In re S.E. ( 2020 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 197A19
Filed 28 February 2020
IN THE MATTER OF: S.E., S.A., J.A., V.W.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 7
March 2019 by Judge Wesley W. Barkley in District Court, Burke County. This
matter was calendared for argument in the Supreme Court on 5 February 2020 but
determined on the record and briefs without oral argument pursuant to Rule 30(f) of
the North Carolina Rules of Appellate Procedure.
N. Elise Putnam for petitioner-appellee Burke County Department of Social
Services.
Womble Bond Dickinson (US) LLP, by John E. Pueschel and Patricia I. Heyen,
for respondent-appellee guardian ad litem.
Anné C. Wright for respondent-appellant mother.
HUDSON, Justice
Respondent-mother appeals from an order entered by the trial court
terminating her parental rights to her children, S.E. (Sara), S.A. (Shanna), J.A.
(Jacob), and V.W. (Vera).1 After careful consideration of respondent-mother’s
1 The minor children will be referred to throughout this opinion as “Sara,” “Shanna,”
“Jacob,” and “Vera,” which are pseudonyms used to protect the children’s identities and for
ease of reading. The children also had an older sibling who was part of the underlying abuse,
neglect, and dependency case but turned eighteen years old prior to the termination of
parental rights case.
IN RE S.E., S.A., J.A., and V.W.
Opinion of the Court
challenges to the trial court’s jurisdiction and conclusion that grounds exist to
terminate her parental rights on the basis of her willful failure to pay a reasonable
portion of the cost of care for the children during their placement in DHHS custody,
we affirm the trial court’s order.
On 26 June 2016, the Burke County Department of Social Services (“DSS”)
obtained non-secure custody of Sara, Shanna, Jacob, and Vera, and filed a petition
alleging they were abused, neglected, and dependent juveniles. DSS had received a
report alleging Jerry A. had been physically assaulting the children.2 At the time of
the filing the children were respectively, twelve, nine, eight, and two years old. DSS
interviews with the children uncovered specific and repeated instances of physical
abuse of the children and regular instances of domestic violence between respondent-
mother and Mr. A. Shanna also disclosed numerous instances of sexual abuse by Mr.
A., of which she had informed respondent-mother and an aunt. Respondent-mother
was questioned about the sexual abuse and initially denied knowing about it, but she
subsequently admitted Shanna had told her about the abuse. DSS also learned
respondent-mother and the children had been involved in a child protective services
case in Oklahoma. Respondent-mother had temporarily left Mr. A., which led to the
closure of the Oklahoma case. She then moved to North Carolina with the children,
where she reconciled with Mr. A.
2 Jerry A. is the biological father of Shanna and Jacob.
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IN RE S.E., S.A., J.A., and V.W.
Opinion of the Court
After multiple continuances due to DSS’s difficulty serving the children’s
fathers, the trial court conducted a hearing on the petition on 23 March 2017 and
entered its adjudication order on 18 April 2017. Respondent-mother and Mr. A.
stipulated to the relevant facts and allegations in the petition, and the court found
them to be true. The court found Mr. A. had physically abused Shanna, Jacob, and
respondent-mother; and he had sexually abused Shanna on multiple occasions.
Respondent-mother knew about the physical and sexual abuse of the children and
failed to protect them. Respondent-mother had been convicted of intentional child
abuse inflicting serious injury on 2 November 2016. She was sentenced to a
suspended term of 38 to 58 months imprisonment and placed on supervised probation
for 24 months. Mr. A. had been convicted of first-degree statutory rape on 13 February
2017. He was sentenced to an active term of 221 to 326 months imprisonment. The
court adjudicated all the children to be abused, neglected, and dependent juveniles.
Disposition was continued, but the trial court kept custody of the children with DSS
and suspended visitation with their parents.
The trial court entered its dispositional order on 1 June 2017. The court found
aggravated circumstances existed in that a parent sexually abused a child in the
home while the other children were home and the respondent-mother allowed the
abuse to occur. Reunification efforts were initially found not to be in the best interests
of the children except for Vera, whose biological father had been located. DSS was in
the process of completing a home-study under the Interstate Compact on the
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Opinion of the Court
Placement of Children (“ICPC”) on Vera’s father’s home to see if he would be an
appropriate placement for her. The court continued custody of the children with DSS
and directed DSS to provide respondent-mother with one two-hour visitation with the
children, after which she was to have no further contact with them. DSS was also
directed to identify and inform respondent-mother of programs that would assist her
with the issues she was facing. The primary permanent plan for Vera was identified
as reunification with her father, with a secondary plan of guardianship. The primary
permanent plan for Sara, Shanna, and Jacob was identified as adoption, with a
secondary plan of guardianship.
The trial court conducted four permanency planning hearings from 18 May
2017 to 9 August 2018. Respondent mother offered an out-of-state relative as a
possible placement for the children, which required DSS to request and obtain a home
study under the ICPC. In its orders from the first three hearings, the court
consistently found the children may benefit by being adopted, but they were not free
to be adopted due to the outstanding home studies of their relatives and Vera’s father.
By the fourth hearing, however, the trial court found the ICPC home studies for
Vera’s father and respondent’s relatives indicated their homes were not appropriate
placements for the children. In its permanency planning order entered from the 9
August 2018 hearing, the trial court set the primary permanent plan for Vera as
adoption and the secondary permanent plan as reunification with her father. The
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Opinion of the Court
primary and secondary plans for Sara, Shanna, and Jacob remained adoption and
guardianship.
DSS filed a petition to terminate parental rights to the children on 27
September 2018. As to respondent-mother, DSS alleged grounds existed to terminate
her parental rights on the bases of abuse, neglect, willfully leaving the children in
foster care for more than 12 months without making reasonable progress to correct
the conditions that led to their removal, willfully failing to pay a reasonable portion
of the cost of care for the children during their placement in DHHS custody, and for
committing a felony assault resulting in serious bodily injury to a child residing in
the home. See N.C.G.S. § 7B-1111(a)(1)–(3), (8) (2017). After a hearing on 7 February
2019, the trial court entered an order on 7 March 2019, terminating respondent-
mother’s parental rights to the children.3 The court concluded grounds existed to
terminate respondent-mother’s parental rights on the bases of neglect, willfully
leaving the children in foster care for more than 12 months without making
reasonable progress to correct the conditions that led to their removal, and willfully
failing to pay a reasonable portion of the cost of care for the children during their
placement in DSS custody.4 The court further concluded terminating respondent-
3 Mr. A. relinquished his parental rights to Shanna and Jacob on 18 October 2018.
The trial court’s order also terminated the parental rights of the fathers of Sara and Vera.
None of the fathers are parties to this appeal.
4 At the hearing, DSS elected not to proceed on N.C.G.S. § 7B-1111(a)(8).
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Opinion of the Court
mother’s parental rights was in the children’s best interests. Respondent-mother
appeals.
Respondent-mother first argues the trial court’s order as to Sara is void for
lack of subject matter jurisdiction and must be vacated.5 Respondent-mother
contends the court lacked subject matter jurisdiction over Sara’s underlying juvenile
case, because it failed to meet the requirements of the Uniform Child Custody
Jurisdiction Enforcement Act (“UCCJEA”). See N.C.G.S. §§ 50A-201–204 (2017). She
argues an allegation in the initial juvenile abuse, neglect, and dependency petition
that one of the children reported child protective services in Oklahoma took the
children out of her home put the trial court on notice there was a prior Oklahoma
custody determination involving the children, which required the trial court to
contact the Oklahoma court to determine if that court would cede jurisdiction to the
North Carolina trial court. Respondent-mother’s arguments are misplaced.
“The existence of subject matter jurisdiction is a matter of law and cannot be
conferred upon a court by consent. Consequently, a court’s lack of subject matter
jurisdiction is not waivable and can be raised at any time.” In re K.J.L., 363 N.C. 343,
345–46, 677 S.E.2d 835, 837 (2009) (citations and quotation marks omitted).
Nonetheless,
“where the trial court has acted in a matter, every
5Respondent-mother only challenges the trial court’s subject matter jurisdiction over
the juvenile case involving Sara and concedes the court had jurisdiction over the cases
involving the other children.
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IN RE S.E., S.A., J.A., and V.W.
Opinion of the Court
presumption not inconsistent with the record will be
indulged in favor of jurisdiction . . . .” Nothing else
appearing, we apply “the prima facie presumption of
rightful jurisdiction which arises from the fact that a court
of general jurisdiction has acted in the matter.” As a result,
“[t]he burden is on the party asserting want of jurisdiction
to show such want.”
In re N.T., 368 N.C. 705, 707, 782 S.E.2d 502, 503–04 (2016) (first quoting Cheape v.
Town of Chapel Hill, 320 N.C. 549, 557, 359 S.E.2d 792, 797 (1987) then quoting
Williamson v. Spivey, 224 N.C. 311, 313, 30 S.E.2d 46, 47 (1944)).
The UCCJEA applies to proceedings in which child custody is at issue,
including those involving juvenile abuse, neglect, dependency and termination of
parental rights; and a trial court must comply with its provisions to obtain
jurisdiction in such cases. See N.C.G.S. §§ 50A-102(4), -201(a)–(b) (2017). Generally,
North Carolina courts have jurisdiction to make a child custody determination if
North Carolina is the home state of the child. N.C.G.S. § 50A-201(a)(1). “ ‘Home state’
means the state in which a child lived with a parent or a person acting as a parent
for at least six consecutive months immediately before the commencement of a child-
custody proceeding.” N.C.G.S. § 50A-102(7) (2017). If a court of another state has
home state jurisdiction, North Carolina courts do not have jurisdiction unless one of
several statutory exceptions applies. See N.C.G.S. § 50A-201(a)(2)–(4).
Respondent-mother contends the allegations in the initial juvenile petition
established that a prior child-custody determination had been made as to Sara in
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Opinion of the Court
Oklahoma6, and the trial court failed to take the requisite action under the UCCJEA
to obtain jurisdiction over her case. Respondent-mother, however, relies on
allegations and inferences to support her argument and has not met her burden of
showing the trial court lacked jurisdiction over Sara’s case. She neglects to mention
the finding of fact made by the trial court in its initial adjudication order, wherein
the court found only Shanna was removed from respondent-mother’s custody by child
protective services in Oklahoma. Furthermore, the respondent-mother stipulated to
the court that the child protective services matter in Oklahoma had been closed, a
fact she had a duty to disclose pursuant to N.C.G.S. § 50A-209(a) (2017). Given these
stipulations and other record facts, it was reasonable for the trial court to infer that
Oklahoma did not have continuing jurisdiction under the UCCJEA.
Sara had lived with respondent-mother in North Carolina during the six
months immediately preceding the filing of the juvenile petition, and North Carolina
was her home state. The record before us establishes the trial court thus had “home
state” jurisdiction under the UCCJEA to make an initial child-custody determination
regarding Sara. See N.C.G.S. § 50A-201(a)(1). The trial court’s orders granting DSS
custody of Sara are not void for lack of subject matter jurisdiction, and DSS had
standing to file the petition to terminate respondent-mother’s parental rights to Sara
pursuant to N.C.G.S. § 7B-1103(a)(3).
6 Oklahoma has also adopted the UCCJEA. See Okla. Stat. tit. 43 §§ 551-101–402
(2019).
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Opinion of the Court
We next address respondent-mother’s argument that the trial court erred in
concluding grounds exist to terminate her parental rights due to her willful failure to
pay a reasonable portion of the cost of care for the children although physically and
financially able to do so, pursuant to N.C.G.S. § 7B-1111(a)(3). Respondent-mother
concedes she paid nothing toward the cost of care for her children and could have
done so but argues her failure to pay was not willful. She contends she did not know
she could pay towards the cost of care for her children, did not know how to pay
towards the cost, and could not reasonably have been expected to do so. We disagree.
Termination of parental rights under the North Carolina Juvenile Code
involves a two-stage process—an adjudicatory stage and a dispositional stage.
N.C.G.S. §§ 7B-1109, -1110 (2017). “At the adjudicatory stage, the petitioner bears
the burden of proving by ‘clear, cogent, and convincing evidence’ the existence of one
or more grounds for termination under section 7B-1111(a) of the General Statutes.”
In re A.U.D., 832 S.E.2d 698, 700 (N.C. 2019) (quoting N.C.G.S. § 7B-1109(f) (2017)).
“If a trial court finds one or more grounds to terminate parental rights under N.C.G.S.
§ 7B-1111(a), it then proceeds to the dispositional stage,” id., where it “determines
whether terminating the parent’s rights is in the juvenile’s best interest.” N.C.G.S. §
7B-1110(a) (2017).
At the time DSS filed its petition, a court could terminate parental rights upon
finding that:
The juvenile has been placed in the custody of a county
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Opinion of the Court
department of social services . . . and the parent has for a
continuous period of six months immediately preceding the
filing of the petition or motion willfully failed 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) (Supp. 2018). The cost of care “refers to the amount
it costs the Department of Social Services to care for the child, namely, foster care.”
In re Montgomery, 311 N.C. 101, 113, 316 S.E.2d 246, 254 (1984). “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.” In re Clark, 303 N.C. 592,
604, 281 S.E.2d 47, 55 (1981).
Respondent-mother’s argument that she did not know she had to pay a
reasonable portion of the cost of care for her children or how to do so is fundamentally
without merit. The absence of a court order, notice, or knowledge of a requirement to
pay support is not a defense to a parent’s obligation to pay reasonable costs, because
parents have an inherent duty to support their children. See In re T.D.P., 164 N.C.
App. 287, 289, 595 S.E.2d 735, 737 (2004) (citing In re Wright, 64 N.C. App. 135, 139,
306 S.E.2d 825, 827 (1983) (“Very 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.”)), aff’d per curiam, 359 N.C. 405,
610 S.E.2d 199 (2005); see also In re Biggers, 50 N.C. App. 332, 339, 274 S.E.2d 236,
241 (1981) (holding “[a]ll parents have the duty to support their children within their
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means . . . .”). Given her inherent duty to support her children, respondent cannot
hide behind a cloak of ignorance to assert her failure to pay a reasonable portion of
the cost of care for her children was not willful. Moreover, respondent-mother was on
notice of her failure to pay something towards the cost of care for her children, as
shown by the trial court’s repeated findings in each of its permanency planning orders
that none of the respondent-parents were paying child support.
In support of this ground to terminate respondent’s parental rights, the trial
court found:
42. The respondent mother is an able bodied person
capable of gainful employment and is capable of paying a
sum greater than zero per month toward the support of the
minor children during the six months prior to the filing of
the petition to terminate her parental rights. The
respondent is employed . . . and has been for over one year
prior to the date of this hearing and earning at least $600
to $700 per week.
43. During the six months prior to the filing of the
petition to terminate parental rights, a period of time from
March 27, 2018 through September 27, 2018, the
respondent mother paid zero toward the support of the
minor children.
44. A reasonable portion of the cost of care for the minor
children for the respondent mother to have paid during the
six months prior to the filing of the petition to terminate
said respondent’s parental rights would have been an
amount greater than zero per child per month.
Apart from her argument that she had no knowledge she was required to pay a
reasonable portion of the cost of care for her children or how to do so, which we have
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rejected, respondent-mother does not challenge the evidentiary basis for these
findings of fact. These findings are supported by clear, cogent, and convincing
evidence and are binding on appeal. In re T.N.H., 372 N.C. 403, 407, 831 S.E.2d 54,
58 (2019) (citing Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)).
We hold that the findings in this case fully support the trial court’s conclusion that
grounds exist to terminate respondent-mother’s parental rights based upon her
willful failure to pay a reasonable portion of the cost of care for the children during
their placement in DHHS custody pursuant to N.C.G.S. § 7B-1111(a)(3). The trial
court’s conclusion that one ground existed to terminate parental rights “is sufficient
in and of itself to support termination of [respondent-mother’s] parental rights[,]” In
re T.N.H., 372 N.C. at 413, 831 S.E.2d at 62, and we need not address her arguments
challenging the remaining grounds. Respondent-mother does not challenge the trial
court’s conclusion that termination of her parental rights is in the children’s best
interests. Accordingly, we affirm the trial court’s order terminating respondent-
mother’s parental rights to Sara, Shanna, Jacob, and Vera.
AFFIRMED.
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