An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .
NO. COA13-1068
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
IN THE MATTER OF:
Wake County
L.T. No. 12 JT 62
Appeal by respondent-mother from order entered 24 June 2013
by Judge Monica M. Bousman in Wake County District Court. Heard
in the Court of Appeals 27 January 2014.
Roger A. Askew for petitioner-appellee Wake County Human
Services.
Pamela Newell for guardian ad litem.
Levine & Stewart, by James E. Tanner III, for respondent-
appellant mother.
BRYANT, Judge.
Respondent-mother appeals from an order terminating her
parental rights to her minor child Louis.1 Because petitioner’s
1
Louis is a pseudonym used to protect the identity of the
juvenile pursuant to N.C.R. App. P. 3.1(b).
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evidence and the district court’s findings of fact are
sufficient to establish grounds for termination based on neglect
under N.C. Gen. Stat. § 7B-1111(a)(1) (2011), we affirm.
Louis, respondent’s eighth child, was born in December
2011. At the time of Louis’ birth, respondent’s five oldest
children had been removed from her custody and placed in foster
care following her arrest in 2009. She voluntarily relinquished
her parental rights as to four of the children in July 2010, and
the fifth child was placed in the custody of the paternal
grandmother in August 2010. Respondent’s sixth child, born in
November 2009, was the subject of a Child Protective Services
(“CPS”) report in January 2010 following a series of domestic
disturbances in the home. The paternal grandparents sought and
were awarded custody of the child in February 2010.
Respondent’s seventh child was born in October 2010. She was
removed from respondent’s custody, adjudicated neglected, and
placed with her paternal grandparents in 2011 after multiple CPS
reports, including an incident in which respondent threatened to
kill a social worker and two police officers.
Wake County Human Services (“WCHS”) received two CPS
reports concerning Louis in February 2012. The first report
alleged a violent confrontation between respondent and her
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roommate in the presence of their respective children. The
second report, received one week later, described a verbal
altercation in Louis’ presence between respondent and Louis’
putative father R.T., who was living with respondent in
violation of her lease. The report further alleged that R.T.’s
brother came to the residence following the incident and
threatened respondent. The landlord reported complaints from
neighbors about the level of noise caused by arguments and
parties at the residence, and expressed concerns about the
number of persons coming in and out of the residence and about
respondent’s “ability to provide safe care for the child.”
On 21 February 2012, WCHS obtained non-secure custody of
Louis and filed a juvenile petition alleging that he resided in
an injurious environment and was thus a neglected juvenile as
defined by N.C. Gen. Stat. § 7B-101(15) (2011). Respondent and
R.T. consented to an adjudication of neglect entered by the
district court on 11 April 2012. The consent order included
findings consistent with the CPS reports and an additional
finding that respondent “continues to demonstrate the same
pattern of domestic violence, poor parenting skills, and mental
health problems which caused the removal of her other seven
children, and at the time of the filing of the petition [Louis],
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her eighth child, was at risk of harm.” The order made
reference to respondent’s pending charges for communicating
threats and violating probation and recounted R.T.’s more
extensive criminal history, including a 2011 conviction for
assault with a deadly weapon and “a domestic violence incident
with [respondent]” on 10 February 2012 for which he was
incarcerated. In its disposition, the court ordered respondent
to comply with her probation; “obtain and maintain independent
housing sufficient to meet the needs of herself and her child;”
participate in parenting classes and mental health services;
“and demonstrate skills learned in her interactions with the
child[.]”
The district court ceased reunification efforts and changed
Louis’ permanent plan from reunification to adoption by order
entered 12 February 2013. In addition to noting respondent’s
ongoing volatile relationship with R.T. and lack of stable
housing, the court found that she “continues to demonstrate
severe anger management problems and associate with
inappropriate persons, such as her mother, with whom she was
with when recently arrested for shoplifting.” As evidence of
respondent’s inability “to control her emotions, even in
controlled settings[,]” the court cited respondent’s “eruption”
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during the permanency planning hearing, which required her “to
be restrained by law enforcement officials and asked to leave
the Courthouse.”
WCHS filed a motion to terminate respondent’s parental
rights on 13 March 2013, alleging three grounds for termination:
(1) neglect; (2) failure to make reasonable progress to correct
the conditions leading to Louis’ removal from her care; and (3)
dependency. See N.C.G.S. § 7B-1111(a)(1), (2), (6) (2011).
After hearing evidence on 4 June 2013, the court adjudicated
grounds for termination based on neglect and lack of reasonable
progress under N.C.G.S. § 7B-1111(a)(1) and (2), and further
determined that termination of respondent’s parental rights was
in the best interest of the minor child.2 Respondent appeals.
_____________________________
Respondent has filed a petition for writ of certiorari
asking this Court to review the termination order
notwithstanding her trial counsel’s failure to sign her
otherwise timely notice of appeal filed 25 July 2013. See
N.C.R. App. P. 3.1(a)(1) (“[B]oth the trial counsel and
appellant must sign the notice of appeal, and the appellant
2
The court terminated the parental rights of R.T. on the same
grounds; R.T. is not a party to this appeal.
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shall cooperate with counsel throughout the appeal.”). It
appears counsel’s failure to sign the notice was the product of
confusion about the scope of his representation.
This Court has previously held that Rule 3.1 is
“jurisdictional, and if not complied with, the appeal must be
dismissed.” In re L.B., 187 N.C. App. 326, 332, 653 S.E.2d 240,
244 (2007). Assuming arguendo that counsel’s failure to sign a
notice of appeal under Rule 3.1(a)(1) is a jurisdictional defect
requiring dismissal, we find that respondent clearly evinced her
intent to appeal by signing and filing notice within the
statutory appeal period. Accordingly, we allow her petition for
the purpose of reviewing the termination order. See In re
I.T.P-L., 194 N.C. App. 453, 460, 670 S.E.2d 282, 285 (2008)
(issuing a writ of certiorari “to permit consideration of
[respondents’] appeals on the merits so as to avoid penalizing
[them] for their attorneys’ errors.”).
On appeal, respondent challenges the adjudication of
grounds to terminate her parental rights based on neglect under
N.C.G.S. § 7B-1111(a)(1). Specifically, she argues the district
court erred in finding clear and convincing evidence of a
“probability of a repetition of neglect” if Louis were returned
to her care. In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227,
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232 (1984).
In reviewing an adjudication under N.C. Gen. Stat. § 7B-
1109(e) (2011), we determine whether the district court’s
findings of fact are supported by clear, cogent and convincing
evidence, and whether the findings support the court’s
conclusions of law. In re Gleisner, 141 N.C. App. 475, 480, 539
S.E.2d 362, 365 (2000). “If there is competent evidence, the
findings of the trial court are binding on appeal[,] . . . even
though the evidence might support a finding to the contrary.”
In re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003)
(citations omitted). The appellant is bound by any unchallenged
findings of fact. Koufman v. Koufman, 330 N.C. 93, 97, 408
S.E.2d 729, 731 (1991) (citation omitted). Moreover, “erroneous
findings unnecessary to the determination do not constitute
reversible error” where the adjudication is supported by
sufficient additional findings grounded in competent evidence.
In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006)
(citation omitted). We review conclusions of law de novo. In
re J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006)
(citation omitted).
A neglected juvenile is one who “does not receive proper
care, supervision, or discipline . . .; or who is not provided
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necessary medical care; or who lives in an environment injurious
to the juvenile’s welfare[.]” N.C. Gen. Stat. § 7B-101(15)
(2013). In order to support an adjudication under N.C.G.S. §
7B-1111(a)(1), “[n]eglect must exist at the time of the
termination hearing[.]” In re C.W., 182 N.C. App. 214, 220, 641
S.E.2d 725, 729 (2007). Where “the parent has been separated
from the child for an extended period of time, the petitioner
must show that the parent has neglected the child in the past
and that the parent is likely to neglect the child in the
future.” Id. The determination that a child is neglected is a
conclusion of law. In re Helms, 127 N.C. App. 505, 510, 491
S.E.2d 672, 675 (1997).
The district court heard testimony from WCHS foster care
social worker Toni Marshall and respondent. It also took
judicial notice of all material “in the underlying file for
which judicial notice is appropriate[.]” Based on this
evidence, the court made the following findings pertinent to
adjudication under N.C.G.S. § 7B-1111(a)(1):
10. [Louis was] adjudicated as a neglected
juvenil[e] . . . pursuant to a consent [sic]
entered by the parties, dated April 11,
2012.
11. [Respondent], who has had 8 children in
all, had a history of mental health
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problems, domestic violence, and instability
which had resulted in her children being
adjudicated as neglected children. All the
children were placed with others, some in
adoptive placements, pursuant to her signing
relinquishments, and others in relative
placements.
12. [Respondent] and [R.T.] engaged in
several very serious domestic violence
incidents, and [respondent] continued a
pattern of poor parenting skills and
associating with persons who created safety
risks for the child. [R.T.], the father,
was also involved in an incident of domestic
violence with his mother and was
incarcerated.
. . .
20. Subsequent to the adjudication
[respondent] and [R.T.] continued a pattern
of domestic violence, several incidents
being quite serious. . . .
21. [R.T.] . . . engaged in a boisterous
altercation with [respondent] at a November
2012 planning meeting at WCHS. . . .
. . .
25. [Respondent] has consistently visited
her child in accordance with her visitation
plan.
26. [Respondent] states that she is no
longer in a relationship with [R.T.], and
she did take out a domestic violence
protective order against him. However,
[respondent] has not stopped seeing and
calling [R.T.]. She is due to deliver a
child in September of 2013, and she states
that [R.T.] is the father of the child. The
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child was probably conceived in late
November or early December 2012.
27. Since the adjudication, [respondent] has
been charged with two counts of larceny (one
pending), and she was therefore in violation
of a [sic] her probation from another
charge. She is awaiting trial on the
pending charges.
. . .
28. [Respondent] began to engage earnestly
in therapy in November 2012 with Upward
Change Services, who also work with her
medication management; however, she has not
demonstrated that she is able to control her
emotions sufficiently to provide a safe
environment for the child.
29. Although [respondent] in November 2012
began in earnest to engage in services
ordered by the Court, she has not
demonstrated that she has corrected the
conditions which have resulted in her losing
custody of her 7 older children and the
removal of [Louis] in February 2012.
30. [Respondent] continued to demonstrate
severe anger management problems and
associate with inappropriate persons, such
as her mother, with whom she was with when
she was arrested for shoplifting.
31. [Respondent] was still living with
[R.T.] when she obtained new housing in
November 2012, and he didn’t leave the home
until after the November 2012 planning
meeting. She indicated that she was
“through” with him, but soon after the huge
argument she had with him at that . . .
meeting, she was seen with [R.T.] in the
community.
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32. In January 2013, [R.T.] entered
[respondent’s] home and tried to suffocate
her with a pillow . . . . [Respondent]
filed for a[nd] received a Domestic Violence
Protective Order. The domestic violence
incidents reflect a continual repetition of
behaviors that raise grave concerns that she
is not able to safely care for the child.
In addition, she erupted at the January 2013
Court proceeding and exemplified for the
Court that she is not able to control her
emotions, even in controlled settings. She
had to be restrained by law enforcement
officials and [was] asked to leave the
Courthouse. . . . [S]he still calls [R.T.],
has gotten into a car for rides with him,
and is due in three months to have his baby.
She has not demonstrated that she
understands the impact of domestic violence
on her child.
33. [Respondent] had housing at the
beginning of this matter, but was evicted
due to not complying with the rules of the
apartment complex. . . . She was homeless
for a long period of time and found a home
in November 2012. The home is damaged and
not suitable for habitation. There is black
mold, floors are falling in, there are
appliance problems, and water problems.
[Respondent] has secured the assistance of
legal aid to help bring a case against the
landlord. Throughout her 3 year involvement
with WCHS she has moved from place to place.
She has not demonstrated the ability to
maintain stability in her housing.
34. [Respondent] began engaging in a
parenting program, Families on the Grow with
Maria Weeks, who did some “home” visits with
[respondent] one on one after [respondent]
was evicted and moved to a motel. Once
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[respondent] moved to Wendell, NC she did
not attend the classes, and claimed that she
had no transportation. Transportation
vouchers were offered to her. The Court did
not find this to be a valid excuse for not
attending an essential program.
35. In light of the findings above it is
probable that [respondent’s] pattern of
neglect would continue if the child were
placed in her care.
Most of these findings are uncontested by respondent and, thus,
are binding. See Koufman, 330 N.C. at 97, 408 S.E.2d at 731.
We address her exceptions below.
As to Finding 11, respondent asserts the district court
heard no evidence regarding her mental health diagnoses or the
circumstances surrounding the removal from her care of her seven
other children prior to 2012. She does not contest the accuracy
of the finding per se, but claims the court improperly relied
upon this general statement about her history to support a
“foregone conclusion” that her rights as to Louis should be
terminated.
We conclude that Finding 11 was fully supported by the
social worker’s testimony at the termination hearing and the
findings to which respondent consented at the time of Louis’
original adjudication of neglect in April 2012. The court was
free to consider respondent’s history — including her prior
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neglect of other children — in assessing the likelihood of her
future neglect of Louis under N.C.G.S. § 7B-1111(a)(1). See In
re McLean, 135 N.C. App. 387, 395, 521 S.E.2d 121, 126 (1999).
Respondent also challenges the portion of Finding 30 that
she “continued to demonstrate severe anger management problems”
and the related averment in Finding 28 that she “has not
demonstrated that she is able to control her emotions
sufficiently to provide a safe environment for the child.” She
casts these findings as based on just two incidents since the
initial adjudication of neglect: her argument with R.T. at the
November 2012 planning meeting and her “emotional meltdown in
court” at the permanency planning hearing on 31 January 2013.
Respondent makes a similar argument about Finding 32 and the
court’s reference to the risk posed to Louis by her involvement
in domestic violence with R.T. Respondent insists that her
argument with R.T. in November 2012 and the single incident when
R.T. attempted to suffocate her in January of 2013 were
insufficient to show a likelihood of a repetition of neglect,
given that she had obtained a domestic violence protection order
(“DVPO”) against R.T. Likewise, while she concedes that she
lacked suitable housing for Louis as stated in Finding 33, she
emphasizes that her current housing problems were no longer
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based on R.T.’s presence in her home or the type of issues with
noise and domestic violence that resulted in the original
adjudication of neglect.
We believe the aforementioned findings regarding
respondent’s emotional instability, involvement in domestic
violence, and lack of stable and suitable housing are sufficient
to support the court’s ultimate finding of a probability of a
repetition of neglect if Louis were returned to her care. In re
K.D., 178 N.C. App. 322, 329, 631 S.E.2d 150, 155 (2006)
(affirming adjudication of neglect based on the respondent-
mother’s “struggles with parenting skills, domestic violence,
and anger management, as well as her unstable housing
situation”). We are unpersuaded by respondent’s suggestion that
the number of specific incidents detailed by the court is
insufficient to demonstrate a pattern suggestive of a likelihood
of future neglect. Viewed in their totality, and in the context
of respondent’s prior neglect of Louis’ siblings, these findings
support the court’s adjudication under N.C.G.S. § 7B-1111(a)(1).
Respondent separately objects to the court’s statement in
Finding 30 that “she was seen with [R.T.] in the community”
subsequent to their argument at the November 2012 planning
meeting. She argues this finding was based improperly on a
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dispositional finding from a prior order, which was not found by
clear and convincing evidence and was supported only by double
hearsay included in a WCHS report. See generally In re A.K.,
178 N.C. App. 727, 731, 637 S.E.2d 227, 229 (2006) (noting the
different proof standards for adjudicatory and dispositional
facts). Assuming, arguendo, that this finding lacked
evidentiary support, any error was harmless. See In re T.M.,
180 N.C. App. at 547, 638 S.E.2d at 240—41. The court’s
remaining findings showed that respondent continued to have
contact with R.T. after the domestic violence incident in
January of 2013 and the issuance of the DVPO. Respondent
testified that she rode to the termination hearing with R.T. We
further note respondent consented to a finding in support of the
April 2012 adjudication that her involvement in domestic
violence was a factor in Louis’ status as a neglected juvenile.
Accordingly, the essential portion of Finding 32, that she
failed to “demonstrate[] that she understands the impact of
domestic violence on her child[,]” was fully supported by the
evidence and other findings. Accordingly, the trial court’s
findings support the adjudication of grounds for termination of
respondent’s parental rights based on neglect under N.C.G.S. §
7B-1111(a)(1). Having upheld this ground for termination, we
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need not review the court’s adjudication under N.C. Gen. Stat. §
7B-1111(a)(2). See In re P.L.P., 173 N.C. App. 1, 8, 618 S.E.2d
241, 246 (2005) (citations omitted).
Affirmed.
Judges STEELMAN and DAVIS concur.
Report per Rule 30(e).