In re A.H.D., 287 N.C. App. 548 (2023)
Held:
Reversed and Remanded
- Facts: Mother filed TPR action against father alleging that for more than one year, father did not have contact with or visitation with the child and for more than one year, father has failed and refused to pay child support. A TPR hearing was held where mother and father testified. Mother testified to the existence of a child support order and father’s nonpayment, except for some tax intercepts. The court granted the TPR under G.S. 7B-1111(a)(4). Father appeals, challenging the sufficiency of the petition, the failure of the court to find the TPR ground by clear and convincing evidence, and insufficient evidence of the ground.
- G.S. 7B-1111(a)(4) requires the court make two findings of fact: (1) an order or agreement requires the payment of child support and (2) the parent willfully failed to pay the child support as ordered or agreed to.
- Although a child support order was not entered in evidence, mother presented sufficient evidence of the existence of a child support order when she testified to its existence. Father also testified that there was a child support order that he was unable to pay.
- Willfulness involves doing something deliberately and purposefully. Because a child support order exists, mother was not required to prove father had an ability to pay. Father’s testimony was that he was unable to pay the full amount although he had some income during the relevant time period indicating he has the ability to pay something. Mother testified father paid nothing. Mother presented sufficient evidence that the trial court could have found father willfully failed to pay. This warrants a remand.
Category:
Termination of Parental RightsStage:
AdjudicationTopic:
Fail to Pay Child Support