Appeal by Respondents from order entered 20 October 2005 by
Judge P. Gwyneth Hilburn in District Court, Pitt County. Heard in
the Court of Appeals 15 March 2007.
Anthony Hal Morris for Petitioner-Appellee, Pitt County
Department of Social Services.
Katharine Chester for Respondent-Appellant Mother.
Lisa Skinner Lefler for Respondent-Appellant Father.
K.T. (Respondent-Mother) and E.P. (Respondent-Father)
(collectively Respondents) appeal from an order terminating
Respondents' parental rights to S.P. We affirm the trial court's
The Pitt County Department of Social Services (DSS) obtained
custody of S.P. on 7 August 1998. S.P. was adjudicated neglected
and dependent on 8 February 1999. Several subsequent review
hearings were held in this matter, and Respondent-Mother appealed
from a review order which resulted from a hearing held on 13
February 2003. In In re B.P., S.P., R.T., 169 N.C. App. 728, 737,
612 S.E.2d 328, 334 (2005), this Court reversed and remanded theorder as to S.P. because of a six-month delay between the hearing
and entry of the resulting order.
DSS filed a petition for termination of parental rights on
approximately 4 March 2003. The petition alleged (1) that S.P. was
a neglected child within N.C. Gen. Stat. § 7B-101(15); (2) that
Respondents willfully left S.P. in foster care for more than twelve
months without showing reasonable progress under the circumstances;
(3) that Respondents willfully failed to pay a reasonable portion
of the cost of S.P.'s care for the six months immediately preceding
the filing of the petition; (4) that S.P. was a dependent child
within N.C. Gen. Stat. § 7B-101(9); and (5) that Respondent-Father
willfully abandoned S.P. for at least six consecutive months
immediately preceding the filing of the petition.
Respondent-Mother timely filed an answer and denied the
grounds for termination alleged by DSS. Respondent-Father also
timely filed an answer, and admitted that he had willfully failed
to pay a reasonable portion of the costs of S.P.'s care, but denied
the remaining alleged grounds for termination.
The termination hearing was calendared for 19 February 2004.
Respondents did not attend the hearing. Counsel for Respondent-
Father appeared, but counsel for S.P.'s guardian ad litem was
unavailable, and the matter was continued until 25 March 2004.
Respondent-Mother and counsel for both Respondents appeared at the
25 March 2004 hearing, but the trial court did not reach the matter
due to insufficient time. The matter was next calendared for 3
June 2004. Respondents did not appear. However, the matter wasagain continued until 8 July 2004 as a result of Respondent-
Mother's pending appeal of the review order. On 8 July 2004, the
trial court continued the matter again for the same reason, and
also noted that Respondent-Mother was unavailable. Respondent-
father was not present. On 2 September 2004, the matter was once
again continued because counsel for Respondent-Mother was
unavailable as a result of vacation. Respondents were not present.
The matter was next scheduled for 8-9 December 2004, at which
time counsel for Respondent-Father moved to withdraw as counsel of
record. The motion was allowed and the matter was continued until
3 February 2005. On that date, the matter was again continued as
a result of Respondent-Mother's pending appeal. Counsel for
Respondent-Mother moved to withdraw as counsel of record on 21
March 2005, and the trial court allowed the motion on 24 March
2005. On 31 March 2005, the matter was again continued because of
Respondent-Mother's pending appeal. This Court filed its opinion
in Respondent-Mother's pending appeal on 19 April 2005. See In re
B.P., S.P., R.T., 169 N.C. App. 728, 612 S.E.2d 328 (2005). The
trial court again continued the matter on 25 May 2005 for good
cause shown upon motion by counsel for S.P.'s guardian ad litem.
The case was scheduled to be heard on 10-11 August 2005. When
court opened at 9:00 a.m. on 10 August 2005, Respondents were not
present. The trial court waited to call the matter, but after
seven minutes, Respondents failed to appear and the trial court
proceeded to hear testimony. Respondent-Mother appeared at 11:00
a.m. with four children, and explained that she wanted to testifybut could not stay because of her very active three-year-old twins.
Counsel for Respondent-Mother moved to continue the hearing until
11 August 2005, and the trial court granted the motion.
Respondent-Mother appeared thirty minutes after court opened on 11
August 2005, and testified. Respondent-Mother was thirty-five
minutes late returning from lunch, at which time she resumed her
testimony. Respondent-Mother left before the conclusion of the
hearing that afternoon. The trial court did not rule on the
grounds to terminate before the close of court, and the matter was
scheduled to resume on 8 September 2005.
When the matter resumed on 8 September 2005, counsel for
Respondent-Father made a motion to continue on behalf of
Respondent-Father, who was not present. The trial court denied the
motion. Respondent-Mother, through counsel, also moved to
continue, stating she was unable to appear in court because of car
problems. The trial court declined to proceed in Respondent-
Mother's absence, and the matter was rescheduled for 21-22
September 2005. Respondent-Mother was not present at 9:00 a.m. on
21 September 2005, and the trial court proceeded in her absence.
The trial court found that Respondents (1) had neglected S.P.;
(2) had willfully left S.P. in foster care for more than twelve
months without showing reasonable progress under the circumstances;
and (3) had willfully abandoned S.P. for at least six consecutive
months immediately preceding the filing of the petition. The trial
court also found that Respondent-Mother had willfully failed to pay
a reasonable portion of the costs of S.P.'s care, despite beingphysically and financially able to do so. The trial court
proceeded to the dispositional phase and found that terminating
Respondents' parental rights would be in S.P.'s best interests.
I. Standard of Review
On appeal of an order terminating parental rights, our Court
reviews whether a 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
, 140 N.C. App.
288, 291, 536 S.E.2d 838, 840 (2000), disc. review denied
, 353 N.C.
374, 547 S.E.2d 9 (2001).
II. Notice of Appeal
We first note that Respondent-Mother's notice of appeal was
not timely filed. N.C. Gen. Stat. § 7B-1001 governs the timing of
appeals in juvenile matters. Although the provision has since been
amended by the General Assembly, the statute applicable to
Respondent-Mother's appeal required written notice of appeal to be
filed within ten days after entry of the order. N.C. Gen. Stat. §
7B-1001 (2003). The order terminating Respondent-Mother's rights
was entered on 20 October 2005. Respondent-Mother's notice of
appeal was not filed until 9 November 2005.
In her brief, Respondent-Mother asks this Court to treat her
appeal as a petition for writ of certiorari. Respondent-Mother
notes that no motion to dismiss has been filed as a result of the
untimely notice of appeal and no prejudice to any party will result
if we grant her request. The Rules of Appellate Procedure statethat "[t]he writ of certiorari may be issued in appropriate
circumstances . . . to permit review . . . when the right to
prosecute an appeal has been lost by failure to take timely
action[.]" N.C.R. App. P. 21(a)(1). Further, in granting a
petition for writ of certiorari in the context of an appeal of an
order terminating parental rights, this Court has considered the
seriousness of such an order, as well as the lack of an objection
by the appellees. In re I.S.
, 170 N.C. App. 78, 84-85, 611 S.E.2d
467, 471 (2005). Therefore, in our discretion, we grant
Respondent-Mother's request to treat her appeal as a petition for
writ of certiorari.
III. Timeliness of Termination Hearing
Respondents argue that the trial court's order must be
reversed because the trial court failed to hold a timely
termination hearing and Respondents were prejudiced thereby. We
N.C. Gen. Stat. § 7B-1109(a) (2005) requires that a hearing to
terminate parental rights be held within ninety days of the date of
the filing of the petition. N.C. Gen. Stat. § 7B-1109(d) (2005)
provides that "[c]ontinuances that extend beyond 90 days after the
initial petition shall be granted only in extraordinary
circumstances when necessary for the proper administration of
Respondents correctly note that more than two years elapsed
between the filing of the petition and the start of the termination
hearing. We conclude, however, that extraordinary circumstancesexisted justifying the delay, namely the pending appeal in In re
B.P., S.P., R.T.
, 169 N.C. App. 728, 612 S.E.2d 328 (2005). Prior
to our Supreme Court's decision in In re R.T.W.
, 359 N.C. 539, 614
S.E.2d 489 (2005), whether a trial court could proceed on a
petition for termination of parental rights while an appeal of a
review order was pending was an unsettled point of law. In In re
, 159 N.C. App. 461, 464, 583 S.E.2d 323, 325 (2003), a
panel of this Court dismissed the respondent-father's appeal of an
order adjudicating his two children neglected and dependent. This
Court held that because the trial court had subsequently entered an
order terminating the respondent-father's parental rights, his
appeal of the adjudication order was rendered moot. Id.
in In re Hopkins
, 163 N.C. App. 38, 42, 592 S.E.2d 22, 25 (2004),
overruled by In re R.T.W.
, 359 N.C. 539, 614 S.E.2d 489 (2005),
this Court held
that by entering the TPR order while
respondent-father's appeal from the earlier
permanency planning review order was still
pending, the trial court exceeded the
authority expressly granted to it under N.C.
Gen. Stat. § 7B-1003 to "enter a temporary
order affecting the custody or placement of
the juvenile" during the pendency of an
We concluded the trial court was without jurisdiction to terminate
the respondent-father's parental rights because of his pending
appeal and we vacated the portions of the order terminating the
respondent-father's rights. Id.
at 42-43, 592 S.E.2d at 25. Thus,
until the Supreme Court's decision in R.T.W.
, there was a conflict
in our cases as to whether a termination proceeding could proceedwhile an appeal was pending in the same juvenile matter.
In the present case, Respondent-Mother appealed an order which
resulted from a permanency planning hearing held on 13 February
2003. The termination petition was filed on or about 4 March 2003.
After Respondent-Mother's appeal was decided on 19 April 2005, one
continuance was granted by the trial court for good cause shown
upon motion of counsel for S.P.'s guardian ad litem. The delays
from 10 August 2005 to 11 August 2005, and from 8 September 2005 to
21 September 2005, resulted from Respondent-Mother's absences and
the trial court's attempts to accommodate Respondent-Mother's
schedule. As to Respondent-Father, we note (1) that he appeared
only once throughout the numerous proceedings in this matter, (2)
that he offered no evidence, and (3) that his counsel noted that
although Respondent-Father had been notified of the hearing dates,
he had not had any contact with counsel. As to both Respondents,
we hold that extraordinary circumstances existed which justified
the delay between the time of the filing of the petition and the
hearing on the termination petition.
IV. Respondent-Mother's Appeal
Respondent-Mother argues DSS failed to carry its burden to
prove that Respondent-Mother had failed to pay a reasonable portion
of the cost of care for S.P. although physically and financially
able. She argues, therefore, the trial court erred by finding that
ground for termination. We disagree.
N.C. Gen. Stat. § 7B-1111(a)(3) (2005) provides that a trial
court may terminate a parent's rights if [t]he 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.
To find this ground for termination, a trial court must find that
a parent had the ability to pay child support. In re T.D.P.
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). Ability to pay controls what
constitutes a reasonable portion of the cost of foster care which
a parent must pay for a child. In re Clark
, 303 N.C. 592, 604, 281
S.E.2d 47, 55 (1981). "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." Id.
A parent can fail to pay only if the parent had an ability to pay
some amount greater than zero. T.D.P.
, 164 N.C. App. at 290, 595
S.E.2d at 738.
The trial court found that Respondent-Mother paid "no child
support, although she did provide some support during the period
between 1998 and 2002, and had the ability to provide some support
for the child." According to the testimony of Debbie Owen (Owen),
a social worker with DSS, Respondent-Mother had paid no child
support to DSS for the costs of care for S.P. Respondent-Mother
testified she had not been contacted about providing support, and
said if she had been contacted she would have provided it when she
"had money." This testimony, along with the testimony of Owen,supports the trial court's finding that Respondent-Mother had paid
no child support although she had the ability to provide some
support. The trial court's finding supports its conclusion that
Respondent-Mother willfully failed to pay a reasonable portion of
the costs of care for S.P. during the six months prior to the
filing of the petition.
Respondent-Mother also argues the trial court abused its
discretion by finding that it was in S.P.'s best interests to
terminate Respondent-Mother's parental rights. We disagree.
During the dispositional phase, the trial court heard
testimony from Debra Willis (Willis), S.P.'s foster mother of four
years. Willis testified that S.P. told Willis "many, many times"
that S.P. wanted to be adopted, and gave Willis a mother's day card
which included the same request. Owen also testified that S.P. had
made progress with many of her behavioral problems since being
placed with the Willis family and had expressed her desire to be
adopted by the Willis family. Owen further testified that S.P.
left a message on Owen's answering machine stating that she wanted
to be adopted. S.P. has been in foster care for several years. We
discern no abuse of discretion on the part of the trial court.
We do not address Respondent-Mother's remaining arguments
regarding the additional grounds for termination found by the trial
court because "[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
, 159 N.C. App. 75, 84, 582 S.E.2d 657, 663 (2003).
V. Respondent-Father's Appeal
The trial court concluded that Respondent-Father had willfully
abandoned S.P. for at least six consecutive months immediately
preceding the filing of the petition. Respondent-Father argues the
trial court erred by doing so. We disagree. In support of his
argument, Respondent-Father points to the fact that he requested
counsel be appointed to represent him in the termination
proceeding, and that he attended one hearing. While Respondent-
Father did request counsel, and was in fact appointed counsel, his
counsel stated more than once throughout the proceedings that she
had not been contacted by Respondent-Father despite her efforts to
contact him. At the close of the adjudicatory phase, counsel for
Your Honor, [Respondent-Father] has never
contacted me. I have sent him numerous
letters regarding this matter and he does not
call my office, has not sent me letters, does
not come to see me, [the] only times I've ever
seen him have been in the [c]ourthouse, both
regarding this matter, and while he has been
present for other matters in other [d]ivisions
of District Court.
Further, the record reflects that Respondent-Father appeared on 8
September 2005, but left the court when the trial court continued
the matter until the afternoon and did not return. He was not
present during the remainder of the termination proceedings.
We also note that although Respondent-Father assigned as error
numerous findings of fact made by the trial court, Respondent-
Father offers no argument in support of these assignments. We
therefore deem them abandoned. N.C.R. App. P. 28(b)(6). N.C. Gen. Stat. § 7B-1111(a)(7) (2005) provides that a trial
court may terminate parental rights when "[t]he parent has
willfully abandoned the juvenile for at least six consecutive
months immediately preceding the filing of the petition or
motion[.]" "Abandonment implies conduct on the part of the parent
which manifests a willful determination to forego all parental
duties and relinquish all parental claims to the child." In re
, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986).
Owen testified that Respondent-Father had not visited or seen
S.P. since Owen had received S.P.'s case in March 2002. The trial
court found that Respondent-Father had not visited S.P. since 2000.
R.53. Respondent-Father had provided no gifts or cards since at
least January 2002. Further, S.P.'s guardian ad litem testified
that she had been involved with the case for seven years and that
she had not had any contact with Respondent-Father since March
2002. We find ample evidence in the record that Respondent-Father
has willfully abandoned S.P. and we affirm the trial court on this
Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).
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