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NORTH CAROLINA COURT OF APPEALS
2 July 2002
LEHONNA SOISSETTE’ CLARK
A Minor Child
No. 2000 J 199
Appeal 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.
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.
Anthony Clark (“respondent”) appeals from an order terminating
his parental rights. For the reasons stated herein, we reverse the
order of the trial court.
Respondent is the natural father of Lehonna Soisette’ Clark
(“Lehonna”), born 9 December 1999.
On 26 April 2000, the trial
court adjudicated Lehonna to be a dependent and neglected child
Lehonna’s mother had a substance abuse problem which rendered her
incapable of properly caring for the child.
Lehonna was removed
-2from her mother’s care and placed into the legal custody of the
Wilson County Department of Social Services (“DSS”), which in turn
placed Lehonna in the physical custody of a maternal cousin.
respondent’s parental rights.
The trial court heard the matter on
9 May 2001 and made the following two findings of fact concerning
10. . . . Anthony Clark has been incarcerated
since the child was removed from the mother.
He has been unable to provide care for the
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’s removal regarding the
child’s custody and care.
His mother was
unable to provide care for the child.
grandmother once asked for visitation, but did
not follow through on the request.
11. 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
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’s 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’ 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
Based on these findings, the trial court concluded that respondent
-3had “failed to pay a reasonable portion of the cost of care for the
child although physically and financially able to do so” and was
“incapable of providing for the proper care and supervision of the
foreseeable future.” The trial court thereafter determined that it
was in Lehonna’s best interests that respondent’s parental rights
be terminated and entered an order accordingly.
From this order,
Respondent argues that the trial court erred in concluding
that sufficient grounds existed to terminate his parental rights.
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.
Such findings must be based, however, on “clear,
cogent, and convincing evidence.”
See N.C. Gen. Stat. §
N.C. Gen. Stat. §§ 7B-1109(f),
These were under subsections (a)(3) and
(a)(6), which provide that parental rights over a child may be
(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
-4. . . .
(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
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.
N.C. Gen. Stat. § 7B-1111 (a)(3), (a)(6).
A dependent juvenile is
one “in need of assistance or placement because the juvenile has no
parent, guardian, or custodian responsible for the juvenile’s 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.”
N.C. Gen. Stat. § 7B-101(9)
Respondent contends that there was insufficient evidence to
support the trial court’s conclusion that he failed to pay a
reasonable portion of the cost of Lehonna’s care or that he was
incapable of caring for his child.
Respondent’s argument has
In determining what constitutes a “reasonable portion” of the
cost of care for a child, the parent’s ability to pay is the
See In re Clark, 303 N.C. 592, 604,
281 S.E.2d 47, 55 (1981).
A 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’s ability or means to pay.
within a parent’s “ability” to pay or what is
-5within the “means” of a parent to pay is a
flexibility in its application.
It is undisputed that respondent here paid nothing to DSS for
Nevertheless, nonpayment constitutes a failure to
pay a reasonable portion “if and only if respondent [is] able to
pay some amount greater than zero.”
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’s 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 “any kind of release program
where you’re earning money.”
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’s 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).
The trial court also determined that respondent was incapable
of providing for Lehonna’s care.
The trial court failed to make
findings, however, regarding this ground, except for the fact that
-6respondent was incarcerated and that “[h]is mother was unable to
provide care for the child.”
Incapability under section 7B-
retardation, mental illness, organic brain syndrome, or any other
similar cause or condition.”
N.C. Gen. Stat. § 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
Respondent testified that his anticipated release date
from prison was 9 October 2002.
Although respondent may be
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.
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, __ N.C.
App. __, __, __ S.E.2d __, __ (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’s care.
In summary, we hold that the trial court erred in concluding
-7that respondent willfully failed to pay for a reasonable portion of
child care and that respondent was incapable of providing for his
The trial court therefore erred in terminating
judgment of the court.
Judges MARTIN and CAMPBELL concur.