IN THE MATTER OF:
Mecklenburg County
N.L., No. 05-JT-1027
a minor child
Tyrone C. Wade for petitioner-appellee Mecklenburg County
Department of Social Services.
Womble Carlyle Sandridge & Rice, PLLC, by Richard J. Caira,
Jr., for appellee Guardian ad Litem.
Mercedes O. Chut for respondent-appellant.
HUNTER, Judge.
Respondent-father (“respondent”) appeals from an order
terminating his parental rights as to the juvenile N.L. After
careful review, we affirm.
On 21 February 2006, the trial court entered an order
terminating respondent's parental rights as to the juvenile N.L.
The trial court found five grounds for terminating respondent's
parental rights: The child is a neglected juvenile; respondent
willfully left the child in foster care for more than twelve months
without reasonable progress to correct the conditions leading to
removal of the child; failure to pay a reasonable portion of the
cost of care though able to do so; failure to establish paternity;and willful abandonment. N.C. Gen. Stat. . 7B-1111(a)(1), (2),
(3), (5), (7) (2005).
This Court's review of a trial court's order terminating
parental rights involves two inquiries: Whether the trial court's
findings of fact are supported by clear, cogent, and convincing
evidence, and whether those findings support its conclusions of
law. In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86
(1996). A finding by the trial court of any one of the grounds
enumerated in N.C. Gen. Stat. . 7B-1111 is sufficient to support an
order of termination. In re Taylor, 97 N.C. App. 57, 64, 387
S.E.2d 230, 233-34 (1990).
One of the grounds on which the trial court terminated
respondent's parental rights was failure to contribute to the cost
of child care once the juvenile is placed outside the home. N.C.
Gen. Stat. . 7B-1111(a)(3). That statute states that a trial court
may terminate a parent's rights when:
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.
Id.
In its order, the trial court made a finding of fact that
respondent had contributed nothing to the cost of child care though
he was physically and financially able to do so were he to “obtain
employment.” In another finding of fact, the trial courtspecifically noted that respondent has contributed no funds toward
the cost of N.L.'s care since his involvement in the case began,
which was in August 2003. The court then concluded that respondent
willfully failed to contribute a reasonable portion of child care
costs though able to do so.
A parent's ability to pay is the controlling
characteristic of what is a 'reasonable
portion' of [the] cost of foster care . . . .
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.
In re Clark, 303 N.C. 592, 604, 281 S.E.2d 47, 55 (1981); see also
In re Montgomery, 311 N.C. 101, 113, 316 S.E.2d 246, 254 (1984).
First, however, the court must find that the parent has the ability
to pay some amount greater than zero. In re Bradley, 57 N.C. App.
475, 479, 291 S.E.2d 800, 802 (1982).
The trial court here found that respondent was “physically and
financially able to [contribute financially] should [he] obtain
employment.” Respondent does not contend that he did in fact
contribute toward the cost of caring for the child, but rather that
during the six months preceding the filing of the petition, he was
incarcerated, making him unable to pay an amount greater than zero.
If that is the case, his failure to contribute cannot be considered
willful under the statute.
The petition to terminate respondent's parental rights was
filed on 11 October 2005, so the relevant time period to consider
respondent's ability to contribute is 11 April 2005 to 11 October
2005. According to respondent's testimony at the hearing on 2February 2006, he had been in jail since 17 August 2005. He also
testified that he was currently able to work, that he visited the
Department of Social Services (“DSS”) office on 4 February 2005,
and that he held a job at J&K Cafeteria in 2004. In its order, the
trial court notes that a DSS social worker visited respondent
apparently in prison on 15 July 2005.
Respondent offered no evidence that he was unable to work and
earn money to contribute to the cost of child care between 11 April
and 15 July. According to his own testimony, he had been able to
work and earn money in the recent past, and he offered no evidence
that he was incarcerated or otherwise unable to work and earn money
during the April to July period.
This Court has held that when a parent forfeits an opportunity
to provide for a portion of the cost of child care by his own
misconduct, he “will not be heard to assert that he . . . has no
ability or means to contribute to the child's care and is therefore
excused from contributing any amount.” Bradley, 57 N.C. App. at
479, 291 S.E.2d at 802-03; see also In re Tate, 67 N.C. App. 89,
95-96, 312 S.E.2d 535, 539-40 (1984) (holding that a mother's
failure to pay child care costs due to her own refusal to work when
able to do so constituted the “misconduct” described by Bradley).
Respondent mentions in passing in his brief that he was not
ordered to pay support for the minor child. Although he does not
rely on this fact to bolster his points above, we feel it is worth
noting that no support order is necessary to require a parent to
pay a portion of the cost of his child's foster care. In reT.D.P., 164 N.C. App. 287, 289, 595 S.E.2d 735, 737 (2004),
affirmed per curiam, 359 N.C. 405, 610 S.E.2d 199 (2005).
It is evident from the record that respondent was able at
various points during the six months preceding the petition to
terminate his rights as to N.L. to contribute to the cost of child
care but failed to do so. As such, we affirm the order terminating
his parental rights.
Affirmed.
Judges TYSON and JACKSON concur.
Report per Rule 30(e).
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