An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1365
                       NORTH CAROLINA COURT OF APPEALS

                                Filed:    6 May 2014

IN THE MATTER OF:

      K.L.C.                                  Davidson County
                                              No. 12 JT 98

      Appeal by respondent-mother from order entered 30 August

2013 by Judge Jimmy L. Myers in Davidson County District Court.

Heard in the Court of Appeals 7 April 2014.


      Assistant Davidson County Attorney Christopher M. Watford
      for petitioner-appellee Davidson County Department of
      Social Services.

      Attorney Advocate Laura Bodenheimer for Guardian ad Litem.

      Hunt Law Group, P.C., by James A. Hunt, for respondent-
      appellant mother.


      McCULLOUGH, Judge.


      Respondent-mother        appeals    from    an   order    terminating     her

parental rights to her daughter K.L.C. (“Kate”)1.                 We affirm.

                                  I.     Background

      On 25 May 2012, the Davidson County Department of Social

Services (“DSS”) filed a juvenile petition alleging that Kate,

1
 The pseudonym “Kate” is used throughout this opinion to protect
the identity of the child and for ease of reading.
                                         -2-
born October 2011, was a neglected and dependent juvenile.                       DSS

took non-secure custody of Kate.                By order filed 17 July 2012,

the    trial   court     adjudicated      Kate    neglected     based    upon    the

stipulations of the parties.              In a separate disposition order

filed 15 August 2012, the trial court continued custody of Kate

with DSS and ordered respondent-mother, among other things, to

pay   child    support    pursuant       to    North   Carolina   Child   Support

Guidelines.

       On 4 April 2013, DSS filed a petition to terminate the

parental rights of respondent-mother under N.C. Gen. Stat. § 7B-

1111(a)(3) for failure to pay a reasonable portion of the cost

of    care   for   the   child.         The    trial   court   held    termination

hearings in June and August 2013.                  By order filed 30 August

2013, the trial court concluded that grounds for termination of

respondent-mother’s        parental      rights    existed     under    N.C.    Gen.

Stat. § 7B-1111(a)(3).        The trial court concluded that it was in

Kate’s best interest to terminate respondent-mother’s parental

rights.2     Respondent-mother appeals.

                                  II.    Discussion




2
 The trial court also terminated the parental rights of Kate’s
father. He did not appeal.
                                           -3-
       Respondent-mother           contends      the   trial        court    erred     in

concluding that grounds existed to terminate her parental rights

pursuant to N.C. Gen. Stat. § 7B-1111(a)(3).                   We disagree.

       In   reviewing       a    trial   court’s   order   terminating         parental

rights,     this   Court        must   determine   whether     the     trial    court’s

findings of fact are supported by clear, cogent, and convincing

evidence and whether those findings support the trial court’s

conclusions of law.              In re S.N., 194 N.C. App. 142, 146, 669

S.E.2d 55, 58-59 (2008), aff'd per curiam, 363 N.C. 368, 677

S.E.2d 455 (2009).              “The trial court’s conclusions of law are

fully reviewable de novo by the appellate court.”                           Id. at 146,

669 S.E.2d at 59 (internal quotation marks omitted).

       A court may terminate parental rights upon finding that

              [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)    (2013).       “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 Ballard, 311 N.C. 708, 716-17, 319 S.E.2d 227, 233 (1984). A
                                 -4-
parent’s   “nonpayment   will   be   deemed   a   failure   to   pay   a

reasonable portion if and only if the [parent] could pay some

amount greater than zero.”      In re McDonald, 72 N.C. App. 234,

243, 324 S.E.2d 847, 853, disc. review denied, 314 N.C. 115, 332

S.E.2d 490 (1985).

    To support its conclusion that respondent-mother willfully

failed to pay a reasonable portion of the cost of care for Kate,

the trial court made the following findings of fact:

           22. [Respondent-mother] was first ordered by
               the Court to pay child support for the
               benefit of [Kate] in the disposition
               order entered following a hearing on
               August 1, 2012.

           23. [Respondent-mother] is able-bodied and
               has [sic] the Court is unaware of any
               disability that prevents her from gainful
               employment.     [Respondent-mother]   has
               indicated that she has been employed for
               the past eighteen months although no
               verification has been received. Based on
               her assertion, the Court finds that
               [respondent-mother] has the ability to
               pay child support.

           24. Mrs. Angie Curry is the custodian of
               Davidson County DSS records which pertain
               to accounts of children placed in the
               custody of the Davidson County Department
               of Social Services foster care placements
               and the monies expended for their support
               while in foster care.

           25. For the six months prior to the filing of
               the   petition   in   this   matter,  the
               Department   of   Social   Services  paid
                     -5-
   $2,850.00 for room and board and $120.00
   in clothing allowance for the benefit of
   the minor child. In that same time, the
   Department has received no payments from
   the respondent parents, and has not
   received any payment as of the date of
   the affidavit filed in this matter which
   was    received    into    evidence    as
   Petitioner’s Exhibit 9.    The Department
   has advanced a total of $5,682.26 for the
   actual cost of care of the minor child as
   of the date of this affidavit.

26. On   or    about   September   11,    2012,
    [respondent-mother]    entered    into    a
    voluntary support agreement which was
    ratified by the Court that established
    that   [respondent-mother]   was   to   pay
    $50.00 per month as current support and
    $5.00 toward arrears. The total monthly
    obligation of $55.00 is a reasonable and
    just amount for the cost of care for the
    minor child, especially in light of the
    actual costs of care for the child.       A
    certified copy of the order was received
    into evidence as Petitioner’s Exhibit 10.

27. Ms. Mitzi Troxell is the custodian of
    records for the Davidson County Child
    Support Enforcement Agency and is an
    establishment agent. For the six months
    prior to filing the petition in this
    matter,   [respondent-mother]   paid   no
    voluntary payments.   [Respondent-mother]
    has failed to pay a reasonable portion of
    the cost of care of the child.

28. On February 7, 2013, [respondent-mother]
    was held in willful civil contempt for
    failure to pay the obligations under the
    existing child support order and the
    court subsequently issued an order for
    [respondent-mother’s]            arrest.
    [Respondent-mother] was arrested but was
                                      -6-
                 released on May 1, 2013 after making a
                 purge payment of $300.00.    [Respondent-
                 mother] has made no payments since. A
                 certified copy of the order was received
                 into evidence as Petitioner’s Exhibit 11.

            29. The [respondent-mother] has, for a period
                of six months next preceding the filing
                of the petition to terminate her parental
                rights,    willfully   failed   to  pay   a
                reasonable portion of the cost of care
                for    the    children    [sic]    although
                physically and financially able to do so.

      Respondent-mother first asserts the trial court erred in

finding that she had the “ability to pay child support” when

there “was no evidence that the mother had any income or ability

to pay child support.”         However, respondent-mother entered into

a   voluntary    support   agreement       to   pay   $50.00    per   month   and,

therefore, DSS did not need to provide detailed evidence of her

ability to pay support during the relevant time period.                    See In

re Roberson, 97 N.C. App. 277, 281, 387 S.E.2d 668, 670 (1990)

(“[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     petitioner

independently prove or that the termination order find as fact

respondent’s     ability      to    pay    support     during     the    relevant

statutory time period.”)
                                           -7-
      Respondent-mother        also      asserts    the     trial   court     erred    in

finding that she failed to make any payments during the relevant

time period when “the evidence is uncontroverted that the mother

paid $510 between October 2012 and April 2013.”                       Child Support

Enforcement Worker Ms. Troxell testified that the only payment

the agency received between October 2012 and April 2013 was a

payment      on    March     13th   of     $150,    which     “was     intercepted.”

Contrary to respondent-mother’s assertion, she did not make any

voluntary payments during the relevant period.                      Rather, the $150

payment     was    “intercepted”      by   the     agency    and    applied    towards

respondent-mother’s           child      support      obligation.             Although

respondent-mother made a purge payment of $360 in May 2013, any

payments made after 4 April 2013 “are irrelevant, since the

termination        statute   specifically        limits     consideration      to     the

amount of support paid for the six months next preceding the

filing of the petition in termination.” In re Phifer, 67 N.C.

App. 16, 27, 312 S.E.2d 684, 690 (1984). Accordingly, the trial

court       properly       found    that     respondent-mother            failed       to

voluntarily pay a reasonable portion of the cost of care of Kate

for   the    six    months    prior   to    the    filing     of    the   termination

petition.
                                    -8-
    Finally, respondent-mother objects to the court’s ultimate

finding and conclusion that her failure to pay a reasonable

portion of the juvenile’s cost of care during the relevant six-

month period was “willful.”     We hold that the court’s findings

are sufficient to establish respondent-mother’s willful failure

to pay a reasonable portion of Kate’s cost of care. For the six-

month period that preceded DSS’s filing of the petition on 4

April   2013,   respondent-mother    paid   no   child   support   despite

having the ability to do so.    Accordingly, we conclude the trial

court properly found grounds existed to terminate respondent-

mother’s parental rights under N.C. Gen. Stat. § 7B-1111(a)(3).

    Affirmed.

    Judges HUNTER, Robert C., and GEER concur.

    Report per Rule 30(e).
