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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-163


Filed: 3 July 2007

                                    Mecklenburg County
S.L.M.                                Nos. 06 JT 350-51


    Appeal by respondent-mother from an order entered 22 November 2006, nunc pro tunc 25 October 2006, by Judge Hugh B. Lewis in Mecklenburg County District Court. Heard in the Court of Appeals 4 June 2007.

    Mecklenburg County Attorney's Office, by Tyrone C. Wade and Twyla George, for petitioner-appellee Mecklenburg County Department of Social Services.

    Parker Poe Adams & Bernstein LLP, by Deborah L. Edney, for appellee Guardian ad Litem.

    Charlotte Gail Blake for respondent-appellant.

    HUNTER, Judge.

    The Mecklenburg County Department of Social Services (“DSS”) first became involved with respondent-mother in October 2001. DSS received information that S.L.M. and T.S.M., as well as two older siblings, were not receiving proper care in the home. Specifically, there were concerns regarding the children's personal hygiene and whether they were being provided with adequate food. Upon investigation, DSS observed “that the children had a body odor, were not properly clothed and often complained of beinghungry.” Their home had “a strong odor of urine[,]” “paper, clutter, and clothing were on the floor and throughout the house[,]” and three of the children did not have beds. Additionally, three of the children appeared “to be withdrawn and in need of counseling.” Two of the juveniles did not attend school on a regular and consistent basis. On 31 December 2002, respondent-mother agreed to follow a case plan. Although she had begun working on the plan, DSS continued to notice that the children were “dirty, unclean and hungry in public.” On 14 January 2002, the children were removed from the home.
    On 1 February 2002, the parties agreed to a dependency mediation agreement. On 20 February 2002, the children were adjudicated neglected and dependent. The trial court adopted the allegations contained in the dependency mediation agreement in its findings of fact. The children remained in foster care.
    On 14 January 2003, the trial court placed the juveniles with their father. On 21 April 2003, the trial court ordered that the mother not reside with the children, nor was she to provide child care, because she had failed to complete case plan objectives. In July 2003, the father moved the children to South Carolina without notice to DSS. An emergency hearing was held and the children were returned to foster care. In October 2003, the trial court changed the permanent plan for the children to guardianship with a maternal aunt in Indiana.
    On 26 October 2005, the trial court changed the plan to reunification with respondent-mother. The trial court noted thattermination of the children's parental rights was not in their best interests due to the wishes of the children and because the “mother is making reasonable progress” on her case plan. On 16 November 2005, a case plan was developed to allow for respondent-mother to have “extended visitation time with the children.” However, on 16 December 2005, visitation was suspended after DSS and the guardian ad litem learned that respondent-mother's boyfriend “was living in the home and sharing a room with the mother and her daughter.” The boyfriend, who was present during each of the children's visits, had an “extensive criminal record” and is currently imprisoned on a four-year sentence. During one visit, the children witnessed an altercation between respondent-mother and the boyfriend, and respondent-mother requested that the children call 911. On 31 January 2006, the trial court changed the permanent plan for the children to termination of parental rights.
    On 27 March 2006, DSS filed a petition to terminate respondent-mother's parental rights as to S.L.M. and T.S.M. DSS alleged three grounds for termination: (1) that respondent-mother had neglected the juveniles within the meaning of N.C. Gen. Stat. § 7B-101(15) (2005), and pursuant to N.C. Gen. Stat. § 7B- 1111(a)(1) (2005); (2) that respondents had willfully left the juveniles in foster care for more than twelve months without showing to the satisfaction of the court that reasonable progress under the circumstances had been made in correcting those conditions that led to the children's removal, pursuant to N.C. Gen. Stat. § 7B-1111(a)(2); and (3) that the children had beenplaced in the custody of the petitioner and that respondent-mother, for a continuous period of six months immediately preceding the filing of the petition, had failed to pay a reasonable portion of the cost of care for the children, pursuant to N.C. Gen. Stat. § 7B-1111(a)(3).
    Hearings were held on the petition to terminate respondent- mother's parental rights on 23, 24, and 25 October 2006. The trial court concluded that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (2), and (3) to terminate respondent-mother's parental rights. The court further concluded that it was in the children's best interest that respondent-mother's parental rights be terminated. Respondent-mother appeals.
    Respondent-mother's sole argument on appeal is that the trial court erred by finding that there were grounds to support the termination of her parental rights. Respondent-mother contends that the trial court's findings of fact are not supported by clear, cogent, and convincing evidence in the record. We disagree.
    N.C. Gen. Stat. § 7B-1111 sets out the statutory grounds for terminating parental rights. A finding of any one of the separately enumerated grounds is sufficient to support a termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990). “[T]he party petitioning for the termination must show by clear, cogent, and convincing evidence that grounds authorizing the termination of parental rights exist.” In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997).    In the case sub judice, the trial court concluded that respondent-mother had willfully failed to pay a reasonable portion of the cost of the juveniles' care for a continuous period of six months preceding the filing of the petition, although financially and physically able to do so. N.C. Gen. Stat. § 7B-1111(a)(3). “In determining what constitutes a 'reasonable portion' of the cost of care for a child, the parent's ability to pay is the controlling characteristic.” In re Clark, 151 N.C. App. 286, 288, 565 S.E.2d 245, 247 (citation omitted), disc. review denied, 356 N.C. 302, 570 S.E.2d 501 (2002). “[N]onpayment constitutes a failure to pay a reasonable portion 'if and only if respondent [is] able to pay some amount greater than zero.'” Id. at 289, 565 S.E.2d at 247 (quoting In re Bradley, 57 N.C. App. 475, 479, 291 S.E.2d 800, 802 (1982)).
    The trial court made the following findings of fact:

        57.    The respondent mother was consistently employed during the time the juveniles were in YFS custody.

        . . .

        61.    [Respondent-mother] and her boyfriend [] opened an auto repair shop in Rock Hill, South Carolina. She co-owned the business from November 2003 until December 2005. The business ended when [the boyfriend] was placed in prison for four (4) years for either resisting an officer, escape, or probation violation. The respondent mother was living with [the boyfriend] during this period. As the owner of the business, she earned $400.00 to $500.00 per week. Yet, she failed to pay any child support.

        62.    Harold's Home Improvement of York, South Carolina, employed the respondent mother from October 2005 until December 2005. She was paid at [a] rate of $8.00 perhour for thirty to forty (30-40) hours per week depending on the weather. Once again, she failed to contribute to the juveniles' cost of care.

        63.    [Respondent-mother] also obtained employment while in Fort Wayne, Indiana at Butler Telecom beginning in March 2006. She was laid off in June 2006. She earned $9.00 per hour. She worked forty (40) hours per week. At this time, she also failed to provide any money to YFS for the juveniles' care.

        64.    Currently, [respondent-mother] works part time in a daycare setting. She works thirty (30) hours per week earning $50.00 per day. Once more, she failed to pay any money to YFS to defray the cost of care.

        . . .

        66.    The respondent mother had the ability to contribute to the cost of the juveniles' care.

We note that respondent-mother did not assign error to findings of fact numbers 62, 63, or 64. Thus, these findings of fact are deemed supported by competent evidence and are conclusive on appeal. See In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003).
    The only applicable findings of fact to which respondent- mother assigned error were the trial court's findings of fact numbers 57, 61, and 66. However, even assuming arguendo that these findings were in error, these were not the only findings of fact concerning respondent-mother's employment history during the relevant statutory period. The trial court's uncontested findings of fact numbers 62 and 63 demonstrate that respondent-mother was employed during the relevant statutory period, earned income, anddid not contribute any amount to the cost of the juveniles' care. These findings were sufficient by themselves to support a finding that respondent-mother had the ability to contribute “'some amount greater than zero'” to the cost of the juveniles' care. Clark, 151 N.C. App. at 289, 565 S.E.2d at 247 (citation omitted).
    Nevertheless, respondent-mother asserts that the trial court erred because there was an absence of any order requiring her to pay child support. The existence of a child support order is not necessary to require respondent-mother to pay a portion of the juveniles' care. See In re T.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); see also In re Wright, 64 N.C. App. 135, 139, 306 S.E.2d 825, 827 (1983) (“[v]ery early in our jurisprudence, it was recognized that there could be no law if knowledge of it was the test of its application. Too, that respondent did not know that fatherhood carries with it financial duties does not excuse his failings as a parent; it compounds them”).
    Respondent-mother also argues that it is undisputed that she paid money to her sister when the children were placed with her in Indiana. The trial court noted respondent-mother's testimony that she provided $200.00 to assist in the juveniles' care. However, the trial court further found that respondent-mother failed to provide receipts to support these statements. Again, respondent- mother did not assign error to this finding of fact and it is binding on appeal. See Padgett, 156 N.C. App. at 648, 577 S.E.2d at 340.    Because the trial court correctly found that respondent-mother had the ability to contribute to the cost of the juveniles' care and did not, we hold that sufficient grounds existed for termination of respondent-mother's parental rights under N.C. Gen. Stat. § 7B-1111(a)(3). Since grounds exist pursuant to N.C. Gen. Stat. § 7B-1111(a)(3) to support the trial court's order, the remaining grounds found by the trial court to support termination need not be reviewed by the Court. Taylor, 97 N.C. App. at 64, 387 S.E.2d at 233-34.
    Chief Judge MARTIN and Judge BRYANT concur.
    Report per Rule 30(e).

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