Appeal by respondent from order entered 2 December 2004 by
Judge Albert A. Corbett, Jr. in District Court, Harnett County.
Heard in the Court of Appeals 21 February 2006.
E. Marshall Woodall for petitioner-appellee, Harnett County
Department of Social Services.
Elizabeth Boone for guardian ad litem.
Michelle FormyDuval Lynch for respondent-appellant.
D.W. (respondent) is the father of C.W. and L.W. (the
children). Respondent was convicted of trafficking in
methamphetamine on 6 January 2003 and was incarcerated. The
children continued to live with their mother, N.W. (the mother),
who is not a party to this appeal.
The Harnett County Department of Social Services (DSS)
received a report on 9 January 2003 alleging improper care of the
children due to the mother's possible drug use. DSS received
another report on 15 April 2003 alleging the mother: (1) used
drugs, (2) took the children to places where drugs were used, and(3) did not provide appropriate supervision for the children. DSS
substantiated the mother's neglect of the children due to improper
care on 1 May 2003. The mother and the children were found on 9
June 2003 at a house that was the suspected location of a crystal
DSS filed juvenile petitions on 10 June 2003 alleging the
children were neglected. DSS initially placed the children in
foster care and later placed the children with a relative and a
family friend. In an order entered 8 August 2003, the children
were adjudicated neglected. The trial court ordered DSS to
continue efforts to reunify the children with their parents. After
four continuances of a review hearing were granted by the trial
court for good cause shown, the trial court filed an amended order
on 13 February 2004 releasing DSS from further efforts to reunite
the children with their parents. The trial court changed the plan
for the children from reunification to adoption in a permanency
planning review order filed 19 February 2004.
DSS filed a motion to terminate the parental rights of
respondent and the mother on 15 April 2004 based upon: (1) neglect,
N.C. Gen. Stat. § 7B-1111(a)(1); and (2) parents' willful failure
to pay reasonable portion of cost of care for the children for a
period of six months, N.C. Gen. Stat. § 7B-1111(a)(3). In an
amendment to its motion, DSS alleged additional grounds for
termination of the rights of both parents: (3) children willfully
left in foster care for more than twelve months, N.C. Gen. Stat. §
7B-1111(a)(2); and (4) parents' incapability of proper care andsupervision and a reasonable probability of continuation thereof,
N.C. Gen. Stat. § 7B-1111(a)(6).
Following a hearing, the trial court determined that
termination of the parental rights of respondent and the mother was
warranted pursuant to all four of the grounds alleged by DSS. The
trial court then concluded it was in the best interests of the
children to terminate the parental rights of respondent and the
mother and ordered the termination on 2 December 2004. Respondent
Respondent first argues the order of termination should be
reversed because the motion to terminate respondent's parental
rights was legally insufficient to allege grounds for termination
under N.C. Gen. Stat. § 7B-1111(a)(2) & (3). Specifically,
respondent argues the motion only recited the bare statutory
grounds for termination under these two subsections. However,
because respondent attempts to raise this issue for the first time
on appeal, respondent's argument is without merit.
Our Court has held that a party cannot raise the defense of
failure to state a claim upon which relief can be granted for the
first time on appeal. Dale v. Lattimore
, 12 N.C. App. 348, 351-52,
183 S.E.2d 417, 419, cert. denied
, 279 N.C. 619, 184 S.E.2d 113
(1971); see also Jones v. Development Co.
, 16 N.C. App. 80, 84, 191
S.E.2d 435, 438, cert. denied
, 282 N.C. 304, 192 S.E.2d 194
(1972); Collyer v. Bell
, 12 N.C. App. 653, 655, 184 S.E.2d 414, 416
(1971). Moreover, Rule 12(h)(2) of the North Carolina Rules ofCivil Procedure directs that "[a] defense of failure to state a
claim upon which relief can be granted . . . may be made in any
pleading permitted or ordered under Rule 7(a), or by motion for
judgment on the pleadings, or at the trial on the merits." N.C.
Gen. Stat. § 1A-1, Rule 12(h)(2) (2005). Rule 12(h)(2) does not
provide that a Rule 12(b)(6) motion may be made on appeal. "The
Rules of Civil Procedure apply to proceedings for termination of
parental rights[.]" In re McKinney
, 158 N.C. App. 441, 444, 581
S.E.2d 793, 795 (2003).
Respondent relies upon In re Hardesty
, 150 N.C. App. 380, 563
S.E.2d 79 (2002) to argue that the motion to terminate his parental
rights was legally insufficient. A petition or motion to terminate
parental rights must contain "[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)
(2005). The petition in Hardesty
"merely used words similar to
those in the statute setting out [the applicable] ground for
termination" without alleging any facts particular to the
respondent. In re Hardesty
, 150 N.C. App. at 384, 563 S.E.2d at
82. The respondent in Hardesty
moved to dismiss the petition under
N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) for failure to state a claim
based upon that statutory ground. Id
. at 383, 563 S.E.2d at 82.
, our Court held that a petitioner's bare
recitation of the alleged statutory ground for termination of
parental rights did not satisfy the requirements of N.C.G.S. § 7B-
. at 384, 563 S.E.2d at 82 (citing In re Quevedo
, 106N.C. App. 574, 579, 419 S.E.2d 158, 160, appeal dismissed
, 332 N.C.
483, 424 S.E.2d 397 (1992)). In Hardesty
, our Court further held
that "[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." Id
. We held
that the respondent's Rule 12(b)(6) motion to dismiss for failure
to state a claim should have been granted, and we reversed the
termination of the respondent's parental rights on that ground.
We recognize that Hardesty
represent a departure
from ordinary civil cases in that they allowed a party to challenge
the denial of a 12(b)(6) motion even though there had been a final
judgment on the merits. See Concrete Service Corp. v. Investors
, 79 N.C. App. 678, 682-83, 340 S.E.2d 755, 758-59,
, 317 N.C. 333, 346 S.E.2d 137 (1986) (holding that
"where an unsuccessful motion to dismiss is grounded on an alleged
insufficiency of the facts to state a claim for relief, and the
case thereupon proceeds to judgment on the merits, the unsuccessful
movant may not on an appeal from the final judgment seek review of
the denial of the motion to dismiss"); see also Pierce v. Reichard
163 N.C. App. 294, 297-98, 593 S.E.2d 787, 789-90 (2004).
However, we do not address the propriety of the holdings in
, because we are bound by them. See In the
Matter of Appeal from Civil Penalty
, 324 N.C. 373, 384, 379 S.E.2d
30, 37 (1989). Nonetheless, the present case is distinguishable
. In Hardesty
, the respondent challengedthe sufficiency of the petition to terminate her parental rights by
a Rule 12(b)(6) motion to dismiss for failure to state a claim,
which the trial court denied. In re Hardesty
, 150 N.C. App. at
383, 563 S.E.2d at 82. In Quevedo
, the respondent made a pretrial
motion for judgment on the pleadings pursuant to Rule 12(c), which
the trial court denied. In re Quevedo
, 106 N.C. App. at 578, 419
S.E.2d at 159. Although the respondent in Quevedo
motion as a motion for judgment on the pleadings, our Court treated
it as a Rule 12(b)(6) motion to dismiss for failure to state a
. However, unlike Hardesty
, respondent in
the present case did not move at trial to dismiss the motion to
terminate his parental rights under Rule 12(b)(6) for failure to
state a claim. Rather, respondent attempts to challenge the
sufficiency of the allegations in the motion to terminate his
parental rights for the first time on appeal.
For the reasons stated above, respondent's argument is without
Respondent argues the trial court erred by concluding that a
ground existed to terminate respondent's parental rights under N.C.
Gen. Stat. § 7B-1111(a)(3) (parents' willful failure to pay
reasonable portion of cost of care for the children for a period of
six months). Specifically, respondent first argues he had no duty
to pay the costs of care for the children because no order
requiring child support had been entered under N.C. Gen. Stat. §
7B-904(d). N.C. Gen. Stat. § 7B-1111(a)(3) (2005) provides that aparent's rights may be terminated upon a finding that
[t]he 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, 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-904(d) (2005) directs as follows:
At the dispositional hearing or a subsequent
hearing, when legal custody of a juvenile is
vested in someone other than the juvenile's
parent, if the [trial] court finds that the
parent is able to do so, the [trial] court may
order that the parent pay a reasonable sum
that will cover, in whole or in part, the
support of the juvenile after the order is
entered. If the [trial] court requires the
payment of child support, the amount of the
payments shall be determined as provided in
G.S. 50-13.4(c). If the [trial] court places
a juvenile in the custody of a county
department of social services and if the
[trial] court finds that the parent is unable
to pay the cost of the support required by the
juvenile, the cost shall be paid by the county
department of social services in whose custody
the juvenile is placed[.]
Our Court has recently rejected an argument similar to
respondent's in In re T.D.P.
, 164 N.C. App. 287, 595 S.E.2d 735
(2004), aff'd per curiam
, 359 N.C. 405, 610 S.E.2d 199 (2005). We
held that the "respondent's assertion that a support order is
necessary to require him to pay a portion of the cost of [the
child's] foster care is also without merit." Id
. at 289, 595
S.E.2d at 737. In support of its holding, our Court relied upon In
, 64 N.C. App. 135, 306 S.E.2d 825 (1983): "'Very early in
our jurisprudence, it was recognized that there could be no law ifknowledge of it was the test of its application. Too, that [the]
respondent did not know that fatherhood carries with it financial
duties does not excuse his failings as a parent; it compounds
them.'" In re T.D.P.
, 164 N.C. App. at 289, 595 S.E.2d at 737
(quoting In re Wright
, 64 N.C. App. at 139, 306 S.E.2d at 827).
Respondent next argues that "DSS made no showing of actual
costs, willful defiance by [respondent], or [respondent's] means
and ability to pay." Respondent contends the trial court made no
findings as to what amount was reasonable support under N.C.G.S. §
7B-1111(a)(3). On appeal of an order terminating parental rights,
our Court reviews whether the trial court's findings of fact are
supported by clear, cogent and convincing evidence and whether the
conclusions of law are supported by the findings. In re Huff
N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. review
, 353 N.C. 374, 547 S.E.2d 9 (2001).
In order to terminate a parent's rights under N.C.G.S. § 7b-
1111(a)(3), the trial court must find that the parent had the
ability to pay child support. In re T.D.P.
, 164 N.C. App. at 289,
595 S.E.2d at 737. In T.D.P.
, the respondent argued that his
failure to pay was not willful because he lacked the means to pay
any amount. Id
. Our Court recognized that a parent fails to pay
a reasonable portion under N.C.G.S. § 7B-1111(a)(3) only if the
parent had the ability to pay some amount greater than zero. Id
at 290, 595 S.E.2d at 738. In T.D.P.
, we held that because the
respondent had been earning between $.40 and $1.00 per day in
prison, he had the ability to pay some amount greater than zero. Id
. at 290, 595 S.E.2d at 737-38. Thus, we held that the
respondent's failure to pay any amount warranted the termination of
his parental rights under N.C.G.S. § 7B-1111(a)(3). Id
. at 291,
595 S.E.2d at 738.
In the present case, the trial court found that, while in
prison, respondent continued to receive between $300.00 and $500.00
per week from his painting company. The trial court found that
respondent had some money in his prison account and that respondent
made an additional $20.00 per week in prison. The trial court
further found that during the six months prior to the filing of the
motion for termination, the cost of care for C.W. was $2,550.00 and
the cost of care for L.W. was $2,190.00. The trial court found
that respondent did not pay any amount to defray the costs of care
for the children, and that his nonpayment was unreasonable. These
findings support the trial court's conclusion that a ground existed
for the termination of respondent's parental rights under N.C.G.S.
These findings are also supported by clear, cogent and
convincing evidence. Respondent testified that he usually made
between $300.00 and $500.00 per week from his painting company.
Respondent also testified that he had some money in his prison
account and further testified that he made $20.00 per week by
working in prison. Respondent admitted that he had not paid any
child support. Moreover, a social worker with DSS testified that
for the six-month period prior to the filing of the motion for
termination, the cost of care for C.W. was $2,550.00 and the costof care for L.W. was $2,190.00. Accordingly, the findings of fact
are supported by clear, cogent and convincing evidence.
In the present case, respondent had a duty to defray the costs
of care of the children, who were in the custody of DSS for six
months prior to the filing of the motion to terminate parental
rights. As the findings and evidence demonstrate, respondent had
the ability to pay some amount to contribute to the costs of care
of his children and failed to do so. The trial court did not err
by finding and concluding that a ground existed to terminate
respondent's parental rights under N.C.G.S. § 7B-1111(a)(3).
"[W]here we determine the trial court properly concluded that
one ground exists to support the termination of parental rights, we
need not address the remaining grounds." In re Clark
, 159 N.C.
App. 75, 84, 582 S.E.2d 657, 663 (2003). We do not address
respondent's arguments pertaining to the remaining grounds upon
which the trial court terminated his parental rights.
Respondent next argues "the trial court erred by not holding
a dispositional hearing to determine the best interests of the
children and [by] using the wrong standard of proof." Termination
of parental rights is a two-step process. In re Blackburn
N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). At the
adjudication stage, the trial court determines whether there is
clear, cogent and convincing evidence to support at least one of
the statutory grounds for termination of parental rights under
N.C.G.S. § 7B-1111(a). Id
. If a ground for termination is proven,the trial court proceeds to the disposition stage where it
exercises its discretion in determining whether termination is in
the best interests of the child. Id
. The trial court is "required
to issue an order of termination in the dispositional stage, unless
it finds the best interests of the child would be to preserve the
parent's rights." Id
. at 613, 543 S.E.2d at 910.
Our Court has repeatedly held that a trial court is not
required to conduct separate adjudication and disposition hearings.
, In re Shepard
, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6
(2004); In re Carr
, 116 N.C. App. 403, 407, 448 S.E.2d 299, 301
(1994); In re Parker
, 90 N.C. App. 423, 430, 368 S.E.2d 879, 884
(1988); In re White
, 81 N.C. App. 82, 85, 344 S.E.2d 36, 38, disc.
, 318 N.C. 283, 347 S.E.2d 470 (1986). In White
since a proceeding to terminate parental
rights is heard by the judge, sitting without
a jury, it is presumed, in the absence of some
affirmative indication to the contrary, that
the judge, having knowledge of the law, is
able to consider the evidence in light of the
applicable legal standard and to determine
whether grounds for termination exist before
proceeding to consider evidence relevant only
to the dispositional stage.
In re White
, 81 N.C. App. at 85, 344 S.E.2d at 38.
In the present case, the trial court chose to conduct one
evidentiary hearing. At the disposition stage, the trial court
made a finding that it was in the best interests of the children
that the parental rights of respondent and the mother be
terminated. The trial court concluded that it was in the best
interests of the children to terminate the parental rights of theirparents. We note that respondent did not argue the trial court
abused its discretion by finding and concluding that it was in the
best interests of the children that his parental rights be
terminated. Nonetheless, based upon the evidence, we find no abuse
of discretion. We overrule this assignment of error.
Respondent argues the trial court erred by failing to enter
its order terminating respondent's parental rights within thirty
days of the termination of parental rights hearing. N.C. Gen.
Stat. § 7B-1109(e) (2005) requires a trial court to enter an
adjudicatory order within thirty days of a termination of parental
rights hearing. N.C. Gen. Stat. § 7B-1110(a) (2005) then requires
the trial court to enter an order, within 30 days of the parental
rights hearing, determining whether terminating the parents'
parental rights is in the juvenile's best interest.
Although it is error for a trial court not to enter a
termination of parental rights order within thirty days after the
hearing, In re A.D.L.
, 169 N.C. App. 701, 705, 612 S.E.2d 639, 642,
disc. review denied
, 359 N.C. 852, 619 S.E.2d 402 (2005),
to vacate an order terminating parental rights, a parent must show
prejudice by the late filing of the order. Id
. at 705-06, 612
S.E.2d at 642.
Our Court noted in In re C.J.B. & M.G.B.
, 171 N.C. App. 132,
614 S.E.2d 368 (2005), that "our Court's more recent decisions have
been apt to find prejudice in delays of six months or more." Id
at 134, 614 S.E.2d at 369. This Court then reviewed several recentcases and set forth principles for analyzing whether a delay in
entry of a termination order is prejudicial: (1) "[T]he need to
show prejudice in order to warrant reversal is highest the fewer
number of days the delay exists" and (2) "the longer the delay in
entry of the order beyond the thirty-day deadline, the more likely
prejudice will be readily apparent." Id
. at 135, 614 S.E.2d at
370. Our Court also noted that "reversing an order for
non-adherence to these time lines further unbalances the need for
swift finality in termination proceedings, the undisputed intent
and presumed effect of the General Assembly's addition of the
thirty-day entry deadline to N.C. Gen. Stat. § 7B-1109(e)." Id
134, 614 S.E.2d at 370. In C.J.B. & M.G.B.
, our Court held that
the five-month delay between the termination hearing and the entry
of the order was prejudicial in that case and therefore reversed
the termination of the respondent's parental rights. Id
. at 135,
614 S.E.2d at 370.
In the present case, the trial court entered the order
terminating respondent's parental rights fifty-three days late.
This was a relatively minimal delay in comparison to the five-month
delay in C.J.B. & M.G.B.
, and respondent therefore needs to show
substantial prejudice. However, respondent makes only a
generalized statement that all parties were prejudiced. Moreover,
a reversal of the trial court's order in the present case would
further delay finality in the lives of the children. We find
respondent was not prejudiced by the delay in entry of the order.
This assignment of error is overruled. Respondent failed to set forth an argument in support of his
remaining assignment of error, and we therefore deem this
assignment of error abandoned pursuant to N.C.R. App. P. 28(b)(6).
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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