IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-85
No. 269A21
Filed 15 July 2022
IN THE MATTER OF: J.A.J., K.D.M.J., and P.A.P.J.
Appeals pursuant to N.C.G.S. § 7B-1001(a1)(1) from orders entered on 25 May
2021 by Judge Pell C. Cooper in District Court, Wilson County. This matter was
calendared for argument in the Supreme Court on 1 July 2022 but determined on the
record and briefs without oral argument pursuant to Rule 30(f) of the North Carolina
Rules of Appellate Procedure.
Beaman & Bennington, PLLC, by Jennifer K. Bennington, for petitioner-
appellee Wilson County Department of Social Services.
Matthew D. Wunsche, GAL appellate counsel, for appellee Guardian ad Litem.
Sean P. Vitrano for respondent-appellant mother.
Anné C. Wright for respondent-appellant father.
HUDSON, Justice.
¶1 Respondent-mother and respondent-father appeal from the trial court’s orders
terminating respondent-mother’s parental rights to her minor children J.A.J. (Jake),
K.D.M.J. (Karl), and P.A.P.J. (Pamela)1 and an order terminating respondent-father’s
1 Pseudonyms have been used to protect the identities of the juveniles and for ease of
reading.
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parental rights to Karl.2 Upon review, we affirm.
I. Factual and Procedural Background
¶2 On 11 and 17 December 2018, the Wilson County Department of Social
Services (DSS) filed separate juvenile petitions alleging that two-year-old Jake, six-
year-old Karl, and newborn Pamela were neglected and dependent juveniles. Each
petition alleged that on 7 December 2018, family members observed Karl to be “rigid,
staring, grinding his teeth, having mild tremors, incontinent, weak, and [with] his
left side . . . drooping.” When respondent-mother did not seek immediate medical care
for what she felt was more of “a behavioral issue,” family members transported Karl
to Wilson Medical Center, where his “condition rapidly deteriorated, and he lost the
ability to speak.” The next day, Karl was transferred to Vidant Medical Center where
he was placed on a ventilator, after becoming unable to breathe. Respondent-mother
reportedly refused to authorize medical treatment and was ultimately escorted from
the facility by law enforcement officers.
¶3 During the course of an investigation, Karl disclosed that he had ingested pills
belonging to respondent-mother’s boyfriend. Respondent-mother admitted that she
was a long-time substance abuser and that she was unable to provide a safe, stable
environment for her children. The whereabouts of Karl’s father, respondent-father,
were unknown at the time.
2 Jake’s father and Pamela’s father are not parties to this appeal.
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¶4 DSS obtained nonsecure custody of Jake and Karl on 11 December 2018 and of
Pamela on 18 December 2018.3 Jake and Pamela were placed in foster care. Karl was
placed with a relative “after several failed foster placements.”
¶5 A hearing on the juvenile petitions was conducted on 20 February 2019. With
the assistance of counsel, respondent-mother and respondent-father submitted
stipulations in accord with allegations set forth in the juvenile petitions. After
considering DSS reports, testimony, and respondents’ stipulations, the trial court
adjudicated Jake, Karl, and Pamela neglected and dependent juveniles by orders
entered on 4 March 2019.
¶6 In its disposition orders entered on the same date, the trial court found, inter
alia, that respondent-mother had acknowledged Karl needed mental health
treatment but had refused to authorize it. The trial court found that, “[w]hen he does
not get what he wants,” Karl has “severe behavior problems.” His diagnoses include
Adjustment Disorder, Oppositional Defiant Disorder, Attention Deficit Hyperactivity
Disorder, and Sibling Relational Problem. He had run away from respondent-
mother’s home on numerous occasions, as well as the homes of every other caregiver,
including foster families, with whom he had been placed. Between 11 and 21
December 2018, Karl had been placed in three foster homes and had one night of
respite placement and one night of care at a hospital. Respondent-mother’s visitation
3 Pamela was born four days after the juvenile petitions for Jake and Karl were filed.
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with Karl was suspended due to the severity of his behavior following her visits.
¶7 The court acknowledged that respondent-mother loves her children. But she
also had a long history with Child Protective Services and a history of substance
abuse. She did not feel the need for treatment for mental health issues or substance
abuse.
¶8 At the time of the hearing on Karl’s juvenile petition, respondent-father was
incarcerated in the Craven County Correctional Institute on drug charges. He had
not been an active part of Karl’s life, but he indicated his desire to be a father to Karl
upon his release.
¶9 The court ordered respondent-mother to complete a safety circle with a social
worker and develop a safety plan to ensure the juveniles would be properly supervised
at all times. She was also ordered to complete a psychological evaluation; work with
a mental health provider to learn healthy coping skills, identify healthy relationships,
and receive emotional support regarding her domestic violence relationships; and
work with a parent trainer to learn parenting skills for a child with behavioral
challenges. Respondent-mother was allowed a minimum of one hour of weekly
supervised visitation with Jake and Pamela and a minimum of one and one-half hours
of weekly supervised telephone contact with Karl. Respondent-father was allowed the
same amount of supervised telephone contact with Karl and was ordered to work with
a social worker to develop a service plan upon his release from incarceration.
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¶ 10 A review hearing was conducted on 20 March 2019. In separate amended
review orders entered for each juvenile on 11 April 2019, the trial court found that
respondent-mother needed to address her substance abuse and mental health issues,
refrain from domestic violence, and demonstrate an ability to provide a safe living
environment and manage the juveniles’ needs. Respondent-mother’s in-person
contact with Karl would remain suspended until his mental health needs were
addressed and his trauma in conjunction with his visits with respondent-mother
reduced. The court found that respondent-mother wanted to be reunified with the
juveniles. She had acquired public housing to accommodate herself and her children,
had participated in a Child and Family Team Meeting on 3 January 2019; and had
reportedly contacted Carolina Outreach to schedule a substance abuse evaluation.
¶ 11 The trial court further found that DSS had referred respondent-mother to
psychologist Shartra Sylivant for a psychological evaluation, provided her with the
contact information for the Social Security Administration to apply for social security
disability benefits, and referred her to DSS’s parenting program to assist her with
learning how so that she could parent and manage children who had experienced past
trauma. Respondent-father remained incarcerated.
¶ 12 In permanency-planning orders entered on 30 August 2019 following a 31 July
2019 hearing, the trial court found that return of the juveniles to respondent-mother’s
home would be contrary to their best interests due to her “partial progress within the
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last seven months towards her court ordered Family Services activities such as
emotional/mental health, substance abuse including requested drug screens, and
parenting.” She had also refused to sign a family contact and visitation plan, comply
with the visitation agreement, submit to requested drug screens, or submit to a
substance abuse assessment. Respondent-mother believed Karl’s behavior was the
reason for DSS involvement and contended that the juveniles were wrongly
adjudicated neglected and dependent.
¶ 13 After respondent-mother’s limited participation in a psychological evaluation
in June 2019, Sylivant diagnosed respondent-mother with “Cannabis and
Phencyclidine (PC) use disorders, Personal History of Psychological Trauma, Partner
Violence, Parental Child Neglect, Discord with Social Services, and Antisocial
Personality Disorder with additional histrionic, borderline and paranoid traits.”
Sylivant reported respondent-mother also had “a number of problematic personality
traits,” which would not likely be ameliorated by psychotherapy or medication.
Sylivant reported that respondent-mother’s prognosis for significant and lasting
behavior change was “poor.”
¶ 14 Respondent-father was released from incarceration on 20 June 2019; however,
he was reincarcerated on 27 June 2019 for trafficking in heroin. Shortly thereafter, a
social worker met with respondent-father at the Wilson County Detention Center on
10 July 2019 to create a family contact and visitation plan. Respondent-father
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requested a visit with Karl, but face-to-face meetings during respondent-father’s
incarcerations were never allowed based on a determination that a meeting at the
jail was not in Karl’s best interests.
¶ 15 In the August 2019 permanency-planning orders, the court set custody with a
relative or other suitable caregiver as the primary permanent plans for Jake and Karl
with a secondary, concurrent plan of reunification. For Pamela, the permanent plan
was reunification with a concurrent plan of custody with a relative or other suitable
person. Respondent-mother was permitted supervised visitation with the juveniles
every other week and supervised telephone calls at least weekly. Respondent-father
was allowed mail correspondence and supervised telephone contact with Karl.
¶ 16 The trial court conducted permanency-planning hearings on 20 November
2019 and 4 March 2020 and entered permanency-planning orders on 13 December
2019 and 31 March 2020. In the December 2019 orders, the court noted “concerns
that” respondent-mother “was having unsupervised contact” with Karl. Karl’s
kinship placement had been unsuccessful, and DSS had placed Karl with a foster
family. The court ceased respondent-mother’s contact with the juveniles until she
“exhibited behavioral changes, made progress towards her Family Service
Agreement, and complied with her signed family contact and visitation plan.” In the
March 2020 orders, the court noted that respondent-mother remained homeless and
unemployed. Meanwhile, respondent-father had had no contact with Karl since the
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last permanency-planning hearing. The court changed Jake’s and Karl’s primary
permanent plan to adoption with parental reunification as a concurrent plan.
¶ 17 Following the next hearing on 22 June 2020, the court entered permanency-
planning orders on 22 July 2020 finding that respondent-mother had made “minimal
progress towards her court ordered activities” involving emotional and mental health
issues and substance abuse. The primary permanent plan for Pamela was also
changed to adoption with a concurrent plan of reunification with her father.
¶ 18 DSS filed motions and petitions to terminate respondent-mother’s parental
rights to Jake, Karl, and Pamela and respondent-father’s parental rights to Karl on
22 September 2020. DSS alleged that respondent-mother’s parental rights could be
terminated under N.C.G.S. § 7B-1111 for abuse or neglect; willfully leaving the
juveniles in placement outside of the home without showing reasonable progress in
correcting those conditions which led to the removal of the juveniles; willful failure to
pay a reasonable portion of the cost of care for the juveniles; dependency; and willful
abandonment. DSS alleged the same as grounds to terminate respondent-father’s
parental rights to Karl.
¶ 19 The court entered amended permanency-planning orders for each juvenile on
25 November 2020, following a fifth permanency-planning hearing on 23 September
2020, and permanency-planning orders on 12 February 2021, following a sixth
hearing on 20 January 2021. In its final permanency-planning order related to Karl,
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the court found that respondent-mother had made “minimal progress” since the last
permanency-planning hearing and that respondent-father would remain
incarcerated until August 2024.
¶ 20 A hearing on DSS’s motions to terminate respondent-mother’s parental rights
to the juveniles and respondent-father’s parental rights to Karl was held on 18, 19,
and 22 March and 26 April 2021. In orders entered on 25 May 2021, the trial court
adjudicated the existence of grounds to terminate respondent-mother’s parental
rights to Jake, Karl, and Pamela pursuant to N.C.G.S. § 7B-1111(a)(1)–(3) and (6).
The court also adjudicated the existence of grounds to terminate respondent-father’s
parental rights to Karl pursuant to N.C.G.S. § 7B-1111(a)(1), (2), (6), and (7). In the
disposition part of the orders, the court determined that it was in the best interests
of each juvenile to terminate respondent-mother’s parental rights, and that it was in
the best interests of Karl to terminate respondent-father’s parental rights.
Accordingly, the trial court terminated respondent-mother’s parental rights to Jake,
Karl, and Pamela and respondent-father’s parental rights to Karl. Respondent-
mother and respondent-father separately appeal from the 25 May 2021 termination
orders.
II. Analysis
A. Respondent-Mother’s Competency
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¶ 21 Respondent-mother argues that the trial court erred by failing to appoint a
guardian ad litem to aid her, pursuant to N.C.G.S. § 7B-1101.1, after her competency
was brought into question. Following the first review hearing, the trial court noted
that respondent-mother was suffering from mental illness and that she was not
consistent in receiving mental health treatment. Respondent-mother contends that
her behavior during the hearing to terminate her parental rights, in which she
exhibited “little or no understanding” as to why her children were in DSS custody,
should have caused the court to inquire into her competency.
¶ 22 Section 7B-1101.1 states that “the court may appoint a guardian ad litem for a
parent who is incompetent in accordance with G.S. 1A-1, Rule 17.” N.C.G.S. § 7B-
1101.1(c) (2021). For the purposes of Rule 17, an “incompetent adult”
is an adult “who lacks sufficient capacity to manage the
adult’s own affairs or to make or communicate important
decisions concerning the adult’s person, family, or property
whether the lack of capacity is due to mental illness,
intellectual disability, epilepsy, cerebral palsy, autism,
inebriety, senility, disease, injury, or similar cause or
condition.”
In re N.K., 375 N.C. 805, 809–10 (2020) (quoting N.C.G.S. § 35A-1101(7) (2019)).
¶ 23 “[A] trial judge has a duty to properly inquire into the competency of a litigant
in a civil trial or proceeding when circumstances are brought to the judge’s attention
[that] raise a substantial question as to whether the litigant is non compos mentis.”
In re T.L.H., 368 N.C. 101, 106 (2015) (second alteration in original) (quoting In re
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J.A.A., 175 N.C. App. 66, 72 (2005)). Though the nature and extent of diagnoses by
mental health professionals are exceedingly important to the proper resolution of a
competency determination, a court may also consider
the manner in which the individual behaves in the
courtroom, the lucidity with which the litigant is able to
express himself or herself, the extent to which the litigant’s
behavior and comments shed light upon his or her
understanding of the situation in which he or she is
involved, the extent to which the litigant is able to assist
his or her counsel or address other important issues, and
numerous other factors.
Id. at 108. Thus, much of the information pertinent to a competency determination is
not discernible from a review of a trial record. Id. We review a court’s decision to
inquire into a parent’s competency as well as a decision to appoint a parental
guardian ad litem due to the parent’s incompetence for abuse of discretion. Id. at 106.
When the record on appeal “contains an appreciable amount of evidence tending to
show that the litigant whose mental condition is at issue is not incompetent, the trial
court should not, except in the most extreme instances, be held on appeal to have
abused its discretion by failing to inquire into that litigant’s competence.” Id. at 108–
09; see In re Q.B., 375 N.C. 826, 834, 838 (2020) (affirming a termination of parental
rights although the court did not inquire about the respondent’s mental competence
when the record presented sufficient indicia of her understanding of the nature of the
proceedings, including that she comprehended her role therein, and could assist her
attorney in preparing the case); In re N.K., 375 N.C. at 812 (holding the trial court
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did not abuse its discretion by not inquiring about the respondent’s need for a
guardian ad litem where the court had “ample opportunity to gauge [her] competence”
by observing her behavior during pre-adjudicatory, adjudicatory, and dispositional
hearings, subsequent review and permanency-planning hearings, and the
termination-of-parental-rights hearing).
¶ 24 Here the record reflects that respondent-mother was in court during the
juveniles’ adjudication and disposition hearings, the review hearing, five
permanency-planning hearings, and three of the four days of the termination of
parental rights hearing. During the adjudication hearing on the juvenile petitions,
with the assistance of counsel, respondent-mother entered stipulations and denied
some allegations. In its juvenile disposition order, the court made a finding reflecting
respondent-mother’s denial of any need for mental health treatment. By the time of
the first review hearing, respondent-mother had made progress on her case plan. She
also participated in a psychological evaluation, which opined that her intelligence
“appear[ed] sufficient, as evidenced by her vocabulary, reading ability, and
manipulations.”
¶ 25 Respondent-mother contends that her testimony during the termination-of-
parental-rights hearing did not demonstrate an understanding of how her mental
health, domestic violence, criminal conduct, homelessness, and substance abuse
issues affected her parenting or why she needed to comply with her case plan and
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court orders. But her testimony reflects her efforts to obtain help caring for the
children and to provide Karl with therapy, as well as her attendance at parenting
classes. She also testified that she had attended every court hearing and participated
in child family team meetings so that she could be reunited with her children. The
transcript also captures respondent-mother’s repeated extemporaneous interjections
during the termination proceedings. The substance of her interjections, often
challenging witness testimony, demonstrates her clear understanding of the specific
issues being discussed and her goal of obtaining custody of her children.
¶ 26 The record shows that the court had ample opportunity to observe respondent-
mother’s behavior and that she understood the nature of the proceedings up to and
including the termination hearing, comprehended her role in them, and could assist
her attorney in preparing her case. See In re Q.B., 375 N.C. 826; In re N.K., 375 N.C.
805. Therefore, the trial court did not abuse its discretion by not conducting an
inquiry into respondent-mother’s competency. See In re T.L.H., 368 N.C. at 108–09.
B. Adjudication of Grounds to Terminate Respondent-Father’s Parental
Rights
¶ 27 Respondent-father argues the trial court failed to adequately support its
conclusions that grounds existed to terminate his parental rights to Karl. He
challenges each of the court’s four adjudicated grounds. We address respondent-
father’s argument regarding willful abandonment.
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¶ 28 “We review a trial court’s adjudication under N.C.G.S. § 7B-1111 ‘to determine
whether the findings are supported by clear, cogent and convincing evidence and the
findings support the conclusions of law.’ ” In re E.H.P., 372 N.C. 388, 392 (2019)
(quoting In re Montgomery, 311 N.C. 101, 111 (1984)). Unchallenged findings of fact
“are deemed supported by competent evidence and are binding on appeal.” In re
T.N.H., 372 N.C. 403, 407 (2019) (citing Koufman v. Koufman, 330 N.C. 93, 97 (1991)).
¶ 29 A trial court may terminate parental rights when “[t]he parent has willfully
abandoned the juvenile for at least six consecutive months immediately preceding the
filing of the petition.” N.C.G.S. § 7B-1111(a)(7) (2021). “Although the trial court may
consider a parent’s conduct outside the six-month window in evaluating a parent’s
credibility and intentions, the ‘determinative’ period for adjudicating willful
abandonment is the six consecutive months preceding the filing of the petition.” In re
N.D.A., 373 N.C. 71, 77 (2019) (quoting In re D.E.M., 257 N.C. App. 618, 619 (2018)).
“Whether a biological parent has a willful intent to abandon his child is a question of
fact to be determined from the evidence.” In re B.C.B., 374 N.C. 32, 35 (2020) (quoting
In re Adoption of Searle, 82 N.C. App. 273, 276 (1986)). “Abandonment implies
conduct on the part of the parent which manifests a willful determination to forego
all parental duties and relinquish all parental claims to the child.” Id. (quoting In re
Young, 346 N.C. 244, 251 (1997)). We have noted that abandonment is evident when
a parent “withholds his presence, his love, his care, the opportunity to display filial
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affection, and wil[l]fully neglects to lend support and maintenance.” Pratt ex rel.
Graham v. Bishop, 257 N.C. 486, 501 (1962).
¶ 30 “Although a parent’s options for showing affection while incarcerated are
greatly limited, a parent will not be excused from showing interest in his child’s
welfare by whatever means available.” In re A.J.P., 375 N.C. 516, 532 (2020) (cleaned
up). “As a result, our decisions concerning the termination of the parental rights of
incarcerated persons require that courts recognize the limitations for showing love,
affection, and parental concern under which such individuals labor while
simultaneously requiring them to do what they can to exhibit the required level of
concern for their children.” In re A.G.D., 374 N.C. 317, 320 (2020) (citing In re K.N.,
373 N.C. 274, 283 (2020)).
¶ 31 Here the trial court supported the adjudication of grounds to terminate
respondent-father’s parental rights via the following findings of fact:
35. A court previously determined [respondent-father]
to be the father of the Juvenile on or about April 3,
2012. [Respondent-father] is now listed on the
Juvenile’s birth certificate.
36. [Respondent-father] was in jail at the time of the
Adjudication, and with the exception of a very short
period, [he] has been incarcerated the entire time
[Karl] has been in the Department’s care.
[Respondent-father] is not scheduled to be released
until August 2024.
37. [Respondent-father] has participated in some of the
child and family teams meetings via phone.
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38. Prior to the Juvenile Petition, [respondent-father]
had not been active in [Karl’s] life, and during the
majority of the Juvenile case, [he] has made little to
no effort to have a relationship with [Karl].
39. Up until the September 23, 2020 Permanency
Planning Hearing, [respondent-father] was
permitted to contact [Karl] by phone or write him
letters; however he never called [Karl] and never
wrote to him. Even from December 2018 to October
2019, when [Karl] was placed with . . . a kinship
placement [respondent-father] knew, he still failed
to contact [Karl]. On September 23, 2020 as no
phone contact had been occurring, the court ordered
any contact between [respondent-father] and [Karl]
to take place via mail, however, [respondent-father]
did not send any letters or cards to [Karl].
40. During the course of this case, [respondent-father]
has provided no support, no letters, no phone calls,
and no gifts to [Karl] during the past two years.
41. [Respondent-father] voluntarily decided not to be
brought to the third day of the trial, and he
requested to leave early on the fourth day.
42. By failing to make even minimal efforts to have a
relationship with his son, [respondent-father]
willfully failed to show love, support, and affection
for [Karl] during this case.
....
B. [Respondent-father] has willfully abandoned the
child for at least six consecutive months
immediately preceding the filing of the petition.4
4 While respondent-father also asserts that the trial court failed to make any findings
specifically addressing the determinative six-month period, the trial court determined that
respondent-father “has willfully abandoned the child for at least six consecutive months.”
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¶ 32 Respondent-father challenges the evidentiary support for findings of fact 37,
39, 40, and 41. He also contends the trial court’s findings are insufficient to support
the conclusion that grounds existed to terminate his parental rights for willful
abandonment.
¶ 33 Respondent-father argues that finding of fact 37 is erroneous because no
evidence was presented, and the trial court made no findings, regarding when he
attended Child and Family Team meetings and if his attendance occurred during the
determinative six-month period. The petition to terminate parental rights was filed
on 22 September 2020; thus, the determinative six-month period is from 22 March to
22 September 2020. No evidence suggests respondent-father attended any meetings
during the determinative period. As respondent-father noted, in the sixth
permanency-planning order, the trial court found that respondent-father had
participated in a Child and Family Team meeting on 3 November 2020. While the
trial court should have made findings concerning the dates of respondent-father’s
participation in the Child and Family Team meetings, any possible error is harmless
Although this determination is labeled as a conclusion of law, regardless of how this
determination is classified, “that classification decision does not alter the fact that the trial
court’s determination concerning the extent to which a parent’s parental rights in a child are
subject to termination on the basis of a particular ground must have sufficient support in the
trial court’s factual findings.” In re N.D.A., 373 N.C. at 76–77. As a result, we determine that
respondent-father’s assertion is erroneous, and we consider the extent to which the
evidentiary findings support the ultimate findings and conclusions below.
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because the evidence indicates his participation fell outside of the determinative
period. In re J.D.C.H., 375 N.C. 335, 342 (2020).
¶ 34 Respondent-father asserts “there was no evidence offered at the termination
adjudication hearing to support” the portions of findings of fact 39 and 40 indicating
that he never called Karl or provided gifts. Respondent-father acknowledges social
workers’ testimony that they were not aware of him ever calling Karl or sending Karl
any gifts, but he contends that “[n]ot being aware of something is not evidence that
it did not happen.” Respondent-father’s argument relies upon In re V.M.F., 209 N.C.
App. 204, 2011 N.C. App. Lexis 105, at *7 (2011) (unpublished), which he asserts “has
precedential value to a material issue in the instant case and there is no published
opinion that would serve as well.” Respondent-father’s reliance on In re V.M.F. is
misplaced, and because the case is readily distinguishable, we reject any argument
that it has precedential value.
¶ 35 At issue in In re V.M.F. was whether there was support for the finding that the
respondent’s attempt at legitimating his child occurred only after the filing of the
petition to terminate his parental rights. Id. at *6–7. The petitioner, the child’s
mother, had sought to establish that the respondent had filed an affidavit of paternity
after the termination petition. Id. at *4–5. At the adjudication hearing, the
respondent submitted evidence to establish that the affidavit was filed before the
termination petition. Id. at *7. Instead of presenting any evidence to the contrary,
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the petitioner testified “that she was not ‘aware’ of [the] respondent’s filing of an
affidavit of paternity prior to the filing of the petition and that she thought she
became ‘aware’ of the affidavit after the first court hearing.” Id. The Court of Appeals
concluded that this testimony could not establish that the respondent filed the
affidavit after the filing of the termination petition, and “[g]iven the absence of any
other evidence” indicating such, the trial court’s finding was not supported by clear,
cogent, and convincing evidence. Id.
¶ 36 Here, the only testimony concerning whether respondent-father ever called
Karl or provided any gifts was offered by the social workers on behalf of DSS. It was
respondent-father who failed to present any evidence to the contrary. Moreover, the
trial court did not rely solely upon the social workers’ testimony to support its finding.
The orders from the prior permanency-planning hearings were admitted into
evidence and considered by the court. In the first permanency-planning order,
entered on 30 August 2019, the trial court permitted monitored written and
supervised telephone communication between respondent-father and Karl. In each of
the following four permanency planning orders, the court found there had “been no
telephone contact or mail exchanges.”
¶ 37 It is well established that the trial court has the duty to determine the weight
and veracity of evidence and the reasonable inferences to be drawn therefrom. E.g.,
In re D.L.W., 368 N.C. 835, 843 (2016). It was reasonable for the trial court to find
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that respondent-father had never called Karl or provided him with any gifts. Findings
of fact 39 and 40 are supported by clear, cogent, and convincing evidence.
¶ 38 Respondent-father argues there is no evidence to support the portion of finding
of fact 41 that states he requested to leave early on the fourth day of the termination
hearing. We agree. Thus, we disregard that portion of the finding. In re N.G., 374
N.C. 891, 901 (2020).
¶ 39 Respondent-father further contends that the trial court failed to make
sufficient findings to establish that his conduct was willful, citing the Court of
Appeals’ decision In re D.M.O., 250 N.C. App. 570, 578 (2016). He asserts that the
court here failed to make findings related to his ability “to perform the conduct
underlying its conclusion.” He argues that “the trial court’s permission to call or write
does not mean that [he] had the ability or capacity to take those actions while he was
incarcerated.” He asserts that his conduct did “not manifest a willful determination
to forego all parental duties and relinquish all parental claims to Karl,” because he
“was present at most of the hearings,” he once requested in-person visitation, he
requested telephone communication after the trial court had rescinded that option,
and he had expressed a desire to “step up and be a father to his child upon his release.”
We disagree.
¶ 40 The majority of the evidence respondent-father mentions falls outside the
determinative six-month period. Thus, the trial court was permitted, but not
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required, to consider that evidence in determining respondent-father’s credibility and
intentions. In re N.D.A., 373 N.C. at 77. Respondent-father’s statement related to his
desire to parent Karl was introduced at the adjudication hearing, through the
testimony of a social worker reading from the initial disposition order. This order was
entered on 4 March 2019, a year before the start of the determinative period.
Respondent-father requested in-person visitation on 10 July 2019, eight months
preceding the beginning of the determinative period. “[M]ost of the hearings”
respondent-father referred to occurred before the determinative period: he was
present at the initial adjudication and disposition hearing held on 20 February 2019,
the review hearing held on 20 March 2019, and the permanency-planning hearings
held on 31 July 2019, 20 November 2019, and 4 March 2020. He was not present at
the permanency-planning hearing held on 22 June 2020, that took place during the
determinative period, or at the two hearings held on 23 September 2020 and 20
January 2021, after the determinative period. Following the 23 September 2020
hearing, the trial court revoked respondent-father’s right to contact Karl by
telephone. Respondent-father requested at the 3 November 2020 Child and Family
Team meeting that telephone contact be reinstated, and in the order entered after
the 20 January 2021 permanency-planning hearing, the court allowed additional
contact outside of mail exchange “in the discretion of [DSS] after consulting with the
juvenile and the juvenile’s therapist.”
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¶ 41 The trial court’s findings report that respondent-father “voluntarily decided”
not to attend the third day of the termination hearing, which respondent-father
argues is not an indication of abandonment. Regardless, as with the evidence cited
by respondent-father, the court was free to consider respondent-father’s request to be
excused from attending the hearing that day “in evaluating [his] credibility and
intentions.” In re N.D.A., 373 N.C. at 77 (quoting In re D.E.M., 257 N.C. App. at 619).
In a colloquy with the trial court, respondent-father indicated he preferred to work
his job assignment at the detention center rather than to attend the third day of the
hearing.
¶ 42 Respondent-father’s argument that the court was required to make findings
related to his ability to communicate with Karl is misplaced. The Court of Appeals’
decision in In re D.M.O. is neither binding on this Court nor applicable to the instant
case. The respondent in In re D.M.O. was incarcerated intermittently during the
course of the case, including for approximately five months of the determinative
period. 250 N.C. App. at 575. To support its conclusion that the respondent willfully
abandoned her child, the trial court found that during the determinative period the
respondent failed to attend the child’s sports games, failed to voluntarily visit her
child or attend court-ordered visitations, claimed that she sent two letters, sent “a
small number of” text messages during the periods she was not incarcerated, and
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“made attempts to call.” Id. at 573–75. The Court of Appeals concluded these findings
were insufficient because the trial
court never made findings addressing how [the
respondent’s] periodic incarceration at multiple jails,
addiction issues, or participation in a drug treatment
program while in custody might have affected her
opportunities to request and exercise visitation, to attend
games, or to communicate with [the child]. The trial court
made no findings establishing whether [the respondent]
had made any effort, had the capacity, or had the ability to
acquire the capacity, to perform the conduct underlying its
conclusion that [the respondent] abandoned [the child]
willfully.
Id. at 578.
¶ 43 Here, the trial court identified the “minimal efforts” that respondent-father
could have made while incarcerated to have a relationship with his son:
communicating with Karl by telephone or through mail by sending letters, cards, or
gifts. Unlike In re D.M.O., the trial court here looked to see if respondent-father took
actions that were available to him while he was incarcerated and made findings that
he failed to make any efforts at communication. The court’s findings indicate that
respondent-father never called Karl and never sent a letter, card, or gift while Karl
was in DSS care. While respondent-father was aware of the actions he could take, the
evidence and the findings of fact indicate that he was unwilling “to take any action
whatsoever to indicate that he had any interest in preserving his parental connection
with” Karl. In re A.G.D., 374 N.C. 317, 327 (2020). A social worker supervisor testified
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that she was unaware of any attempts by respondent-father to obtain the contact
information for Karl’s placements, and the trial court allowed flexibility for telephone
contact outside the specified times “as agreed upon by the caretaker.” Once the trial
court revoked telephone communication, respondent-father requested it be reinstated
because he “did not want to write any letters.”
¶ 44 The trial court’s findings of fact support the ultimate findings and conclusion
that respondent-father willfully abandoned Karl during the six months preceding the
filing of the petition. See In re M.S.A., 377 N.C. 343, 2021-NCSC-52, ¶¶8, 12
(concluding that the respondent’s failure to utilize “whatever means available” to him
to maintain a relationship with his child while he was incarcerated amounted to
willful abandonment); In re K.N.K., 374 N.C. 50, 54–55 (2020) (concluding that
termination was justified based on willful abandonment when the respondent had no
contact with the minor child, provided no financial support, and sent no cards, gifts,
or other tokens of affection not only during the determinative six-month period, but
at any point during the approximately three years preceding the filing of the
termination petition).
¶ 45 Thus, we conclude that the trial court did not err in adjudicating grounds to
terminate respondent-father’s parental rights for willful abandonment. See N.C.G.S.
§ 7B-1111(a)(7). Because an adjudication of one ground is sufficient to support a
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termination of parental rights, we do not address respondent-father’s arguments
challenging alternative grounds. E.g., In re A.R.A., 373 N.C. 190, 194 (2019).
C. Disposition Based On the Juvenile’s Best Interests
¶ 46 At the dispositional stage of a proceeding to terminate parental rights, the trial
court must “determine whether terminating the parent’s rights is in the juvenile’s
best interests.” N.C.G.S. § 7B-1110(a) (2021). In making its determination,
[t]he court may consider any evidence, including hearsay
evidence as defined in G.S. 8C-1, Rule 801, that the court
finds to be relevant, reliable, and necessary to determine
the best interests of the juvenile. In each case, the court
shall consider the following criteria and make written
findings regarding the following that are relevant:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid
in the accomplishment of the permanent plan for the
juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile
and the proposed adoptive parent, guardian,
custodian, or other permanent placement.
(6) Any relevant consideration.
Id.
¶ 47 “The trial court’s dispositional findings are binding on appeal if supported by
the evidence received during the termination hearing or not specifically challenged
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on appeal.” In re K.N.L.P., 380 N.C. 756, 2022-NCSC-39, ¶ 11 (citing In re S.C.C., 379
N.C. 303, 2021-NCSC-144, ¶ 22). “The trial court’s ultimate determination regarding
the child’s best interests is reviewed for abuse of discretion and will be reversed only
if it is ‘manifestly unsupported by reason or is so arbitrary that it could not have been
the result of a reasoned decision.’ ” In re N.B., 379 N.C. 441, 2021-NCSC-154, ¶ 11
(quoting In re T.L.H., 368 N.C. at 107).
1. Respondent-Mother
¶ 48 Respondent-mother argues that the trial court abused its discretion in
determining that termination of her parental rights was in Karl’s best interests.5 She
challenges the court’s findings of fact and its weighing of factors.
¶ 49 The trial court found that Karl had been in placement outside of the home for
over two years, “but to date no long term placement ha[d] been identified” for him.
The court further found that if Karl is free for adoption, “it is possible once additional
resources are available and used he would be adopted.” The court’s additional
findings included the following: While it was clear that Karl loved respondent-
mother, as the case progressed, “a level of mistrust” had developed between Karl and
his parents, “especially his mother.” Karl was placed at a residential psychiatric
treatment facility and had “been participating in therapy and [was] working to
5 Respondent-mother does not contest the trial court’s determination that it is in the
best interests of Jake and Pamela to terminate her parental rights.
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process his trauma and how to move forward.” Karl spoke with respondent-mother
over the telephone near the time of the termination hearing and “explained to her
how frustrated he was that she would not do what she needed to do to work her plan.”
After the phone call, Karl contacted his DSS social worker and explained that “he
recognized his mother ha[d] not done all she need[ed] to do to get him out of foster
care, and he asked [the social worker] to find him a forever home.” It was not in Karl’s
best interest to return to respondent-mother’s home. Although Karl had behavioral
issues, he was “working with [DSS] and his placement to help work through those
issues and move forward. [Karl] wants to find a forever home, one that accepts him
for him.”
¶ 50 In accordance with the statutory factors listed in N.C.G.S. § 7B-1110(a), the
trial court made the following findings in finding of fact 8:
A. The age of the juvenile: [Karl] is 9 years old.
B. The likelihood of adoption of the Juvenile: It is feasible
once [Karl] becomes free for adoption he will be adopted,
as he has a strong desire to find a forever home and
[DSS] can utilize additional resources to explore
adoptive placements. Moreover, [Karl] is making
progress in therapy to help address his behaviors, and
it is anticipated this progress will continue.
C. Whether the termination of parental rights will aid in
the accomplishment of the permanent plan for [Karl]:
The current plan for [Karl] is adoption. Said plan
cannot be completed and fully implemented unless the
parental rights of the mother and father are
terminated. Once [Karl] is cleared for adoption more
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resources will become available for [DSS] and [Karl] to
aid in finding his forever home.
D. The bond between the Juvenile and the parent: [Karl]
has a significant bond with his mother; however, [Karl]
is realizing the negative impact his mother has on him.
[Respondent-mother] often blamed [Karl] for [DSS]’s
involvement, and she refused to support him in a
number of his interests. . . . There is a level of mistrust
between [Karl] and his parents, especially his mother.
E. The quality of the relationship between the juvenile and
the proposed adoptive parent, guardian, custodian, or
other permanent placement: Although [Karl] is not in a
pre-adoptive home, he is open and willing to be adopted.
He is doing well in his structured placement, and he
wants to find a family he can call his own and never
have to move again.
F. Any other relevant matters and considerations: [Karl]
wants [his DSS social worker] to find him a forever
home. [Karl] wants and needs permanency and
stability, and the best way to achieve that is through
adoption.
¶ 51 Respondent-mother challenges finding of fact 8.D. as minimizing the bond
between Karl and herself. She contends that he is protective of her and that as the
social worker testified, if respondent-mother complied with her case plan, Karl
wanted to return to her home. Respondent-mother contends that the trial court relied
too heavily on Karl’s statements about this frustration with her.
¶ 52 During the disposition phase, a DSS social worker testified that Karl expressed
how he was upset with [respondent-mother], that he ha[d]
been in care for a very long time, and he did not understand
why she was not doing what she needed to do in order for
him to go home. . . . [H]e also stated that he was ready to
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move forward and he actually mentioned an adoptive
home.
....
Even though he’s the child, he would be very protective
over her. And he’s never hid the fact that he wanted to go
home. But in that conversation, he shared with me that he
was over it. That he was ready to leave foster care, and that
he felt like there were a lot of people . . . that was [sic]
willing to help her and she did not take the help.
¶ 53 The record supports the finding that a significant bond existed between Karl
and respondent-mother and the inferences that he realized the negative effect
respondent-mother’s behavior was having on him and that he was developing a
mistrust of respondent-mother. See In re A.A.M., 379 N.C. 167, 2021-NCSC-129, ¶ 22
(“We note that ‘[i]f different inferences may be drawn from the evidence, [the trial
judge] determines which inferences shall be drawn and which shall be rejected.’ ”
(alterations in original) (quoting Knutton v. Cofield, 273 N.C. 355, 359 (1968)). We
overrule respondent-mother’s challenge.
¶ 54 Respondent-mother also challenges the finding that termination of parental
rights in Karl would make his adoption feasible, even with the additional resources
available to DSS, such as stated in findings of fact 8.B. and C. Respondent-mother
contends that Karl’s “severe behavioral issues and mental health problems” suggest
“strongly” that he “was not a candidate for adoption.” She points to his history of
seventeen placements during twenty-eight months of DSS custody; his diagnoses
with oppositional defiant disorder, adjustment disorder with depressed mood,
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conduct disorder, post-traumatic stress disorder, and ADHD, and his reported visual
and auditory hallucinations; and his treatment at a psychiatric residential treatment
hospital at the time of the termination proceeding. Respondent-mother contends that
Karl was not going to be back in a foster home “any time soon, and the court’s finding
that termination would pave the way for DSS to place him for adoption was
unsupported.”
¶ 55 The record reflects that Karl came into DSS custody on 11 December 2018. His
seventeen placements, including hospitalizations, included two placements that
lasted for several months each. He was in a kinship placement from 21 December
2018 through October 2019 and in a therapeutic foster placement from October 2019
until September 2020. Between September 2020 and December 2020, he was placed
with another therapeutic foster family, had a relative placement, and was
hospitalized three times before being admitted to the psychiatric residential
treatment hospital in December 2020. He remained in the psychiatric hospital
through the date of the disposition hearing conducted on 26 April 2021. During the
disposition hearing, Karl’s DSS social worker testified that he was “doing great” at
the psychiatric hospital. He had been recognized as making progress on his
therapeutic goals for the prior twelve weeks, including having no incidents of defying
authority figures, and he had been getting along with peers, following the rules and
policies of placement, attending school, and meeting with his therapist. His history
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of one relative placement and one therapeutic placement, which both lasted almost a
year showed that Karl could maintain a placement. When he expressed that he did
not understand why respondent-mother had not taken the steps she needed to
accomplish in order for him to come home and that he was ready to move forward
toward an adoptive home, his social worker described this as a “[h]uge” step for him.
The social worker further related that Karl was “doing great” at school and “as long
as his home environment is stable, there are no concerns regarding his academics.”
The social worker explained that if the court terminated respondents’ parental rights
to Karl, DSS would register him on NC Kids—a national, adoptive website—as well
as make contact with adoption recruiter agencies and licensed foster parents within
DSS. The social worker, who had twelve years of experience, affirmed her belief that
there is “a likelihood” that Karl “could be adopted.”
¶ 56 The court’s findings that “[o]nce [Karl] is cleared for adoption more resources
will become available for [DSS] and [Karl] to aid in finding his forever home,” and
that “it is feasible . . . [Karl] will be adopted,” as stated in findings of fact 8.B. and C.,
are supported by the record. See Knutton, 273 N.C. at 359. Respondent-mother’s
challenge is overruled.
¶ 57 Respondent-mother argues that the termination of her parental rights will
result in the permanent deprivation of the “care of the most consistent adult in
[Karl’s] life and the person that he most wanted to be with.” Claiming that “Karl was
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unlikely to be adopted,” she asserts the trial court abused its discretion in
terminating her parental rights; however, respondent-mother’s unsupported
assertion is insufficient to establish an abuse of discretion. See generally In re
K.N.L.P., 2022-NCSC-39, ¶ 26 (“We . . . have repeatedly recognized that ‘the bond
between parent and child is just one of the factors to be considered under N.C.G.S. §
7B-1110(a), and the trial court is permitted to give greater weight to other factors.’ ”
(quoting In re Z.L.W., 372 N.C. 432, 437 (2019)). The trial court’s order reflects its
consideration of the dispositional factors set out in N.C.G.S. § 7B-1110(a)(1)–(5), as
well as other relevant circumstances as allowed under N.C.G.S. § 7B-1110(a)(6) and
indicates that the court performed a reasoned analysis weighing those factors. See In
re N.B., 2021-NCSC-154. The determination to terminate respondent-mother’s
parental rights to Karl appears neither manifestly unsupported by reason or so
arbitrary that it could not have been the result of a reasoned decision, and “this Court
lacks the authority to reweigh the evidence.” In re A.U.D., 373 N.C. 3, 12 (2019).
2. Respondent-Father
¶ 58 Respondent-father does not challenge the trial court’s dispositional findings of
fact, but he asserts the court abused its discretion in determining termination of his
parental rights was in Karl’s best interests. Relying on In re J.A.O., 166 N.C. App.
222 (2004), respondent-father asserts that Karl’s lack of a prospective adoptive
placement, based in part on his “many mental and medical issues,” and the benefits
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of Karl continuing a legal relationship with his natural relatives, require reversal of
the trial court’s determination.
¶ 59 We find this case to be distinguishable from In re J.A.O. At the time of the
termination hearing in that case, J.A.O. was “a troubled” fourteen-year-old who had
been shuffled through multiple treatment centers due to his significant physical,
mental, and behavioral disorders, yet showed no signs of improvement. Id. at 227.
But the respondent-mother was “connected to and interested in” him, and she had
made progress in correcting the conditions that led to the juvenile’s removal from her
care. Id. at 227–28. The guardian ad litem argued J.A.O. was unlikely to be a
candidate for adoption and that termination was not in his best interests because it
would “cut him off from any family that he might have.” Id. at 226–27. Under these
exceptional circumstances, the Court of Appeals concluded that the trial court had
abused its discretion in terminating the respondent’s parental rights. Id. at 227–28.
¶ 60 As noted above, Karl was nine years old at the time of the termination hearing,
and though he was residing in a psychiatric residential treatment facility, he was
making progress on his therapeutic goals. His history of some placements lasting
nearly a year showed that he would be capable of maintaining a long-term placement,
his social worker believed there was a possibility he would be adopted; and once he
was available for adoption, DSS would be able to engage more resources to find him
a permanent placement. While respondent-father seems to believe Karl would still be
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without a permanent placement by the time respondent-father was released from
prison in 2024, three years after entry of the trial court’s order, there is no evidence
to support such a conclusion. Moreover, unlike the respondent in In re J.A.O.,
respondent-father has no relationship with Karl. As we concluded above, the trial
court’s adjudication of willful abandonment is predicated on respondent-father’s
failure to “take any action whatsoever to indicate that he had any interest in
preserving his parental connection with” Karl. In re A.G.D., 374 N.C. at 327. Though
respondent-father touts “the stabilizing influence” and “sense of identity” Karl
obtains from natural relatives, neither benefit is supplied by respondent-father. His
social worker testified that while Karl had no relationship with respondent-father,
he maintained contact with his siblings and his former relative placement.
¶ 61 Accordingly, we conclude that the trial court properly considered the statutory
factors set forth in N.C.G.S. § 7B-1110(a) and did not abuse its discretion by
determining that termination of respondent-father’s parental rights was in Karl’s
best interests. See In re H.A.J., 377 N.C. 43, 2021-NCSC-26, ¶33.
III. Conclusion
¶ 62 The trial court did not abuse its discretion by not conducting an inquiry into
respondent-mother’s competency. See In re T.L.H., 368 N.C. at 108–09. Respondent-
mother does not challenge the adjudication of grounds to terminate her parental
rights, and the trial court’s findings of fact and conclusions of law support its
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adjudication of grounds to terminate respondent-father’s parental rights for willful
abandonment. The trial court did not abuse its discretion in determining that it was
in Karl’s best interests to terminate both respondents’ parental rights. Thus, we
affirm the trial court’s 25 May 2021 orders terminating respondent-mother’s parental
rights to Jake, Karl, and Pamela and respondent-father’s parental rights to Karl.
AFFIRMED.