In re H.J.A

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-507 NORTH CAROLINA COURT OF APPEALS Filed: 7 January 2014 IN THE MATTER OF: H.J.A. and T.M.A. Mecklenburg County Nos. 08 J 326 09 J 368 Appeal by Respondent-Appellant Mother from orders entered 11 February 2013 by Judge Louis A. Trosch in District Court, Mecklenburg County. Heard in the Court of Appeals 10 December 2013. Twyla Hollingsworth-Richardson, for Petitioner-Appellee Mecklenburg County Department of Social Services, Youth and Family Services. Appellate Defender Staples Hughes, by Assistant Appellate Defender Joyce L. Terres, for Respondent-Appellant Mother. Poyner Spruill, LLP, by Kathryn R. Paradise, for Guardian ad Litem. McGEE, Judge. The trial court Respondent-Mother juveniles ) in an terminated ( Mother ) order to entered the H.J.A. 7 parental and February rights T.M.A. 2012. of ( the Mother -2appealed the termination order and the permanency planning order of 6 January Mecklenburg 2011, County in which Department the of trial Social cease reunification efforts with Mother. court ordered Services ( DSS ) the to This Court held that the findings in the permanency planning order were insufficient to support the conclusion to cease reunification efforts. In re H.J.A. and T.M.A., ___ N.C. App. ___, ___, 735 S.E.2d 359, 363 (2012). This Court reversed the permanency planning order and remanded for additional findings of fact. Id. Because this Court reversed the permanency planning order, it also reversed the termination of parental rights order. we must reverse and remand the order ceasing As reunification efforts as to respondent-mother, we must also reverse and remand the order terminating her parental rights to the juveniles. Id. at ___, 735 S.E.2d at 363-64. arguments regarding This Court did not address the termination order. Id. at ___, 735 S.E.2d at 364. The entered 2013. trial an court amended held a permanency hearing on planning 17 January order on 11 2013 and February The trial court also entered an order in which it found that additional findings on the termination of parental rights were unnecessary. The trial court concluded: The 7 February -32012 Termination of Parental Rights order continues to be the order of this court. The trial court incorporated by reference the 7 February 2012 termination order and attached a copy of it to the order. Mother appeals. I. Whether the Trial Court Erred in Incorporating By Reference the 7 February 2012 Termination Order Mother argues the trial court erred by reaffirming the 7 February 2012 termination remanded by this Court. order after it was reversed and We disagree. The trial court s 11 February 2013 order states: Regarding the Termination of Parental Rights order of 7 February 2012, the [Court of Appeals] did not identify any issues regarding any of the findings made in that order and the court s ultimate decision to terminate [] [M]other s parental rights. This court also notes the Termination of Parental Rights hearing was a separate action from the Permanency Planning Review hearing. Therefore, with no noted issues on the merits or any clear direction from the [Court of Appeals], this court does not find any additional finding to its Termination of Parental Rights order are necessary and it maintains its decision to terminate the parental rights of the respondent parents (see the 7 February 2012 Termination of Parental Rights order attached and incorporated herein by reference). Mother contends that reverse is synonymous with vacate, and when an order is reversed, it cannot be reaffirmed. preliminary matter, we note that the order the trial As a court -4entered 11 February 2013 did not reaffirm the 7 February 2012 order, but rather incorporated by reference the 7 February 2012 order. We therefore review whether the trial court erred in incorporating by reference its 7 February 2012 order. Mother cites In re I.B.M., ___ N.C. App. ___, 731 S.E.2d 444, 446, disc. review denied, 366 N.C. 400, 735 S.E.2d 191 (2012) ( I.B.M. III ), in which the Property Tax Commission noted that it was bound by the law of the case as to certain findings. This Court speculated that the Property Tax Commission may have construed the fact that IBM I used the term vacate and that IBM II used the word reverse as creating some sort of meaningful difference in the portions of its final decision approved or disapproved by this Court. ___ N.C. App. at ___, 731 S.E.2d at 448. a practical matter, the terms 449 (emphasis added). in her brief is This Court stated: As vacate synonymous as used in most cases. I.B.M. III, and reverse are Id. at ___, 731 S.E.2d at The portion of I.B.M. III Mother quoted dicta resolution of the case. because it was unnecessary to the Durham Hosiery Mill Ltd. Partnership v. Morris, ___ N.C. App. ___, ___, 720 S.E.2d 426, 429 (2011). Language in an opinion not necessary to the decision is obiter dictum and later decisions are not bound thereby. Id. -5Mother also cites In re A.R.P., ___ N.C. App. ___, 721 S.E.2d 725, 727-28 (2012), in which the trial court made neither a conclusion of law that respondent s parental rights should be terminated nor a conclusion that termination is in the best interest of the children. This Court reversed the trial court s termination order because we have no complete order addressing all of the facts and substantive issues. ___, 721 S.E.2d at 728. Id. at Essentially, the trial court s order is asking us to piece together a complete order terminating respondent s parental rights from a reversed order, a second order addressing only willfulness, and a transcript not included in the record. Even Id. assuming arguendo, without deciding, that reversal renders an order void, Mother cites no case holding that, on remand, the trial court previously reversed order. cannot incorporate by reference a This Court in In re A.R.P. did not reverse because the trial court incorporated a reversed order. Rather, review. court s we reversed Id. 11 By because contrast, February 2013 there in order was the no complete present contained case, findings order to the trial of fact, conclusions of law, and incorporated its 7 February 2012 order by reference. We therefore have before us a complete order -6addressing all of the facts and substantive issues. Id. Mother has not shown error on this basis. II. Whether Mandate Required a New Petition or Trial Mother also argues that when the entire termination of parental rights order was reversed, the case returned to the same status as before the termination trial occurred and a new petition and trial were required. We disagree. When a case has been remanded from this Court, the general rule is that a trial court must follow the mandate of an appellate court in a case without variation or departure. In re R.A.H., 182 N.C. App. 52, 57, 641 S.E.2d 404, 407 (2007). In the present case, the trial court followed this Court s mandate without variation or departure. This Court instructed the trial court only to additional findings of fact in the reunification order. We did not suggest that a new petition and trial were required. Court s opinion gave a discrete set of instructions. make This We noted there was sufficient evidence in the record to support proper findings as to [the conclusion on reunification,] and it appears from the trial judge s statements at the hearing that he meant to make these findings. In re H.J.A. and T.M.A., ___ N.C. App. at ___, 735 S.E.2d at 363. Further delay of the resolution of -7this case is not necessary. may be to enter a new While the most cautious practice order terminating parental rights on remand, Mother has not shown error on this basis. III. Grounds to Terminate Parental Rights Mother argues the trial court erred by concluding that grounds exist to terminate Mother s parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(3) (2011). We disagree. A. Standard of Review We review an adjudication order to determine (1) whether the findings of fact are supported by clear and convincing evidence, and (2) whether the legal conclusions are supported by the findings of fact. S.E.2d 629, 631 (2013). In re A.R., ___ N.C. App. ___, ___, 742 If such evidence exists, the findings of the trial court are binding on appeal, even if the evidence would support a finding to the contrary. Id. Findings of fact are also binding if they are not challenged on appeal. Id. B. Rule The trial court may terminate parental rights upon finding that: The juvenile has been placed in the custody of a county department of social services . . . for a continuous period of six months next preceding the filing of the -8petition 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. N.C. Gen. Stat. § 7B-1111(a)(3) (2011). A finding that a parent has ability to pay support is essential to termination for nonsupport on this ground. 716-17, 319 S.E.2d 227, 233 In re Ballard, 311 N.C. 708, (1984). Mother challenges the following finding as unsupported by evidence: [Mother] had the ability to pay some juveniles care. amount greater than zero towards the Mother points to a social worker s testimony that Mother s expenses exceeded her income. However, Mother was employed at a restaurant from February 2011 to July 2011. From her income at that restaurant, she was able to pay rent for her apartment. hearing, Mother left the restaurant restaurant to earn more money. her rent without assistance. About a week before the to work a fast food Mother testified that she pays She also pays for gas, lights, food costs, phone, and lawn mowing bills. for transportation to work. at She pays a neighbor Mother also testified that her boyfriend has given her money in the past. When asked whether she provided any money to DSS to assist in the care of the juveniles, Mother answered that no one asked her to provide funds. She further answered that she could buy clothes for one -9of the juveniles, but she would never see the juvenile wearing those clothes. The finding that Mother had the ability to pay some amount greater than zero toward the juveniles care was supported by clear and convincing evidence in the record. Even though there may be evidence in the record to support a contrary finding, the trial court s finding remains binding supported by competent evidence. on appeal when it is In re A.R., ___ N.C. App. at ___, 742 S.E.2d at 631. Mother further contends that the trial court did not specifically find that any failure to pay on [Mother s] part was done willfully. Mother cites In re Maynor, 38 N.C. App. 724, 248 S.E.2d 875 (1978), for support of her argument. However, the trial court labeled as a conclusion of law the following statement: That pursuant to N.C.G.S. § 7B-1111(a)(3), the juveniles ha[ve] been placed in the custody of [DSS], and the respondent parents for a continuous period of six months next preceding the filing of the Petition to Terminate Parental Rights, have willfully failed for such period to pay a reasonable portion of the cost of care for the juveniles although physically and financially able to do so. Willfulness in failing to pay a reasonable portion of the cost of care constitutes a finding of fact. In re Huff, 140 -10N.C. App. 288, 292, 536 S.E.2d 838, 841 (2000) (characterizing failure to pay a reasonable portion of the cost of care as a finding of fact); see also In re M.R.D.C., 166 N.C. App. 693, 697, 603 S.E.2d 890, 892-93 (2004) ( Facts are things in space and time that can be objectively ascertained by one or more of the five senses or by mathematical calculation. ). The trial court s designation of the willfulness of Mother s failure to pay as a conclusion of law, rather than a finding of fact, is not binding on this Court. 232 S.E.2d 492, designation[.] ). 494 In re Hogan, 32 N.C. App. 429, 433, (1977) ( We will ignore the incorrect Mother has not shown the trial court erred on this basis because the trial court did make a finding as to Mother s willfulness. Because we affirm the trial court s order terminating Mother s parental rights on the ground stated in N.C.G.S. § 7B1111(a)(3), we need not address Mother s arguments concerning other grounds for termination of parental rights. 164 N.C. App. 287, 291, 595 S.E.2d 735, 738 (2004). Affirmed. Judges McCULLOUGH and DILLON concur. Report per Rule 30(e). In re T.D.P.,

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