In re C.L.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1401

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

IN THE MATTER OF:

C.L. Wake County

No. 12 JT 71

Appeal by respondent-father from order entered 18 September

2013 by Judge Margaret P. Eagles in Wake County District Court.

Heard in the Court of Appeals 19 May 2014.

Wake County Attorney’s Office, by Deputy County Attorney

Roger A. Askew, for petitioner Wake County Human Services.

Appellate Defender Staples Hughes, by Assistant Appellate

Defender Annick Lenoir-Peek for respondent-father.

Ellis & Winters LLP, by Kelly Margolis Dagger, for guardian

ad litem.

DILLON, Judge.

Respondent-father appeals from the trial court’s order

terminating his parental rights to the juvenile C.L.1

1

We note that the order also terminated the parental rights of a

second respondent-father to another juvenile, under the docket

number 12 JT 70. The mother of both of the juveniles

relinquished her parental rights and is not a party to this

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Respondent-father contends the trial court erred by concluding

two grounds existed to terminate his parental rights. We

affirm.

Wake County Human Services (“WCHS”) has been involved with

the family since 2011. On 5 March 2012, WCHS intervened when

the juvenile’s sibling suffered a broken arm that appeared to be

non-accidental. The juvenile’s mother was arrested and charged

with felony child abuse. At that time, respondent-father

resided in Mexico, because he had been deported from the United

States following a criminal conviction for possession of a

firearm by a felon. The juvenile was placed in non-secure

custody.

On 17 August 2012, the juvenile and her sibling were

adjudicated neglected. The court ceased reunification efforts

with the parents on 9 April 2013 and implemented a concurrent

permanent plan of adoption and custody with a relative. On 30

April 2013, WCHS filed a petition to terminate respondent’s

parental rights. The petition alleged five grounds for

termination: (1) dependency; (2) neglect; (3) willful failure

to make reasonable progress; (4) willful failure to pay a

reasonable portion of the cost of care; and (5) willful

appeal. Accordingly, we focus our discussion herein on the

facts and legal issues relevant to C.L. and respondent-father.

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abandonment. N.C. Gen. Stat. § 7B-1111(a)(1)-(3), (6)-(7)

(2013).

On 2 August 2013, respondent-father filed a motion for

review and requested a kinship assessment and home study of his

parents as a placement for the juvenile. The matter came on for

hearing on both the motion for review and the termination

petition on 14 August 2013. On 18 September 2013, the trial

court entered an order, concluding that it was not in the

juvenile’s best interest to be placed with the paternal

grandparents. On the same date, the trial court entered an

order terminating respondent-father’s parental rights based on

neglect and failure to pay a reasonable portion of the cost of

care. N.C. Gen. Stat. § 7B-1111(a)(1), (3). Respondent-father

appeals.

In two arguments on appeal, respondent-father contends that

some of the trial court’s findings of fact are not supported by

adequate evidence and do not support the court’s conclusions of

law. In sum, respondent-father contends that his deportation

prevented him from being served and fully participating in the

juvenile case, and also excused him from paying a reasonable

portion of the cost of care for the juvenile. We disagree.

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At the adjudicatory stage of a termination of parental

rights hearing, the burden is on the petitioner to prove by

clear and convincing evidence that at least one ground for

termination exists. N.C. Gen. Stat. § 7B-1109(f) (2013); In re

Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).

Review in the appellate courts is limited to determining whether

clear and convincing evidence exists to support the findings of

fact, and whether the findings of fact support the conclusions

of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840

(2000).

“When the trial court is the trier of fact, the court is

empowered to assign weight to the evidence presented at the

trial as it deems appropriate.” In re Oghenekevebe, 123 N.C.

App. 434, 439, 473 S.E.2d 393, 397 (1996). “‘[F]indings of fact

made by the trial court . . . are conclusive on appeal if there

is evidence to support them.’” In re H.S.F., 182 N.C. App. 739,

742, 645 S.E.2d 383, 384 (2007) (citation omitted). “‘[W]here

no exception is taken to a finding of fact by the trial court,

the finding is presumed to be supported by competent evidence

and is binding on appeal[.]’” In re S.D.J., 192 N.C. App. 478,

486, 665 S.E.2d 818, 824 (2008) (quoting Koufman v. Koufman, 330

N.C. 93, 97, 408 S.E.2d 729, 731 (1991)).

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Although the trial court concluded two grounds existed to

terminate respondent-father’s parental rights, we find it

dispositive that the evidence supports termination of his

parental rights to the juvenile pursuant to N.C. Gen. Stat. §

7B-1111(a)(3), based on his failure to pay a reasonable portion

of the cost of the juvenile’s care during the six months

immediately preceding the filing of the petition. See In re

Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003) (a

finding of one statutory ground is sufficient to support the

termination of parental rights).

The requirement that a parent pay a reasonable portion of

the cost of care “applies to all parents irrespective of their

wealth or poverty. The parents’ economic status is merely a

factor used to determine their ability to pay such costs, but

their ability to pay is the controlling characteristic of what

is a reasonable amount for them to pay.” In re Biggers, 50 N.C.

App. 332, 339, 274 S.E.2d 236, 240 (1981) (decided under prior

statute). Accordingly, “‘[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) (citation

omitted).

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If a parent provides no support for the juvenile, his

failure to provide a reasonable portion of the cost of care is

willful if the trial court finds he had the ability to “pay some

amount greater than zero during the relevant time period.” Id.

at 291, 595 S.E.2d at 738. “Where . . . the parent had an

opportunity to provide for some portion of the cost of care of

the child, and forfeits that opportunity by his or her own

misconduct, such parent will not be heard to assert that he or

she has no ability or means to contribute to the child’s care

and is therefore excused from contributing any amount.” In re

Bradley, 57 N.C. App. 475, 479, 291 S.E.2d 800, 802-03 (1982).

In this case, the trial court made the following findings

of fact addressing respondent’s failure to pay a reasonable

portion of the cost of care:

19. . . . [Respondent-father] did not

provide documentation regarding employment

but claimed to be employed. . . . The

social worker contacted [respondent-father]

on January 15, 2013, and asked for his

address. . . . [Respondent-father] admitted

that he has not paid child support although

he is and has been employed and is

compensated for that employment.

20. That Wake County Human Services incurs

expenses for the care of the child . . . in

the form of a foster care board payment of

$475.00 plus the cost of daycare and

Medicaid.

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. . . .

32. That [the juvenile] knows her father

but has not seen him for over a year and a

half. [Respondent-father] admitted to

knowing in November 2012 that the child was

in the custody of Wake County Human Services

and did not make contact with the social

worker until January 2013. . . .

These findings establish that respondent-father worked, earned

an income, and had the ability to contribute more than zero

toward the cost of the juvenile’s care, but provided no support

for the juvenile during the relevant six-month period. Further,

the findings are supported by respondent-father’s own testimony

at the termination hearing. Although respondent-father argues

on appeal that his deportation prevented him from providing

support for the juvenile, he cannot rely on his own misconduct,

including a criminal conviction that resulted in his

deportation, as an excuse for his failure to support the

juvenile. See Bradley, 57 N.C. App. at 479, 291 S.E.2d at 802-

03. Finally, respondent-father’s claim that he was not aware

that the juvenile was in WCHS custody is similarly without

merit, as he testified that he was informed she was in WCHS

custody as of November 2012. Accordingly, we affirm the order

terminating respondent-father’s parental rights.

AFFIRMED.

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Judges BRYANT and STEPHENS concur.

Report per Rule 30(e).