In re C.L.H., ___ N.C. ___ (Feb. 5, 2021)

Held: 
Reversed in Part
Vacated and Remanded in Part
There is a dissent
Barringer, J. joined by Newby J. and Berger, J.
  • Facts: This is a private TPR where mother is petitioner and father is respondent parent. In 2011, the parties entered into a consent order for child support, where respondent father was required to pay a set amount. In 2018, after father overdosed during a visit with the child, mother obtained a modified Ch. 50 custody order granting her sole physical and legal custody. The TPR was granted on the grounds of neglect, willful failure to pay child support, and dependency. Father appeals, challenging the grounds.
  • Standard of review of an adjudication is whether the findings of fact are supported by clear, cogent, and convincing evidence and whether the findings support the conclusions of law. Conclusions of law are reviewed de novo.
  • G.S. 7B-1111(a)(4) authorizes the court to terminate parental rights for willfully failing to pay for the child’s care, support, and education as required by a court decree or custody agreement for a period of one year or more before the filing of the TPR petition.
  • Agreeing with the Court of Appeals, the petitioner must prove there was an enforceable support order during the year before the TPR was filed. When there are no findings indicating either a child support order existed or the respondent failed to pay support as required by the child support order during the year before the TPR, the findings will be insufficient to support the conclusion of this ground. The source of the evidence of that order (e.g., testimony vs the order itself) is not relevant as long as it is clear, cogent, and convincing evidence.
  • It is the role of the appellate court to review “the trial court’s factual findings to determine whether they support the trial court’s conclusions of law.” ¶ 18 (emphasis in opinion). The appellate court does not make findings of fact. Quoting previous NC Supreme Court opinions, “The requirement for appropriately detailed findings is thus not a mere formality or a rule of empty ritual; it is designed instead ‘to dispose of the issues raised by the pleadings and to allow the appellate courts to perform their proper function in the judicial system.’ ” Id. There are no findings of fact a child support order existed during the year before the TPR was filed. The record appears to have evidence that might support a conclusion under this ground (allegations and admission in the pleadings, testimony). Vacate and remand for findings and conclusion as to whether there was an enforceable child support order the year before the TPR petition was filed and whether the failure to pay was willful.
  • Dissent: Addressing G.S. 7B-1111(a)(4), father failed to preserve the issue of the child support order’s existence for appeal. Additionally, the findings are sufficient. Father admitted in his answer there was a child support consent order. An admission binds the party such that the fact is uncontested. Findings show that father had not paid support since 2015 (4 years) although he was employed.
Category:
Termination of Parental Rights
Stage:
Adjudication
Topic:
Fail to Pay Child Support
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