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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 20 February 2007
IN THE MATTER OF:
J.W., Mecklenburg County
Nos. 05 JA 719; 06 JT 339
A Minor Juvenile
Appeal by respondent-mother from judgment entered 27 July 2006
by Judge Louis A. Trosch, Jr., in Mecklenburg County District
Court. Heard in the Court of Appeals 22 January 2006.
Twyla George for Mecklenburg County Department of Social
Services, Division of Youth and Family Services petitioner-
appellee; Kilpatrick Stockton, LLP by Alan D. McInnes and J.
Christopher Jackson for guardian ad litem petitioner-appellee.
Mary McCullers Reece for respondent-mother appellant.
Respondent-mother (respondent) appeals from an order
terminating her parental rights to J.W. We affirm.
On 5 July 2005, the Department of Social Services, Division of
Youth and Family Services (YFS) received a referral that J.W.,
the three-year-old child of respondent, was found wandering around
the parking lot of an apartment complex naked and unsupervised.
When the police returned J.W. to respondent's care, they found
respondent asleep and unaware that J.W. had left the apartment. On
13 July 2005, YFS received a second referral on J.W. He was found
wandering around the parking lot unsupervised. When the policearrived, they found respondent's apartment open with no one at
home. The officers attempted to contact respondent and waited for
three and one-half hours for her to return home before placing the
child in the custody of YFS.
On 14 July 2005, YFS filed a petition alleging that J.W. was
abused, neglected and dependent, and J.W. was placed in foster
care. On 12 August 2005, respondent, YFS, and the guardian ad
litem (GAL) attended a dependency mediation and reached a
mediation agreement. In an adjudicatory hearing on 29 August 2005,
the trial court adjudicated J.W. dependent and neglected, and at
the dispositional hearing, accepted the mediated case plan which
established a goal of reunification of J.W. with respondent. The
case plan required respondent to complete an assessment by Families
in Recovery to Stay Together (F.I.R.S.T.) and to comply with the
recommendations; complete parenting classes and demonstrate the
skills learned; provide proof of, and maintain, stable housing and
employment; complete a parenting capacity evaluation; maintain
contact with YFS and the GAL; and visit J.W.
On 17 November 2005, the trial court held a review hearing
which respondent failed to attend. In its review hearing order,
the trial court found that J.W. had been moved from foster care to
placement with his paternal grandparents and was doing well.
However, the trial court also found that respondent had not
demonstrated progress on the case plan. Specifically, the trial
court found that respondent had missed an assessment appointment on
three occasions, had been terminated from the parenting classprogram for inconsistent attendance, had not consistently attended
visits with J.W., had minimal interaction with him during visits,
had not provided proof of employment other than an American Idol
tryout, and had an outstanding warrant for her arrest for failure
to appear in court for a 31 October 2005 arrest. The trial court
continued custody of J.W. with YFS, thereby allowing YFS to
maintain placement of J.W. with the paternal grandparents. The
trial court also ordered respondent to attend supervised visits
with J.W. and specified that failure to miss another visit would
result in the cancellation of these visits. Finally, the trial
court changed the goal of the permanent plan from foster care to
On 26 January 2006, the trial court held a permanency planning
hearing. Based on the evidence presented at this hearing, the
trial court found that J.W. was doing well with his paternal
grandparents. The court also found that respondent had not made
sufficient progress on the case plan. In particular, the trial
court found that respondent had not attended parenting classes on
a consistent basis, had not visited with J.W. on a consistent basis
resulting in the cancellation of these visits, had failed to
provide proof of employment, and had failed to demonstrate to YFS
how she was maintaining housing for herself. Respondent offered
the excuse of lack of transportation for her failure to attend
visits, classes and other appointments. However, the trial court
found that respondent had refused the bus passes offered to her by
YFS and had been able to make sufficient transportationarrangements necessary to further her [American] Idol/celebrity
The trial court changed the goal of the permanency plan to
adoption. The court instructed YFS to prepare, but not file, the
petition to terminate parental rights. The trial court delayed the
initiation of the termination process until the next scheduled
permanency planning hearing due to respondent having arranged on
her own to participate in some of the ordered services in the two
weeks prior to the hearing. The trial court further ordered
respondent to pay $50.00 per month in child support, attend
domestic violence counseling, continue to participate in the
previously adopted case plan, attend parenting capacity sessions,
complete a substance abuse assessment and comply with any
recommendations, attend parenting classes, and obtain and maintain
On 23 March 2006, YFS filed a petition for termination of
respondent's parental rights. On 7 April 2006, the trial court
conducted another permanency planning hearing. Following this
hearing, the trial court again found that respondent had failed to
make sufficient progress on the case plan. Specifically, the trial
court found that respondent had failed to follow the
recommendations from the substance abuse assessment, failed to
provide proof of housing and employment, failed to pay child
support, failed to complete a parenting capacity evaluation, and
failed to comply with the trial court's requirements to reestablish
visitation with J.W. The trial court further found that J.W.'sfather had surrendered his parental rights on 4 April 2006. On the
date of this hearing, respondent was served with the termination
After a hearing on the termination petition, the trial court
entered an order terminating respondent's parental rights pursuant
to N.C. Gen. Stat. § 7B-1111(a)(1) and (3) (2005). With respect to
these two statutory grounds for termination, the trial court
concluded as follows:
5. That the respondent mother has neglected this
juvenile as that term is defined in N.C.G.S. § 7B-
101(15) in that they have failed to provide proper
care, supervision and discipline for the juvenile
as set forth in the paragraphs above.
6. The Court further concludes that the likelihood of
ongoing or continued neglect is significant in that
respondent mother has not properly availed herself
to any of the services necessary to enable them to
properly parent the juvenile either now or in the
7. The juvenile has been placed in the custody of
Mecklenburg County Department of Social Services
and the respondent mother, for a continuous period
of more than six (6) months next preceding the
filing of the petition, have willfully failed for
such period to pay a reasonable portion of the cost
of care for such juvenile although physically and
financially able to do so.
Respondent contends the trial court erred in concluding that
(1) respondent, for a continuous period of more than six months
next preceding the filing of the petition, willfully failed for
such period to pay a reasonable portion of the cost of care forJ.W., although physically and financially able to do so; and (2)
respondent neglected J.W. within the meaning of the North Carolina
General Statutes. We disagree.
This Court reviews an order terminating parental rights for
whether findings of fact are supported by clear, cogent, and
convincing evidence, and whether those findings of fact support a
conclusion that parental rights should be terminated for one of the
grounds set forth in the North Carolina General Statutes. In re
Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 397 (1996).
Where a trial court concludes that parental rights should be
terminated pursuant to several of the statutory grounds, the order
of termination will be affirmed if the court's conclusion with
respect to any one of the statutory grounds is supported by valid
findings of fact. In re Swisher, 74 N.C. App. 239, 240, 328 S.E.2d
33, 34-35 (1985).
The trial court terminated respondent's parental rights based
on a couple of statutory grounds including N.C. Gen. Stat. § 7B-
1111(a)(3). This provision permits termination where
[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.
N.C. Gen. Stat. § 7B-1111(a)(3). Respondent contends the trial
court's termination on this statutory ground is erroneous becausethe trial court's findings regarding her financial circumstances
and resources were insufficient.
'[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) (citation omitted).
[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, alterations in
original). However, there is no requirement that the trial court
make a finding as to what specific amount of support [constitutes]
. . . a 'reasonable portion' under the circumstances. In re Huff,
140 N.C. App. 288, 293, 536 S.E.2d 838, 842 (2000), disc. review
denied, appeal dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001).
The trial court made the following findings of fact pertinent
to respondent's financial situation and her failure to contribute
to the costs of J.W.'s care:
21. In order to be reunified with [J.W.], [respondent]
was required to maintain stable income/employment.
[Respondent] has not demonstrated any consistent
stable income to meet her needs and [J.W.]'s needs.
It is clear that [respondent] had income over the
last twelve months, the time that [J.W.] was in YFS
custody. However, she never provided proof of
income or stable employment to the Court. She
testified that she works part-time at the Gold Club
as either a waitress or entertainer or dancer. [Respondent] reports that she takes two weeks off
at a time to go to auditions. She could not
specifically state the amount of income received.
The amount of income she claimed changed throughout
22. In terms of employment, [respondent] only talked
about what is going to happen in the future.
[Respondent] reports that she has contracts for
several movie deals; however, she could not state
the contract amounts for the movie deals. She did
not provide proof of any contracts.
23. The respondent mother failed to provide proof of
income or stable employment. The Court is unsure
of the respondent mother's income or employment.
. . . .
47. YFS has spent $4000 on daycare expenses for [J.W.]
YFS spent $608.00 on clothing and food for [J.W.]'s
care. YFS also spent $667.00 on [J.W.]'s
48. During the time that [J.W.] was in YFS custody,
[respondent] had the ability to make some payments
toward [J.W.]'s care.
49. In January 2006, [respondent] was ordered to pay
child support in the amount of $50.00 per month.
The payments were to begin on February 1, 2006.
Child support was not originally ordered because
the respondent mother needed an opportunity to get
her finances in order.
50. [Respondent] has not paid any monies to defray the
cost of [J.W.]'s care.
The trial court was only required to make specific findings
that respondent was able to pay some amount greater than the amount
she, in fact, paid during the relevant time period. See In re
Garner, 75 N.C. App. 137, 140-41, 330 S.E.2d 33, 35-36 (1985).
Given that respondent made no financial contribution, a finding
that respondent did not disagree with in her brief, the trial courtwas only required to find that respondent failed to pay some amount
greater than zero to satisfy N.C. Gen. Stat. § 7B-1111(a)(3).
In the instant case, there was clear, cogent, and convincing
evidence to support the trial court's finding that respondent was
able to make some contribution. At the hearing, respondent
testified that during the relevant period, she earned as much as
$2,000.00 per month working four days per week as an entertainer or
waitress at the Gold Club. Respondent also testified that there
was other work for which she also received compensation. We
conclude that respondent's testimony supports the trial court's
finding that respondent had the ability to make some contribution
greater than zero during the six-month period prior to the filing
of the termination petition.
Because grounds for termination have been established under
N.C. Gen. Stat. § 7B-1111(a)(3), respondent's remaining argument
regarding the additional ground relied upon by the trial court
under section 7B-1111(a)(1) need not be addressed. See In re
Bradshaw, 160 N.C. App. 677, 682-83, 587 S.E.2d 83, 87 (2003).
Accordingly, we disagree with respondent.
Respondent contends the trial court abused its discretion in
terminating her parental rights. We disagree.
Once statutory grounds for termination have been established,
the trial court is required to determine whether terminating the
parent's rights is in the juvenile's best interest. N.C. Gen.Stat. § 7B-1110(a) (2005). In so doing, the trial court must
consider the following:
(1) The age of the juvenile.
(2) The likelihood of adoption of the
(3) Whether the termination of parental
rights will aid in the accomplishment of
the permanent plan for the juvenile.
(4) The bond between the juvenile and the
(5) The quality of the relationship between
the juvenile and the proposed adoptive
parent, guardian, custodian, or other
(6) Any relevant consideration.
N.C. Gen. Stat. § 7B-1110(a)(1)-(6).
The standard for appellate
review of the trial court's decision to terminate parental rights
is abuse of discretion. In re Brim
, 139 N.C. App. 733, 745, 535
S.E.2d 367, 374 (2000).
In the instant case, the trial court found the following:
69. Based on the evidence before the Court,
[respondent] has little understanding of
the needs of a three[-]year[-]old child.
On July 6, 2006, she still exhibited
little to no understanding of the needs
of a four[-]year[-]old child.
70. Other than [the social worker's]
testimony of [J.W.]'s needs, [respondent]
was not aware of [[J.W.]'s needs or
services. [Respondent] testified that she
referred [J.W.] to the Watkins Center.
At the initial hearing, the Court ordered
a Watkins Center evaluation because of
concerns about developmental delays. The
respondent mother did not make this
71. [Respondent] did not participate in
[J.W.]'s speech therapy. She has not
inquired about [J.W.]'s speech therapy
72. [Respondent] was unsure if [J.W.]
attended school or daycare because she
has not inquired about [J.W.]'s school or
daycare. Yet, [respondent] could clearly
articulate every detail about her
upcoming movie deals.
. . . .
74. [J.W.] has been placed with the paternal
grandparents . . . since August 23, 2005.
75. [J.W.] is placed in a stable, supportive,
and loving environment. The [paternal
grandparents] are ensuring that [J.W.]'s
emotional and physical needs are being
met. They ensure that he participates in
speech therapy. [J.W.] is thriving in
76. At this time, there are no concerns about
[J.W.]'s developmental delays.
77. The [grandparents] attempted to allow
contact between the respondent mother and
78. [J.W.] deserves permanence. He deserves
someone who will focus on him.
79. [J.W.] [is] placed in a potential
80. The goal of the case is adoption.
These findings clearly indicate that the trial court gave
careful consideration to the interests of J.W., particularly the
improved circumstances he experienced following placement with his
paternal grandparents and the possibility of making this placement
permanent through adoption. Balanced against the trial court's
additional numerous findings regarding respondent's continualfailure to comply with the trial court's orders and to improve the
conditions that led to the initial loss of custody, we conclude
that the trial court did not abuse its discretion by concluding it
was in the best interests of the child that respondent's parental
rights be terminated. Accordingly, we disagree with respondent.
Chief Judge MARTIN and Judge LEVINSON concur.
Report per Rule 30(e).
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