In re: E.F.C.K.
Forsyth County
No. 03 J 271
Theresa A. Boucher, Assistant County Attorney, for petitioner-
appellee Forsyth County Department of Social Services.
M. Victoria Jayne, for respondent-appellant.
Womble Carlyle Sandridge & Rice, PLLC, by Alison R. Bost, for
Guardian ad Litem.
WYNN, Judge.
A trial court may terminate parental rights upon a finding
that a minor child “has been placed in the custody of a county
department of social services” and “the parent, for a continuous
period of six months . . ., has willfully failed . . . to pay a
reasonable portion of the cost of care for the juvenile . . ..”
N.C. Gen. Stat. § 7B-1111(a)(3) (2004). In this case, Respondent
argues that there was insufficient evidence for the trial court to
conclude grounds existed to terminate his parental rights because
he lacked the ability to pay child support. As there were findings
of fact (not contested on appeal) that Respondent had the ability
to pay child support, paid less than half of his obligation, andmaintained a cellular telephone while not paying his child support
obligation, the trial court did not err in concluding that
Respondent willfully failed to pay child support.
E.F.C.K., born in 2001, was placed in the custody of the
Forsyth County Department of Social Services (DSS) based upon
allegations of dependancy; and in November 2001, the minor child
was adjudicated to be a dependant juvenile. The minor child has
remained continuously in the custody of DSS and been placed in
foster care for the minor child's entire life. The mother's
parental rights were terminated on 1 December 2003.
On 19 February 2003, Dr. Ellen Nicola performed a court
ordered psychological evaluation of Respondent who though neither
married to the mother nor judicially determined to be the child's
father, claims parental rights as the father of the child. Dr.
Nicola recommended that Respondent and the mother undergo couples
counseling, which they failed to do. Respondent failed to complete
a court ordered parenting capacity evaluation, but he did complete
the court ordered parenting classes at SCAN. Both Respondent and
the mother admitted multiple incidences of domestic violence.
Respondent completed a domestic violence assessment, but did not
complete the Time Out domestic violence program as recommended.
From 15 September 2001 to 15 March 2004, Respondent visited
with the minor child forty-nine times. Respondent did not come to
a number of visits and gave no explanation for his absence, and was
unable to attend a number of visits due to being incarcerated.
Respondent last visited with the minor child on 8 August 2003. When Respondent did visit with the minor child, he engaged
appropriately with the minor child. But Respondent has sent no
cards or gifts nor has he requested visits for the minor child's
birthdays or Christmases.
The trial court found that Respondent was capable of paying
fifty-dollars per month in child support and Respondent was ordered
to pay that amount. Between 18 February 2003 and 18 August 2003,
Respondent paid only $136.96 of the $300.00 required. Respondent
earned $1129.48 between July and September 2003. Additionally,
Respondent told the trial court that he had a cellular telephone
that he paid thirty-five-dollars per month to maintain service.
On 18 August 2003, DSS filed a petition to terminate parental
rights of Respondent with regard to the minor child on the grounds
that (1) Respondent willfully left the minor child in foster care
for more than twelve months without showing that reasonable
progress under the circumstances has been made within twelve months
correcting those conditions which led to the removal of the child;
(2) for a continuous period of six months preceding filing the
petition Respondent willfully failed to pay a reasonable portion of
the cost of care for the child although physically and financially
able to do so; and (3) the minor child was born out of wedlock and
Respondent has not established paternity.
Following a hearing, the trial court concluded that grounds
existed pursuant to section 7B-1111(a)(2) and (3) of the North
Carolina General Statutes to terminate the parental rights of
Respondent to the minor child as (1) Respondent willfully left theminor child in foster care for more than twelve months without
showing that reasonable progress under the circumstances has been
made within twelve months correcting those conditions which led to
the removal of the child pursuant to section 7B-1111(a)(2); and (2)
for a continuous period of six months preceding filing the petition
Respondent willfully failed to pay a reasonable portion of the cost
of care for the child although physically and financially able to
do so section 7B-1111(a)(3). By order filed 13 October 2004, the
trial court terminated the parental rights of Respondent to the
minor child. Respondent appealed.
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On appeal, Respondent argues that there was insufficient
evidence to support the trial court's conclusions of law that
grounds for terminating parental rights existed because (1)
Respondent failed to pay reasonable child support pursuant to
section 7B-1111(a)(3) of the North Carolina General Statutes, and
(2) Respondent failed to make reasonable progress pursuant to
section 7B-1111(a)(2) of the North Carolina General Statutes. We
disagree.
There are two stages involving a petition to terminate
parental rights: adjudication and disposition. At the adjudication
stage, the petitioner has the burden of proving by clear, cogent,
and convincing evidence that at least one statutory ground for
termination exists. In re McMillon, 143 N.C. App. 402, 408, 546
S.E.2d 169, 173-74, disc. review denied, 354 N.C. 218, 554 S.E.2d
341 (2001); see N.C. Gen. Stat. § 7B-1109(f) (2004) (requiringfindings of fact to be based on clear, cogent, and convincing
evidence). A finding of one statutory ground is sufficient to
support the termination of parental rights. In re Pierce, 67 N.C.
App. 257, 261, 312 S.E.2d 900, 903 (1984).
“Where no exception is taken to a finding of fact by the trial
court, the finding is presumed to be supported by competent
evidence and is binding on appeal.” Koufman v. Koufman, 330 N.C.
93, 97, 408 S.E.2d 729, 731 (1991). Since Respondent has not
assigned error to any of the trial court's findings of fact, the
findings of fact are binding on appeal. Id. Therefore, we will
review whether the trial court's findings of fact support the
conclusions of law. McMillon, 143 N.C. App. at 408, 546 S.E.2d at
174.
The trial court concluded there were grounds to terminate
parental rights under section 7B-1111(a)(3) of the North Carolina
General Statutes which provides that a trial court may terminate
the parental rights upon the findings that:
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). The trial court made the
following pertinent findings of fact regarding Respondent's failure
to pay child support which are binding on this Court on appeal: 14. [Respondent] has failed to pay the
nominal child support on a regular basis
ordered by the Court for the care and
maintenance of [the minor child].
15. [Respondent] is capable of providing
substantial support for [the minor child] and
has been ordered to pay $50.00 per month.
During the six months preceding the filing of
the petition to terminate parental rights,
[Respondent] paid only $136.96 in support for
said child. The costs of care for said child
during that period were approximately $2400.00
plus Medicaid.
16. Ms. Patricia Dillon, IVD child support
agent testified that [Respondent] was
currently $1081.22 in arrears for his child
support obligation for [the minor child]. His
last payment was on May 5, 2003 in the amount
of $43.48, which was received through wage
withholding.
17. During the period from February 18, 2003
to August 18, 2003, the six month period of
time immediately preceding the filing of the
termination of parental rights petition,
[Respondent] made the following payments:
a. $43.48 on April 3, 2003 (through wage
withholding)
b. $50.00 on April 28, 2003 (through wage
withholding)
c. $43.48 on May 5, 2003 (through wage
withholding)
18. [Respondent]'s earnings as reported to
the employment security commission during the
months of July-September 2003 were $1129.48.
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33. [Respondent] told the Court that he had a
“Cricket” cellular telephone with the
telephone number of 995-[XXXX]. He indicated
that he had been paying $35.00 per month to
maintain that telephone service. He stated
that he was paying for the telephone and
service while he was not paying his child
support obligation. [Respondent] never
notified the Forsyth County DSS of his
cellular phone number and never provided DSS
with any alternative method to contact him inthe event there was an emergency involving
[the minor child].
As Respondent did not assign error to any of these findings of
fact, they are binding on appeal. Koufman, 330 N.C. at 97, 408
S.E.2d at 731.
Respondent argues that there was insufficient evidence that he
had the ability to pay the child support due to his small income
and incarceration. “'[A] finding that a parent has ability to pay
support is essential to termination for nonsupport' pursuant to
N.C. Gen. Stat. § 7B-1111(a)(3).” In re T.D.P., 164 N.C. App. 287,
289, 595 S.E.2d 735, 737 (2004), aff'd per curiam, 359 N.C. 405,
610 S.E.2d 199 (2005) (quoting In re Ballard, 311 N.C. 708, 716-17,
319 S.E.2d 227, 233 (1984)). “[I]n determining what constitutes a
'reasonable portion' of the cost of care for a child, the parent's
ability to pay is the controlling characteristic[,] [and] [a]
parent is required to pay that portion of the cost of foster care
. . . that is fair, just and equitable based upon the parent's
ability or means to pay.” Id. at 290, 595 S.E.2d at 737 (citation
omitted).
Here, the trial court made a finding of fact that Respondent
had the ability to pay and that fifty dollars per month was a
reasonable portion of the minor child's care. The trial court also
found that during the six months preceding the petition to
terminate parental rights Respondent paid less than half his child
support obligation, that he had the ability to pay. And Respondent
maintained a cellular telephone making payments for the phone while
not meeting his child support obligation. These findings of fact, which are binding on this Court,
support the trial court's conclusion of law that Respondent, “for
a continuous period of 6 months next preceding the filing of the
petition to terminate parental rights, has willfully failed for
such period to pay reasonable portion of the cost of care for the
child although physically and financially able to do so pursuant to
N.C.G.S. 7B-1111(a)(3).” See, e.g., In re Montgomery, 311 N.C.
101, 114, 316 S.E.2d 246, 254 (1984) (court found that father
failed to pay a reasonable portion of the costs of the care of his
children and he had the ability to pay when he had enough money to
venture sixty-dollars per week into a hog operation at a time when
he knew of the thirty-dollar per week obligation).
As we have found that there was sufficient evidence to support
the trial court's conclusion that a statutory ground existed to
terminate Respondent's parental rights, we need not examine the
remaining conclusion of law as only a finding of one ground is
needed to terminate parental rights. In re Pierce, 67 N.C. App. at
261, 312 S.E.2d at 903.
Affirmed.
Judges STEELMAN and SMITH concur.
Report per Rule 30(e).
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