{ "id": 9080092, "name": "IN RE: LEHONNA SOISSETTE' CLARK, A Minor Child", "name_abbreviation": "In re Clark", "decision_date": "2002-07-02", "docket_number": "No. COA01-1287", "first_page": "286", "last_page": "290", "citations": [ { "type": "official", "cite": "151 N.C. App. 286" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "330 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "36", "parenthetical": "holding that, where the respondent mother was incarcerated, the trial court erred in terminating her parental rights where it failed to make adequate findings regarding her ability to pay some portion of foster care" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 137", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525155 ], "year": 1985, "pin_cites": [ { "page": "141-42", "parenthetical": "holding that, where the respondent mother was incarcerated, the trial court erred in terminating her parental rights where it failed to make adequate findings regarding her ability to pay some portion of foster care" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0137-01" ] }, { "cite": "291 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "802" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 475", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524906 ], "year": 1982, "pin_cites": [ { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0475-01" ] }, { "cite": "281 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "55" } ], "opinion_index": 0 }, { "cite": "303 N.C. 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574984 ], "year": 1981, "pin_cites": [ { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0592-01" ] } ], "analysis": { "cardinality": 449, "char_count": 10347, "ocr_confidence": 0.76, "pagerank": { "raw": 4.018665411753338e-07, "percentile": 0.9065545906344347 }, "sha256": "e39d8cb7afdb420f86753a304f7185cc081ab029e25c01c714b2d75bb6bfeb48", "simhash": "1:97b7da22804e7541", "word_count": 1697 }, "last_updated": "2023-07-14T16:47:19.620477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and CAMPBELL concur." ], "parties": [ "IN RE: LEHONNA SOISSETTE\u2019 CLARK, A Minor Child" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge\u2019.\nAnthony Clark (\u201crespondent\u201d) appeals from an order terminating his parental rights. For the reasons stated herein, we reverse the order of the trial court.\nRespondent is the natural father of Lehonna Soisette\u2019 Clark (\u201cLehonna\u201d), bom 9 December 1999. On 26 April 2000, the trial court adjudicated Lehonna to be a dependent and neglected child based on evidence that respondent was incarcerated and that Lehonna\u2019s mother had a substance abuse problem which rendered her incapable of properly caring for the child. Lehonna was removed from her mother\u2019s care and placed into the legal custody of the Wilson County Department of Social Services (\u201cDSS\u201d), which in turn placed Lehonna in the physical custody of a maternal cousin.\nOn 5 December 2000, DSS filed a petition to terminate respondent\u2019s parental rights. The trial court heard the matter on 9 May 2001 and made the following two findings of fact concerning respondent:\n10. ... Anthony Clark has been incarcerated since the child was removed from the mother. He has been unable to provide care for the child. He has not written the child, sent birthday cards, made phone calls to the child or visited with or seen the child since he was incarcerated January 16, 2001. She has never visited him in prison. He sent some letters to DSS and DSS contacted members of his family after the child\u2019s removal regarding the child\u2019s custody and care. His mother was unable to provide care for the child. His grandmother once asked for visitation, but did not follow through on the request.\n11. Anthony Clark testified. He was involved with the mother and child after the birth on December 9,1999, but he was incarcerated January 16, 2000, and has been since that time. He did see the child on several occasions between her birth on December 9, 2000 and his incarceration on January 16, 2000, and was present at birth. He expects to be released October 9, 2002. He has written the child\u2019s caretaker and has attempted to communicate with the child. He did not know where the child was most of the time after his incarceration, but he did know of the Department of Social Services\u2019 involvement. He was visited by the Guardian Ad Litem once in prison. He has not paid any child support, and there is no order for him to do so. He was also in prison before, and between 1989 and 1998, he was mostly in prison or jail on various charges.\nBased on these findings, the trial court concluded that respondent had \u201cfailed to pay a reasonable portion of the cost of care for the child although physically and financially able to do so\u201d and was \u201cincapable of providing for the proper care and supervision of the child\u201d and that \u201csuch inability [would] continue for the foreseeable future.\u201d The trial court thereafter determined that it was in Lehonna\u2019s best interests that respondent\u2019s parental rights be terminated and entered an order accordingly. From this order, respondent appeals.\nRespondent argues that the trial court erred in concluding that sufficient grounds existed to terminate his parental rights.\nSection 7B-1111 of the North Carolina General Statutes authorizes a court to terminate parental rights on nine different grounds, and a finding of any one of these grounds is sufficient to support the termination of parental rights. See N.C. Gen. Stat. \u00a7 7B-1111 (2001). Such findings must be based, however, on \u201cclear, cogent, and convincing evidence.\u201d N.C. Gen. Stat. \u00a7\u00a7 7B-1109(f), 7B-1111(b). The court here concluded that two grounds for termination existed. These were under subsections (a)(3) and (a)(6), which provide that parental rights over a child may be terminated where:\n(3) The juvenile has been placed in the custody of a county department of social services ... and the parent, for a continuous period of six months next preceding the filing of the petition . . . 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(6) That the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other similar cause or condition.\nN.C. Gen. Stat. \u00a7 7B-1111 (a)(3), (a)(6). A dependent juvenile is one \u201cin need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile\u2019s care or supervision or whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement.\u201d N.C. Gen. Stat. \u00a7 7B-101(9) (2001).\nRespondent contends that there was insufficient evidence to support the trial court\u2019s conclusion that he failed to pay a reasonable portion of the cost of Lehonna\u2019s care or that he was incapable of caring for his child. Respondent\u2019s argument has merit.\nIn determining what constitutes a \u201creasonable portion\u201d of the cost of care for a child, the parent\u2019s ability to pay is the controlling characteristic. See In re Clark, 303 N.C. 592, 604, 281 S.E.2d 47, 55 (1981).\nA 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\u2019s ability or means to pay. What is within a parent\u2019s \u201cability\u201d to pay or what is within the \u201cmeans\u201d of a parent to pay is a difficult standard which requires great flexibility in its application.\nId. It is undisputed that respondent here paid nothing to DSS for Lehonna\u2019s care. Nevertheless, nonpayment constitutes a failure to pay a reasonable portion \u201cif and only if respondent [is] able to pay some amount greater than zero.\u201d In re Bradley, 57 N.C. App. 475, 479, 291 S.E.2d 800, 802 (1982). The trial court here made no findings of fact regarding respondent\u2019s ability to pay any amount greater than zero, nor was any evidence presented indicating that respondent was capable of earning income. In fact, respondent verified that, although he was taking classes in small business administration, he was not yet in \u201cany kind of release program where you\u2019re earning money.\u201d He further stated, and the trial court found, that respondent had never been ordered to pay any type of child support. Because there was no clear and convincing evidence that respondent had any ability to pay an amount greater than zero, the trial court erred in concluding that respondent failed to pay a reasonable portion of the cost of his child\u2019s care. See In re Garner, 75 N.C. App. 137, 141-42, 330 S.E.2d 33, 36 (1985) (holding that, where the respondent mother was incarcerated, the trial court erred in terminating her parental rights where it failed to make adequate findings regarding her ability to pay some portion of foster care).\nThe trial court also determined that respondent was incapable of providing for Lehonna\u2019s care. The trial court failed to make findings, however, regarding this ground, except for the fact that respondent was incarcerated and that \u201c[h]is mother was unable to provide care for the child.\u201d Incapability under section 7B-1111(a)(6) \u201cmay be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other similar cause or condition.\u201d N.C. Gen. Stat. \u00a7 7B-1111(a)(6). There was no evidence at trial to suggest that respondent suffered from any physical or mental illness or disability that would prevent him from providing proper care and supervision for Lehonna, nor did the trial court make any findings of fact regarding such a condition. Respondent testified that his anticipated release date from prison was 9 October 2002. Although respondent may be temporarily incapable, due to his present incarceration, to personally provide such care to the child, there was no clear and convincing evidence to suggest that respondent was incapable of arranging for appropriate supervision for the child. Respondent testified that he gave to DSS the names of several close relatives, including his sister and niece, who might be willing and able to care for Lehonna until his release from prison, but that DSS had never contacted these persons. Compare In re Williams, \u2014 N.C. App. -, \u2014, \u2014 S.E.2d -, \u2014 (May 7, 2002) (COA01-964) (holding that where clear and convincing evidence showed that the father was incarcerated and had no means of arranging alternative care, termination of parental rights was appropriate). The trial court therefore erred in concluding that respondent was incapable of providing for his daughter\u2019s care.\nIn summary, we hold that the trial court erred in concluding that respondent willfully failed to pay for a reasonable portion of child care and that respondent was incapable of providing for his daughter\u2019s care. The trial court therefore erred in terminating respondent\u2019s parental rights, and we accordingly reverse the judgment of the court.\nReversed.\nJudges MARTIN and CAMPBELL concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge\u2019." } ], "attorneys": [ "Stanley G. Abrams for respondent appellant.", "Beaman and King, P.A., by Charlene Boykin King, for the Wilson County Department of Social Services, petitioner appellee.", "Womble Carlyle Sandridge & Rice, by Karen Ousley Hogan, Attorney for the Best Interest of the Child, By and Through Guardian ad Litem, appellee." ], "corrections": "", "head_matter": "IN RE: LEHONNA SOISSETTE\u2019 CLARK, A Minor Child\nNo. COA01-1287\n(Filed 2 July 2002)\nTermination of Parental Rights\u2014 incarcerated parent \u2014 failure to pay support \u2014 ability to care for child\nThe trial court erred by terminating the parental rights of an incarcerated parent based upon conclusions that he had willfully failed to pay a reasonable portion of child care and was incapable of providing for his daughter\u2019s care where there was no clear and convincing evidence that respondent had any ability to pay any amount and no clear and convincing evidence that respondent was incapable of arranging for appropriate supervision for the child, although he may be temporarily incapable of personally caring for the child due to his present incarceration.\nAppeal by respondent from order entered 29 May 2001 by Judge Robert A. Evans in Wilson County District Court. Heard in the Court of Appeals 16 May 2002.\nStanley G. Abrams for respondent appellant.\nBeaman and King, P.A., by Charlene Boykin King, for the Wilson County Department of Social Services, petitioner appellee.\nWomble Carlyle Sandridge & Rice, by Karen Ousley Hogan, Attorney for the Best Interest of the Child, By and Through Guardian ad Litem, appellee." }, "file_name": "0286-01", "first_page_order": 316, "last_page_order": 320 }