{ "id": 9005018, "name": "IN RE: J.D.S., A Minor Child", "name_abbreviation": "In re J.D.S.", "decision_date": "2005-05-17", "docket_number": "No. COA04-213", "first_page": "244", "last_page": "263", "citations": [ { "type": "official", "cite": "170 N.C. App. 244" } ], "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": "311 N.C. 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683935 ], "opinion_index": -1, "case_paths": [ "/nc/311/0708-01" ] }, { "cite": "599 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631444, 12631445, 12631446 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/599/0399-03", "/se2d/599/0399-01", "/se2d/599/0399-02" ] }, { "cite": "358 N.C. 544", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631392, 12631443, 12631444, 12631445, 12631446, 12631415 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/598/0563-03", "/se2d/599/0398-01", "/se2d/599/0399-03", "/se2d/599/0399-01", "/se2d/599/0399-02", "/se2d/598/0382-01" ] }, { "cite": "546 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "174", "parenthetical": "abuse of discretion is standard of review of decision to terminate parental rights once grounds for termination are established" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 402", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11434950 ], "year": 2001, "pin_cites": [ { "page": "408", "parenthetical": "abuse of discretion is standard of review of decision to terminate parental rights once grounds for termination are established" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0402-01" ] }, { "cite": "489 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "430" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11796084 ], "year": 1997, "pin_cites": [ { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0370-01" ] }, { "cite": "387 S.E.2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "670" }, { "page": "670" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 277", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520463 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "281" }, { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0277-01" ] }, { "cite": "319 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "233" } ], "opinion_index": 0 }, { "cite": "347 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "498", "parenthetical": "where one statutory ground is established, this Court need not address assignments of error challenging other grounds" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 651", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359552 ], "year": 1986, "pin_cites": [ { "page": "655", "parenthetical": "where one statutory ground is established, this Court need not address assignments of error challenging other grounds" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0651-01" ] }, { "cite": "525 S.E.2d 478", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "479" }, { "page": "479" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 654", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241439 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "655" }, { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0654-01" ] }, { "cite": "79 S.E. 302", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1913, "opinion_index": 0 }, { "cite": "164 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657757 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/nc/164/0356-01" ] }, { "cite": "610 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "361", "parenthetical": "citing Bradshaw v. Stansberry, 164 N.C. 356, 79 S.E. 302 (1913)" }, { "page": "361" } ], "opinion_index": 0 }, { "cite": "359 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799435 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "402", "parenthetical": "citing Bradshaw v. Stansberry, 164 N.C. 356, 79 S.E. 302 (1913)" }, { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0400-01" ] }, { "cite": "292 S.E.2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "161" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 650", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525570 ], "year": 1982, "pin_cites": [ { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0650-01" ] }, { "cite": "455 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "454", "parenthetical": "quoting Anderson Chevrolet/Olds, Inc. v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982)" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 444", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918942 ], "year": 1995, "pin_cites": [ { "page": "446", "parenthetical": "quoting Anderson Chevrolet/Olds, Inc. v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0444-01" ] }, { "cite": "594 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "124" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 596", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8919922 ], "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0596-01" ] }, { "cite": "588 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "360", "parenthetical": "where defendant assigned error to her trial counsel's assistance as ineffective but \"failed to provide transcript references under the assignment of error [as required by] N.C.R. App. P. 10(c)(1" } ], "opinion_index": 0 }, { "cite": "357 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491533 ], "year": 2003, "pin_cites": [ { "page": "95", "parenthetical": "where defendant assigned error to her trial counsel's assistance as ineffective but \"failed to provide transcript references under the assignment of error [as required by] N.C.R. App. P. 10(c)(1" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0068-01" ] }, { "cite": "606 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "392" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 658", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8413338 ], "year": 2005, "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0658-01" ] }, { "cite": "396 S.E.2d 333", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "335", "parenthetical": "failure to comply with former section 50A-9 did not defeat otherwise proper subject matter jurisdiction" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 379", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526843 ], "year": 1990, "pin_cites": [ { "page": "382", "parenthetical": "failure to comply with former section 50A-9 did not defeat otherwise proper subject matter jurisdiction" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0379-01" ] }, { "cite": "582 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "660" }, { "page": "662", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 75", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954022 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "79" }, { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0075-01" ] }, { "cite": "577 S.E.2d 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "426" }, { "page": "426", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 533", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9191392 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "539" }, { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0533-01" ] }, { "cite": "598 S.E.2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "149", "parenthetical": "\"[R]egardless of whether subject matter jurisdiction is raised by the parties, this Court may review the record to determine if subject matter jurisdiction exists[.]\"" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 294", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8997078 ], "year": 2004, "pin_cites": [ { "page": "297", "parenthetical": "\"[R]egardless of whether subject matter jurisdiction is raised by the parties, this Court may review the record to determine if subject matter jurisdiction exists[.]\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0294-01" ] }, { "cite": "311 N.C. 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683935 ], "pin_cites": [ { "page": "716-17" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0708-01" ] }, { "cite": "347 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 1 }, { "cite": "318 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736775, 4740168, 4739944, 4736235, 4733980 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/nc/318/0283-02", "/nc/318/0283-05", "/nc/318/0283-04", "/nc/318/0283-01", "/nc/318/0283-03" ] }, { "cite": "344 S.E.2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "38" } ], "opinion_index": 1 }, { "cite": "81 N.C. App. 82", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521439 ], "year": 1986, "pin_cites": [ { "page": "85" } ], "opinion_index": 1, "case_paths": [ "/nc-app/81/0082-01" ] }, { "cite": "281 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 1 }, { "cite": "303 N.C. 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574984 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/nc/303/0592-01" ] }, { "cite": "126 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "608" } ], "opinion_index": 1 }, { "cite": "257 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568884 ], "year": 1962, "pin_cites": [ { "page": "501" } ], "opinion_index": 1, "case_paths": [ "/nc/257/0486-01" ] }, { "cite": "346 S.E.2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "513-14" } ], "opinion_index": 1 }, { "cite": "82 N.C. App. 273", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358667 ], "year": 1986, "pin_cites": [ { "page": "275" } ], "opinion_index": 1, "case_paths": [ "/nc-app/82/0273-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 48-5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 }, { "cite": "278 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "264" } ], "opinion_index": 1 }, { "cite": "52 N.C. App. 104", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170028 ], "year": 1981, "pin_cites": [ { "page": "110" } ], "opinion_index": 1, "case_paths": [ "/nc-app/52/0104-01" ] }, { "cite": "524 S.E.2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "97-98" } ], "opinion_index": 1 }, { "cite": "136 N.C. App. 420", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240022 ], "year": 2000, "pin_cites": [ { "page": "423" } ], "opinion_index": 1, "case_paths": [ "/nc-app/136/0420-01" ] }, { "cite": "579 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "433", "parenthetical": "trial court's conclusions of law are reviewable de novo" } ], "opinion_index": 1 }, { "cite": "157 N.C. App. 382", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186928 ], "year": 2003, "pin_cites": [ { "page": "385", "parenthetical": "trial court's conclusions of law are reviewable de novo" } ], "opinion_index": 1, "case_paths": [ "/nc-app/157/0382-01" ] }, { "cite": "547 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 1 }, { "cite": "353 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135896, 135730, 135565, 135847 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/nc/353/0374-03", "/nc/353/0374-01", "/nc/353/0374-02", "/nc/353/0374-04" ] }, { "cite": "471 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "86", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "122 N.C. App. 561", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918638 ], "year": 1996, "pin_cites": [ { "page": "565", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/122/0561-01" ] }, { "cite": "536 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "840" }, { "page": "840" } ], "opinion_index": 1 }, { "cite": "140 N.C. App. 288", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12125951 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "291" }, { "page": "291" } ], "opinion_index": 1, "case_paths": [ "/nc-app/140/0288-01" ] }, { "cite": "316 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "252" }, { "page": "252" } ], "opinion_index": 1 }, { "cite": "311 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679227 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "110" }, { "page": "110" } ], "opinion_index": 1, "case_paths": [ "/nc/311/0101-01" ] }, { "cite": "489 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "430" }, { "page": "430" }, { "page": "430" } ], "opinion_index": 1 }, { "cite": "127 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11796084 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "374" }, { "page": "374" }, { "page": "374" } ], "opinion_index": 1, "case_paths": [ "/nc-app/127/0370-01" ] }, { "cite": "387 S.E.2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "670" }, { "page": "670" }, { "page": "670" } ], "opinion_index": 1 }, { "cite": "97 N.C. App. 277", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520463 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "280-81" }, { "page": "281" }, { "page": "282" }, { "page": "281" } ], "opinion_index": 1, "case_paths": [ "/nc-app/97/0277-01" ] }, { "cite": "319 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "233", "parenthetical": "referring to subdivision (4) of former N.C. Gen. Stat. \u00a7 7A-289.32, now N.C. Gen. Stat. \u00a7 7B-llll(a)(3)" } ], "opinion_index": 1 }, { "cite": "525 S.E.2d 478", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 2000, "pin_cites": [ { "page": "480" }, { "page": "480", "parenthetical": "emphasis supplied" }, { "page": "481" }, { "page": "480" }, { "page": "480" }, { "page": "480" }, { "page": "481" }, { "page": "480" }, { "page": "480" } ], "opinion_index": 1 }, { "cite": "136 N.C. App. 654", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241439 ], "weight": 8, "year": 2000, "pin_cites": [ { "page": "657" }, { "page": "658" }, { "page": "658" }, { "page": "657" }, { "page": "657" }, { "page": "658" }, { "page": "657" }, { "page": "657" } ], "opinion_index": 1, "case_paths": [ "/nc-app/136/0654-01" ] }, { "cite": "582 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "662", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "159 N.C. App. 75", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954022 ], "year": 2003, "pin_cites": [ { "page": "83", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/159/0075-01" ] }, { "cite": "311 N.C. 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683935 ], "pin_cites": [ { "page": "716-17", "parenthetical": "referring to subdivision (4) of former N.C. Gen. Stat. \u00a7 7A-289.32, now N.C. Gen. Stat. \u00a7 7B-llll(a)(3)" } ], "opinion_index": 1, "case_paths": [ "/nc/311/0708-01" ] } ], "analysis": { "cardinality": 1221, "char_count": 45238, "ocr_confidence": 0.726, "pagerank": { "raw": 5.245259888509102e-07, "percentile": 0.9412782366848415 }, "sha256": "dd51c22859695e292119bfb0f96303eab7cdc5815839abe9cf1a242dcc1bb6f0", "simhash": "1:cbf9d42ac4ee1c52", "word_count": 7471 }, "last_updated": "2023-07-14T16:44:47.676310+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge BRYANT concurs.", "Judge TYSON concurs in part and dissents in part." ], "parties": [ "IN RE: J.D.S., A Minor Child" ], "opinions": [ { "text": "LEVINSON, Judge.\nRespondent father appeals from an order terminating his parental rights over J.D.S. We affirm.\nRespondent and petitioner are the biological parents of J.D.S., born 23 July 1998. Petitioner and respondent were living together as an unmarried couple when J.D.S. was born, but later ended their relationship.\nOn 14 September 1999 an order was entered in Clark County, Nevada, in respondent\u2019s absence, granting petitioner sole legal and physical custody of the child. The order granted respondent supervised visitation, ordered him to pay attorney\u2019s fees, and required him to pay 18% of his income as child support.\nSix weeks later, petitioner requested permission from the Nevada court to relocate to California. On or about 19 January 2000 an order was entered in Nevada allowing petitioner to relocate to California. In this order, the Nevada court reiterated that respondent should have supervised visitation \u201cat the discretion of petitioner\u201d, pay attorneys\u2019 fees, and pay 18% of his income as child support.\nOn 23 March 2001, petitioner married a man who was serving as a U.S. Marine. When petitioner\u2019s husband was transferred to North Carolina, she requested permission from the Nevada Court to relocate here. She also requested that respondent\u2019s child support be changed to a specific dollar amount. On 25 April 2001, the Nevada court entered an order allowing petitioner to relocate to North Carolina with the child, and allowing respondent supervised visitation. The court also ordered respondent to pay $400.00 per month in child support, which included an amount representing an arrears schedule for unpaid child support.\nRespondent neither appeared at any of the court proceedings in Nevada, nor appealed any of the Nevada state court\u2019s judgments or orders.\nPetitioner and the child have resided in North Carolina since March 2001. Respondent, who lives in California, has never visited the child in North Carolina. In February, 2002, petitioner instituted an action in Onslow County, North Carolina, seeking termination of respondent\u2019s parental rights in J.D.S. Respondent filed a pro se objection to the petition and averred he was never notified regarding any of the court proceedings in Nevada. The trial court entered an order on 31 January 2003, nunc pro tunc for 28 June 2002, denying petitioner\u2019s motion and concluding:\nWhile it is undisputed that the Respondent has not paid any child support to the Petitioner since March 1999, because the Petitioner cannot prove that the Respondent was ever served with the Clark County, Nevada action, the Court can only conclude that the Respondent, through his own testimony, has had knowledge since January 2002 of a legal obligation to pay child support for the minor child, and thus has failed to pay child support for six months rather than more than twelve as alleged by Petitioner.\nIn July 2002, both parties received notification of the trial court\u2019s decision not to terminate respondent\u2019s parental rights.\nRespondent did not make any child support payments during the months of July, August, or September 2002. In August, respondent sent petitioner an ATM card that was to allow access to an account with approximately $90.00. Petitioner attempted to use the ATM card, but was unable to remove money from the account. On 22 November 2002, respondent mailed petitioner a check for sixty dollars ($60.00). Petitioner never cashed this check, but respondent testified at trial that he believed the check had been deposited into petitioner\u2019s account. Respondent did not send any further direct child support to petitioner, although he testified he maintains a savings account for the child. Since June 2002, respondent has called and spoken with the child numerous times and also mailed him gifts.\nOn 10 February 2003, petitioner filed a second petition seeking to terminate respondent\u2019s parental rights. Following a hearing on 21 July 2003, the trial court granted the petition on the grounds that respondent \u201cwillfully failed without justification to pay for the care, support and education\u201d of the child \u201cas required by . . . [a] decree\u201d pursuant to N.C.G.S. \u00a7 7B-llll(a)(4), and had not \u201c[provided substantial financial support or consistent care\u201d pursuant to N.C.G.S. \u00a7 7B-llll(a)(5)d. From this order, respondent appeals.\nThe issues presented on appeal are: (1) whether the trial court had subject matter jurisdiction over the termination proceeding; (2) whether the trial court properly concluded that respondent had \u201cwillfully failed without justification to pay for the care, support, and education\u201d of the child pursuant to N.C.G.S. \u00a7 7B-llll(a)(4) (2003), and had not \u201c[p]rovided substantial financial support or consistent care with respect to\u201d the child pursuant to N.C.G.S. \u00a7 7B-llll(a)(5)d (2003); and (3) whether the trial court abused its discretion by concluding that termination of parental rights was in the child\u2019s best interests.\nRespondent first argues that the trial court lacked subject matter jurisdiction over the termination of parental rights proceeding. We disagree.\nAlthough this issue was not presented to the trial court, subject matter jurisdiction may be raised at any time by the parties or by the court ex mero motu. See N.C.R. App. P. 10(a) (\u201c[U]pon any appeal duly taken from a final judgment any party . . . may present for review . . . whether the court had jurisdiction of the subject matter^]\u201d); see also In re: N.R.M., 165 N.C. App. 294, 297, 598 S.E.2d 147, 149 (2004) (\u201c[R]egardless of whether subject matter jurisdiction is raised by the parties, this Court may review the record to determine if subject matter jurisdiction exists[.]\u201d) (citation and internal quotation marks omitted).\nJurisdiction over termination of parental rights proceedings is governed by N.C.G.S. \u00a7 7B-1101 (2003), which provides:\nThe court shall have exclusive original jurisdiction to hear and determine any petition or motion relating to termination of parental rights to any juvenile who resides in, is found in, or is in the legal or actual custody of a county department of social services or licensed child-placing agency in the district at the time of filing of the petition or motion. . . . Provided, that before exercising jurisdiction under this Article, the court shall find that it would have jurisdiction to make a child-custody determination under the provisions of G.S. 50A-201, 50A-203, or 50A-204.\nRespondent does not contest that these requirements were met. He contends, however, the trial court lacked subject matter jurisdiction because petitioner failed to comply with a different statute, N.C.G.S. \u00a7 7B-1104(7) (2003), which requires that a petition to terminate parental rights state that it \u201chas not been filed to circumvent the provisions of Article 2 of Chapter 50A of the General Statutes, the Uniform Child-Custody Jurisdiction and Enforcement Act.\u201d\nRespondent is correct that the petition in the instant case does not include a statement that complies with the requirement of G.S. \u00a7 7B-1104(7). However, as regards a petitioner\u2019s violation of G.S. \u00a7 7B-1104(7), this Court has held:\n[W]e find no authority that compelled dismissal of the action solely because petitioner failed to include this statement of fact in the petition. While it is a better practice to include the factual statement as stated in the statute, under the facts in this case we find that respondent has failed to demonstrate that she was prejudiced as a result of the omission.\nIn re Humphrey, 156 N.C. App. 533, 539, 577 S.E.2d 421, 426 (2003). As in Humphrey, respondent has failed to demonstrate any prejudice arising from petitioner\u2019s omission.\nRespondent also challenges the trial court\u2019s subject matter jurisdiction on the grounds that petitioner failed to file an affidavit stating the child\u2019s address and location, as required under N.C.G.S. \u00a7 50A-209 (2003). While petitioner did not file such an affidavit, we disagree the trial court was deprived of jurisdiction as a result: \u201cAlthough it remains the better practice to require compliance with section 50A-209, failure to file this affidavit does not, by itself, divest the trial court of jurisdiction.\u201d In re Clark, 159 N.C. App. 75, 79, 582 S.E.2d 657, 660 (2003); (citing Pheasant v. McKibben, 100 N.C. App. 379, 382, 396 S.E.2d 333, 335 (1990) (failure to comply with former section 50A-9 did not defeat otherwise proper subject matter jurisdiction)). Moreover, the trial court\u2019s findings and conclusions regarding jurisdiction are supported by the record. This assignment of error is overruled.\nIn his second and third assignments of error, respondent contends the trial court erred by concluding (1) that he \u201cwillfully failed without justification to pay for the care, support, and education\u201d of the child pursuant to N.C.G.S. \u00a7 7B-llll(a)(4) (2003), and (2) that he has not \u201c[provided substantial financial support or consistent care with respect to the juvenile\u201d pursuant to N.C.G.S. \u00a7 7B-llll(a)(5)d (2003). We disagree.\n\u201cAn order terminating parental rights will be upheld if there is clear, cogent, and convincing evidence to support the findings of fact and those findings of fact support the trial court\u2019s conclusions of law.\u201d In re Clark, 159 N.C. App. at 83, 582 S.E.2d at 662 (citation omitted).\nPreliminarily, we note that to preserve the issue of the sufficiency of evidence to support the findings of fact, the respondent must comply -with N.C.R. App. P. 10(c)(1), which provides in pertinent part:\nEach assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned[, and] . . . direct[] the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references.\n\u201cUnder this rule, an appellant is required to specifically assign error to each finding of fact that it contends is not supported by competent evidence.\u201d White v. Weyerhaeuser Co., 167 N.C. App. 658, 660, 606 S.E.2d 389, 392 (2005). \u201cFindings of fact to which a respondent did not object are conclusive on appeal.... A finding of any one of the enumerated grounds for termination of parental rights under N.C.G.S. \u00a7 7B-1111 is sufficient to support a termination.\u201d In re Humphrey, 156 N.C. App. at 540, 577 S.E.2d at 426 (citations omitted).\nRespondent assigns error to the following:\n1. Lack of subject matter jurisdiction for failure of the petitioner to allege the statutory grounds as defined in N.C. Gen. Stat. Section 7B-1104 (2003) and that grant the trial court jurisdiction over the proceedings.\nRecord pp. 5-8; pp. 59-65, Findings of Facts 1-25 and Conclusion of Law 1.\n2. The court\u2019s Conclusion of Law #2 concluding Respondent has without justification failed to pay for the care, support, and education of the Juvenile as required by Court decree due to insufficiency of the evidence.\nRecord p. 65. Findings of Fact 5-24.\n3. The court\u2019s Conclusion of [L]aw #3 concluding Respondent has not provided substantial financial support or consistent care with respect to the minor child due to insufficiency of the evidence.\nRecord p. 65. Findings of Fact 5-24.\n4. The court\u2019s Conclusion of Law #4 concluding it is in the minor child\u2019s best interest that the Respondent\u2019s parental rights be terminated.\nRecord p. 65. Findings of Fact 5-24.\n[5], The court\u2019s termination of Respondent\u2019s parental rights.\nRecord p. 65. Findings of Fact 5-25.\n[6]. The court\u2019s abuse of discretion by accepting into evidence any exhibit dated prior to 29 June 2002 in that they are res judi-cata and cannot now be accepted by this trial court. The Clark County, Nevada, Court failed to terminate Respondent\u2019s parental rights by order entered 31 January 2003.\nRecord pp. 59-65, Findings of Facts 1-25 and Conclusions of Law 1-4.\nContrary to the dissent\u2019s conclusion that respondent has preserved the issue of whether the evidence supports the trial court\u2019s findings, respondent has not done so. Respondent did not assign error to any of the trial court\u2019s findings of fact. The record shows unequivocally that none of respondent\u2019s assignments of error challenge the sufficiency of the evidence to support any of the findings of fact. Following each of respondent\u2019s assignments of error, respondent lists the corresponding record or transcript references required by N.C. R. App. P. 10(c)(1). Each of these includes a reference to the trial court\u2019s findings of fact. However, the legal basis of an assignment of error should not be confused with its accompanying record or transcript references. These are two distinct requirements and are separately evaluated by our appellate courts. See, e.g., State v. Walters, 357 N.C. 68, 95, 588 S.E.2d 344, 360 (2003) (where defendant assigned error to her trial counsel\u2019s assistance as ineffective but \u201cfailed to provide transcript references under the assignment of error [as required by] N.C.R. App. P. 10(c)(1)\u201d this Court held that \u201cthe ineffective assistance of counsel argument is not properly before this Court\u201d); Marketplace Antique Mall, Inc. v. Lewis, 163 N.C. App. 596, 599, 594 S.E.2d 121, 124 (assignment of error deemed abandoned due to \u201cplaintiffs\u2019 omission of the relevant record and transcript references\u201d), disc. review denied, 358 N.C. 544, 599 S.E.2d 399 (2004).\nMoreover, assigning error to a conclusion of law on the generalized basis of \u201cinsufficiency of the evidence\u201d does not preserve the issue of the sufficiency of evidence supporting the findings of fact on which the conclusion was based:\nPlaintiff brings forward one assignment of error: \u2018The Court\u2019s Conclusion of Law Number 3, on the ground that the facts as found by the court and the applicable law do not support the Conclusion.\u2019 Much of plaintiff\u2019s argument, however, is dedicated to another question \u2014 whether or not the evidence supports the findings. This question is not properly before us. Plaintiff did not assign error to any of the trial judge\u2019s findings. When no assignment of error is made to particular findings, they are \u2018presumed to be supported by competent evidence and are binding on appeal.\u2019 Even if the assignment of error could be read as challenging the sufficiency of the evidence, it would be ineffective to support plaintiffs argument. An assignment of error generally challenging the sufficiency of evidence to support numerous findings of fact is broadside and ineffective.\nFirst Union National Bank v. Bob Dunn Ford, Inc., 118 N.C. App. 444, 446, 455 S.E.2d 453, 454 (1995) (quoting Anderson Chevrolet/Olds, Inc. v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982)) (emphasis added).\nOur review is limited to the assignments of error and grounds set forth in appellant\u2019s brief. N.C.R. App. P. 10(a) and 28(a). Respondent herein failed to preserve for appellate review the sufficiency of the evidence to support the trial court\u2019s findings of fact. Accordingly, the trial court\u2019s findings of fact are conclusively established on appeal.\nRespondent likewise does not assign as error the trial court\u2019s failure to transcribe into the written order the \u201cclear, cogent, and convincing\u201d evidence standard. Nonetheless, the dissent would reverse the order on this basis.\nIt is not the role of the appellate courts ... to create an appeal for an appellant. As this case illustrates, the Rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule.\nViar v. North Carolina Department of Transportation, No. 109A04, 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (citing Bradshaw v. Stansberry, 164 N.C. 356, 79 S.E. 302 (1913)). While we cannot disagree with the principles set forth in In re Church, 136 N.C. App. 654, 655, 525 S.E.2d 478, 479 (2000), the case upon which the dissent relies, it is noteworthy that, unlike the circumstances presented herein, respondent-appellant in Church specifically assigned as error \u201cthe trial court\u2019s failure to recite the standard of proof relied upon in terminating parental rights.\u201d In re Church, 136 N.C. App. at 655, 525 S.E.2d at 479.\nEven assuming arguendo that Rule 2 gives us the authority to address the absence of the \u201cclear and convincing\u201d standard in the present order notwithstanding respondent\u2019s failure to seek reversal on this basis, we discern no reason to do so because (1) the evidence manifestly supports the trial court\u2019s findings of fact in that respondent\u2019s failure to support the minor child cannot be seriously questioned, and (2) the trial court stated on the record that its findings of fact were based on \u201cclear and convincing\u201d evidence. Indeed, in rendering its decision in open court, the trial court stated:\nAfter [the first order denying petitioner\u2019s motion to terminate parental rights], not one single penny has come out of [respondent\u2019s] account... for the support of [the] child.\nI asked [respondent] to clarify the business about doing this card and this account to try to figure out what his motives could have been, but all of his actions are totally inconsistent with a man wanting to get money to the mother of a child for support.\nAnd I conclude, by clear, cogent and convincing evidence that after the second notice that he\u2019s got to support this child, his total failure to do so constitutes the grounds .... [B]ased on what I\u2019ve heard, I\u2019m clearly entirely convinced that his rights should be terminated and the child should be given a permanent home.\nAs discussed above, the trial court\u2019s findings of fact are deemed conclusively established on appeal. These findings include, in relevant part, that:\n13. On or about April 25, 2001, the District Court for Clark County, Nevada, entered an Order which allowed the Petitioner and the minor child to relocate to the State of North Carolina. Again, the Court provided that the Respondent would have supervised visitation only at the discretion of the Petitioner, awarded another $750.00 in attorney\u2019s fee [sic] and set child support retroactively at $400.00 a month from September of 1999 forward. The Court further found that the Respondent\u2019s arrearage at that time was $9,100.00.\n14. The Defendant did not appear at any of [the] court proceedings aforementioned nor did he appeal any of the Judgments of the Court.\n15. The Petitioner and the minor child have resided in the State of North Carolina since March of 2001. Since that time, the Respondent has not seen or visited with the minor child and has had no physical contact with the minor child.\n16. In or about February 2002, the Petitioner herein instituted an action to terminate the Respondent\u2019s parental rights. At that time, the Respondent filed an objection to Petition to Terminate Parental Rights and indicated that he was not notified to appear at any of the court proceedings occurring in the State of Nevada. On or about January 31, 2003, nunc pro tunc for the 28th day of June, 2002, the Court entered an Order denying the Petitioner\u2019s request to terminate the Respondent\u2019s parental rights. The Court apparently based its determination on the Respondent\u2019s contention that he was never served with the Clark County, Nevada action and did not have knowledge that he had a legal obligation to support the minor child until January of 2002. The Court made the following Conclusion of Law:\nWhile it is undisputed that the Respondent has not paid any child support to the Petitioner since March 1999, because the Petitioner cannot prove that the Respondent was ever served with the Clark County, Nevada action, the Court can only conclude that the Respondent, through his own testimony, has had knowledge since January 2002 of a legal obligation to pay child support for the minor child, and thus has failed to pay child support for six months rather than more than twelve as alleged by Petitioner.\n17. In early July of 2002, both parties were notified of the Court\u2019s decision not to terminate the Respondent\u2019s parental rights.\n18. Thereafter, Respondent failed to pay any child support for the months of July, August and September in any amount whatsoever. In late August, the Respondent sent the Petitioner an ATM card. Records at the trial indicate that at the time the card was sent he had approximately $90.00 in the account. The Respondent attempted to use this card and was unable to remove money from the account indicated to be used by the Petitioner.\n19. Thereafter, on November 22, 2002, Respondent sent the only child support check he has ever sent to the Petitioner in this action in the amount of $60.00. Although this amount was not cashed by the [Petitioner] based on the advise [sic] of her counsel that it was not in compliance with the Court\u2019s Order, the Respondent testified in open court that h[e] believed the money had been cashed and deposited into the Petitioner\u2019s account. Thereafter, the Respondent did not send any further direct child support to the Petitioner and has not paid any child support through the date of this hearing. Respondent has maintained that he has maintained a savings account for the minor child but the records produced by him at this proceeding indicate that he had only $294.69 in the account as of February 28, 2003. No withdrawals have been made from that account. The Respondent has made numerous phone calls to the minor child and has spoken with the minor child since the previous hearing on Termination of Parental Rights in June of 2002 and has sent some presents to the minor child.\n20. As of the date of this hearing, Respondent has paid no support for the minor child since September of 1999 except as set forth above.\n21. . . . [T]he Court\u2019s Order denying the Petition to Terminate Rights gave the Respondent a second opportunity to comply with the Court\u2019s Orders and establish a relationship with the minor child.\n[22], Since notification of the Court\u2019s previous Order denying the Petition to Terminate Parental Rights, the Respondent has failed in all respects to comply with the Court\u2019s Order, has made no attempt to amend that Order or reduce his child support obligation, and appears before this Court with no plan to address the substantial arrearages that now exist or his future child support obligations.\n[23]. The Respondent has clearly failed to comply with the Clark County, Nevada child support Order in any respect since 1999, and has now clearly failed to comply with the Order since January 2002, when the previous Court held that he had notice of his obligation [to] pay child support and has not complied with the Nevada Orders for more than one year prior to the filing of the Petition.\n[24], In addition, the Respondent has failed to maintain consistent contact with the minor child and has indicated by his own testimony that he has never had any overnight visitation with the minor child outside of the presence of his parents and has only visited with the minor child occasionally. The Respondent has had no physical contact with [the] minor child since the Spring of 2001.\n[25]. The minor child is now almost five years of age and will be entering Kindergarten in New Hanover County. The Petitioner and her current husband are both stably employed. In addition, the Petitioner is attending school at the University of North Carolina at Wilmington. The parties have bought a home and are providing a safe and secure environment for the minor child. The Petitioner\u2019s husband has testified that he has established a close and loving relationship with the minor child and regards the minor child as his own son and best friend.\nThese findings of fact support the trial court\u2019s conclusion, pursuant to G.S. \u00a7 7B-llll(a)(4), that respondent had, \u201cfor a period of one year or more next preceding the filing of the [TPR] petition . . . willfully failed without justification to pay for the care, support, and education\u201d of the child \u201cas required by . . . [a] decree. ...\u201d Because we have sustained termination of parental rights under G.S. \u00a7 7B-llll(a)(4), we need not address respondent\u2019s further argument that the findings of fact do not support the termination ground pursuant to G.S. \u00a7 7B-llll(a)(5)d. See In re Stewart Children, 82 N.C. App. 651, 655, 347 S.E.2d 495, 498 (1986) (where one statutory ground is established, this Court need not address assignments of error challenging other grounds).\nThe dissent would also reverse the order on appeal because of the trial court\u2019s (1) failure to make a finding that Respondent had the \u201cability to provide support\u201d with respect to G.S. \u00a7 7B-llll(a)(3); (2) failure to find that respondent\u2019s failure to pay was \u201cwithout justification\u201d when utilizing the ground set forth in G.S. \u00a7 7B-llll(a)(4); and (3) failure to find \u201cability to pay\u201d with respect to the ground set forth in G.S. \u00a7 7B-llll(a)(5)d.\nAs to the first of the dissent\u2019s concerns, the trial court did not utilize the ground set forth in G.S. \u00a7 7B-llll(a)(3) to terminate. Nonetheless, we observe that G.S. \u00a7 7B-llll(a)(3), formerly codified as G.S. \u00a7 7A-289.32(4), authorizes the court to terminate parental rights when the child has been placed in DSS custody and the parent, \u201cfor 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.\u201d The statute itself expressly includes references to one\u2019s ability to pay. It is not surprising, then, that this Court has required findings concerning \u201cability to pay\u201d when the trial court utilizes this ground to terminate. See In re Ballard, 311 N.C. 708, 716-17, 319 S.E.2d 227, 233 (1984). Put simply, Ballard is not authority for an assertion that the trial court errs by failing to make a finding of \u201cability to pay\u201d where the grounds to terminate are those set forth in G.S. \u00a7\u00a7 7B-llll(a)(4) or 7B-llll(a)(5)d. And, again, the trial court in the present matter did not utilize subsection G.S. \u00a7 7B-llll(a)(3) as a ground to terminate.\nAs to the dissent\u2019s second concern, the trial court did, indeed, conclude that respondent\u2019s failure to pay was \u201cwithout justification\u201d when utilizing the ground set forth in G.S. \u00a7 7B-llll(a)(4). Moreover, with respect to termination of parental rights based on a failure to pay support pursuant to a decree, this Court, in In re Roberson, 97 N.C. App. 277, 281, 387 S.E.2d 668, 670 (1990), held that a termination under N.C.G.S. \u00a7 7A-289.32(5), now codified as G.S. \u00a7 7B-llll(a)(4), did not require a finding of ability to pay on the part of respondent. This Court explained:\nRespondent . . . argues that the trial judge erred in finding and concluding that respondent\u2019s admitted failure to pay support during the relevant time period was willful because the order does not contain a finding of fact on respondent\u2019s ability to make support payments. In a termination action pursuant to this ground, petitioner must prove the existence of a support order that was enforceable during the year before the termination petition was filed. . . . Because a proper decree for child support will be based on the supporting parent\u2019s ability to pay as well as the child\u2019s needs, . . . there is no requirement that petitioner independently prove or that the termination order find as fact respondent\u2019s ability to pay support during the relevant statutory time period.\nId.; accord 3 Suzanne Reynolds, Lee\u2019s North Carolina Family Law \u00a7 17.42, at 17-59 n.294, (5th ed. 2002) (with respect to G.S. \u00a7 7B-llll(a)(4), \u201c[t]he petitioner does not have to prove that the respondent had the ability to pay support if there is proof of a valid court order or support agreement. . . .\u201d). And, just as the Robserson court observed of the respondent in that case, respondent herein \u201ccould have rebutted petitioner\u2019s evidence of his ability to pay by presenting evidence that he was in fact unable to pay support, but he did not do so.\u201d Roberson, 97 N.C. App. at 281, 387 S.E.2d at 670. Instead, as the evidence and findings amply demonstrate about the present appeal, respondent chose to provide de minimis financial support notwithstanding his ability to do otherwise.\nAs to the dissent\u2019s third concern, that the trial court did not find that respondent had an \u201cability to pay\u201d pursuant to the ground set forth in G.S. \u00a7 7B-llll(a)(5)d, formerly codified as N.C.G.S. \u00a7 7A-289.32(6)(d), this Court has held that such a finding is not required. In re Hunt, 127 N.C. App. 370, 374, 489 S.E.2d 428, 430 (1997). Rather, as Hunt explained, \u201c[t]he statute only requires a showing that he in fact did not provide substantial support or consistent care to the child or the mother.\u201d Id.\nAgain, this Court\u2019s review is limited to respondent\u2019s assignments of error and the associated arguments contained in his brief. The alleged omission of miscellaneous findings of fact and/or the trial court\u2019s alleged failure to make a finding that respondent \u201chad the ability to provide support\u201d are not mentioned or argued by respondent. It is, again, \u201cnot the role of the appellate courts ... to create an appeal for an appellant.\u201d Viar, 359 N.C. at 402, 610 S.E.2d at 361.\nThis assignment of error is overruled.\nRespondent\u2019s remaining argument on appeal, that the trial court abused its discretion by concluding that it was in the child\u2019s best interests that respondent\u2019s parental rights be terminated, is without merit. See In re McMillon, 143 N.C. App. 402, 408, 546 S.E.2d 169, 174 (2001) (abuse of discretion is standard of review of decision to terminate parental rights once grounds for termination are established). This assignment of error is overruled.\nAffirmed.\nJudge BRYANT concurs.\nJudge TYSON concurs in part and dissents in part.", "type": "majority", "author": "LEVINSON, Judge." }, { "text": "TYSON, Judge\nconcurring in part, dissenting in part.\nI concur in that portion of the majority\u2019s opinion finding that North Carolina\u2019s courts have jurisdiction over respondent. Respondent properly preserved his assignments of error to the trial court\u2019s findings of fact and order and argued these assignments in his brief. The trial court\u2019s order does not show the standard of proof it utilized and failed to make findings on respondent\u2019s ability to pay. The order should be vacated and this cause remanded. I respectfully dissent.\nI.Assignments of Error\nAs stated in the majority\u2019s opinion, respondent\u2019s assignments of error numbers 2 through 5 challenge:\n2. The court\u2019s Conclusion of Law #2 concluding Respondent has without justification failed to pay for the care, support, and education of the Juvenile as required by Court decree due to insufficiency of the evidence.\nRecord p. 65. Findings of Fact 5-24.\n3. The court\u2019s Conclusion of [L]aw #3 concluding Respondent has not provided substantial financial support or consistent care with respect to the minor child due to insufficiency of the evidence.\nRecord p. 65. Findings of Fact 5-24.\n4. The court\u2019s Conclusion of Law #4 concluding it is in the minor child\u2019s best interest that the Respondent\u2019s parental rights be terminated.\nRecord p. 65. Findings of Fact 5-24.\n[5]. The court\u2019s termination of Respondent\u2019s parental rights.\nRecord p. 65. Findings of Fact 5-24.\n(Emphasis supplied). Respondent sufficiently complied with the applicable rules of appellate procedure. N.C.R. App. R 10(a) (2004); N.C.R. App. P. 28 (2004). His appeal and arguments are properly before this Court. The discussion of \u201cRule 2\u201d in the majority\u2019s opinion is inapplicable to an appeal, as here, where a respondent\u2019s assignments of error challenge specifically list findings of fact and the sufficiency of the evidence as required by a petitioner\u2019s burden of proof to support those findings.\nII. Clear. Cogent, and Convincing Evidence\nThe majority\u2019s opinion correctly quotes our standard of review: \u201cAn order terminating parental rights will be upheld if there is clear, cogent, and convincing evidence to support the findings of fact and those findings of fact support the trial court\u2019s conclusions of law.\u201d In re Clark, 159 N.C. App. 75, 83, 582 S.E.2d 657, 662 (2003) (citation omitted). \u201c[I]n the adjudication stage, the petitioner must prove by clear, cogent, and convincing evidence the existence of one or more of the grounds for termination.\u201d In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). Atrial court\u2019s order terminating parental rights to a child must be based on clear, cogent, and convincing evidence. In re Church, 136 N.C. App. 654, 657, 525 S.E.2d 478, 480 (2000).\nThis Court has held:\nAlthough the termination statute does not specifically require the trial court to affirmatively state in its order terminating parental rights that the allegations of the petition were proved by clear and convincing evidence, without such an affirmative statement the appellate court is unable to determine if the proper standard of proof was utilized.... Accordingly, we read section 7A-289.30(e) (now section 7B-1109(f)) to require the trial court to affirmatively state in its order the standard of proof utilised in the termination proceeding.\nId. at 657, 525 S.E.2d at 480 (emphasis supplied). In In re Church, we remanded to \u201cthe trial court to determine whether the evidence satis-fie [d] the required standard of proof of clear and convincing evidence.\u201d 136 N.C. App. at 658, 525 S.E.2d at 481. That same result is required here.\nOur review of respondent\u2019s assignments of error is well-established. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000). We must determine: (1) \u201cwhether the [trial] court\u2019s \u2018findings of fact are based upon clear, cogent[,] and convincing evidence;\u2019 \u201d and (2) \u201cwhether the \u2018findings support the conclusions of law\u2019 \u201d in the order. Id. (quoting In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996) (citation omitted)), disc. rev. denied and appeal dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001). We review the trial court\u2019s conclusions of law de novo. Scott v. Scott, 157 N.C. App. 382, 385, 579 S.E.2d 431, 433 (2003) (trial court\u2019s conclusions of law are reviewable de novo); see also Browning v. Helff, 136 N.C. App. 420, 423, 524 S.E.2d 95, 97-98 (2000).\nThe trial court\u2019s order fails to state its findings of fact are based upon \u201cclear, cogent, and convincing evidence\u201d and does not state the standard of proof upon which the trial court\u2019s findings are based. In re Montgomery, 311 N.C. at 110, 316 S.E.2d at 252. This Court cannot presume this error to be harmless. In re Church, 136 N.C. App. at 658, 525 S.E.2d at 480.\nThe order appealed from fails to indicate the standard of proof the trial court applied. As the order fails to show the standard of proof the trial court applied and to include an affirmative statement regarding application of the proper standard of proof the trial court used, we are \u201cunable to determine if the proper standard of proof was utilized\u201d and review respondent\u2019s assignments of error regarding the findings of fact. In re Church, 136 N.C. App. at 657, 525 S.E.2d at 480. The majority\u2019s opinion acknowledges that it \u201ccannot disagree with the principles set forth in In re Church.\"\nIII. Ability to Pav\nThe trial court terminated respondent\u2019s parental rights by concluding respondent \u201cwillfully failed without justification to pay for the care, support, and education\u201d of the child.\nIn In re Roberson, this Court stated:\nto hold a supporting parent in contempt for willful failure to pay support, the following definitions of the word \u201cwillful\u201d were cited with approval: \u201cdisobedience which imports knowledge and a stubborn resistance,\u201d \u201cdoing the act . . . without authority \u2014 careless whether he has the right or not \u2014 in violation of law.\u201d Jones v. Jones, 52 N.C. App. 104, 110, 278 S.E.2d 260, 264 (1981). (Citations omitted.) In proceedings conducted under former N.C. Gen. Stat. \u00a7 48-5, the predecessor of N.C. Gen. Stat. \u00a7 7A-289.32(8), which allows termination based upon a finding of \u201cwillful abandonment,\u201d the word \u201cwillful\u201d implied doing an act purposely and deliberately. In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 513-14 (1986). \u201cWillful intent ... is a question of fact to be determined from the evidence.\u201d Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962).\n97 N.C. App. 277, 280-81, 387 S.E.2d 668, 670 (1990).\nNo evidence in the record shows and no findings of fact were made regarding respondent\u2019s ability to pay under any of the statutory grounds asserted to terminate respondent\u2019s parental rights. Without, such evidence and findings of fact, the trial court erred by concluding respondent \u201cwillfully failed without justification to pay for the care, support, and education\u201d of his child.\nA finding that a parent has ability to pay support is essential to termination for nonsupport on this ground. See In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981). No such finding was made in this case. Therefore, that part of the opinion of the Court of Appeals affirming the action of the trial court in terminating the respondent\u2019s parental rights on this ground also must be reversed.\nIn re Ballard, 311 N.C. 708, 716-17, 319 S.E.2d 227, 233 (1984) (referring to subdivision (4) of former N.C. Gen. Stat. \u00a7 7A-289.32, now N.C. Gen. Stat. \u00a7 7B-llll(a)(3)).\nCiting In re Roberson, the majority\u2019s opinion holds, that N.C. Gen. Stat. \u00a7 7B-lll'l(a)(4) does \u201cnot require a finding of ability to pay on the part of father-respondent.\u201d However, unlike here and as noted above, the trial court in In re Roberson found and stated that \u201cpetitioner had shown by clear, cogent, and convincing evidence that respondent\u2019s failure to pay was willful.\u201d 97 N.C. App. at 281, 387 S.E.2d at 670. In In re Roberson, we reiterated, \u201c[a]t the adjudication stage, petitioner carries the burden of proving the existence of grounds for termination by clear, cogent and convincing evidence.\u201d 97 N.C. App. at 282, 387 S.E.2d at 670 (citing In re White, 81 N.C. App. 82, 85, 344 S.E.2d 36, 38, cert. denied, 318 N.C. 283, 347 S.E.2d 470 (1986)). The trial court\u2019s order does not affirmatively state petitioner met its burden of proof or that respondent\u2019s failure to pay was \u201cwithout justification\u201d as required by the statute. N.C. Gen. Stat. \u00a7 7B-llll(a)(4). The trial court must find respondent\u2019s ability to comply in order to find his failure to comply was \u201cwithout justification.\u201d Id.\nThe majority\u2019s opinion also cites In re Hunt, to hold that N.C. Gen. Stat. \u00a7 7B-llll(a)(5)d does not require the trial court to find an \u201cability to pay on the part of the respondent.\u201d However, this Court in In re Hunt stated, \u201c[m]ore importantly, the order entered shows the trial court did find that respondent had the means and ability to support his child and did not.\u201d 127 N.C. App. 370, 374, 489 S.E.2d 428, 430 (1997).\nUnder neither ground to terminate respondent\u2019s right for failure to support the juvenile did the trial court find by clear, cogent, and convincing evidence that respondent either: (1) \u201cwillfully failed ... to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so,\u201d N.C. Gen. Stat. \u00a7 7B-llll(a)(3) (emphasis supplied); or (2) \u201cwillfully failed without justification to pay for the care, support, and education of the juvenile,\u201d N.C. Gen. Stat \u00a7 7B-llll(a)(4) (emphasis supplied); or (3) for \u201ca juvenile bom out of wedlock has not. . . [p]rovided substantial financial support or consistent care with respect to the juvenile and mother,\u201d N.C. Gen. Stat \u00a7 7B-llll(a)(5)d (emphasis supplied); or (4) \u201chad the means and ability to support his child and did not,\u201d In re Hunt, 127 N.C. App. at 374, 489 S.E.2d at 430.\nWithout findings of fact regarding respondent\u2019s ability to pay or an affirmative statement of the required \u201cstandard of proof utilized in the termination proceeding,\u201d the trial court\u2019s conclusions of law are not supported. In re Church, 136 N.C. App. at 657, 525 S.E.2d at 480; see also In re Huff, 140 N.C. App. at 291, 536 S.E.2d at 840. The order appealed from should be vacated and remanded. See In re Church, 136 N.C. App. at 658, 525 S.E.2d at 481.\nIV. Conclusion\nWhile North Carolina courts have subject matter jurisdiction over petitioner\u2019s action, the trial court erred in failing to \u201caffirmatively state in its order\u201d whether it applied the required clear, cogent, and convincing evidence standard of proof to support its findings of fact that respondent willfully failed to pay for the care of the child. In re Church, 136 N.C. App. at 657, 525 S.E.2d at 480. The trial court also failed to make any findings of fact of whether: (1) respondent had the \u201cmeans and ability\u201d to pay support, In re Hunt, 127 N.C. App. at 374, 489 S.E.2d at 430; or (2) respondent failed to provide \u201cconsistent care,\u201d N.C. Gen. Stat. \u00a7 7B-llll(a)(5)d; or (3) respondent\u2019s failure to pay was \u201cwithout justification,\u201d N.C. Gen. Stat. \u00a7 7B-llll(a)(4). See also In re Roberson, 97 N.C. App. at 281, 387 S.E.2d at 670; In re Church, 136 N.C. App. at 657, 525 S.E.2d at 480.\nI vote to vacate the order and remand for entry of findings of fact based on clear, cogent, and convincing evidence on whether respondent has the means and ability to pay support for his child and whether respondent\u2019s failure to pay was \u201cwithout justification.\u201d N.C. Gen. Stat. \u00a7 7B-llll(a)(4). I respectfully dissent.", "type": "concurring-in-part-and-dissenting-in-part", "author": "TYSON, Judge" } ], "attorneys": [ "Lea, Rhine & Rosbrugh, by James W. Lea, III and Lori W. Rosbrugh, for petitioner appellee.", "Susan J. Hall, for respondent father-appellant.", "Jana Lucas, for Guardian ad Litem." ], "corrections": "", "head_matter": "IN RE: J.D.S., A Minor Child\nNo. COA04-213\n(Filed 17 May 2005)\n1. Appeal and Error; Jurisdiction\u2014 subject matter jurisdiction \u2014 raised ex mero motu\nSubject matter jurisdiction may be raised at any time by the parties or by the court ex mero motu, and may be reviewed on appeal even if not raised below.\n2. Termination of Parental Rights\u2014 subject matter jurisdiction \u2014 statement that petition not filed to circumvent statute\nThere was no prejudice from a termination of parental rights petition which omitted the statutorily required statement that the petition had not been filed to circumvent the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act. N.C.G.S. \u00a7 7B-1104C7).\n3. Termination of Parental Rights\u2014 subject matter jurisdiction \u2014 statement of child\u2019s address and location\nThe trial court had subject matter jurisdiction over a termination of parental rights proceeding even though petitioner did not file an affidavit stating the child\u2019s address and location as required by N.C.G.S. \u00a7 50A-209.\n4. Appeal and Error\u2014 preservation of issues \u2014 assignments of error \u2014 sufficiency of evidence to support findings\nRespondent\u2019s assignments of error were not sufficient to preserve for appellate review the issue of whether the evidence supported the findings in a termination of parental rights proceeding. The legal basis of an assignment of error should not be confused with record or transcript references; moreover, assigning error to a conclusion of law on the generalized basis of insufficient evidence does not preserve the issue of sufficiency of the evidence supporting the findings.\n5. Termination of Parental Rights\u2014 order \u2014 statement of standard of review\nThere would have been no reason to review the question of whether the clear, cogent and convincing standard of proof was adequately stated in a termination of parental rights order, even if respondent had sought appellate review of the issue, because the evidence supports the trial court\u2019s findings, the court stated on the record that its findings were based on clear and convincing evidence, and the findings supported the conclusion .that respondent had willfully failed to pay for the care, support, and education of the child for one year as required by decree.\n6. Termination of Parental Rights\u2014 failure to provide support \u2014 findings\u2014ability to pay\nWhile a finding regarding ability to pay is required by In re Ballard, 311 N.C. 708, that case concerned N.C.G.S. \u00a7 7B-1111(a)(3) and is not authority for the assertion that the trial court erred by not making that finding for termination under N.C.G.S. \u00a7 1111(a)(4) or (5)d.\n7. Termination of Parental Rights\u2014 failure to provide support \u2014 findings\u2014no justification for not paying\nThere was no error in a termination of parental rights order concerning the finding that respondent\u2019s failure to pay was without justification. The court in fact concluded that respondent\u2019s failure to pay was without justification; moreover, it has been held that termination with respect to a failure to pay support pursuant to a decree does not require a finding of ability to pay.\n8. Termination of Parental Rights\u2014 lack of support \u2014 ability to pay\nA showing that a termination of parental rights respondent had the ability to pay is not required; the statutory requirement is a showing that respondent did not provide substantial support or consistent care to the child or mother. Moreover, this issue was raised in the dissent rather than by respondent and it is not the role of the appellate courts to create an appeal.\nJudge Tyson concurring in part and dissenting in part.\nAppeal by respondent father from order entered 8 October 2003 by Judge John W. Smith in New Hanover County District Court. Heard in the Court of Appeals 21 October 2004.\nLea, Rhine & Rosbrugh, by James W. Lea, III and Lori W. Rosbrugh, for petitioner appellee.\nSusan J. Hall, for respondent father-appellant.\nJana Lucas, for Guardian ad Litem." }, "file_name": "0244-01", "first_page_order": 274, "last_page_order": 293 }