In re: A.H.D. ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-382
Filed 07 February 2023
Randolph County, Nos. 20 JT 20, 20 JT 21
IN THE MATTER OF: A.H.D., V.I.D.
Appeal by respondent-father from orders entered 7 January 2022 by Judge
Robert M. Wilkins in District Court, Randolph County. Heard in the Court of Appeals
10 January 2023.
Kimberly Connor Benton for respondent-father.
No brief filed for petitioner-mother.
STROUD, Chief Judge.
Father appeals from two orders terminating his parental rights as to each of
his two children on the grounds he willfully failed to pay child support for a year or
more preceding the filing of the termination petitions pursuant to N.C. Gen. Stat. §
7B-1111(a)(4) (2019). Because the Petitions gave Father adequate notice as to the
acts, omissions, or conditions at issue in the case, they are a sufficient basis for the
termination proceeding. Although the trial court failed to make Findings of Fact
based upon the proper standard of proof of clear, cogent, and convincing evidence, the
record includes sufficient evidence upon which the trial court could make the required
IN RE: A.H.D., V.I.D.
Opinion of the Court
findings to support termination of Father’s parental rights under § 7B-1111(a)(4), so
we must reverse and remand.
I. Background
On or about 14 January 2020, Mother filed two “Verified Petition[s] For
Termination of Parental Rights” to terminate Father’s parental rights as to their two
children, Ariel and Vanessa.1 (Capitalization altered.) After including information
about Mother’s and Father’s residences and the names and birthdates of the children,
the Petitions alleged, in relevant part, Mother had “physical custody” of both children
and alleged the following identical “grounds for termination” of Father’s parental
rights:
b. That for more than one (1) year [Father] has had no
contact with the minor child. [Father] has not visited or
contacted the minor child since May 6, 2018;
c. That for more than one (1) year, [Father] has failed and
refused to pay child support. He has not paid child support
since May 6, 2018;
d. That [Father] is therefore subject to termination of his
parental rights pursuant to North Carolina General
Statutes § 7B[.]
On or about 5 March 2020, Father filed responses admitting his and Mother’s
residences and the children’s names and birthdates but denying all other allegations.
The trial court held a hearing in the termination proceeding on 1 November
2021. The trial court indicated at the start of the hearing that it first wanted “to hear
1 We use pseudonyms to protect the children’s identity.
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testimony and evidence about whether there are any grounds for termination of
parental rights” and then would receive testimony of the children’s best interests
after that “if appropriate[.]”
During the portion of the hearing focused on the grounds for terminating
parental rights, Mother and Father testified. Mother first testified she took physical
custody of the children after the parents separated on 6 May 2018 because Father
went to jail for committing a crime against Mother’s sister. Following the separation,
Father had no contact with the children because “[h]e never asked.” Mother also
testified she got a custody order granting her permanent custody in June 2018; she
had a child support order entered in July 2018. The child support order required
Father to pay approximately $1,100 per month. Mother testified between 2018 and
2020 when she filed the Petitions, Father had “just refused to pay” leading to “over
$20,000.00 in arrears[,]” although after the Petitions were filed he made “three or
four payments” of “at most $500” as a result of “[c]hild support enforcement[.]”
At the grounds portion of the termination hearing, Father testified about his
employment and child support payments. Father operated his own store before his
arrest, but Mother sold all the contents of his store right after he went to jail. Upon
his pre-trial release from jail at the end of May 2018, Father took about six months
“to get started back up” running “another small business[,]” and he continued doing
that work until he was convicted of the crime against Mother’s sister in February
2021 and sentenced to over a decade in prison. Father testified he gave Mother cash
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payments around the “end of 2018” that were “for the benefit of the children[.]”
Father also said he gave Mother “cash a few times” in 2019, but he was not able to
pay the full $1,100 per month required by the child support order. Beyond his
employment and child support, Father testified he tried to reach out to Mother and
the children “[a]t least a couple times a week” but Mother told him to stop calling her.
Father could not have visits with the children or contact them because of the
conditions of his house arrest.
Following that testimony, both attorneys made arguments on the grounds for
termination. The arguments by Mother’s attorney focused on the ground Father had
failed to pay child support. Father’s attorney first argued the abandonment ground
did not apply because: the trial court lacked clear, cogent, and convincing evidence
given the conflicting testimony; his pre-trial release conditions prevented him from
having contact with the children; and he did not have Mother’s new address where
he could send letters to the children. As to the willful failure to pay child support
ground, Father’s attorney argued there was no evidence of the child support order
beyond Mother’s testimony and there was too much “confusing” and “conflicting”
testimony about payments Father made for there to be clear, cogent, and convincing
evidence of a willful failure to pay.
Following those arguments, the trial court ruled the abandonment ground was
not supported because “there [was] a question as to how wilful [sic] his failure to have
contact with the children would have been” given the testimony about pre-trial
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release conditions and the lack of “legal documents” on such conditions. The trial
court found the willful failure to pay child support ground “exist[ed]” based on
Father’s non-compliance “with the terms of the child support order that was
reportedly entered approximately July 2018.” The trial court then moved on to the
best interest stage without making any additional oral findings or indicating the
standard of proof it was employing for the Findings of Fact.
At the best interest stage, the guardian ad litem (“GAL”) for both children,
Mother, Mother’s new husband, and Father testified. The GAL testified about his
investigative steps and recommendation, and the court received his report into
evidence. Mother testified about: Father’s relationship with the children; Father
yelling and making demeaning comments towards her in front of the children; her
new husband, and his relationship with the children, including his plan to adopt
them; the relationship her family had with the children; and her employment and
child care arrangements. Mother’s new husband testified about: his relationship
with the children, his plan to adopt the children following the termination
proceedings, and his family’s relationship with the children. Finally, Father testified
about: his relationship with the children, his family’s relationship with the children,
and his lack of child support payments.
After that testimony, Mother’s attorney, Father’s attorney, and the GAL made
arguments on best interests. The trial court then reviewed the required factors under
N.C. Gen. Stat. § 7B-1110 and ruled it was in the children’s best interests to
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terminate Father’s parental rights.
On 7 January 2022, the trial court entered two Orders, one for each child,
terminating Father’s parental rights. Each Order began with the trial court making
Findings of Fact as to adjudicatory grounds and then as to dispositional best
interests, but the trial court did not state the standard of proof for the Findings of
Fact. In the adjudicatory grounds portion of each Order, the trial court made
Findings on custody and the child’s name and residence; the history of Mother and
Father’s relationship; and Father’s subsequent incarceration. The trial court then
made two Findings on child support that were identical in each Order:
8. [Mother] testified that in July, 2018, a child support
order was put in place for [Father] to pay child support.
[Father] has failed and refused for more than one (1) year
to pay child support pursuant to the child support order for
the use and benefit of the minor child. [Father] has not paid
child support since May 6, 2018, and he is more than
$20,000.00 in arrears.
9. Pursuant to 7B-1111(a)(4), [Mother] has custody of the
minor child by agreement of the parties, and [Father],
whose parental rights are sought to be terminated for a
period of one year or more next preceding the filing of the
Petition, has willfully and without justification failed to
pay for the care, support, education of the minor child as
required and decreed by the child support order. Therefore,
there are grounds to terminate parental rights against
[Father].
The trial court then made best interests Findings as to both children addressing:
their relationships with Mother, Father, and Mother’s new husband; Mother’s
allegations about Father’s abusive actions towards Mother; the GAL’s
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recommendation; and the plan for Mother’s new husband to adopt the children.
Based on these Findings, the trial court concluded all parties were “properly
before” it; “[t]here exist grounds for the termination of parental rights” of Father; and
“[i]t would be in the best interest of the minor” children if Father’s parental rights
were terminated. Based upon those Findings and Conclusions, the trial court
terminated Father’s parental rights. Father timely filed written notice of appeal.2
II. Analysis
On appeal, Father challenges both the termination Petitions and the
adjudicatory portion of the termination Orders. Father argues the Petitions “failed
to allege grounds existed to terminate” his “parental rights” under N.C. Gen. Stat. §
7B-1111(a)(4). As to the Orders, Father first contends the trial court violated his
“constitutional rights by failing to make findings of fact based upon clear, cogent, and
convincing evidence[,]” as required at the adjudicatory stage of a termination
proceeding. Father then asserts the trial court “erred in finding” he “had willfully
failed to pay child support for more than twelve months prior to the filing of the
termination of parental rights petition” such that it erred in terminating his rights
2 The trial court entered the termination orders on 7 January 2022. Father did not file his written
notice of appeal until 18 February 2022, which was more than 30 days after the trial court entered the
orders on appeal. See N.C. Gen. Stat. § 7B-1001(b) (2021) (“Notice of appeal . . . shall be made within
30 days after entry and service of the order[.]”). But Father was not served with the termination orders
until 21 January 2022, so he filed notice of appeal within 30 days “after entry and service of the order”
as required. N.C. Gen. Stat. § 7B-1001(b) (emphasis added); see also In re J.M.K., 261 N.C. App. 163,
165, 165 n.2, 820 S.E.2d 106, 107, 107 n.2 (2018) (explaining the father timely filed notice of appeal
even though more than 30 days had passed since the order was entered because the father was not
served until 7 days before he filed the notice of appeal).
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under N.C. Gen. Stat. § 7B-1111(a)(4). We address each contention in turn.
A. Sufficiency of Termination Petitions
Father first argues the Petitions in this case “failed to allege grounds existed
to terminate” his parental rights under N.C. Gen. Stat. § 7B-1111(a)(4). Specifically,
Father contends the Petitions were “insufficient to put him on notice his rights were
subject to termination under this” statutory ground because, like in a case from this
Court, In re I.R.L., 263 N.C. App. 481, 823 S.E.2d 902 (2019), the Petitions: “failed
to reference a specific statutory ground under” N.C. Gen. Stat. § 7B-1111; “failed to
allege there was a judicial decree or support order requiring” Father “to financially
support” the children; and “failed to allege” Father “willfully failed to pay any
support.”
Petitions in termination of parental rights cases must state “[f]acts that are
sufficient to warrant a determination that one or more of the grounds for terminating
parental rights exist.” N.C. Gen. Stat. § 7B-1104(6) (2019). “[W]hile there is no
requirement that the factual allegations be exhaustive or extensive, they must put a
party on notice as to what acts, omissions or conditions are at issue.” In re B.C.B.,
374 N.C. 32, 34, 839 S.E.2d 748, 751 (2020) (citation and quotation marks omitted).
The allegations in a petition do not need to include the “precise statutory provision
ultimately found by the trial court” as long as the petition includes sufficient factual
allegations. In re A.H., 183 N.C. App. 609, 614-15, 644 S.E.2d 635, 638-39 (2007)
(indicating a citation to the precise statutory provision is not required before finding
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adequate notice based on the facts alleged); see In re B.L.H., 190 N.C. App. 142, 147,
660 S.E.2d 255, 257 (2008) (“Where the factual allegations in a petition to terminate
parental rights do not refer to a specific statutory ground for termination, the trial
court may find any ground for termination under N.C.G.S. § 7B–1111 as long as the
factual allegations in the petition give the respondent sufficient notice of the
ground.”). For example, in In re A.H., this Court found the termination petition was
sufficient even though it “did not specifically” include citation to the statutory
grounds for termination because the petition’s language “directly parallel[ed]” the
statutory language in making factual allegations. In re A.H., 183 N.C. App. at 615,
644 S.E.2d at 638-39.
Here, the trial court terminated Father’s parental rights for both children
based on N.C. Gen. Stat. § 7B-1111(a)(4). N.C. Gen. Stat. § 7B-1111(a)(4) permits
termination of parental rights when:
One parent has been awarded custody of the juvenile by
judicial decree or has custody by agreement of the parents,
and the other parent whose parental rights are sought to
be terminated has for a period of one year or more next
preceding the filing of the petition or motion willfully failed
without justification to pay for the care, support, and
education of the juvenile, as required by the decree or
custody agreement.
N.C. Gen. Stat. § 7B-1111(a)(4). As a result, the Petitions here needed to put Father
on notice that Mother sought to terminate his parental rights due to his willful failure
to pay child support. See In re B.C.B., 374 N.C. at 34, 839 S.E.2d at 751 (explaining
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a petition to terminate parental rights “must put a party on notice as to what acts,
omissions or conditions are at issue”).
Here, the Petitions included the following identical “grounds for termination”:
b. That for more than one (1) year [Father] has had no
contact with the minor child. [Father] has not visited or
contacted the minor child since May 6, 2018;
c. That for more than one (1) year, [Father] has failed and
refused to pay child support. He has not paid child support
since May 6, 2018;
d. That [Father] is therefore subject to termination of his
parental rights pursuant to North Carolina General
Statutes § 7B[.]
While the Petitions’ language is not “exhaustive or extensive,” see generally id.
(indicating allegations do not need to be exhaustive or extensive), the Petitions
indicated Father had “failed and refused to pay child support” for approximately a
year-and-a-half, (emphasis added), thereby fulfilling the requirement of notice of the
specific ground on which Mother sought to terminate Father’s parental rights,
namely willful failure to pay child support for more than a year pursuant to N.C. Gen.
Stat. § 7B-1111(a)(4). See N.C. Gen. Stat. § 7B-1111(a)(4). Notably, of all eleven
statutory grounds to terminate parental rights, only § 7B-1111(a)(4) addresses the
failure to pay the other parent in order to support the child pursuant to a court order
or custody agreement, i.e. child support. N.C. Gen. Stat. § 7B-1111(a).
Father’s argument to the contrary does not convince us. Father argues the
Petitions here are “substantially like” the petitions in another case from this Court,
In re I.R.L. Specifically he alleges the Petitions here, like the ones in In re I.R.L.,
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failed to allege: the specific statutory ground for termination; a judicial decree or
support order requiring Father to financially support the children; and willful failure
to pay.
In In re I.R.L., the mother alleged the father had “failed to provide substantial
financial support or consistent care for the minor child[,]” and the trial court
terminated the father’s parental rights for willful failure to pay child support under
N.C. Gen. Stat. § 7B-1111(a)(4). In re I.R.L., 263 N.C. App. at 486, 823 S.E.2d at 906.
This Court found that petition insufficient to put the father on notice his parental
rights could be terminated under § 7B-1111(a)(4) based on a combination of four
factors. See id. First, the petition did not make a “reference to the specific statutory
ground of N.C. Gen. Stat. § 7B-1111(a)(4)[.]” Id. Second, the petition was “entirely
silent as to whether a judicial decree or support order required [the f]ather to pay for
[the child’s] care or support.” Id. Third, the petition failed “to include any allegations
asserting [the f]ather’s failure to pay was willful.” Id. Fourth, “[a]n allegation that
a parent failed to provide financial support or consistent care may be an assertion
under the ground of abandonment.” Id. (citation and quotation marks omitted).
Here, only two of the factors are present. The Petitions here do not reference
the specific statutory ground in that they do not cite to § 7B-1111(a)(4), but this factor
alone does not have significant weight because of our caselaw indicating “a petition
will not be held inadequate simply because it fails to allege the precise statutory
provision[.]” In re A.H., 183 N.C. App. at 614, 644 S.E.2d at 638. The only other
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factor from In re I.R.L. present in the Petitions here is the lack of allegation about a
“judicial decree or support order” requiring Father to pay child support. See In re
I.R.L., 263 N.C. App. at 486, 823 S.E.2d at 906. While it would be better practice to
include such an allegation specifically, Father does not include any caselaw saying
the failure to plead the child support order alone renders a petition insufficient. Thus,
even the two factors that make this case similar to In re I.R.L. have less significance
here. See id.Additionally, the other two factors from In re I.R.L., see id., weigh in favor of
the sufficiency of the Petitions here. The Petitions allege Father willfully failed to
pay through their use of the word “refused[.]” The word “refused” indicates an active
decision not to pay. See Joyner v. Garrett, 279 N.C. 226, 233, 182 S.E.2d 553, 558
(1971) (“In Black’s Law Dictionary (4th Ed., 1951) refusal is defined as ‘the declination
of a request or demand, or the omission to comply with some requirement of law, as
the result of a positive intention to disobey.’” (second emphasis added)). Put another
way, an active decision not to pay is a willful decision not to pay.
Beyond the allegation of willfulness, the Petitions here also differ from In re
I.R.L. because their language cannot be construed as an allegation of a separate
ground. See In re I.R.L., 263 N.C. App. at 486, 823 S.E.2d at 906 (finding petition
insufficient in part because the language could be an assertion of the ground of
abandonment in addition to the willful failure to pay child support). In In re I.R.L.
the petition spoke only of a failure to provide financial support, id., but here the
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Petitions specifically allege Father “refused to pay child support.” While other
grounds in § 7B-1111(a) can be based on the failure to pay support, see, e.g. N.C. Gen.
Stat. § 7B-1111(a)(5)(d) (permitting termination of a father’s parental rights when
the child was born out of wedlock and the father did not “[p]rovide[] substantial
financial support”), and even the failure to pay child support, see In re I.R.L., 263 N.C.
App. at 486, 823 S.E.2d at 906 (indicating the failure to pay child support could
support an allegation of abandonment by citing to this Court’s case in In re C.J.H.,
240 N.C. App. 489, 504, 772 S.E.2d 82, 92 (2015)), no other ground involves the willful
failure to pay child support.
Therefore, by alleging Father “refused to pay child support[,]”the Petitions are
sufficient to give Father adequate notice “as to what acts, omissions or conditions are
at issue.” In re B.C.B., 374 N.C. at 34, 839 S.E.2d at 751. As a result, the Petitions
are sufficient and can be the basis for a termination of parental rights proceeding.
See id.
B. Challenges to Adjudicatory Portion of Termination Orders
In addition to challenging the sufficiency of the Petitions, Father argues the
trial court committed multiple errors in the Orders terminating his parental rights.
Father first asserts the trial court erred by “failing to make findings of fact based
upon clear, cogent, and convincing evidence[,]” which it was constitutionally required
to do at the adjudicatory stage. Father then argues the trial court erred in
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terminating his rights under N.C. Gen. Stat. § 7B-1111(a)(4). After discussing the
standard of review, we address Father’s arguments.
1. Standard of Review
When reviewing the adjudicatory stage of a termination of parental rights
proceeding, we must “determine whether the findings are supported by clear, cogent
and convincing evidence and [whether] the findings support the conclusions of law.”
In re D.W.P., 373 N.C. 327, 330, 838 S.E.2d 396, 400 (2020) (citation and quotation
marks omitted).
2. Failure to Make Findings Based on Clear, Cogent, and Convincing
Evidence
We first address Father’s argument the trial court violated his “constitutional
rights by failing to make findings of fact based upon clear, cogent, and convincing
evidence[.]” Our statutes mandate that adjudicatory Findings “shall be based on
clear, cogent, and convincing evidence.” N.C. Gen. Stat. § 7B-1109(f) (2019). This
“statutory burden of proof . . . protects a parent’s constitutional due process rights as
enunciated by the United States Supreme Court[.]” In re J.C., 380 N.C. 738, 742, 869
S.E.2d 682, 685 (2022) (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 71 L. Ed. 2d
599 (1982); Adams v. Tessener, 354 N.C. 57, 63, 550 S.E.2d 499 (2001)). In order to
satisfy the requirement of § 7B-1109(f), and therefore appropriately protect parents’
constitutional rights, see id., a trial court must “announce[] the ‘clear, cogent, and
convincing’ standard of proof either in making findings of fact in the written
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termination order or in making such findings in open court.” In re B.L.H., 376 N.C.
118, 126, 852 S.E.2d 91, 97 (2020) (emphasis in original).
Here, the trial court failed to meet that standard. Both written Orders only
state the trial court made “the following findings of fact[.]” The written Orders do not
include any standard of proof, including the required clear, cogent, and convincing
standard. See N.C. Gen. Stat. § 7B-1109(f). The trial court also did not announce the
standard of proof in open court when making its ruling at the adjudicatory portion of
the hearing. Therefore, the trial court erred by not announcing it was making
Findings based on the clear, cogent, and convincing standard of proof. See, e.g., In re
M.R.F., 378 N.C. 638, 642, 862 S.E.2d 758, 762 (2021) (“In the present case, however,
the trial court failed to announce the standard of proof for its adjudicatory findings
either in open court or in its written order. Therefore, the trial court failed to comply
with the statutory mandate.” (emphasis in original)).
When a trial court errs by not making findings using the clear, cogent, and
convincing standard of proof, the reviewing court must at a minimum reverse for that
error. See In re J.C., 380 N.C. at 743, 747, 869 S.E.2d at 686, 688; In re M.R.F., 378
N.C. at 642-43, 862 S.E.2d at 762-63. A case reversed on these grounds can be
remanded to the trial court for it to “review and reconsider the record before it by
applying the clear, cogent, and convincing standard to make findings of fact . . . unless
‘the record of th[e] case is insufficient to support findings which are necessary to
establish any of the statutory grounds for termination.’” In re J.C., 380 N.C. at 746,
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869 S.E.2d at 688 (quoting In re M.R.F., 378 N.C. at 648, 862 S.E.2d at 766) (emphasis
in original). Two examples are illustrative of the difference between a case that can
be reversed and remanded to the trial court and a case that must be reversed without
remand. In In re J.C., our Supreme Court reversed and remanded because it could
not “say that remand of this case for the trial court’s consideration of the evidence in
the record utilizing the proper clear, cogent, convincing standard of proof would be
futile, so as to compel us to conclude that the record of this case is insufficient to
support findings which are necessary to establish any of the statutory grounds for
termination.” In re J.C., 380 N.C. at 747, 869 S.E.2d at 688 (citations, quotation
marks, and emphasis omitted). By contrast, in In re M.R.F., our Supreme Court was
“compelled to simply, without remand, reverse the trial court’s order” because of the
“petitioner’s failure to present sufficient evidence to support any of the alleged
grounds for the termination of the parental rights of respondent father[.]” In re
M.R.F., 378 N.C. at 642-43, 862 S.E.2d at 762-63 (emphasis in original).
Thus, we must determine whether “the record of this case is insufficient to
support findings which are necessary to establish any of the statutory grounds for
termination.” In re J.C., 380 N.C. at 746, 869 S.E.2d at 688 (citations, quotation
marks, and emphasis omitted). If Mother did not present sufficient evidence of the
ground for termination—willful failure to pay child support under N.C. Gen. Stat. §
7B-1111(a)(4)—we must reverse without remand. See In re M.R.F., 378 N.C. at 642-
43, 862 S.E.2d at 762-63. If she presented sufficient evidence of that ground, we will
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reverse and remand for the trial court to “review and reconsider the record before it
by applying the clear, cogent, and convincing standard to make findings of fact.” In
re J.C., 380 N.C. at 746, 869 S.E.2d at 688. Father’s remaining arguments on appeal
address the sufficiency of the evidence and Findings on § 7B-1111(a)(4), so we turn to
those arguments now.
3. Sufficiency of the Evidence and Findings as to § 7B-1111(a)(4)
Father makes multiple specific arguments as part of his general argument that
the trial court erred by terminating his parental rights under § 7B-1111(a)(4). All of
his arguments relate to the sufficiency of the evidence presented by Mother or the
sufficiency of the Findings made by the trial court to support its conclusion that
Father’s parental rights were subject to termination under § 7B-1111(a)(4). Under §
7B-1111(a)(4), the petitioner must present evidence and the trial court must make
findings of fact on two elements:
(1) that an order or parental agreement requiring the
payment of child support was in effect . . . and (2) that the
party whose parental rights were sought to be terminated
had [willfully] not paid child support as required by the
order or parental agreement within the year preceding the
entry of the petition.
In re S.R., 283 N.C. App. 149, 158-59, 872 S.E.2d 406, 413 (2022) (citing In re C.L.H.,
376 N.C. 614, 620, 853 S.E.2d 434, 439 (writing quoted language in the context of
what the petitioner must show before going on to discuss the first requirement in the
context of whether the “trial court’s findings of fact were []sufficient to support the
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termination” of parental rights); N.C. Gen. Stat. § 7B-1111(a)(4) (including the
requirement that the failure to pay be willful).
Father’s arguments relate to both elements. As to the existence of a child
support order, Father first argues “[t]here was no evidence presented to prove the
existence of a valid child support order.” Father also argues the trial court’s Findings
were insufficient to establish the existence of a child support order, and thus the
Findings did not support terminating Father’s parental rights under § 7B-1111(a)(4),
because the only Finding “to address the existence of a child support order[,]” is not
“valid” and must be “disregarded” since it only recounts Mother’s testimony. Turning
to the second element, Father contends “there was insufficient evidence to support
the court’s conclusion [Father’s] failure [to] pay child support was without
justification” and the trial court “failed to make any findings of fact regarding the
willfulness of his failure to pay child support.” Thus, on the two elements Father
contests—the existence of a child support order and the willfulness of his failure to
pay—he argues both Mother presented insufficient evidence and the trial court’s
Findings are insufficient to support its Conclusion that his parental rights can be
terminated.
Since we must already at least reverse because of the trial court’s failure to
make Findings by clear, cogent, and convincing evidence, we need only address
whether Mother presented sufficient evidence as to each element. As explained
above, we can remand based on the trial court’s failure to state the proper standard
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Opinion of the Court
of proof as long as Mother presented sufficient evidence to support termination under
§ 7B-1111(a)(4). The same is true if the trial court’s Findings are insufficient to
support its Conclusion of Law that Father’s rights could be terminated on that
ground; as long as Mother presented sufficient evidence, we can remand for entry of
a new order. See In re C.L.H., 376 N.C. 614, 622-23, 853 S.E.2d 434, 441 (2021)
(“Where, as in this matter, the ‘trial court’s adjudicatory findings were insufficient to
support its conclusion that termination of the parent’s rights was warranted, but the
record contained additional evidence that could have potentially supported a
conclusion that termination was appropriate,’ we ‘vacate[] the trial court’s
termination order and remand[ ] the case for further proceedings, including the entry
of a new order containing findings of fact and conclusions of law addressing the issue
of whether [the] ground for termination existed.’” (quoting In re K.N., 373 N.C. 274,
284, 837 S.E.2d 861, 869 (2020) (brackets in original)). Thus, as to each of the two
elements Father contests, if Mother presented sufficient evidence of the element, we
can reverse and remand the case rather than reverse it outright. See In re J.C., 380
N.C. at 746, 869 S.E.2d at 688 (allowing remand only if sufficient evidence has been
presented); In re C.L.H., 376 N.C. at 622-23, 853 S.E.2d at 441 (same).
Looking at the first element, Mother presented sufficient evidence of “an order
or parental agreement requiring the payment of child support[.]” In re S.R., 283 N.C.
App. at 158, 872 S.E.2d at 413. Although our record does not include a child support
order, Mother testified about the existence of the child support order, which dated
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Opinion of the Court
back to July 2018:
Q. Okay. From 5/6/2018 until today has [Father] paid any
child support in this case?
A. He did not pay any until he was forced to by child
support. I did have a child support order, but like soon after
(inaudible). But, nothing was ever paid on that. I did get
taxes back, his taxes back once, and then there was –
...
THE COURT: Right. So, back to this child support; you got
a child support order approximately June of 2018?
A. I believe it was in July.
THE COURT: Right. July - approximately July of 2018 you
got a child support order. How much did they order him to
pay?
A. $1,098.00 a month.
THE COURT: $1,098.00, okay. Is that here in Randolph
County?
A. Yes, sir.
Mother’s testimony provides sufficient evidence on the issue of the existence of
a child support order as the first element of the termination of Father’s parental
rights under § 7B-1111(a)(4). In In re C.L.H., our Supreme Court had to determine
whether there was “evidence in the record which might support a conclusion that
grounds existed to terminate respondent’s parental rights pursuant to” § 7B-
1111(a)(4) that would allow for vacatur and remand given the trial court did not make
a finding that the respondent failed to pay as required by a child support order. In
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Opinion of the Court
re C.L.H., 376 N.C. at 621-23, 853 S.E.2d at 440-41. The In re C.L.H. Court found
such evidence in the record in part because “petitioner testified that there was a child
support order in place at the time of the termination hearing.” Id. at 621-22, 853
S.E.2d at 440. Similarly here, Mother’s testimony about the existence of a child
support order is sufficient evidence to meet her burden of presenting evidence for the
first element under § 7B-1111(a)(4). See id.; In re S.R., 283 N.C. App. at 158-59, 872
S.E.2d at 413 (delineating elements of § 7B-1111(a)(4)).
We also note Father testified, and he never disputed that he was required to
pay child support under a court order. Father acknowledged the existence of a child
support order but simply claimed he was unable to pay at certain times. For example,
Father was asked on cross-examination if he had ever moved the court to reduce his
child support when his income went down, and Father stated, “I tried to, yes.” Father
also stated he “went to court once and got it continued.” Father did not dispute the
existence of a child support order but admitted he had unsuccessfully tried to reduce
his child support obligation. Despite Mother’s testimony about the child support
order and Father’s own testimony acknowledging his child support obligation, Father
asks us to place a higher burden on Mother than the law provides by requiring Mother
to present a copy of the child support order as evidence. See In re C.L.H., 376 N.C. at
621-22, 853 S.E.2d at 440 (finding testimony a child support order was in place at the
time of the termination hearing sufficient to support termination for willful failure to
pay child support).
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IN RE: A.H.D., V.I.D.
Opinion of the Court
The trial court noted Mother’s testimony about the existence of a child support
order in the Finding Father challenges, Finding 8. In each Order terminating
Father’s parental rights, Finding 8 states:
[Mother] testified that in July, 2018, a child support order
was put in place for [Father] to pay child support. [Father]
has failed and refused for more than one (1) year to pay
child support pursuant to the child support order for the
use and benefit of the minor child. [Father] has not paid
child support since May 6, 2018, and he is more than
$20,000.00 in arrears.
Since we must reverse and remand for entry of a new order based upon the
failure to identify the standard of proof, we also note that this Finding is defective as
it is a recitation of testimony and not a true finding of fact. As Father argues,
“[a]ccording to well-established North Carolina law, recitations of the testimony of
each witness do not constitute findings of fact by the trial judge.” In re A.C., 378 N.C.
377, 383-84, 861 S.E.2d 858, 867 (2021) (citation, quotation marks, and brackets
omitted). The first line of Finding 8 merely recites Mother’s testimony and thus it is
not a Finding of Fact this Court would have been able to rely upon if we had to
evaluate the overall validity of the trial court’s termination Orders. See id. (noting
our Supreme Court “disregarded the language” that merely recited testimony by a
witness when “determining the validity of the trial court’s termination order”). Again
this discussion does not impact our decision on whether to remand because Mother
presented sufficient evidence to support a finding that a child support order was put
in place in July 2018. See In re J.C., 380 N.C. at 746, 869 S.E.2d at 688; In re C.L.H.,
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Opinion of the Court
376 N.C. at 622-23, 853 S.E.2d at 441. But we note this issue for the benefit of the
trial court on remand. The trial court’s Findings of Fact on remand should not simply
recite the testimony on this crucial fact; the existence of a child support order is
necessary for termination of parental rights under § 7B-1111(a)(4), see In re S.R., 283
N.C. App. at 158, 872 S.E.2d at 413, and the trial court would need to make this
finding by clear, cogent and convincing evidence to support the order of termination.
See N.C. Gen. Stat. § 7B-1109(f) (requiring trial court to make all findings of fact
based on this standard).
Turning to the second element of § 7B-1111(a)(4), we must determine whether
Mother presented evidence sufficient to support a Finding that Father willfully failed
to pay for a year preceding the filing of the Petitions. See In re S.R., 283 N.C. App.
at 158-59, 872 S.E.2d at 413 (delineating this second element); see also N.C. Gen.
Stat. § 7B-1111(a)(4) (clarifying the failure to pay must be willful). In the context of
termination of parental rights for willful failure to pay child support under § 7B-
1111(a)(4), the word “‘willful’ . . . has been defined as ‘disobedience which imports
knowledge and a stubborn resistance, doing the act . . . without authority—careless
whether he has the right or not—in violation of law’” and “as ‘doing an act purposely
and deliberately.’” Bost v. Van Nortwick, 117 N.C. App. 1, 14, 449 S.E.2d 911, 919
(1994) (second ellipses in original) (quoting In re Roberson, 97 N.C. App. 277, 280-81,
387 S.E.2d 668, 670 (1990)) (defining “willful” under the old version of the statute,
N.C. Gen. Stat. § 7A-289.32(5)); see In re J.D.S., 170 N.C. App. 244, 257, 612 S.E.2d
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IN RE: A.H.D., V.I.D.
Opinion of the Court
350, 358 (2005) (indicating N.C. Gen. Stat. § 7A-289.32(5) is “now codified as G.S. §
7B-1111(a)(4)”). Father here argues there was “insufficient evidence” to support a
Finding “his failure to pay child support was willful” because he lacked the ability to
pay.
Focusing on Father’s argument about the lack of evidence on his ability to pay,
our Supreme Court recently noted with approval this Court’s longstanding precedent
that “[b]ecause a proper decree for child support will be based on the supporting
parent’s ability to pay as well as the child’s needs, . . . there is no requirement that
[the] petitioner independently prove or that the termination order find as fact [the]
respondent’s ability to pay support during the relevant statutory time period.” In re
C.L.H., 376 N.C. at 622, 853 S.E.2d at 440-41 (ellipses in original) (quoting In re
J.D.S., 170 N.C. App. at 257, 612 S.E.2d at 358, which in turn quoted In re Roberson,
97 N.C. App. at 281, 387 S.E.2d at 670) (so noting after explaining it was not
necessary to reach the issue of whether a failure to pay was willful because the case
was already being remanded on the grounds the trial court failed to make a finding
on the existence of a child support order). Thus, because Mother here testified to the
existence of a valid child support order, she did not need to “independently prove”
Father had an ability to pay in order to present sufficient evidence to support a
Finding that Father willfully failed to pay. Id.Father’s arguments about his lack of ability to pay do not change our decision
that Mother presented sufficient evidence of willful failure to pay, although the trial
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Opinion of the Court
court will need to make new Findings on remand, as discussed above. Father first
indicates he “offered evidence to rebut” Mother’s evidence of his ability to pay. Father
testified he was unable to pay the full amount of child support during the relevant
time period. But Father also testified he was self-employed from late 2018 until 2021,
which corresponded with the time Father was on pre-trial release from jail, and that
testimony indicates Father had the ability to pay at least some money during the
time period. Mother testified, however, Father paid nothing between 2018 and when
she filed the Petitions in January 2020. This testimony thus provides evidence
Father had at least some ability to pay during the relevant time period.
But this testimony revealing Father had some ability to pay is ultimately not
relevant for the current decision of whether we can remand the case or must reverse
it outright. While Father could “present evidence to prove he was unable to pay child
support in order to rebut a finding of willful failure to pay[,]” Bost, 117 N.C. App. at
16, 449 S.E.2d at 919, to determine whether we can remand the case, we only need to
determine whether Mother presented sufficient evidence on which the trial court
could have found Father willfully failed to pay. See In re J.C., 380 N.C. at 746, 869
S.E.2d at 688; In re C.L.H., 376 N.C. at 622-23, 853 S.E.2d at 441. The trial court
has the duty of determining the credibility and weight of all the evidence, and only
the trial court can make the findings of fact resolving any conflicts in the evidence.
See, e.g., In re D.W.P., 373 N.C. 327, 330, 838 S.E.2d 396, 400 (2020) (“[I]t is the duty
of the trial judge to pass upon the credibility of the witnesses and the weight to be
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IN RE: A.H.D., V.I.D.
Opinion of the Court
given their testimony and the reasonable inferences to be drawn therefrom. The trial
judge’s decisions as to the weight and credibility of the evidence, and the inferences
drawn from the evidence are not subject to appellate review.” (citations, quotation
marks, and brackets omitted)). As we have explained, Mother presented such
sufficient evidence when she testified a valid child support order required Father to
pay. See In re C.L.H., 376 N.C. at 622, 853 S.E.2d at 440-41.
In his other argument, Father contends we should interpret § 7B-1111(a)(4)
“in pari materia” with N.C. Gen. Stat. § 5A-21’s provisions on civil contempt for
failure to pay child support because “terminating parental rights is far more severe”
than holding a parent in civil contempt and doing so is necessary “[t]o protect a
parent’s constitutional rights[.]” Specifically, Father asserts, based on this Court’s
decision in Cty. of Durham ex rel. Durham DSS v. Burnette, 262 N.C. App. 17, 821
S.E.2d 840 (2018), the trial court should have looked at his “current circumstances”
with regard to ability to pay “regardless of when the original child support order was
entered.” Father contends the trial court “made no efforts” to undertake that inquiry
in this case. We do not need to address this argument from Father because it focuses
on the sufficiency of the trial court’s Findings rather than on the sufficiency of the
evidence Mother presented, the latter of which determines whether we can remand
the case. See In re J.C., 380 N.C. at 746, 869 S.E.2d at 688; In re C.L.H., 376 N.C. at
622-23, 853 S.E.2d at 441.
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Opinion of the Court
Thus, Mother presented sufficient evidence of both elements of § 7B-1111(a)(4).
Because Mother presented sufficient evidence upon which the trial court could have
made Findings to support a conclusion that Father’s parental rights could be
terminated under N.C. Gen. Stat. § 7B-1111(a)(4), we can remand the case rather
than reverse it outright. See In re J.C., 380 N.C. at 746, 869 S.E.2d at 688; In re
C.L.H., 376 N.C. at 622-23, 853 S.E.2d at 441. The trial court is not required to make
any particular finding on remand; the trial court instead must make the findings,
based upon clear, cogent, and convincing evidence, it determines are appropriate
based on the evidence. See, e.g., In re N.W., 381 N.C. 851, 857, 874 S.E.2d 498, 504
(2022) (“Although the trial court does have responsibility for evaluating the
credibility of the witnesses, weighing the evidence, and determining the relevant
facts, its findings of fact must be based upon clear, cogent, and convincing evidence[.]”
(citations omitted)); In re J.C., 380 N.C. at 746, 869 S.E.2d at 688 (“[U]pon remand a
trial court must review and reconsider the record before it by applying the clear,
cogent, and convincing standard to make findings of fact.”).
III. Conclusion
We reverse and remand this case to the trial court. While the Petitions
provided Father sufficient notice of the grounds on which his parental rights could be
terminated, we reverse because the trial court failed to announce, either in open court
or in the written Orders terminating Father’s parental rights, it was making Findings
using the required clear, cogent, and convincing standard of proof. Because Mother
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IN RE: A.H.D., V.I.D.
Opinion of the Court
presented sufficient evidence on which the trial court could have terminated Father’s
parental rights under N.C. Gen. Stat. § 7B-1111(a)(4), we remand the case rather
than reverse it outright. On remand, the trial court shall consider “the record before
it in order to determine whether [Mother] has demonstrated by clear, cogent, and
convincing evidence” that Father’s parental rights could be terminated. In re J.C.,
380 N.C. at 747, 869 S.E.2d at 688 (remanding case with such instructions where
trial court did not announce the proper clear, cogent, and convincing standard of
proof).
REVERSED AND REMANDED.
Judges ZACHARY and COLLINS concur.
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