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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA 06-1082

NORTH CAROLINA COURT OF APPEALS

Filed: 17 April 2007

IN THE MATTER OF:

S.P.

                        Pitt County
                        No. 03 JT 32

    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.

    McGEE, Judge.

    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 decision.
    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. Respondents appeal.

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 disagree.
    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 justice[.]"
    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 Stratton, 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. However, 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 earlier appeal.

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., 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). 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 Clark, 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 Respondent-Father stated
        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 Searle, 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 ground.
    Affirmed.
    Judges ELMORE and STEPHENS concur.
    Report per Rule 30(e).

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