
head was flat, and she had significant hair loss. After two to
three weeks of “exercise” recommended by M.K.'s treating physician
and administered by her caregivers, M.K. attained a normal range of
mobility as well as upper body strength. Furthermore, at the time
of the hearing, her head had attained a normal shape.
On 17 December 2001, DSS continued reunification efforts and
recommended that respondent-mother secure and maintain employment
and pay child support. The 17 December 2001 court order noted that
efforts were being made to transfer jurisdiction to Maryland, via
the Interstate Compact on the Placement of Children, and to place
M.K. with respondent-mother. However, in late January 2002,
Maryland authorities reported respondents involvement in a domesticviolence incident, which lead to charges against respondent-father.
As a result, the Maryland authorities could not recommend the
placement of M.K. with respondent-mother. Soon after the domestic
violence incident, respondent-mother and one of M.K.'s two siblings
moved to Virginia to live with M.K's maternal grandmother (the
“maternal grandmother”).
At the 11 March 2003 hearing, respondent-mother testified that
throughout the time M.K. was in DSS custody she was capable of
working, and her 2001 tax return reported $2,365.00 in earnings.
In March and April 2002, respondent-mother was employed as a
cashier and in April earned $500.00. She resigned the cashier
position and was unemployed until August or September 2002. At the
time of the hearing, she was still employed and earned a little
over $1000.00 per month. Her expenses included monthly payments of
$20.00 for rent to the maternal grandmother, $151.00 for a car
loan, $116.00 for car insurance, and between $100.00 and $150.00
for groceries. She also managed to deposit $1300.00 in a checking
account and approximately $100.00 in a savings account.
Respondent-mother understood she was supposed to pay child
support but failed to make any payments to DSS or M.K.'s foster
parents. She testified that she called the child support office
several times, left messages, never received a return call, and
then called her assigned social worker about the child support
office's failure to contact her. Her social worker testified she
had no record of and did not recall respondent-mother calling her
about difficulties in contacting the child support office. M.K.'sfoster parents spent more than the $315.00 per month provided by
DSS for M.K.'s support.
On 10 March 2003, the trial court terminated the parental
rights of respondents on the basis of (1) neglect, (2) willfully
leaving M.K. in foster care, and (3) willfully failing to pay a
reasonable portion of M.K.'s support. Only respondent-mother
appeals.
A proceeding to terminate parental rights consists of two
stages: (1) the adjudicatory stage, under N.C. Gen. Stat. § 7B-1109
(2003), and (2) the dispositional stage, under N.C. Gen. Stat. §
7B-1110 (2003). In re Mills, 152 N.C. App. 1, 6, 567 S.E.2d 166,
169 (2002). At the adjudicatory stage, “the petitioner must show
by 'clear, cogent and convincing evidence' the existence of one or
more of the statutory grounds for termination of parental rights
set forth in [N.C. Gen. Stat. §] 7B-1111.” Id. (quoting N.C. Gen.
Stat. § 7B-1109(f)). Accordingly, in reviewing this stage, we
determine “whether the trial court's findings of fact are supported
by clear[,] [cogent] and convincing evidence and whether the
findings of fact support the conclusions of law.” In re Anderson,
151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002). If the trial
court finds one or more grounds for termination, “it proceeds to
the dispositional stage, and must consider whether terminating
parental rights is in the best interests of the child.” Id.
“[T]he court shall issue [a dispositional] order terminating the
parental rights, unless it . . . determines that the best interests
of the child require otherwise.” In re Matherly, 149 N.C. App.452, 454, 562 S.E.2d 15, 17 (2002). “We review the trial court's
decision to terminate parental rights for abuse of discretion.”
Anderson, 151 N.C. App. at 98, 564 S.E.2d at 602.
Respondent-mother first asserts the trial court erred in its
adjudication order by finding that clear, cogent, and convincing
evidence supported three grounds for terminating her parental
rights under N.C. Gen. Stat. § 7B-1111(a) (2003): (a)(1), abuse and
neglect; (a)(2), “willfully [leaving] the juvenile in foster care
or placement outside the home”; and (a)(3), willfully failing to
pay a reasonable portion of the juvenile's support. If any one of
the three grounds is supported by clear, cogent, and convincing
evidence, the adjudication order should be affirmed. In re Moore,
306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982).
Under N.C. Gen. Stat. § 7B-1111(a)(3), the trial court may
terminate parental rights where:
The juvenile has been placed in the custody of
a county department of social services . . .
or a foster home, and the parent, for a
continuous period of six months next preceding
the filing of the petition or motion [for
termination], 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.
“The word 'willful' means something more than an intention to do a
thing. It implies doing the act purposely and deliberately.” In
re Maynor, 38 N.C. App. 724, 726, 248 S.E.2d 875, 877 (1978). In
the context of N.C. Gen. Stat. § 7B-1111(a)(3), nonpayment of
support constitutes “a failure to pay a 'reasonable portion' . . .[when] respondent [was] able to pay some amount greater than zero.”
In re Bradley, 57 N.C. App. 475, 479, 291 S.E.2d 800, 802 (1982).
With regard to N.C. Gen. Stat. § 7B-1111(a)(3), the trial
court made the following pertinent findings of fact:
10. [Respondent-mother] has worked several
jobs during the time frame of [M.K.]
being placed in [DSS] custody and the
filing of the Termination of Parental
Rights Petition, however, she has never
provided financial assistance to [DSS] or
the foster parents since [M.K.] was taken
into [DSS] custody.
. . . .
12. On at least one occasion prior to the
filing of this action, [DSS] informed
[respondent-mother] that she needed to
contact the child support division and
establish child support payments on
behalf of [M.K.].
. . . .
14. [Respondent-mother] was employed with
several employers prior to the filing of
the petition and was able to provide at
least minimal child support on behalf of
[M.K.].
15. . . . . [Respondent-mother] has
willfully neglected to lend support and
maintenance on behalf of the minor child.
. . . .
22. [M.K.] has been in the foster home for
over six (6) months and [respondents]
have willfully failed to pay any support
toward her care although they are both
physically and mentally as well as
financially able to pursuant to N.C.G.S.
§ 1111(a)(3)[sic].
Testimony at the hearing constituted clear, cogent, and
convincing evidence supporting the above findings of fact.
Respondent-mother testified that during the six months prior to the
filing of the petition she was employed for approximately two
months earning up to $500.00 per month and was capable of working
throughout the time M.K. remained in the legal and physical custodyof DSS. She further testified that her social worker gave her the
telephone number to the child support office to arrange for support
payments and that she tried to call several times, did not receive
return calls, and then called her social worker about her
difficulty in contacting the child support office. Her social
worker however testified she had no record of such a call from
respondent-mother and did not recall having received such a call.
On the basis of this evidence, the trial court could properly
conclude, that although respondent-mother had some income during
the six months preceding the filing of the petition for
termination, which gave her the ability to pay an amount greater
than zero for the support of M.K., she willfully failed to send any
support while understanding DSS required her to do so. See In re
T.D.P., ___ N.C. App.___, 595 S.E.2d 735 (2004) (holding that,
although earning meager wages in the prison kitchen, the respondent
nevertheless “had an ability to pay some portion of the costs of
[his child's] foster care[,]” and this constituted “sufficient
grounds . . . for termination of [his] parental rights under N.C.
Gen. Stat. § 7B-1111(a)(3)”).
Nonetheless, respondent-mother contends the instant case is
similar to In re Faircloth, 161 N.C. App. 523, 588 S.E.2d 561
(2003) in which this Court reversed a trial court's decision to
terminate parental rights under N.C. Gen. Stat. § 7B-1111(a)(3)
because there were no “findings or evidence in the record that
respondent-mother could pay some amount greater than zero towards
the cost of care for children during [the six months prior to thefiling of the petition for termination] . . . .” Id. at 526, 588
S.E.2d at 564. In contrast, as discussed above, the instant case
contains clear, cogent, and convincing evidence in the form of
respondent-mother's testimony that she was employed for a portion
of the six months prior to the filing of the petition and was able
to pay an amount greater than zero toward the support of M.K.
Respondent-mother further contends that she was not required
to pay child support because DSS never initiated child support
proceedings and because there was no child support order
establishing what would have been a reasonable portion of the cost
of care. Initially, we note it is well established under North
Carolina law that “[a]ll parents have the duty to support their
children within their means . . . .” In re Biggers, 50 N.C. App.
332, 339, 274 S.E.2d 236, 241 (1981). In In re Clark, 303 N.C.
592, 281 S.E.2d 47 (1981), our Supreme Court interpreted the
constitutionality of N.C. Gen. Stat. § 7A-289.32(4), the
predecessor to N.C. Gen. Stat. § 7B-1111(a)(3), and held:
[T]he phrase 'reasonable portion of the cost
of care for the child' as used in the context
of the Act is, by all normal standards,
understandable by people of common
intelligence without any necessity of guessing
as to its meaning or differing as to its
application. The phrase contains words of
such common usage and understanding as to give
parents notice of their responsibilities and
of the type of conduct which is condemned, to-
wit, failure to provide a reasonable portion
of the cost of caring for the child.
Id. at 606, 281 S.E.2d at 56. Furthermore, N.C. Gen. Stat. § 7B-
1111(a)(3) does not require that a reasonable amount must be set by
a trial court, or even that the parent ignore a court order to paychild support, but that the parent “for a continuous period of six
months next preceding the filing of the petition or motion, [had]
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.” Moreover, as discussed above, respondent-mother
understood she was supposed to pay child support. In addition, the
trial court's 17 December 2001 order gave her further notice of her
duty to pay child support by incorporating by reference the DSS
court summary recommending she do so. Accordingly, we will not
entertain the contention that she was not required to pay child
support because no child support proceedings were initiated and
because the court did not order her to pay a reasonable portion of
the costs or specify the amount.
Respondent-mother next asserts the trial court committed an
abuse of discretion by concluding that termination of her parental
rights was in the best interests of M.K. Evidence at the hearing
showed that respondent-mother neglected M.K.'s needs while M.K. was
under her care, visited M.K. only on hearing dates for less than one
and one-half hours each visit, sent no correspondence or gifts to
M.K. with the exception of some toys on one visit, tended to be
employed intermittently for only a few months at a time, was
dependent on the maternal grandmother for housing at the time of the
hearing, tended to enter into abusive relationships with males, and
failed to provide any child support for M.K. even though she had the
ability to provide at least a minimal amount. Moreover, M.K.
thrived after leaving respondent-mother's care and being placed infoster care. In light of this evidence, we hold the trial court's
determination to terminate respondent-mother's parental rights was
in the best interests of M.K. and not “so arbitrary that it could
not have been the result of a reasoned decision.” White v. White,
312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (defining abuse of
discretion).
For the foregoing reasons, we affirm the trial court's order
terminating respondent-mother's parental rights on the basis of N.C.
Gen. Stat. § 7B-1111(a)(3).
Affirmed.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).
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