In re J.M.L.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-563
NORTH CAROLINA COURT OF APPEALS

Filed: 7 October 2014

IN THE MATTER OF: Lincoln County
J.L. 12 JT 08

Appeal by respondent from order entered 24 January 2014 by

Judge Ali B. Paksoy in Lincoln County District Court. Heard in

the Court of Appeals 9 September 2014.

Peter C. McCrea for petitioner-appellee Lincoln County
Department of Social Services.

David A. Perez for respondent-appellant father.

McCULLOUGH, Judge.

Respondent, father of the minor child J.M.L. (“Joanna”1),

appeals from an order terminating his parental rights. He also

petitions this Court to review the order by writ of certiorari,

in light of his counsel’s failure to provide proof of service of

his notice of appeal upon the guardian ad litem (“GAL”). The

record reflects the GAL was notified of respondent’s appeal by

the appellate entries and by respondent’s service of the

1
The parties stipulated to this use of this pseudonym to protect
the juvenile’s privacy.
 -2-

proposed and settled record on appeal. The GAL has not claimed

prejudice or moved to dismiss the appeal based on the lack of

service of the notice of appeal. Inasmuch as “failure to

include a certificate of service for the notice of appeal does

not support dismissal of the appeal if the appellee has waived

the issue by failing to raise the issue by motion or

otherwise[,]” we find respondent’s notice sufficient to invoke

this Court’s jurisdiction. McQuillin v. Perez, 189 N.C. App.

394, 396, 657 S.E.2d 924, 926 (2008). Therefore, we dismiss his

petition for writ of certiorari as moot.

Joanna was born out-of-wedlock in Pennsylvania in February

2010. After a period in Florida, Joanna’s mother moved with her

to Lincoln County, North Carolina. On 25 February 2012, the

Lincoln County Department of Social Services (“DSS”) filed a

juvenile petition alleging that Joanna was neglected and

dependent. Joanna’s mother subsequently pled guilty to

misdemeanor child abuse and served a 60-day jail sentence ending

on 17 July 2012. The district court adjudicated Joanna a

neglected juvenile on 16 July 2012.

Joanna’s mother initially identified another man, Mr. R.,

as the putative father. Mr. R. was determined not to be

Joanna’s father on 29 October 2012. After relinquishing her own
 -3-

parental rights on 28 November 2012, Joanna’s mother named

respondent as the father but provided DSS only with his first

and middle names. Adoption worker Megan Homan was able to

locate respondent on Facebook and sent him a message on 28

December 2012. Respondent did not respond to the message but

phoned foster care social worker Amy Ramsey on 25 January 2013.

Ramsey notified respondent of Joanna’s permanency planning

hearing scheduled for 28 January 2013, but he did not attend.

Homan spoke with respondent by phone on 7 March 2013 and

arranged a paternity test, which confirmed his paternity of

Joanna on 13 May 2013.

DSS filed a petition to terminate respondent’s parental

rights on 28 March 2013. After hearing evidence on 9 December

2013, the district court determined that grounds existed to

terminate respondent’s parental rights based on his neglect and

willful abandonment of Joanna. See N.C. Gen. Stat. § 7B-

1111(a)(1), (7) (2013). The court further concluded that the

termination of respondent’s parental rights was in the best

interest of the minor child. Respondent appealed from the 24

January 2014 termination order.

Respondent challenges only the district court’s

adjudication of grounds to terminate his parental rights under
 -4-

N.C. Gen. Stat. § 7B-1111(a) (2013). In reviewing the

adjudication, we must determine whether the court’s findings of

fact are supported by the evidence, and whether those findings

in turn support the court’s conclusions of law. In re Gleisner,

141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000).

Unchallenged findings, or findings supported by competent

evidence, are binding on appeal. Koufman v. Koufman, 330 N.C.

93, 97, 408 S.E.2d 729, 731 (1991); In re McCabe, 157 N.C. App.

673, 679, 580 S.E.2d 69, 73 (2003). 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).

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).

Subsection 7B-1111(a) authorizes termination of parental

rights where “[t]he parent has willfully abandoned the juvenile

for at least six consecutive months immediately preceding the

filing of the petition or motion[.]” N.C. Gen. Stat. § 7B-

1111(a)(7).

Abandonment has been defined as wil[l]ful
neglect and refusal to perform the natural
and legal obligations of parental care and
 -5-

support. It has been held that if a parent
withholds his presence, his love, his care,
the opportunity to display filial affection,
and wil[l]fully neglects to lend support and
maintenance, such parent relinquishes all
parental claims and abandons the child.

In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 427

(2003) (citation and quotation marks omitted). “The word

‘willful’ encompasses more than a mere intention, but also

purpose and deliberation.” In re McLemore, 139 N.C. App. 426,

429, 533 S.E.2d 508, 509 (2000). “[T]he findings must clearly

show that the parent’s actions are wholly inconsistent with a

desire to maintain custody of the child.” In re S.R.G., 195

N.C. App. 79, 87, 671 S.E.2d 47, 53 (2009). The willfulness of

a parent’s conduct “is a question of fact to be determined from

the evidence.” In re Searle, 82 N.C. App. 273, 276, 346 S.E.2d

511, 514 (1986).

For purposes of N.C. Gen. Stat. § 7B-1111(a)(7), the

“determinative period” in the case sub judice was 28 September

2012 through 28 March 2013, the date DSS filed its petition. In

re S.R.G., 195 N.C. App. at 84-85, 671 S.E.2d at 51-52. The

district court found the following facts relevant to its

adjudication:

15. . . . The respondent spoke to the mother
sometime around April, 2012; the mother
 -6-

told him at that time that he could be
the child’s father and that the child was
in North Carolina in foster care and that
she needed him to be in the child’s life.
This was the last time the respondent
heard from the mother.

16. That the [respondent] made no further
effort to contact the mother or to obtain
any information about the mother or the
child. He had wanted the mother to
submit to a DNA test but wanted the
mother to come to Pennsylvania to do
that. She was said to be living in
Florida at that time.

17. That one of petitioner’s social workers
located [respondent] on Facebook. She
sent him a Facebook message in December,
2012. He received the message in
January, 2013. On January 25, 2013, he
spoke to Amy Ramsey . . . . Ms. Ramsey
gave him contact information and
explained to him that he may have a child
in North Carolina. She explained to him
that the next court date regarding the
child was on January 28, 2013. The
respondent . . . did not appear at that
court hearing. The next contact that
[respondent] had with the Department was
not until March 7, 2013.

18. . . . [Respondent] . . . did not visit
the child from January 25, 2013 when he
spoke to Ms. Ramsey up to and including
the time of the filing of the Termination
of Parental Rights Petition . . . on
March 7, 2013.

19. That [respondent] was incarcerated in
Pennsylvania from March 23, 2013 through
August 20, 2013. [DSS] arranged for
paternity testing in May, 2013 and it was
 -7-

later determined that the respondent was
the father of the child.

20. That [respondent] testified at this
hearing, and the Court so finds, that as
early as April, 2012 he assumed he was
the father of the juvenile who is the
subject of this proceeding.

21. That [respondent] has never met the child
or had any contact with the child.

22. That [DSS] had through its social
workers, on a number of occasions,
offered the father visits with the child
but he never followed through with this.
Furthermore, he never asked for any
information about the child from [DSS].

23. That [respondent] has been on parole
since his release from prison. He was
able to get permission from his parole
officer to attend this hearing. However,
when [DSS] encouraged the respondent to
visit with his child after he was
released from prison he stated that he
was not able to leave Pennsylvania
because of his parole but that he would
talk to his parole officer to see if an
exception could be made. However, he
never did that and did not visit with the
child while he had the opportunity to do
so.

24. That [respondent] could have attended the
January 28, 2013 hearing concerning his
daughter. However, despite knowing about
the hearing he did not attend.

25. That [DSS] sent numerous letters to
[respondent] informing him about his
child and the case here in North
Carolina. Furthermore, [DSS] informed
 -8-

the [respondent] of services he would
need to be undertaking including services
for domestic violence, psychological
exam, parenting classes and substance
abuse. Furthermore, he was urged to
maintain contact and was told that he
would be responsible for paying child
support. The respondent did not complete
or undertake any of these things except
that he did have a drug assessment.

. . . .

27. That approximately one month after
[respondent] was released from jail, he
contacted the social worker from [DSS]
and discussed the things that he would
need to be working on. However, he never
followed through with these things. . . .

28. That [respondent] has not made any
inquiries about the welfare of his child;
nor has he sent any cards, letters, or
gifts to the child or paid any support of
any kind for the cost of care for the
child.

29. That social [w]orker Megan Homan sent at
least six letters to [respondent]
concerning his daughter [Joanna]. Up and
through September 2013, [respondent]
never contacted social worker Homan. Any
contact they had was initiated by Ms.
Homan. When [respondent] was released
from prison he still made no effort to
carry out any of the services that had
been recommended or made any effort to
visit his daughter, or pay any support of
any kind.

30. That [respondent] is employed full time
working 40 hours a week and making $11.00
an hour.
 -9-

. . . .

35. That [respondent’s] failure to establish
or maintain a relationship with the
child, pay adequate support for the child
and undertake or complete those tasks and
services that were requested of him has
continued up until the time of this
hearing.

Based on these findings, the court concluded that respondent

“has willfully abandoned the child for at least six consecutive

months immediately preceding the filing of the petition.” See

N.C. Gen. Stat. § 7B-1111(a)(7).

Respondent challenges many of the quoted findings as

unsupported by the evidence. He objects to finding 16 as

“misleading” in its depiction of his inaction toward determining

his paternity of Joanna after April 2012. Respondent asserts

that Joanna’s mother “assured [him] repeatedly” she would return

to Pennsylvania for the test. He further contends finding 16

fails to note that he was on probation and thus could not leave

Pennsylvania.

We find no merit to respondent’s claim. Homan provided the

following account of her discussion with respondent about

paternity:

During my first conversation [on 7 March
2013], I asked if it was possible that he
 -10-

could be J[oanna]’s father. And he said
that he had been told by the mother, when
J[oanna] was around a year old, that he
could be the father, and that he and the
mother both wanted paternity testing
completed.

However, the mother was not in town at
the time. And he was unwilling to travel to
Florida for the paternity test. And the
mother kept saying that she was going to
come back to Pennsylvania, so that he could
get the paternity testing done then.

He also said that he found out in the
summer 2011 that J[oanna] was in foster
care.2 However, he made no contact with the
Department to set up any paternity testing
at that time.

(Emphasis added). Although respondent testified that he

“couldn’t leave the state” when the mother contacted him in

April 2012 because of his probation, the district court was not

required to find this claim credible. See State v. Harrison,

164 N.C. App. 693, 697-98, 596 S.E.2d 834, 838 (2004). Nor does

this testimony suggest that respondent was unable to leave

Pennsylvania for paternity testing at any time between the

summer of 2011 and his incarceration in March 2013.

Respondent contests finding 20 on the ground that no

evidence established he “assumed” he was Joanna’s father when

2
Ramsey also attested to respondent’s awareness “in the summer of
2011” that the child was in foster care.
 -11-

contacted by her mother in April 2012. Respondent actually

testified, “I assumed it was a possibility that . . . I could’ve

been the father.” However, the precise nature of respondent’s

mental processes upon learning of Joanna’s existence is

immaterial, given his duty to her as a father. Cf. In re

T.L.B., 167 N.C. App. 298, 303, 605 S.E.2d 249, 252 (2004)

(noting fathers’ obligation to identify and assume

responsibility for their illegitimate children); cf. also In re

Adoption of S.D.W., __ N.C. __, __, 758 S.E.2d 374, 381 (2014)

(concluding biological father had no constitutionally protected

interest as a parent when he “failed to grasp that opportunity

by taking any of the steps that would establish him as a

responsible father.”). Inasmuch as respondent was aware of his

possible paternity of Joanna and took no action, we deem any

error in this finding to be harmless. See generally Starco,

Inc. v. AMG Bonding and Ins. Servs., 124 N.C. App. 332, 335, 477

S.E.2d 211, 214 (1996) (“[A]n appellant must not only show

error, but that . . . the error was material and prejudicial,

amounting to denial of a substantial right that will likely

affect the outcome of an action.”).

Contrary to respondent’s assertion, we find competent

evidence to support finding 22. Homan testified that DSS
 -12-

repeatedly offered respondent visits with Joanna, both in

conversation and by letter. Respondent also objects to finding

23, insofar as it states he failed to seek permission from his

parole officer to visit Joanna following his release from jail

in August 2013. We agree that respondent testified he asked his

parole officer about visitation, and that such visits had been

approved provided respondent otherwise complied with his parole.

Nonetheless, respondent then conceded that he “still didn’t come

to visit the child[.]” He explained this failure by noting that

Lincoln County was “really far away and with my job that I just

started, I can’t, can’t really be missing too many days.” Given

this admission, and the fact that respondent’s release from jail

postdated the relevant period under N.C. Gen. Stat. § 7B-

1111(a)(1), any error in this finding is harmless.

Respondent also challenges finding 24, which states he

could have attended Joanna’s permanency planning hearing on 28

January 2013. The evidence shows that Ramsey notified

respondent of the hearing on 25 January 2013, and also provided

him with her contact information and informed him of Joanna’s

status in foster care. Respondent testified only that he “was

working” during this period, which predated his incarceration in

March 2013. Asked whether he had sought to be allowed to attend
 -13-

court hearings while he was incarcerated, respondent replied, “I

never knew I had to come to court.” The evidence permits a

reasonable inference that respondent could have attended the 28

January 2013 hearing had he chosen to do so. See generally In

re Hughes, 74 N.C. App. 751, 759, 330 S.E.2d 213, 218 (1985)

(Where “different inference[s] may be drawn from the evidence,

[the trial court] alone determines which inferences to draw and

which to reject.”).

Respondent casts findings 25, 27, and 29 as “misleading”

and “erroneous” to the extent they describe his failure to

“complete or undertake” the services requested by DSS. Homan’s

and respondent’s testimonies support the findings that

respondent was repeatedly advised of the requirements of a case

plan but “never followed through” with any of these requirements

other than the drug assessment completed for his probation

officer. While respondent averred he was ineligible for

domestic violence treatment without a court order and that he

“put [his] name in for” parenting classes starting in Spring of

2014, the court was not obliged to credit these unsupported and

self-serving claims. See State v. Harrison, 164 N.C. App. at

697-98, 596 S.E.2d at 838. As for finding 29, Honan testified

that respondent “did [not] become any more active in doing the
 -14-

things [DSS] suggested he do” following his release from jail in

August 2013. Though respondent purported to have arranged for

$187 in monthly child support to be deducted from his paycheck,

he acknowledged that “[n]othing ever happened.”

Respondent next excepts to finding 28, arguing that the

evidence shows he was in contact with DSS about Joanna before,

during, and after his incarceration from 26 March to 20 August

2013. Finding 28 specifically states, however, that respondent

“has not made any inquiries about the welfare of his child; nor

has he sent any cards, letters, or gifts to the child or paid

any support of any kind[.]” (Emphasis added) Homan testified

that, since DSS first contacted him in December 2012, respondent

had no contact with Joanna and had not “asked . . . anyone in

[DSS] to be able to have visits, contact, [or] anything like

that” or “asked for any specific information about his

daughter[.]” Finally, respondent acknowledged having paid no

support for Joanna, even at the time of the termination hearing.

Accordingly, this exception is overruled.

As summarized above, competent evidence also supports

finding 35,3 that respondent’s “failure to establish or maintain

3
Insofar as respondent objects to additional findings of fact, we
find that they pertain to the adjudication of neglect under N.C.
 -15-

a relationship with [Joanna], pay adequate support for the child

and undertake or complete those tasks and services that were

requested of him has continued up until the time” of the 9

December 2013 termination hearing.

Having reviewed the contested findings, we turn to

respondent’s exception to the district court’s conclusion that

he “willfully abandoned [Joanna] for at least six (6)

consecutive months immediately preceding the filing of the

Petition” as required to establish grounds for termination under

N.C. Gen. Stat. § 7B-1111(a)(7). He notes that his paternity

was not established until May 2013, “more than a month after the

filing of the termination petition[.]” Moreover, absent

evidence that he knew of his daughter’s whereabouts or contact

information prior to January 2013, respondent argues that “he

cannot be held to have willfully withheld . . . indications of

his parental affection for Joanna during approximately half of

the relevant six month time period.”

Respondent’s argument assumes that he is not accountable

for his inaction toward Joanna prior to being contacted by DSS.

Given his avowed awareness of the child’s existence as early as

of 2011, and certainly by April 2012, this assumption is

Gen. Stat. § 7B-1111(a)(1) and need not be addressed.
 -16-

unwarranted. Moreover, although the “determinative” period for

purposes of N.C. Gen. Stat. § 7B-1111(a)(7) is 28 September 2012

through 28 March 2013, we believe respondent’s conduct both

prior and subsequent to this interval is instructive as to the

willfulness of his conduct during the critical six months. See

In re Searle, 82 N.C. App. at 276, 346 S.E.2d at 514 (noting

that “respondent’s behavior between 15 May 1983 and 15 November

1983 is determinative” but considering his conduct prior

thereto); see also In re Hendren, 156 N.C. App. 364, 369-70, 576

S.E.2d 372, 376-77 (2003) (considering incarcerated father’s

lack of effort to attend the termination hearing as evidence of

abandonment).

We conclude the district court’s findings support its

adjudication of willful abandonment under N.C. Gen. Stat. § 7B-

1111(a)(7). The findings show that respondent made no effort to

establish contact with Joanna, to provide support for her, or to

obtain information about her. Although respondent was jailed

for a portion of the relevant six-month period, “a respondent's

incarceration, standing alone, neither precludes nor requires a

finding of willfulness” under N.C. Gen. Stat. § 7B-1111(a)(7).

In re McLemore, 139 N.C. App. at 431, 533 S.E.2d at 510-11

(citing In re Harris, 87 N.C. App. 179, 184, 360 S.E.2d 485, 488
 -17-

(1987)). Finally, while respondent consented to a paternity

test arranged by DSS and spoke by telephone with two social

workers, these minimal efforts do not preclude a finding of

willful abandonment under N.C. Gen. Stat. § 7B-1111(a)(7). See

In re R.R., 180 N.C. App. 628, 634, 638 S.E.2d 502, 506 (2006)

(Father’s effort “to legitimize the child through marriage and

amendment of the child's birth certificate . . . does not

adequately replace the presence, love and care of a parent–

delivered by whatever means available.”); In re McLemore, 139

N.C. App. at 430, 533 S.E.2d at 510 (Incarcerated parent’s “one

feeble attempt at providing financial support” or contacting the

child during the six-month period does not preclude a finding of

willful abandonment.).

Respondent next challenges the district court’s

adjudication of neglect under N.C. Gen. Stat. § 7B-1111(a)(1).

It is well established, however, that any “single ground . . .

is sufficient to support an order terminating parental rights.”

In re J.M.W., 179 N.C. App. 788, 789, 635 S.E.2d 916, 917

(2006). Having upheld the adjudication under N.C. Gen. Stat. §

7B-1111(a)(7) we need not review the second ground found by the

court. In re Humphrey, 156 N.C. App. at 540, 577 S.E.2d at 426.

Because respondent does not separately contest the court’s
 -18-

ruling at disposition, we hereby affirm the termination order.

Affirmed.

Judges CALABRIA and STEELMAN concur.

Report per Rule 30(e).