                            NO. COA14-213
                    NORTH CAROLINA COURT OF APPEALS
                         Filed:   5 August 2014
IN THE MATTER OF:
                                         Iredell County
                                         Nos. 12 JT 57, 178
S.T.B., JR. and O.N.B.


    Appeal by respondent from order entered 6 November 2013 by

Judge Deborah Brown in Iredell County District Court.           Heard in

the Court of Appeals 22 July 2014.


    Lauren Vaughan for Iredell County           Department    of   Social
    Services, petitioner-appellee.

    Melanie Stewart Cranford for Guardian ad Litem, petitioner-
    appellee.

    Jeffrey L. Miller for father, respondent-appellant.


    ERVIN, Judge.


    Respondent-Father S.B. appeals from an          order terminating

his parental rights in S.T.B., Jr., and O.N.B.1               On appeal,

Respondent-Father    contends     that    the   trial   court      lacked

jurisdiction over this case given that the termination petition

was filed and verified by a person who lacked the authority to

take those actions, that the trial court erred by determining

that his parental rights in Opal were subject to termination

    1
      S.T.B., Jr., and O.N.B. will be referred to throughout the
remainder of this opinion as “Sam” and “Opal,” pseudonyms used
for ease of reading and to protect the juveniles’ privacy.
                                            -2-
pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) on the grounds that

Opal had not been in foster care pursuant to an order of the

court     for     twelve    months     as     of    the     date       upon    which    the

termination petition was filed, that the trial court erred by

terminating his parental rights in Sam pursuant to N.C. Gen.

Stat. § 7B-1111(a)(2) on the grounds that the relevant findings

of   fact   lacked      adequate      evidentiary         support       and    failed    to

support     the     trial    court’s        finding       that     this       ground    for

termination       existed,      and    that        the    trial     court      erred     by

terminating his parental rights in both children pursuant to

N.C. Gen. Stat. § 7B-1111(a)(3) on the grounds that the relevant

findings of fact lacked adequate evidentiary support and failed

to   support      the   trial   court’s       finding       that    this      ground     for

termination existed.         After careful consideration of Respondent-

Father’s challenges to the trial court’s order in light of the

record    and     the   applicable         law,    we    conclude      that    the     trial

court’s order should be affirmed.

                             I. Factual Background

      On 23 March 2012, the Iredell County Department of Social

Services filed a petition alleging that Sam was a neglected and

dependent       juvenile    based     on    illegal      drug    use    by    Respondent-
                                     -3-
Mother Samantha K.,2 Respondent-Mother’s incarceration, and the

fact that Sam tested positive for cocaine at birth.                DSS took

nonsecure custody of Sam contemporaneously with the filing of

the initial petition, while Opal was in the care of Respondent-

Father’s   mother   at    that    time.      Although    DSS   alleged     that

Respondent-Father   was    Sam’s    father    in   the   initial   petition,

Sam’s   paternity   had    not     been    scientifically      confirmed    or

judicially established as of the date upon which the initial

petition was filed.

    After a hearing held on 2 May 2012, Sam was determined to

be a dependent juvenile.         Following a dispositional hearing held

on 3 July 2012, Respondent-Father was determined to be Sam’s

father based upon DNA testing results, Sam was retained in DSS

custody, and Respondent-Father was ordered to pay child support,

submit to random drug testing, and comply with the provisions of

his case plan.

    On 1 August 2012, DSS filed a petition alleging that Opal

was a neglected juvenile.         At a hearing held on 28 August 2012,

Opal was adjudicated to be a neglected juvenile based upon a

stipulation entered into between the parties.            At the conclusion

of the resulting dispositional proceeding, Opal was placed in
    2
      As a result of the fact that she did not note an appeal to
this Court from the trial court’s termination order, Respondent-
Mother’s parental rights in the children have been finally
adjudicated.
                                        -4-
DSS custody and Respondent-Father was ordered to comply with the

provisions of his case plan, submit to random drug tests, obtain

and maintain stable housing and employment, complete parenting

classes,    maintain     regular    contact          with   DSS,     refrain    from

engaging in criminal activity, and pay child support.

    On     20   November   2012,    a    review       and   permanency    planning

hearing was held.       At the conclusion of that proceeding, DSS was

relieved of further responsibility for attempting to reunify Sam

and Opal with their parents and the permanent plan for the two

children was changed to adoption.

    On 21 May 2013, Kathy K. Martin, a program specialist with

the Guardian ad Litem program, filed and verified a petition

seeking    to   have    Respondent-Mother’s           and   Respondent-Father’s

parental rights in Sam and Opal terminated on the grounds of

neglect    as   authorized   by     N.C.      Gen.    Stat.    §    7B-1111(a)(1);

leaving the children in foster care for more than twelve months

without    making      reasonable       progress      toward       correcting    the

conditions that led to the children’s removal from the home as

authorized by N.C. Gen. Stat. § 7B-1111(a)(2); failing to pay a

reasonable portion of the cost of the care that the children had

received as authorized by N.C. Gen. Stat. § 7B-1111(a)(3); and

willfully abandoning the children as authorized by N.C. Gen.

Stat. § 7B-1111(a)(7).
                                        -5-
      After conducting a hearing concerning the issues raised in

the   termination     petition     on   24     July     2013,    the    trial   court

entered an order on 6 November 2013 finding that Respondent-

Father’s    parental    rights     in    Sam      and   Opal     were   subject    to

termination on the grounds that he had allowed the children to

remain in foster care for more than twelve months without making

reasonable progress in addressing the conditions that led to

their removal from the home pursuant to N. C. Gen. Stat. § 7B-

1111(a)(2) and that he had failed to pay a reasonable portion of

the cost of the care that had been provided to the children

pursuant to N.C. Gen. Stat. § 7B-1111(a)(3) and concluding that

the termination of Respondent-Father’s parental rights would be

in the children’s best interest.                  Respondent-Father noted an

appeal to this Court from the trial court’s order.

                      II. Substantive Legal Analysis

                      A. Subject Matter Jurisdiction

      In   his   initial    challenge        to   the    trial     court’s      order,

Respondent-Father       contends        that      the     trial     court       lacked

jurisdiction over the subject matter of this case on the grounds

that the petition seeking to have Respondent-Father’s parental

rights in the children terminated had been filed by a person who

had   no   standing    to   file   or    verify       such   a    petition.       More

specifically, Respondent-Father contends that the trial court
                                         -6-
lacked    the    authority      to   address      the       issues    raised         in    the

termination petition because it was filed and verified by “Kathy

K. Martin, Guardian ad Litem (“GAL”) Program Specialist, by and

through the undersigned Attorney Advocate,” rather than by David

Hartness,       who   served    as     the     volunteer       guardian         ad        litem

appointed to represent the children and who did most of the work

performed in connection with the representation of Sam and Opal

in this proceeding.        We do not find Respondent-Father’s argument

persuasive.

      “Standing is jurisdictional in nature and ‘[c]onsequently,

standing is a threshold issue that must be addressed, and found

to   exist,     before    the   merits       of   [the]      case     are    judicially

resolved.’”       In re Miller, 162 N.C. App. 355, 357, 590 S.E.2d

864, 865 (2004) (quoting In re Will of Barnes, 157 N.C. App.

144, 155, 579 S.E.2d 585, 592 (2003), reversed on other grounds,

358 N.C. 143, 592 S.E.2d 688 (2004)).                       According to N.C. Gen.

Stat.    §§   7B-1103(a)(6)      and    7B-1104,        a    petition       seeking        the

termination      of   a   parent’s      parental        rights       in   one    or       more

children may be filed by “[a]ny guardian ad litem appointed to

represent the minor juvenile pursuant to [N.C. Gen. Stat. §] 7B-

601 who has not been relieved of this responsibility” and must

“be verified by the petitioner[.]”                In view of the fact that the

extent of a trial court’s jurisdiction over the subject matter
                                      -7-
of a particular case raises a question of law, we will review

Respondent-Father’s challenge to Ms. Martin’s standing to file

and verify the termination petition using a de novo standard of

review.   In re E.J., __ N.C. App. __, __, 738 S.E.2d 204, 206

(2013).

    As N.C. Gen. Stat. § 7B-601(a) reflects, “[t]he guardian ad

litem   and    attorney    advocate   have     standing   to   represent    the

juvenile in all actions under this Subchapter where they have

been appointed” and must be appointed “pursuant to the program

established by Article 12 of this Chapter[.]”             N.C. Gen. Stat. §

7B-601(a).

              When read in pari materia, these statutes
              [that address guardian ad litem appointment,
              duties, and administration] manifest the
              legislative intent that representation of a
              minor child in proceedings under [N.C. Gen.
              Stat. §] 7B-601 and [N.C. Gen. Stat. §] 7B-
              1108 is to be . . . by the GAL program
              established in Article 12 of the Juvenile
              Code.   Under Article 12 volunteer GALs, the
              program attorney, the program coordinator,
              and   clerical  staff   constitute  the  GAL
              program.

In re J.H.K., 365 N.C. 171, 175, 711 S.E.2d 118, 120 (2011); see

also In re A.N.L., 213 N.C. App. 266, 269-70, 714 S.E.2d 189,

192 (2011) (holding that a child “was adequately represented by

the [guardian ad litem p]rogram pursuant to N.C. Gen. Stat. §

7B-601(a)”     despite    the   absence   of   the   volunteer   guardian    ad

litem from the hearing given that the attorney advocate “was
                                          -8-
present    . . .    during    both       portions   of     the   proceedings”       and

“actively   participated          by   questioning     witnesses     and    offering

recommendations      for     adjudication       and      disposition”).        As     a

result, the Supreme Court has rejected an interpretation of the

relevant statutory provisions that failed to recognize the fact

that the participants in the guardian ad litem program function

as a team instead of a collection of individuals, J.H.K., 365

N.C. at 177, 711 S.E.2d at 121, noting that the General Assembly

did not specify duties to be performed by each specific member

of the team.       Id. at 176, 711 S.E.2d at 121.                The argument that

Respondent-Father has advanced in support of his challenge to

the trial court’s jurisdiction over the subject matter of this

case, which      lacks support in any specific prior decision of

either the Supreme Court or this Court and which interprets N.C.

Gen. Stat. § 7B-1103(a)(6) to mean that the only member of the

guardian    ad     litem    team       authorized     to    file    and    verify     a

termination      petition    is    the    volunteer      guardian   ad     litem,    is

directly contrary to the interpretive approach adopted in J.H.K.

As a result, given that the General Assembly intended for Sam

and Opal to be represented by the guardian ad litem program and

for the participants in that program to function as a team, we

conclude that the termination petition at issue in this case was
                                      -9-
properly    filed     and    verified       and   that     Respondent-Father’s

argument to the contrary lacks merit.

                        B. Grounds for Termination

    Secondly,       Respondent-Father       argues      that    the   trial   court

erred by concluding that his parental rights in Sam and Opal

were subject to termination on the grounds that he failed to pay

a reasonable portion of the cost of the care that Sam and Opal

received while in foster care as authorized by N.C. Gen. Stat. §

7B-1111(a)(3).       More specifically, Respondent-Father argues that

the trial court erred by determining that his parental rights in

Sam and Opal were subject to termination pursuant to N.C. Gen.

Stat. § 7B-1111(a)(3) on the grounds that the trial court did

not find, and the record evidence did not show, that he had

willfully failed to pay a reasonable portion of the cost of the

care that Sam and Opal received during the six month period

immediately   preceding      the   filing    of   the    termination     petition

despite    having    the    ability   to    do    so.      Respondent-Father’s

argument lacks merit.

    A     parent’s    parental     rights    in   a     child   are   subject   to

termination in the event that

            [t]he juvenile has been placed in the
            custody of a county department of social
            services, . . . 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
                                       -10-
            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).       “The word       ‘willful’   means

something more than an intention to do a thing.                     It implies

doing the act purposely and deliberately.                Manifestly, one does

not act willfully in failing to make support payments if it has

not been within his power to do so.”            In re Adoption of Maynor,

38 N.C. App. 724, 726, 248 S.E.2d 875, 877 (1978) (emphasis in

original) (citations omitted).            “A parent’s ability to pay is

the controlling characteristic of what is a ‘reasonable portion’

of cost of foster care for the child which the parent must pay.”

In re Clark, 303 N.C. 592, 604, 281 S.E.2d 47, 55 (1981).                      “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.”             Id.     “[N]onpayment would

constitute a failure to pay a ‘reasonable portion’ if and only

if respondent were able to pay some amount greater than zero.”

In   re   Bradley,   57   N.C.   App.   475,   479,      291   S.E.2d   800,   802

(1982).      In   evaluating     the    validity    of     Respondent-Father’s

contention that the trial court erred by determining that his

parental rights in Sam and Opal were subject to termination

pursuant to N.C. Gen. Stat. § 7B-1111(a)(3), we must examine

“whether the findings of fact are supported by clear, cogent and
                                 -11-
convincing evidence and whether these findings, in turn, support

the conclusions of law.”      In re Clark, 72 N.C. App. 118, 124,

323 S.E.2d 754, 758 (1984).

    In its termination order, the trial court determined that

Respondent-Father, “for a continuous period of six months next

preceding the filing of the TPR petition, ha[d] willfully failed

for such period to pay a reasonable portion of the cost of care

for the juveniles, although physically and financially able to

do so[.]”    In support of this conclusion, the trial court found

as fact that:

            53.   Since the juveniles have been in the
                  custody   of    the   Department,   the
                  Respondent Father has never brought any
                  gifts for the juveniles, has never paid
                  any child support for the benefit of
                  the juveniles, and has not sent any
                  cards or letters to the juveniles.

                                . . . .

            55.   The Respondent Mother is under a child
                  support order which orders her to pay
                  $50 per month for the benefit of each
                  of the juveniles.        The Respondent
                  Father is also under a child support
                  order which orders him to pay $50 per
                  month for the benefit of each of the
                  juveniles. Neither parent has paid any
                  amount towards their respective child
                  support obligations, and the Court is
                  unaware of any disability which would
                  prevent the parents from paying some
                  amount toward these obligations.
                                               -12-
As a result of the fact that Respondent-Father has refrained

from    challenging       either         of     these       findings      as      lacking    in

sufficient evidentiary support, they are deemed to be supported

by competent evidence and are binding on appeal.                                  In re M.D.,

200 N.C. App. 35, 43, 682 S.E.2d 780, 785 (2009).

       Although Respondent-Father contends in his brief that the

evidence contained in the record developed at the termination

hearing and the trial court’s findings of fact did not suffice

to    adequately    establish           that    he    had   the    ability        to   pay   any

portion of the cost of Sam’s and Opal’s care during the relevant

six    month     period      and    points          to    findings     in      prior     orders

concerning his continued unemployment and his failure to make

certain payments required under a probationary judgment, this

argument overlooks the fact that the issue of his ability to pay

is addressed and resolved by the fact that he was subject to a

child support order that required him to pay $50 per month for

the    benefit    of   his    children.              As   this    Court     has      previously

stated, given that “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.”             In re Roberson, 97 N.C. App. 277, 281,
                                       -13-
387 S.E.2d 668, 670 (1990) (citations omitted).               In addition to

finding that Respondent-Father was subject to a child support

order that required him to pay $50 per month for the benefit of

the children, the trial court also found that it was not aware

that Respondent-Father was subject to any disability that would

prevent him from paying some amount of support.                 As a result,

given    that   record      evidence   and    the   trial   court’s   findings

establish that Respondent-Father had the ability to pay some

amount greater than zero for the support of the children, the

trial court did not err by determining that Respondent-Father’s

parental rights        in Sam and Opal were subject to termination

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

                                III. Conclusion

     Thus,      none   of    Respondent-Father’s      arguments   adequately

support his request that the trial court’s termination order be

overturned.     As a result, the trial court’s order should be, and

hereby is, affirmed.
     3
      Although Respondent-Father also argues that the trial court
erred by concluding that his parental rights in Sam and Opal
were subject to termination pursuant to N.C. Gen. Stat. § 7B-
1111(a)(2), we need not address this aspect of his challenge to
the trial court’s termination order given our decision to uphold
the trial court’s decision that Respondent-Father’s parental
rights in Sam and Opal were subject to termination pursuant to
N.C. Gen. Stat. § 7B-1111(a)(3).    See In re Humphrey, 156 N.C.
App. 533, 540, 577 S.E.2d 421, 426 (2003) (holding that a
finding that one ground for the termination of a parent’s
parental rights exists is sufficient to support a termination
order).
                         -14-
AFFIRMED.

Judges McGEE and STEELMAN concur.
