In re J.M.J.-J.

IN THE SUPREME COURT OF NORTH CAROLINA

No. 300A19

Filed 5 June 2020

IN THE MATTER OF: J.M.J.-J.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 16 May

2019 by Judge Wesley W. Barkley in District Court, Caldwell County. This matter

was calendared for argument in the Supreme Court on 4 May 2020 but determined

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

Carolina Rules of Appellate Procedure.

Lucy R. McCarl, Staff Attorney, for petitioner-appellee Caldwell County
Department of Social Services.

Poyner Spruill LLP, by Christopher S. Dwight and John M. Durnovich, for
appellee Guardian ad Litem.

Mercedes O. Chut for respondent-appellant father.

MORGAN, Justice.

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

parental rights to J.M.J.-J. (Julie).1 After careful consideration of respondent’s

challenges to the trial court’s conclusion that grounds existed to terminate

respondent’s parental rights, we affirm.

1 The minor child, J.M.J-J., will be referred to throughout this opinion by the
pseudonym “Julie” to protect the identity of the child and for ease of reading.
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Opinion of the Court

On 22 August 2017, the Caldwell County Department of Social Services (DSS)

obtained nonsecure custody of Julie and filed a juvenile petition alleging that Julie

was a neglected and dependent juvenile. At that time, Julie was living with her

mother, and DSS alleged that Julie had a Child Protective Services history which

included allegations of living in a home with substance abuse, improper supervision,

and improper care. DSS claimed that Julie’s mother had failed to address serious

issues of substance abuse and mental health concerns which had placed Julie at risk

of harm, as well as that Julie lacked an appropriate alternative caregiver.

DSS filed an amended juvenile petition on 6 September 2017 that provided

further details concerning the mother’s substance abuse and mental health issues. It

also contained allegations regarding respondent and his role in Julie’s circumstances.

DSS alleged that respondent had an extensive criminal history that included charges

pertaining to domestic violence and controlled substances. Additionally, DSS claimed

that respondent had reported to a social worker his “knowledge of [Julie’s] mother[’s]

on-going substance use, and [her] failure to take any action in regards to [Julie’s]

safety.”

On 29 November 2017, Julie was adjudicated to be a neglected and dependent

juvenile. Respondent did not contest the allegations contained in either the original

juvenile petition or the amended juvenile petition. On the same date as the

adjudication, the trial court entered a separate disposition order. The trial court

ordered that custody of Julie should remain with DSS. The trial court further ordered

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Opinion of the Court

that respondent should complete a case plan and attend all visitation with Julie as

ordered by the trial court, but conditioned visitation with Julie on respondent’s

completion of “one drug screening that is negative for all illegal and/or non-prescribed

controlled substances, and begin[ning] participat[ion] in the activities of his case plan

with [DSS] and as ordered by the court.”

The trial court held a permanency planning hearing on 30 May 2018. At that

time, respondent had visited with Julie only once since she had been in DSS custody.

Respondent had not begun parenting education classes as required by his case plan.

A hair follicle drug screen administered to respondent yielded a positive result for the

presence of hydrocodone and oxycodone. A home study for respondent’s residence had

been completed but was denied. Consequently, on 14 June 2018, the trial court

entered an order in which it authorized DSS to cease reunification efforts with both

parents and changed the primary permanent plan for Julie to adoption.

On 2 August 2018, DSS filed a petition to terminate the parental rights of

respondent and Julie’s mother. DSS alleged grounds to terminate respondent’s

parental rights to Julie based on neglect and abandonment. See N.C.G.S. § 7B-

1111(a)(1), (7) (2019). On 16 May 2019, the trial court entered an order concluding

that grounds existed to terminate respondent’s parental rights based on both grounds

alleged in the petition. The trial court further concluded that termination of

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Opinion of the Court

respondent’s parental rights was in Julie’s best interests.2 Accordingly, the trial court

terminated respondent’s parental rights. Respondent appeals.

Respondent argues that several of the trial court’s findings of fact are not

supported by the evidence and that the trial court erred in concluding that grounds

existed to terminate respondent’s parental rights. A termination of parental rights

proceeding consists of an adjudicatory stage and a dispositional stage. N.C.G.S.

§§ 7B-1109, -1110 (2019); In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252

(1984). At the adjudicatory stage, the petitioner bears the burden of proving by “clear,

cogent, and convincing evidence” the existence of at least one ground for termination

under Section 7B-1111(a) of the General Statutes of North Carolina. N.C.G.S. § 7B-

1109(e)–(f). We review a trial court’s adjudication “to determine whether the findings

are supported by clear, cogent and convincing evidence and the findings support the

conclusions of law.” In re Montgomery, 311 N.C. at 111, 316 S.E.2d at 253 (citing In

re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982)). If the petitioner meets its

burden during the adjudicatory stage, “the court proceeds to the dispositional stage,

at which the court must consider whether it is in the best interests of the juvenile to

terminate parental rights.” In re D.L.W., 368 N.C. 835, 842, 788 S.E.2d 162, 167

(2016) (citing In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614–15 (1997); N.C.G.S.

§ 7B-1110 (2015)).

2 The trial court’s order also terminated the parental rights of Julie’s mother, but she
did not appeal the order and is not a party to the proceedings before this Court.

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Opinion of the Court

In this case, the trial court concluded that the ground of neglect existed to

terminate respondent’s parental rights. The tribunal also concluded that petitioner

DSS had established the existence of the ground of abandonment. With only one

ground being required to be present under N.C.G.S. § 7B-1111 in order to proceed to

the dispositional stage of a termination proceeding, we begin our analysis here with

a consideration of the ground of neglect. See N.C.G.S. § 7B-1111(a)(1) (2019). Section

7B-1111(a)(1) allows for termination of parental rights based upon a finding that

“[t]he parent has . . . neglected the juvenile” within the meaning of N.C.G.S. § 7B-

101(15). Id. A neglected juvenile, in turn, is statutorily defined, in pertinent part, as

a juvenile “whose parent, guardian, custodian, or caretaker does not provide proper

care, supervision, or discipline; . . . or who lives in an environment injurious to the

juvenile’s welfare.” N.C.G.S. § 7B-101(15) (2019).

Generally, when a termination of parental rights is based upon a

determination of neglect, “if the child has been separated from the parent for a long

period of time, there must be a showing of past neglect and a likelihood of future

neglect by the parent.” In re D.L.W., 368 N.C. at 843, 788 S.E.2d at 167 (citing In re

Ballard, 311 N.C. 708, 713–15, 319 S.E.2d 227, 231–32 (1984)). “When determining

whether such future neglect is likely, the district court must consider evidence of

changed circumstances occurring between the period of past neglect and the time of

the termination hearing.” In re Z.V.A., 373 N.C. 207, 212, 835 S.E.2d. 425, 430 (2019)

(citing In re Ballard, 311 N.C. at 715, 319 S.E.2d at 232).

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Opinion of the Court

In the order terminating respondent’s parental rights, the trial court made

unchallenged findings of fact including, inter alia, that Julie had been adjudicated to

be a neglected and dependent juvenile in November 2017, that during the

adjudication hearing respondent “stood mute,” and that respondent had been

employed at a furniture company prior to being incarcerated on 19 September 2018

for the sale and delivery of crack cocaine and for having attained the status of an

habitual felon. “Findings of fact not challenged by respondent are deemed supported

by competent evidence and are binding on appeal.” In re T.N.H., 372 N.C. 403, 407,

831 S.E.2d 54, 58 (2019) (citation omitted).

While the aforementioned findings of fact are not disputed by respondent, he

nonetheless challenges other specific findings of fact which are pertinent to the

neglect basis for termination of parental rights. Firstly, we address his contention

that the portion of Finding of Fact 14 that states that Julie’s mother did not have

placement options for Julie at the time that the juvenile petition was filed was not

supported by the evidence. Respondent asserts that he consistently sought custody of

Julie and that at the time of Julie’s removal from the mother’s home, respondent “had

gainful employment, suitable housing, and no known parenting deficiencies.”

Respondent claims, however, that DSS did not consider him for placement. We are

not persuaded by this contention. In its prior adjudication order, the trial court found

as a fact that when the juvenile petition and the amended juvenile petition were filed,

Julie’s mother lacked an appropriate alternative childcare arrangement. Respondent

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did not appeal from the trial court’s adjudication order, and therefore he is bound by

the doctrine of collateral estoppel from relitigating the challenged portion of Finding

of Fact 14. In re T.N.H., 372 N.C. at 409, 831 S.E.2d at 60 (citing King v. Grindstaff,

284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973)) (stating that because the challenged

findings of fact concerned facts that were stipulated to by the respondent-mother

when the juvenile was adjudicated neglected, and the respondent-mother did not

appeal from the adjudication order, she was bound by the doctrine of collateral

estoppel from relitigating the findings of fact).

Respondent next challenges the portion of Finding of Fact 26 that describes his

case plan as requiring him to “complete a Comprehensive Clinical Assessment (CCA)

with RHA Behavioral Health, to address mental health, substance abuse, and

domestic violence issues and comply with any and all recommendations.” (Emphasis

added). Respondent contends that this finding, as worded, suggests that he had

mental health, substance abuse, and domestic violence issues that needed to be

addressed by his case plan. Respondent asserts that this implication is not supported

by the evidence. In support of this contention, respondent cites the testimony of the

foster care social worker who described the purpose of the CCA as being “to see if

there were any mental health concerns, substance abuse concerns, [or] domestic

violence concerns.” (Emphasis added). Respondent’s argument lacks support.

Initially, we note that the disposition order entered on 29 November 2017 similarly

stated that respondent was required to follow a case plan that included completing a

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Opinion of the Court

CCA addressing “mental health, substance abuse, and domestic violence issues.”

Respondent is barred once again by the doctrine of collateral estoppel from

relitigating this issue. Id. Secondly, in light of respondent’s extensive criminal

history, which included domestic violence, substance abuse, and pending drug-related

charges, it was not unreasonable for the trial court to impose the requirements of his

case plan, nor was it erroneous for the trial court to describe the case plan as

addressing these issues in the event that the CCA showed that such issues were

present.

Respondent next argues that Finding of Fact 27 is erroneous for several

reasons. This finding states the following:

27. [Respondent] completed a CCA with RHA on
February 26, 2018. At the time of the Assessment,
Respondent father [ ] denied any substance abuse issues.
He completed a hair follicle drug screen on February 21,
2018, which was positive for Oxycodone and Hydrocodone.
[DSS] requested that Respondent father [ ] follow up with
RHA in order to have a re-assessment. Respondent father
[ ] refused to go back to RHA or engage in any substance
abuse treatment due to his work schedule.

First, respondent contends that there was insufficient competent evidence that he

tested positive for hydrocodone and oxycodone. Respondent argues that although the

foster care social worker testified that she told respondent of his positive drug screen,

she never actually testified that his hair sample on 21 February 2018 contained

hydrocodone and oxycodone. Respondent further contends that DSS failed to lay a

foundation for the social worker’s knowledge of the results of the drug screen. Once

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Opinion of the Court

again, we are not persuaded. The trial court took judicial notice of all prior orders in

the court file, and the trial court’s finding of fact at issue is supported by a

permanency planning order entered on 14 June 2018 which found as a fact that

respondent tested positive for hydrocodone and oxycodone. Although the permanency

planning order is subject to a lower standard of evidentiary proof than a termination

of parental rights determination, this Court has acknowledged that “[a] trial court

may take judicial notice of findings of fact made in prior orders, even when those

findings are based on a lower evidentiary standard because where a judge sits

without a jury, the trial court is presumed to have disregarded any incompetent

evidence and relied upon the competent evidence.” In re T.N.H., 372 N.C. at 410, 831

S.E.2d at 60 (citing Munchak Corp. v. Caldwell, 301 N.C. 689, 694, 273 S.E.2d 281,

285 (1981)).

Respondent also challenges the portion of Finding of Fact 27 that states that

he “refused to go back to RHA or engage in any substance abuse treatment due to his

work schedule.” Respondent contends that there was no evidence that he was ever

advised to engage in substance abuse treatment, nor was there clear, cogent, and

convincing evidence that he had a substance abuse problem. Respondent additionally

argues that there was insufficient evidence to support a finding that he refused to go

back to RHA due to his work schedule. Respondent claims that he was given one

opportunity to return to RHA, and on that particular day, he admits telling the social

worker that he could not go to RHA due to work obligations. Respondent submits that

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Opinion of the Court

DSS never attempted to accommodate his work schedule and never consulted with

him before arranging appointments for him. Respondent reasons that “[a] refusal to

do something on one day is not a refusal ever to do it.” We find that some of the

elements contained in Finding of Fact 27 are supported by clear, cogent, and

convincing evidence, although a portion of this finding was not sufficiently proven.

Based on respondent’s positive drug screen for hydrocodone and oxycodone,

coupled with his pending drug-related criminal charges at the time, the trial court

could reasonably infer that respondent had a substance abuse problem. See In re

D.L.W., 368 N.C. 835, 843, 788 S.E.2d 162, 167–68 (2016) (stating that it is the trial

court’s duty to consider all of the evidence, pass upon the credibility of the witnesses,

and determine the reasonable inferences to be drawn therefrom); see also Scott v.

Scott, 157 N.C. App. 382, 388, 579 S.E.2d 431, 435 (2003) (stating that when the trial

court sits as fact-finder, it is the sole judge of the credibility and weight to be given to

the evidence, and it is not the role of the appellate courts to substitute their judgment

for that of the trial courts). Regarding respondent’s refusal to go to RHA, the social

worker testified that she called respondent following his positive drug screen and

asked respondent to go to RHA to complete another assessment. The social worker

stated that respondent told her that “[h]e was not going back to RHA to take drug

classes because that would make him look bad.” Based on this testimony, the trial

court could reasonably infer that respondent refused to go back to RHA. We conclude,

however, that the evidence does not support the specific portion of the finding of fact

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Opinion of the Court

that states that respondent refused to return to RHA due to his work schedule. Thus,

we disregard this particular portion of Finding of Fact 27.

Respondent next challenges the portions of Finding of Fact 28 that state that

respondent “specifically refused” to submit to drug screens on 29 March 2018 and

27 June 2018. As to the 29 March 2018 drug screen, respondent represents that he

was asked to “drop everything on a moment’s notice, including leaving food in the

oven, to get in a car operated by DSS employees, and be driven directly to a lab where

he would receive [the] drug test.” Respondent argues that this request by DSS was

unreasonable, while his unwillingness to comply with the request was not

unreasonable. As to the 27 June 2018 drug screen, the social worker testified that

when asked to submit to the drug screen on said date, respondent told the social

worker that he would not be able to pass the drug screen. Respondent opines that the

trial court’s finding of fact based on this testimony, that respondent refused to submit

to the drug screen that had been arranged, “suggests a desire to hide the truth,” which

he claims is misleading. We are not persuaded.

At the termination hearing, when asked whether DSS was able to screen

respondent for the presence of controlled substances, the social worker testified that

DSS was not able to do so because respondent “refused.” As to the 29 March 2018

drug screen, the social worker testified that respondent stated “[h]e was just waking

up and he was cooking.” As to the 27 June 2018 drug screen, the social worker

testified that respondent “said he would not be able to pass so he wasn’t going to go.”

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Opinion of the Court

The social worker’s testimony regarding respondent’s reactions to these respective

drug screen administrations clearly supports the trial court’s finding that respondent

“refused” to go with DSS for a drug screen on each of the two occasions. Although

respondent contends that the circumstances of the drug screens should have led to a

different finding, it was for the trial court to determine the reasonable inferences to

be made from the social worker’s testimony. In re D.L.W., 368 N.C. at 843, 788 S.E.2d

at 167–68; Scott v. Scott, 157 N.C. App. at 388, 579 S.E.2d at 435.

Respondent further challenges the portion of Finding of Fact 28 that states

that DSS had made eleven unsuccessful attempted drug screens. Respondent argues

that there was insufficient evidence in the record to support the trial court’s finding

of fact. Respondent’s rationale for his position is the layered argument that because

there was no evidence of any actual contact between DSS and respondent concerning

the nine drug screens other than the ones attempted on 29 March 2018 and 27 June

2018, and because there was no evidence that respondent was made aware of DSS’s

attempt to screen him for drugs on these dates, then the trial court had no basis to

find that he refused those attempted drug screens. DSS concedes that the evidence

presented on this matter only demonstrates that respondent was unavailable to be

tested. Thus, we disregard this portion of Finding of Fact 28.

Respondent next challenges the portion of Finding of Fact 31 that states that

he failed to approach his employer to request a modification of his work schedule so

that respondent could visit with Julie. We note that respondent conceded during

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cross-examination at the termination hearing that he never went to his superior to

ask for such a modification. Respondent’s own testimony therefore directly supports

this finding of fact.

Respondent further argues that there is no evidence to support the segment of

Finding of Fact 31 that states that the trial court would have been inclined to grant

weekend visitation with Julie to respondent in order to accommodate his work

schedule. We disagree. We agree with the Court of Appeals that “[i]t is well-

established that a trial court may take judicial notice of its own proceedings.” In re

J.C.M.J.C., 834 S.E.2d 670, 676 (N.C. Ct. App. 2019). Here, the same assigned trial

judge presided over this case’s proceedings from the time of the adjudication hearing

through the termination hearing. As a result, the assigned trial judge had actual

knowledge, in his capacity as the trial court, of his own inclinations and therefore

could take judicial notice regarding whether the trial court would have granted

weekend visitation to respondent. Consequently, we overrule respondent’s challenge

to this finding of fact.

Respondent argues that Finding of Fact 32 is not supported by the evidence.

That finding of fact states the following:

32. Respondent father [ ] has willfully failed and refused to
correct any of the conditions which led [Julie] to come into
the care of [DSS]. These conditions still exist as of this
hearing. Respondent father [ ] has not attended a
parenting class nor has he sought and/or obtained any
domestic violence treatment and/or counseling. In addition,
the conditions which led [Julie] to come into the care of

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Opinion of the Court

[DSS] will in all likelihood continue to exist in the
reasonably foreseeable future such that [Julie] will be
unable to safely come into the care of Respondent father [ ].

Respondent contends that nearly all of the allegations relating to Julie’s

removal from the home concerned Julie’s mother. He asserts that no evidence

indicated that he “willfully failed and refused” to correct substance abuse and mental

health problems of Julie’s mother, and further asserts that his case plan never

required domestic violence counseling or treatment. We are not persuaded. While it

may be true that respondent had no role in the mother’s substance abuse and mental

health issues, Julie’s placement in foster care after her removal from the mother’s

home was predicated on the fact that she could not be placed with respondent. As

stated previously herein, to address the issues which prevented Julie’s placement

with respondent, the trial court first ordered that respondent must engage in a case

plan which included domestic violence, mental health, and substance abuse

components and comply with all recommendations. Second, in the order ceasing

reunification efforts, the trial court found as a fact that respondent “informed the

social worker on October 17, 2017, that he was waiting until he goes to court for

pending drug charges before he begins services identified on his case plan.” Third, as

indicated earlier, respondent tested positive for hydrocodone and oxycodone and

refused to complete two drug screens. Consequently, we conclude that the evidence

in the record supports this finding of fact.

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Opinion of the Court

Respondent next challenges the portions of Findings of Fact 34 and 35 that

state that his only requirement before resuming visits with Julie was the attainment

of negative drug screens. Respondent claims that this determination is inaccurate,

because the dispositional order suspended his visits until respondent began to

participate in the activities of his case plan. Respondent contends that DSS never

referred him to parenting classes, therefore he was unable to complete that part of

his case plan. Respondent goes on to conclude that there was never a time that he

had the ability to participate in all of the activities of his case plan and to therefore

gain visitation privileges. We agree in part and disagree in part with respondent’s

position on these two findings of fact.

The disposition order entered on 29 November 2017 states that respondent

could engage in visitation with Julie upon his completion of “one drug screening that

is negative for all illegal and/or non-prescribed controlled substances, and [upon]

begin[ning] participating in the activities of his case plan.” (Emphasis added.). Thus,

the portion of Finding of Fact 34 that states that the only requirement for respondent

to visit with Julie prior to 30 May 2018 was the attainment of a negative drug screen

is incorrect.

Finding of Fact 35 states that the only requirement for respondent to visit with

Julie from 30 May 2018 until his incarceration was the completion of two negative

drug screens. This finding is supported by the record. The permanency planning order

entered on 14 June 2018 expressly shows that respondent’s completion of two

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Opinion of the Court

negative drug screens was the sole prerequisite to visitation and that respondent’s

visitation was not conditioned upon respondent participating in the activities of his

case plan. Regardless of whether respondent was required to engage in the activities

of his case plan prior to being allowed to visit with Julie, the record is clear that

respondent never completed any negative drug screens, and therefore never satisfied

this condition precedent to visitation. Thus, DSS’s purported failure to refer

respondent to parenting classes had no effect on his ability to visit with Julie.

Respondent further argues that even if he had complied with the trial court’s

prerequisites to visitation, Julie was living in Anson County and New Hanover

County prior to the termination hearing and the distance from his residential county

of Caldwell County to where Julie was located made visitation less feasible. It is

worthy to note, however, that respondent testified at the termination hearing that he

did not learn of Julie’s whereabouts until the termination hearing. Because

respondent was unaware of Julie’s residential placements and her geographical

distance from respondent, these issues could not have had a dampening effect on

respondent’s desire to visit with Julie or on his ability to see her.

In Findings of Fact 34 and 35, the trial court again found that respondent had

refused to complete drug screens on 29 March 2018 and 27 June 2018. The trial court

also found that respondent was “not at home during other times when [DSS]

attempted to drug screen him.” We have already determined that the trial court could

reasonably infer, based on competent evidence adduced at the termination hearing,

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that respondent refused to submit to the drug screens. The trial court additionally

found as a fact that respondent was “not at home” during additional attempts by DSS

to obtain a drug screen from him. As observed earlier in our analysis, DSS concedes

that the evidence demonstrates respondent’s unavailability to be tested for the

presence of controlled substances. Ultimately, we conclude that these portions of

Findings of Fact 34 and 35 properly reflect the evidence in the record.

Respondent next argues that the portions of Finding of Fact 36 that state that

he had no contact with Julie and failed to send her cards or gifts were not supported

by the record. Respondent asserts that the record contains no evidence that he had

the ability to write to Julie or to send her cards or gifts after his incarceration.

Respondent also contends that there was no evidence that Julie’s foster parents

would allow him to contact her or send her cards or gifts. We note that the trial court

did not make any finding of fact regarding whether respondent did or did not have

the ability to contact Julie or to send her cards or gifts; the trial court’s finding of fact

merely states that respondent did not do so. This finding is supported by the social

worker’s testimony that following respondent’s incarceration, respondent never sent

Julie any cards or gifts and never asked DSS to forward any letters to the child. The

social worker further testified that respondent’s last visit with Julie occurred on 1

September 2017. Respondent’s argument does not relate to the sufficiency of the

evidence to support this finding of fact, but instead relates to the legal conclusion of

his neglect and willful abandonment of Julie. See In re N.D.A., 373 N.C. 71, 82, 833

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S.E.2d 768, 776 (2019) (“[T]he trial court failed to make any findings of fact regarding

whether respondent-father had the ability to contact [DSS] and [his daughter] while

he was incarcerated, with such findings being necessary in order for the trial court to

make a valid determination regarding the extent to which respondent-father’s failure

to contact [his daughter] and [DSS] . . . was willful.”). Finding of Fact 36 reflects the

social worker’s testimony, and we thus conclude it is supported by clear, cogent, and

convincing evidence.

Respondent also challenges Findings of Fact 7 and 33. Finding of Fact 7

concerns respondent’s last known address; Finding of Fact 33 relates to the ground

of willful abandonment. However, because we conclude these findings were not

necessary to support the trial court’s conclusion that grounds existed to terminate

respondent’s parental rights for neglect, we refrain from engaging in an unnecessary

review of respondent’s challenges to those two findings of fact. In re T.N.H., 372 N.C.

at 407, 831 S.E.2d at 58–59 (citing In re Moore, 306 N.C. at 404, 293 S.E.2d at 133).

Respondent next argues that the trial court’s findings of fact do not support its

conclusion that grounds existed to terminate his parental rights due to neglect.

Respondent represents that he had no role in Julie’s removal from the mother’s home.

Respondent contends that there was no evidence that he lacked parenting skills or

that he suffered from any condition arising from mental health, substance abuse, or

domestic violence concerns that could harm Julie or place her at a substantial risk of

harm. Thus, respondent asserts that his failure to complete his case plan does not

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affect his fitness to parent Julie and consequently is not relevant to the conclusion of

neglect. Respondent further contends that the findings of fact do not support a

conclusion of neglect by abandonment because no evidence was presented and no

findings of fact were made regarding his ability to remain in contact and

communication with Julie while he was incarcerated. We disagree with respondent’s

position.

First, we do not accept respondent’s contention that the trial court’s conclusion

of neglect was erroneous because he was not responsible for the conditions that

resulted in Julie’s placement in DSS custody. This Court has explained that “[i]n

determining whether a child is neglected, the determinative factors are the

circumstances and conditions surrounding the child, not the fault or culpability of the

parent.” In re M.A.W., 370 N.C. at 154, 804 S.E.2d at 517 (quoting In re Montgomery,

311 N.C. at 109, 316 S.E.2d at 252). In In re M.A.W., this Court held that a prior

adjudication of neglect based on a mother’s substance abuse and mental health issues

was “appropriately considered” by the trial court as “relevant evidence” in

proceedings to terminate the parental rights of a father who was incarcerated at the

time of the prior adjudication. Id. at 153, 804 S.E.2d at 517; see also In re C.L.S., 245

N.C. App. 75, 78–79, 781 S.E.2d 680, 682–83 (affirming termination of a father’s

parental rights on the ground of neglect where the father was incarcerated and

paternity was not established until after a prior adjudication of neglect based on the

mother’s substance abuse), aff’d per curiam, 369 N.C. 58, 791 S.E.2d 457 (2016). It is

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therefore not necessary that the parent whose rights are subject to termination be

responsible for the prior adjudication of neglect.

Furthermore, we do not agree with respondent’s claim that he played no part

in the prior adjudication of neglect. As we stated previously, although respondent

may have had no role in the mother’s substance abuse and mental health issues,

Julie’s removal from the mother’s home and resulting placement in foster care were

also largely due to the fact that the juvenile could not be placed with respondent. To

address the issues which prevented Julie’s placement with respondent, the trial court

ordered respondent to engage in a case plan which included domestic violence, mental

health, and substance abuse components and to comply with all recommendations.

Respondent failed to comply with the requirements of the order.

Second, we are not persuaded by respondent’s claim that there was no evidence

that he had the ability to remain in contact and communication with Julie while he

was incarcerated but chose not to do so, to the extent that his incarceration

contributed to his lack of interaction with the child. This Court has stated:

A parent’s incarceration may be relevant to the
determination of whether parental rights should be
terminated, but “[o]ur precedents are quite clear—and
remain in full force—that ‘[i]ncarceration, standing alone,
is neither a sword nor a shield in a termination of parental
rights decision.’ ” Thus, respondent’s incarceration, by
itself, cannot serve as clear, cogent, and convincing
evidence of neglect. Instead, the extent to which a parent’s
incarceration . . . support[s] a finding of neglect depends
upon an analysis of the relevant facts and circumstances,
including the length of the parent’s incarceration.

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Opinion of the Court

In re K.N., 373 N.C. 274, 282–83, 837 S.E.2d 861, 867–68 (2020) (citations omitted).

In the present case, similar to the circumstances in In re K.N., the trial court failed

to conduct such an analysis. However, pertinent aspects of respondent’s incarceration

here distinguish this case from In re K.N. In In re K.N., the father was already

incarcerated at the time that he entered into his case plan. Id. at 276, 837 S.E.2d at

864. Respondent here, on the other hand, was not incarcerated until 19 September

2018, almost twelve months after he entered into his case plan and more than twelve

months since he last visited Julie.

The trial court’s findings in this case reveal circumstances similar to those in

In re M.A.W. In In re M.A.W., this Court found that “the evidence of [the father’s]

prior neglect does not stand alone,” noting the father’s long history of criminal activity

and substance abuse and his stipulation to the allegations of neglect that led to the

juvenile’s adjudication as a neglected juvenile. 370 N.C. at 154, 804 S.E.2d at 517.

The father in In re M.A.W. also admitted to being aware of the mother’s substance

abuse issues. Id. Similarly, in the instant case, respondent has an extensive criminal

history, with many of his past offenses involving controlled substances. The trial

court also found, as previously mentioned, that respondent “stood mute” when the

allegations in the amended juvenile petition were presented. Furthermore, the

amended juvenile petition contains an allegation that respondent was aware of the

mother’s ongoing substance abuse and took no action to ensure Julie’s safety.

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Opinion of the Court

Additional facts supporting the trial court’s conclusion that there was a

likelihood of repetition of neglect included its finding of fact that respondent had last

visited with Julie in September 2017 and took no action to be a part of Julie’s life.

Thus, respondent had not developed a relationship with Julie and had not

demonstrated an ability to care for her. Furthermore, prior to his incarceration,

respondent made no attempt to comply with his case plan or to address the barriers

to reunification that had been identified by the trial court. Respondent tested positive

for hydrocodone and oxycodone, refused two drug screens, and failed to go to RHA.

We therefore conclude that “[t]he trial court properly found that past neglect was

established by DSS and that there was a likelihood of repetition of neglect[,]” id. at

156, 804 S.E.2d at 518, because the trial court’s findings of fact demonstrate that

respondent’s circumstances had not changed so as to render him fit to care for Julie

at the time of the termination hearing. See In re Ballard, 311 N.C. at 715, 319 S.E.2d

at 232 (explaining that the trial court must consider evidence of changed

circumstances since the adjudication of past neglect, and that the determinative

factors are the best interests of the child and the fitness of the parent to care for the

child at the time of the termination hearing). Thus, we hold that the trial court did

not err in adjudicating neglect as a ground to terminate respondent’s parental rights

to Julie pursuant to N.C.G.S. § 7B-1111(a)(1).

The trial court’s conclusion that a ground for termination existed pursuant to

N.C.G.S. § 7B-1111(a)(1) is sufficient in and of itself to support the termination of

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Opinion of the Court

respondent’s parental rights. In re T.N.H., 372 N.C. at 413, 831 S.E.2d at 62.

Furthermore, respondent does not challenge the trial court’s conclusion that

termination of his parental rights was in Julie’s best interests. See N.C.G.S. § 7B-

1110(a). Accordingly, we affirm the trial court’s order terminating respondent’s

parental rights.

AFFIRMED.

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