IN THE SUPREME COURT OF NORTH CAROLINA

No. 380A19

Filed 14 August 2020

IN THE MATTER OF: J.A.E.W.

On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) to review an order entered 

27 June 2019 by Judge Wes W. Barkley in District Court, Burke County. This matter 

was calendared in the Supreme Court on 29 July 2020 but was determined on the 

record and briefs without oral argument pursuant to Rule 30(f) of the North Carolina 

Rules of Appellate Procedure.

N. Elise Putnam, and Mona E. Leipold for petitioner-appellee Burke County 

Department of Social Services.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by J. Gray 

Wilson and Michael W. Mitchell, for appellee Guardian ad Litem. 

Robert W. Ewing, for respondent-appellant father.

EARLS, Justice.

Respondent-father appeals from the trial court’s order terminating his 

parental rights to J.A.E.W. (Jennifer).

1 We affirm.

Jennifer was born in December of 2003. On 19 August 2014, the Burke County 

Department of Social Services (DSS) obtained non-secure custody of Jennifer and 

filed a juvenile petition alleging that Jennifer was a neglected and dependent 

 

1 A pseudonym is used to protect the identity of the juvenile and for ease of reading.
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Opinion of the Court

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juvenile. The petition alleged that on 9 February 2014, law enforcement officers 

responded to a residence where Jennifer, Jennifer’s half-brother, her maternal 

grandmother, and her mother were present.2 The mother and maternal grandmother 

appeared to be under the influence of an impairing substance, and the maternal 

grandmother had been involved in a physical altercation with another minor child 

while in the presence of Jennifer and Jennifer’s half-brother. As a result, Jennifer 

and her half-brother were placed with a relative. 

The petition further alleged that on 26 March 2014, the Catawba County 

Department of Social Services visited the mother’s home and found her to be under 

the influence. On 19 June 2014, the mother was charged with prostitution. On 19 

August 2014, law enforcement officers executed a search warrant for the mother’s 

home and discovered the mother had removed Jennifer and her half-brother from the 

kinship placement. The mother was selling counterfeit heroin, appeared to be 

impaired, and admitted to using opiates, benzodiazepines, and marijuana. Needles 

and cocaine were located within reach of the children. At the time Jennifer came into 

DSS custody, respondent-father was incarcerated and had a projected release date of 

2 February 2016.

The trial court held a hearing on the juvenile petition on 25 September 2014. 

On 20 November 2014, the trial court entered a consolidated adjudication and 

 

2 Jennifer’s half-brother is not a subject of this appeal.
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disposition order determining Jennifer to be a dependent juvenile. Custody of 

Jennifer was continued with DSS.

In a permanency planning order entered on 27 August 2015, the trial court 

found that respondent “writes letters and sends cards” to Jennifer. The permanent 

plan was reunification with respondent, concurrent with adoption and guardianship. 

In a permanency planning order entered 28 January 2016, the trial court found that 

respondent kept in regular contact with DSS through letters. 

Following a hearing held on 5 May 2016, the trial court entered a permanency 

planning order on 19 May 2016. The trial court found that respondent was released 

from incarceration on 2 February 2016. The day following his release, he provided 

DSS his contact information and new address. The trial court further found that on 

11 April 2016 respondent signed a family case plan and agreed to: (1) obtain and 

maintain stable housing, (2) obtain and maintain legal employment, (3) refrain from 

taking part in any illegal activities, (4) remain out of jail or prison, (5) obtain and 

utilize reliable transportation, and (6) maintain regular and consistent contact with 

Jennifer. Respondent was authorized two hours per month of supervised visitation 

with Jennifer. The permanent plan remained reunification with respondent, 

concurrent with a plan of adoption and guardianship.

On 1 August 2016, DSS filed a motion requesting that all contact and visitation 

between Jennifer and respondent stop until Jennifer’s therapist “recommends that it 

resumes,” citing concerns raised by Jennifer’s therapist that respondent had sexually 
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abused Jennifer. On 25 August 2016, the trial court entered an order finding that 

the Wilkes County Department of Social Services was conducting an investigation of 

respondent’s alleged sexual abuse of Jennifer, that was expected to be completed in 

the next sixty days. The trial court suspended visitation and contact between 

respondent and Jennifer and held that if the allegations were “not substantiated and 

[Jennifer’s] therapist recommends visitation and telephone contact should resume, 

then visitation will resume as ordered in the previous order.”

Prior to the completion of Wilkes County DSS’s investigation, the trial court 

held a hearing on 22 September 2016 and entered a permanency planning order on 

18 October 2016. The trial court found that since being released from jail, respondent 

had been charged with driving while under the influence. He was employed by Tyson 

Foods and was living with a girlfriend in a friend’s home. Although DSS requested 

his girlfriend’s information in order to complete a background check, respondent

refused to provide it.

After a hearing held on 15 December 2016, the trial court entered a 

permanency planning order on 19 January 2017 finding that respondent was not 

complying with his case plan; a fact that he admitted. He also admitted to living with 

“people that are inappropriate.” The primary permanent plan was changed to 

adoption. On 11 January 2017, the Wilkes County Department of Social Services 

closed its investigation of respondent with a determination that the allegations of 
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abuse were unsubstantiated. Supervised visitation between respondent and Jennifer 

resumed on 26 January 2017.

Following a hearing held on 9 February 2017, the trial court entered a 

permanency planning order on 23 March 2017 finding that respondent’s employer 

informed DSS that respondent had been fired from his job on 4 January 2017 for gross 

misconduct and would not be allowed to return. Respondent last reported that he 

was living with friends in Wilkes County but had purchased a trailer. However, 

because respondent failed to provide DSS with the address to either residence, DSS 

had been unable to verify their safety. The trial court further found that Jennifer’s 

therapist recommended respondent complete a parenting assessment, parenting 

classes, and therapy on how to parent a child with limited intellectual ability. 

Respondent refused to complete any of the therapist’s recommendations, stating that 

he had “done enough” to be able to be reunited with Jennifer. The trial court 

suspended visitations with respondent based on his failure to engage in parenting 

classes. 

Following a 1 June 2017 hearing, the trial court entered a permanency 

planning order on 24 August 2017 finding that respondent had failed to make 

progress on his case plan. The permanent plan was changed to a primary plan of 

adoption and secondary plan of guardianship, and the trial court ceased reunification 

efforts with respondent.
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The trial court held subsequent permanency planning review hearings on

21 September 2017, 12 December 2017, 22 March 2018, and 9 August 2018. 

Respondent continued to fail to make progress on his case plan. Following the 

hearing held on 12 December 2017, the trial court entered a permanency planning

order on 8 February 2018 allowing respondent to communicate with Jennifer’s 

therapist “about [Jennifer’s] needs/wishes.” At the permanency planning review

hearing held on 22 March 2018, however, the trial court found that respondent had 

not contacted the therapist. The therapist recommended that there only be phone 

contact between respondent and Jennifer. In the order entered after the 9 August 

2018 hearing, respondent was permitted to have supervised phone calls with Jennifer 

“as long [as] the contact is therapeutically recommended by the juvenile’s therapist.”

The trial court held a hearing on 10 January 2019 and entered a permanency 

planning order on 24 January 2019. The trial court found that respondent reported 

that he was employed as an electrical apprentice. Although respondent had 

completed one section of the Triple P online parenting class, he had not completed 

the in-person course, as had been requested. The trial court further found that 

respondent failed to have contact with DSS since 30 April 2018. Respondent had 

been having supervised phone calls with Jennifer, but Jennifer asked for the phone 

calls to cease in August 2018 “due to her father not understanding that she wants to 

be adopted.” 
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On 15 March 2019, DSS filed a petition to terminate respondent’s parental 

rights. DSS alleged that respondent had neglected Jennifer and there was a 

reasonable likelihood that Jennifer would be neglected if placed in respondent’s 

custody, see N.C.G.S. § 7B-1111(a)(1) (2019), respondent had willfully left Jennifer in 

foster care or placement outside the home for more than twelve months without 

making reasonable progress to correct the conditions that led to her removal, see 

N.C.G.S. § 7B-1111(a)(2) (2019), respondent had for a continuous period of six months 

preceding the filing of the petition willfully failed to pay a reasonable portion of the 

cost of care for Jennifer although physically and financially able to do so, see N.C.G.S. 

§ 7B-1111(a)(3) (2019), and respondent had willfully abandoned Jennifer, see 

N.C.G.S. § 7B-1111(a)(7) (2019).

Following a hearing held on 13 June 2019, the trial court entered an order on 

27 June 2019 concluding that the evidence supported all four grounds alleged in the 

petition. The trial court also determined that it was in Jennifer’s best interests that 

respondent’s parental rights be terminated, and the court terminated his parental 

rights. See N.C.G.S. § 7B-1110(a) (2019). Respondent appeals.

Although respondent-father’s notice of appeal specifies that his appeal had 

been noted to the Court of Appeals, rather than to this Court, we elect to treat 

respondent-father’s brief as a certiorari petition and to issue a writ 

of certiorari authorizing review of respondent-father’s challenges to the trial court’s 

termination order on the merits given the seriousness of the issues that are 
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implicated by the trial court’s termination order. In re N.D.A., 373 N.C. 71, 73–74, 

833 S.E.2d 768, 771 (2019).

On appeal, respondent argues that the trial court erred in adjudicating that 

grounds existed to terminate his parental rights. Specifically, respondent challenges 

the trial court’s conclusions that grounds existed under N.C.G.S. § 7B-1111(a)(1) and 

(7) to terminate his parental rights even though he remained in contact with Jennifer 

when permitted to do so by her therapist; that grounds existed under N.C.G.S. § 7B1111(a)(2) when he had corrected the conditions that led to Jennifer’s removal and 

his efforts placed him in a position to regain custody of Jennifer; and that grounds 

existed under N.C.G.S. § 7B-1111(a)(3) to terminate his parental rights when the

findings of fact were insufficient to demonstrate that he had the ability to pay for 

Jennifer’s cost of care.

At the adjudicatory stage, the petitioner bears the burden of proving by 

“clear, cogent, and convincing evidence” the existence of one or more grounds for 

termination under section 7B-1111(a) of the General Statutes. N.C.G.S. § 7B-1109(e), 

(f) (2019). We review a trial court’s adjudication under N.C.G.S. § 7B-1109 “to 

determine whether the findings are supported by clear, cogent and convincing 

evidence and the findings support the conclusion of law.” In re Montgomery, 311 N.C. 

101, 111, 316 S.E.2d 246, 253 (1984) (citing In re Moore, 306 N.C. 394, 404, 293 S.E.2d 

127, 132 (1982)).
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A trial court is authorized to order the termination of parental rights based 

on an adjudication of one or more statutory grounds. See In re Moore, 306 N.C. at 

404, 293 S.E.2d at 133 (holding that an appealed order should be affirmed when any 

of the grounds found by the trial court is supported by findings of fact based on clear, 

cogent, and convincing evidence). See also, In re S.E., 373 N.C. 360, 367, 838 S.E.2d 

328, 333 (2020) (declining to address additional arguments when evidence 

established the ground of parent’s failure to pay reasonable portion of the costs of 

care). Here we only address the ground of willfully failing to pay a reasonable portion 

of the cost of care of a juvenile who is in the custody of a county department of social 

services if the parent is physically and financially able to do so. N.C.G.S. § 7B1111(a)(3) (2019). The relevant statutory time period for this ground is the six 

months prior to the filing of the TPR petition. Id.

It is undisputed that respondent failed to make any child support payments

during the almost five years that Jennifer was in the DSS’s custody. He also did not 

buy Jennifer clothing or other necessities while she was in foster care. Respondent 

testified that he had steady employment in the year and a half prior to the

termination-of-parental-rights hearing, earning between ten and twelve dollars an 

hour. He further admitted that at times he “had money saved in the bank,” and that 

at the time of the hearing he was “financially able to take care of [Jennifer].” 

Therefore, clear, cogent, and convincing evidence supports the trial court’s conclusion 

that respondent willfully failed to pay a reasonable portion of Jennifer’s cost of care 
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Opinion of the Court

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despite his physical and financial ability to do so. Indeed, “[n]ot only was this ground 

proven by clear, cogent and convincing evidence, there was no evidence to the 

contrary.” In re Moore, 306 N.C. at 405, 293 S.E.2d at 133.

Nevertheless, Respondent contends that the trial court’s decision with 

respect to this ground for termination was erroneous because respondent also 

testified that he did not earn enough to live on and because the trial court needed to 

make findings regarding his living expenses before being able to conclude as a factual 

matter that he had the means and ability to contribute an amount more than zero to 

his child’s cost of care. However, while there must be a finding that the parent has 

the ability to pay support, see In re Ballard, 311 N.C. 708, 716–17, 319 S.E.2d 227, 

233 (1984), in the circumstances of this case, the trial court did not need to make 

findings regarding respondent’s own living expenses. It is enough here, when 

respondent made no payments whatsoever to cover the costs of Jennifer’s care, that 

the trial court found that respondent was employed with some income. Respondent’s 

living expenses might be relevant evidence to be taken into account if he had made 

some child support payments during the applicable time period and the issue was

whether the amount he contributed to the cost of Jennifer’s care was reasonable, but 

here the trial court found that he had income and made no contributions at all. Cf. 

In re J.E.M., 221 N.C. App. 361, 364, 727 S.E.2d 398, 401 (2012) (quoting In re Huff, 

140 N.C. App. 288, 293, 536 S.E.2d 838, 842 (2000)) (reaching the same conclusion in 

analogous circumstances). 
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Opinion of the Court

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Respondent was working in the six months prior to the filing of the petition, 

earned some income, and testified that he had the financial means to support 

Jennifer. He was able to pay some amount greater than zero, and it is undisputed 

that he failed to do so. Therefore, the trial court properly terminated respondent 

father’s rights based on an adjudication under N.C.G.S. § 7B-1111(a)(3) that he

willfully failed to pay child support in the six months prior to the filing of the 

termination-of-parental-rights petition. As respondent does not challenge the trial 

court's ultimate conclusion that termination of his parental rights to Jennifer is in 

her best interest, we affirm the trial court's order.

AFFIRMED.