North Carolina Lawyers Weekly
Where the trial court’s written orders do not recite any standard of proof, and where the trial court also did not announce the standard of proof in open court when making its ruling at the adjudicatory portion of the hearing, we must reverse the termination of respondent’s parental rights. However, since petitioner presented evidence from which the trial court could have made its findings by clear, cogent and convincing evidence, we need not reverse outright; instead, we can remand to allow the trial court to make findings pursuant to the correct standard of proof.
We reverse and remand the trial court’s order terminating respondent’s parental rights.
In order to have respondent’s parental rights terminated under G.S. § 7B-1111(a)(4), petitioner was required to prove that (1) an order or parental agreement requiring the payment of child support was in effect and (2) respondent had willfully not paid child support as required by the order or parental agreement within the year preceding the filing of the petition.
Although petitioner did not produce physical copy of the parties’ child support order, she testified about the order. Respondent did not contest the order’s existence, only his ability to make the payments it required.
Respondent contends there was insufficient evidence to support a finding that his failure to pay child support was willful because he lacked the ability to pay. However, because a proper decree for child support will be based on the supporting parent’s ability to pay as well as the child’s needs, there is no requirement that a petitioner independently prove or that the termination order find as fact the respondent’s ability to pay support during the relevant statutory time period. Because petitioner testified to the existence of a valid child support order, she did not need to independently prove respondent had the ability to pay in order to present sufficient evidence to support a finding that respondent willfully failed to pay.
Petitioner presented sufficient evidence from which the trial court could have made its findings by clear, cogent and convincing evidence.
Even though the petition failed to cite the specific statutory ground under which petitioner sought to terminate respondent’s parental rights, her allegation that respondent had “refused” to pay child support was sufficient to put him on notice that petitioner was proceeding under § 7B-1111(a)(4).
Reversed and remanded.
In re A.H.D. (Lawyers Weekly No. 011-011-23, 28 pp.) (Donna Stroud, C.J.) Appealed from Randolph County District Court (Robert Wilkins, J.) Kimberly Connor Benton for respondent; no brief filed for petitioner. N.C. App.
