{ "id": 8520463, "name": "IN THE MATTER OF ISSAC CLARK ROBERSON and JORDAN EDWARD ROBERSON", "name_abbreviation": "In re Roberson", "decision_date": "1990-02-06", "docket_number": "No. 8918DC391", "first_page": "277", "last_page": "282", "citations": [ { "type": "official", "cite": "97 N.C. App. 277" } ], "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": "347 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736775, 4740168, 4739944, 4736235, 4733980 ], "year": 1986, "opinion_index": 0, "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", "weight": 3, "year": 1986, "pin_cites": [ { "page": "38" }, { "page": "38" }, { "page": "38" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 82", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521439 ], "year": 1986, "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0082-01" ] }, { "cite": "328 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "49" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 231", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523873 ], "year": 1985, "pin_cites": [ { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0231-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "126 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "608" } ], "opinion_index": 0 }, { "cite": "257 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568884 ], "year": 1962, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "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": 0 }, { "cite": "82 N.C. App. 273", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358667 ], "year": 1986, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "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": 0 }, { "cite": "278 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "264" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 104", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170028 ], "year": 1981, "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0104-01" ] }, { "cite": "291 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "183" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 63", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521956 ], "year": 1982, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0063-01" ] }, { "cite": "316 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "252" }, { "page": "253" } ], "opinion_index": 0 }, { "cite": "311 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679227 ], "year": 1984, "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0101-01" ] } ], "analysis": { "cardinality": 482, "char_count": 11675, "ocr_confidence": 0.759, "pagerank": { "raw": 2.2007748052692653e-07, "percentile": 0.7751243412260714 }, "sha256": "6984b0ec75f7de66d89fc0840f21ba938fb69d6150bc376e769df78b11599259", "simhash": "1:0f23f24ac92e4e16", "word_count": 1881 }, "last_updated": "2023-07-14T17:09:00.422652+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge WELLS concur." ], "parties": [ "IN THE MATTER OF ISSAC CLARK ROBERSON and JORDAN EDWARD ROBERSON" ], "opinions": [ { "text": "ARNOLD, Judge.\nThis is a case in which respondent\u2019s parental rights were terminated pursuant to N.C. Gen. Stat. \u00a7 7A-289.32(5), which permits termination of parental rights upon a finding that:\nOne parent has been awarded custody of the child by judicial decree, or has custody by agreement of the parents, and the other parent whose parental rights are sought to be terminated has for a period of one year or more next preceding the filing of the petition willfully failed without justification to pay for the care, support and education of the child, as required by said decree or custody agreement.\nIn the adjudication stage, petitioner must prove clearly, cogently, and convincingly the existence of at least one ground for termination. In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984).\nRespondent first assigns error to the trial court\u2019s finding of fact #8 and conclusion of law #14, both of which state:\nThe Court finds that between February, 1987 and the filing of this Petition, Thomas Edward Roberson did willfully and without legal justification fail to provide for the care, support and education of his minor children for more than one year preceding the filing of this Petition in violation of a court order for support.\nWe must review the evidence to determine whether the finding of fact is supported by clear, cogent and convincing evidence and the conclusion of law is supported by the findings of fact. Montgomery at 111, 316 S.E.2d at 253. In reviewing the order, the findings of fact to which respondent did not except are deemed to be supported by sufficient evidence and are conclusive on appeal. In re Wilkerson, 57 N.C. App. 63, 65, 291 S.E.2d 182, 183 (1982).\nThe conclusive findings of fact showed the following: On 19 September 1986, respondent was ordered to pay to petitioner $250 a month for the support of their two sons. Between 19 September 1986, when the support order was entered, and July 1988, when the termination petition was filed, respondent made two full support payments in September and October 1986 and a partial support payment in February 1987. Respondent made a second partial support payment on 5 August 1988, after the petition had been filed. On 7 June, 11 July, 8 August and 21 September 1988, respondent made payments to his son\u2019s child psychologist of between thirty and fifty dollars each.\nRespondent acknowledges that he paid no support to petitioner between February 1987 and August 1988, a period of more than one year before the petition was filed. However, he argues that the payments during the relevant statutory time period to his son\u2019s child psychologist for his son\u2019s counseling constitute child support. We disagree. According to the copy of the child support order included in the record, respondent\u2019s support obligation was $250 a month to be paid to petitioner, not to pay the child psychologist for his son\u2019s counseling. We note that the payments to the child psychologist before the petition was filed totalled $75. Respondent offered no evidence that he was obligated by a custody decree or agreement to pay the child psychologist for his son\u2019s treatment. The trial court therefore correctly found and concluded that respondent failed to provide child support for more than one year preceding the filing of the termination petition in violation of a court order for support.\nRespondent makes several arguments that the finding and conclusion of willful failure to pay was erroneous. In proceedings under N.C. Gen. Stat. \u00a7 5A-21 to 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).\nRespondent first 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. See N.C. Gen. Stat. \u00a7 7A-289.32(5). 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, N.C. Gen. Stat. \u00a7 50-13.4; Atwell v. Atwell, 74 N.C. App. 231, 234, 328 S.E.2d 47, 49 (1985), 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. Moreover, there was evidence in the record that respondent was continuously employed and earning between $1,300 and $1,700 a month during the relevant statutory time period, except for a period of several weeks when he moved from Texas to North Carolina. Respondent could 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.\nRespondent next argues that the finding and conclusion of \u201cwillfulness\u201d was erroneous because petitioner did not exclude respondent\u2019s psychological and emotional difficulties as the cause for respondent\u2019s failure to pay. Petitioner\u2019s evidence showed that respondent had been ordered to pay for his children\u2019s support and that he was fully aware of his obligation, yet he failed to pay for the relevant time period. Respondent testified that he had had a very serious emotional breakdown in November 1986 and that he had received counseling before and during the year preceding the filing of the petition. The trial judge determined from all the evidence that petitioner had shown by clear, cogent, and convincing evidence that respondent\u2019s failure to pay was willful. We agree that the evidence was sufficient for a finding of willful failure to pay. On different facts, a respondent-parent\u2019s psychological or emotional illness might rebut what a petitioner\u2019s evidence had shown to be willful behavior. Here, however, respondent did not present evidence as to the seriousness or extent of his emotional difficulties sufficient to rebut petitioner\u2019s showing of willfulness.\nRespondent next assigns error to the trial court\u2019s finding and conclusion that it was in the children\u2019s best interest to terminate respondent\u2019s parental rights. Respondent argues that petitioner failed to prove by clear, cogent, and convincing evidence that termination was in the children\u2019s best interest. At the adjudication stage, petitioner carries the burden of proving the existence of grounds for termination by clear, cogent and convincing evidence. N.C. Gen. Stat. \u00a7 7A-289.30(e); 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). Once the judge determines grounds for termination exist, the case enters the dispositional stage. At this stage, the court makes a discretionary determination whether termination of parental rights is in the children\u2019s best interest. N.C. Gen. Stat. \u00a7 7A-289.31(a); White at 85, 344 S.E.2d at 38. Petitioner does not carry an evidentiary burden at the dispositional stage. See White at 85, 344 S.E.2d at 38. In this case, the trial judge first determined that one of the grounds for termination did exist. He then declined to exercise his discretion not to terminate respondent\u2019s parental rights. This assignment of error has no merit.\nAffirmed.\nChief Judge HEDRICK and Judge WELLS concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Hatfield & Hatfield, by Kathryn K. Hatfield, for petitioner appellee.", "Anne R. Littlejohn, Attorney Advocate, for appellee.", "Neill A. Jennings, Jr. for respondent appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF ISSAC CLARK ROBERSON and JORDAN EDWARD ROBERSON\nNo. 8918DC391\n(Filed 6 February 1990)\n1. Parent and Child \u00a7 1.6 (NCI3d)\u2014 termination of parental rights \u2014 nonpayment of child support \u2014 evidence sufficient\nThe trial court correctly found and concluded that respondent failed to provide child support for more than one year preceding the filing of the termination of parental rights proceeding where respondent acknowledges that he paid no support to petitioner for a period of more than one year before the petition was filed but contends that payments to his son\u2019s child psychologist constituted child support. Respondent\u2019s support obligation was $250 a month, to be paid to petitioner, not to pay the child psychologist for his son\u2019s counseling.\nAm Jur 2d, Parent and Child \u00a7\u00a7 34, 35.\n2. Parent and Child \u00a7 1.6 (NCI3d)\u2014 termination of parental rights \u2014 nonpayment of support \u2014finding of willfulness\nThe trial court did not err by finding and concluding that respondent\u2019s failure to pay child support during the relevant period was willful despite the failure of the order to contain a finding of fact on respondent\u2019s ability to make support payments because petitioner in a termination action must prove the existence of an enforceable support order and a proper child support decree will be based on the supporting parent\u2019s ability to pay as well as the child\u2019s needs. Moreover, there was evidence of defendant\u2019s employment and earnings in the record which defendant did not rebut.\nAm Jur 2d, Parent and Child \u00a7\u00a7 34, 35.\n3. Parent and Child \u00a7 1.6 (NCI3d) \u2014 termination of parental rights \u2014 failure to pay child support \u2014 willful\nThe trial court did not err in a proceeding to terminate parental rights for failure to pay child support by finding and concluding that respondent\u2019s failure to pay was willful, despite evidence of an emotional breakdown, where respondent did not present evidence of the seriousness or extent of his emotional difficulties sufficient to rebut petitioner\u2019s showing of willfulness.\nAm Jur 2d, Parent and Child \u00a7\u00a7 34, 35.\n4. Parent and Child \u00a7 1.5 (NCI3d)\u2014 termination of parental rights \u2014 dispositional stage \u2014no evidentiary burden of proof\nThe trial court did not abuse its discretion by terminating respondent\u2019s parental rights following findings and conclusions that respondent had not provided support for one year. Although respondent argued that petitioner had failed to prove by clear, cogent, and convincing evidence that termination was in the children\u2019s best interest, the court in the dispositional stage makes a discretionary determination of whether termination of parental rights is in the children\u2019s best interest and petitioner does not carry an evidentiary burden at that stage.\nAm Jur 2d, Parent and Child \u00a7\u00a7 34, 35.\nAPPEAL by respondent from judgment entered on 10 November 1988 by Judge Robert E. Bencini in GUILFORD County District Court. Heard in the Court of Appeals 11 December 1989.\nIn July 1988, petitioner, mother of Isaac Clark Roberson and Jordan Edward Roberson, filed a petition for termination of the parental rights of respondent, father of the two children. Following a hearing, the court ordered respondent\u2019s parental rights to Isaac and Jordan terminated. From this order, respondent appeals. Additional pertinent facts are set out in the opinion.\nHatfield & Hatfield, by Kathryn K. Hatfield, for petitioner appellee.\nAnne R. Littlejohn, Attorney Advocate, for appellee.\nNeill A. Jennings, Jr. for respondent appellant." }, "file_name": "0277-01", "first_page_order": 305, "last_page_order": 310 }