An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1037
                        NORTH CAROLINA COURT OF APPEALS

                                Filed: 6 May 2014




IN THE MATTER OF:                              Davidson County
                                               Nos. 10 JT 133-34, 11 JT 134
S.S.H., J.K.H., T.J.H.



      Appeal    by     respondent-mother     from     orders    entered    26   June

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

Heard in the Court of Appeals 14 April 2014.


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

      Assistant   Appellate   Defender                Joyce    L.    Terres     for
      respondent-appellant mother.

      Laura Bodenheimer for guardian ad litem.


      HUNTER, JR., Robert N., Judge.


      Respondent-mother appeals from the district court’s orders

terminating      her     parental     rights     to     the    juveniles      S.S.H.

(“Sarah”), J.K.H. (“Jacob”), and T.J.H. (“Thomas”).1                 We affirm.


1
  Pseudonyms are used for ease of reading and to protect the
identity of the juveniles.
                                          -2-
      On 14 September 2010, the Davidson County Department of

Social Services (“DSS”), took nonsecure custody of Sarah and

Jacob       and   filed   juvenile   petitions   alleging      that    they   were

neglected and dependent.          The petitions alleged that respondent-

mother was not attending to eight-month-old Jacob’s respiratory

condition; that after Jacob’s admission to the hospital, his

treating physician felt it was not safe to discharge Jacob into

respondent-mother’s care; that respondent-mother and the father

had     a     history     of   domestic     violence;   that     the    father’s

whereabouts were unknown; and that respondent-mother had failed

to seek routine medical care for Sarah.

      In an order entered on 13 January 2011, the trial court

adjudicated Sarah and Jacob dependent, based on the stipulations

of the parties.           The trial court entered a separate disposition

order, in which it retained custody with DSS, implemented a

permanent plan of reunification, and ordered respondent-mother

to comply with certain directives.

      Respondent-mother gave birth to Thomas in April 2011.                   On 6

October 2011, DSS obtained nonsecure custody of Thomas and filed

a petition alleging that he was neglected and dependent.                       The

petition alleged that respondent-mother had several outstanding

warrants for her arrest for failure to appear in response to
                                       -3-
multiple    criminal    charges   in   Davidson   County.    The    petition

further alleged that on 28 September 2011, when law enforcement

officers confronted respondent-mother,            she threatened to drop

five-month-old Thomas on the ground to keep the officers at bay.

The officers also observed her smoking a cigarette, dropping

ashes on Thomas, and blowing smoke in his face.                Respondent-

mother resisted, but was eventually arrested and charged with

child abuse, resisting an officer, injury to personal property,

and assault on a government official with a deadly weapon.               The

petition further alleged that respondent-mother refused to make

arrangements for Thomas’s care after her arrest, tested positive

for marijuana at Thomas’s birth, and was not participating in

services with DSS.

       In an order entered on 15 December 2011, the trial court

adjudicated    Thomas     neglected     and   dependent,    based   on   the

stipulation of the parties.        The trial court entered a separate

disposition order on 29 February 2012, in which it retained

custody with DSS, implemented a permanent plan of reunification,

and ordered respondent-mother to comply with certain directives.

       On 28 November 20112 and 21 September 2012, DSS filed three

petitions to terminate the parental rights of respondent-mother.



2
    DSS amended one of the petitions on or about 22 January 2013 to
                                          -4-
DSS    alleged    the     following       grounds         for     termination        against

respondent-mother: (1) neglect; (2) failure to make reasonable

progress; and (3) willful failure to pay a reasonable portion of

the cost of care for the juveniles.                       See N.C. Gen. Stat § 7B-

1111(a)(1)-(3) (2013).              The court conducted a termination of

parental rights hearing on 30 May 2013.                             In three separate

orders entered on 26 June 2013, the court found the existence of

the following grounds for termination against respondent-mother

as    to   all   three    children:           (1)   failure       to    make   reasonable

progress; and (2) willful failure to pay a reasonable portion of

the cost of care for the juveniles.                   See N.C. Gen. Stat. § 7B-

1111(a)(2), (3).         The trial court also found neglect as a ground

for    termination       as   to   Thomas.          See    N.C.    Gen.    Stat.      §   7B-

1111(a)(1).       At disposition, the trial court concluded that it

was in the juveniles’ best interests to terminate the parental

rights of respondent-mother.3             Respondent-mother appeals.

       Respondent-mother             challenges            the         trial         court’s

determinations concerning the grounds for termination.                           Pursuant

to N.C. Gen. Stat. § 7B-1111(a), a trial court may terminate

parental     rights      based     upon   a    finding      of    one    of    the   eleven



reflect the correct name of Sarah’s father.
3
  The trial court also terminated the parental rights of the
juveniles’ fathers, but they do not appeal.
                                   -5-
statutorily enumerated grounds.           If this Court determines that

the findings of fact support one ground for termination, we need

not review the other challenged grounds.             In re Humphrey, 156

N.C. App. 533, 540, 577 S.E.2d 421, 426–27 (2003).                  We review

the trial court’s order to determine “whether the trial court’s

findings of fact were based on clear, cogent, and convincing

evidence,    and   whether     those   findings     of     fact    support   a

conclusion that parental termination should occur[.]”                    In re

Oghenekevebe, 123 N.C. App. 434, 435-36, 473 S.E.2d 393, 395

(1996) (citation omitted).

    After    reviewing   the    record,    we   conclude    that   the   trial

court’s findings of fact are sufficient to support the ground of

failure to pay a reasonable portion of the cost of care for the

juveniles.    The pertinent statute provides the following as a

ground for termination:

            The 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).
                                     -6-
       “In determining what constitutes a ‘reasonable portion’ of

the cost of care for a child, the parent’s ability to pay is the

controlling characteristic.”         In re Clark, 151 N.C. App. 286,

288,   565   S.E.2d    245,   247   (citation   omitted),    disc.   review

denied,   356   N.C.   302,   570   S.E.2d   501   (2002).   “[N]onpayment

constitutes a failure to pay a reasonable portion ‘if and only

if respondent [is] able to pay some amount greater than zero.’”

Id. at 289, 565 S.E.2d at 247 (quoting In re Bradley, 57 N.C.

App. 475, 479, 291 S.E.2d 800, 802 (1982)).

       In the instant case, the trial court concluded that each

child had been placed in DSS custody and that respondent-mother

for a continuous period of six months preceding the filing of

each petition had willfully failed to pay a reasonable portion

of the cost of care for each child despite being physically and

financially able to do so.          The trial court made the following

findings of fact to support this ground for termination:4



4
  The pertinent findings of fact in each order are nearly
identical to each other, but have different numbering.       We
therefore have set out the findings from Sarah’s order and
decline to set out the other two sets of findings.    The first
number refers to the order pertaining to Sarah, the second
number to that of Jacob, and the third to that of Thomas. Any
differences in the findings are attributable to the differences
between the children, and do not affect the substance of the
finding or the ground for termination. For instance, the total
cost of care in findings 40, 38, and 31 is slightly different
for each child, and the order pertaining to Sarah is the only
                              -7-
         38/36/29. [Respondent-mother] is able-bodied
                   and the Court is unaware of any
                   disability that prevents her from
                   participating       in      gainful
                   employment.     [Respondent-mother]
                   reported to social worker Ramirez
                   that she had been doing exotic
                   dancing for income.

                   . . . .

         40/38/31. For the six months prior to the
                   filing of the petition in this
                   matter, [DSS] paid $8,598.00 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 33.    The
                   Department has advanced a total of
                   $44,508.22 for the actual cost of
                   care of the minor child as of the
                   date of this affidavit.

         41/39/32. On or about January 28, 2011 [as
                   to Sarah and Jacob; January 26,
                   2012 as to Thomas], the Court
                   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


order that references an amended petition, because an amended
petition was only filed in her juvenile case.     The only major
substantive difference is noted in brackets in finding 41/39/32:
respondent-mother’s support agreement for Thomas was entered
into on a different date than that of Sarah and Jacob.
                                -8-
                    cost of care for the minor child,
                    especially in light of the actual
                    cost of care as set forth above.
                    [Respondent-mother]    has     the
                    ability to pay this amount.      A
                    copy of the order was received
                    into   evidence   as  Petitioner’s
                    Exhibit 38.

                    . . . .

          43/41/34. For the six months prior to filing
                    the   petition   in   this   matter,
                    [respondent-mother] paid nothing.
                    [She] was found in civil contempt
                    of the January 28, 2011 order on
                    August 5, 2011 and July 12, 2012,
                    a copy of those contempt orders
                    were received into evidence as
                    Petitioner’s Exhibits 39 and 40.
                    During the six months immediately
                    preceding    the   filing   of   the
                    amended    petition,    [respondent-
                    mother] only paid a $100.00 purge
                    payment.      [She] has willfully
                    failed to pay a reasonable portion
                    of the cost of care for [her]
                    minor child during the six months
                    immediately preceding the filing
                    of the original petition and the
                    amended petition in this matter.

Respondent-mother has failed to specifically challenge any of

these   findings   of   fact   as   lacking   evidentiary   support.

Consequently, they are presumed to be supported by competent

evidence and are binding on appeal.      See In re M.D., 200 N.C.

App. 35, 43, 682 S.E.2d 780, 785 (2009).
                                            -9-
       Respondent-mother          argues    that       the     trial      court    failed       to

establish that she had the ability to pay or earn income during

the relevant time period.                However, respondent-mother’s ability

to pay was established by her child support orders.                                 See In re

Becker,    111     N.C.    App.     85,    94,     431       S.E.2d     820,      826    (1993)

(finding       that     since     the     respondent-father               entered       into     a

voluntary       support     agreement,          “DSS    did       not   need      to    provide

detailed    evidence       of    his     ability       to    pay    support       during       the

relevant time period”).             In addition to the findings regarding

the     support       orders,     the     trial        court       made     findings         that

respondent-mother was able-bodied, that she was not under any

disability      that     prevented       her     from       participating         in    gainful

employment,       and     that    she     had    earned        income      through       exotic

dancing.        Contrary to respondent-mother’s argument, the trial

court’s    findings       are     linked    to     the       relevant      statutory         time

period    and     establish       that    she     either       earned      income       or     was

capable of doing so.             Thus, the trial court’s findings establish

that    respondent-mother          had     the     ability         to   pay    some      amount

greater than zero.           See In re Tate, 67 N.C. App. 89, 95, 312

S.E.2d 535, 539-40 (1984) (rejecting respondent’s argument that

there    was     insufficient       evidence       of       her    ability        to    provide
                              -10-
support where evidence showed that she was “an able-bodied woman

capable of working” and voluntarily left several jobs).

    Based on the foregoing, we conclude that the trial court

did not err in terminating respondent-mother’s parental rights

pursuant to N.C. Gen. Stat. § 7B-1111(a)(3), so we affirm the

orders of the trial court.

    Affirmed.

    Judges ERVIN and DAVIS concur.

    Report per Rule 30(e).
