IN THE MATTER OF: Cleveland County
D.W.P. No. 03 J 59
Cleveland County Department of Social Services, by Charles E.
Wilson, Jr., for petitioner-appellee.
Janet K. Ledbetter, for respondent-appellant.
JACKSON, Judge.
Cleveland County Department of Social Services (“DSS”) filed
a petition on 20 August 2003 which alleged that D.W.P. was a
neglected juvenile as to both his mother and father, Randy W.
(“respondent”). Following a hearing on 1 October 2003, the trial
court entered an adjudication and dispositional order in which it
concluded that D.W.P. was a neglected juvenile. In an order
entered on 24 May 2004, the trial court relieved DSS of its
reunification efforts and scheduled a permanency planning hearing
for 2 June 2004. After the hearing, the trial court sanctioned a
concurrent plan of reunification and adoption for D.W.P.
On 6 December 2004, DSS filed a petition to terminate the
parental rights of respondent and D.W.P.'s mother. DSS alleged
respondent had: (1) neglected D.W.P. pursuant to North CarolinaGeneral Statutes, section 7B-1111(a)(1) (2005); (2) willfully left
D.W.P. in foster care for more than twelve months (see North
Carolina General Statutes, section 7B-1111(a)(2)); and (3)
willfully failed to pay a reasonable portion of the cost of care
while D.W.P. had been placed in the custody of DSS (see North
Carolina General Statutes, section 7B-1111(a)(3)).
Following a hearing on 6 July 2005, the trial court found, in
part:
38. That [respondent] was employed
sporadically in the vinyl siding
business, and acknowledged that he was
not disabled and was physically able to
work.
39. That, except for periods of
incarceration, [respondent] was
physically and financially able to earn
income and provide support for the minor
child. [Respondent] was able to make
financial provisions for himself.
40. That [respondent] has not paid child
support for the juvenile during the
entire period the juvenile has been in
the custody of the Cleveland County
Department of Social Services.
. . . .
54. That the Court will therefore find as
fact and conclude as a matter of law that
the juvenile has been in the custody of
the Cleveland County Department of Social
Services and that [respondent], for at
least six months next preceding the
filing of this action, has willfully
failed to pay a reasonable portion of the
cost of care for the juvenile, although
physically and financially able to do so.
. . . .
61. That the respondent father is presently
incarcerated and will not be releaseduntil April 2006. He can not provide
safe and appropriate care for the
juvenile.
62. That the juvenile has very significant
special needs and will require care that
[respondent], beyond his current
incarceration, is unable to provide.
63. That the juvenile's needs are due to the
environment that he was exposed to prior
to coming into the Department's custody,
and environment created in part by
[respondent].
64. That [respondent] has not been able to
move himself past those conditions,
sufficient to overcome the shortcomings
of his environment and makeup to any
extend [sic] upon which the Court could
find that it would not be in the best
interest of the juvenile to terminate the
parental rights of [respondent].
65. That the Court, in its discretion,
therefore finds that it is in the best
interest of the minor child that the
parental rights of [respondent] be
terminated.
After concluding that sufficient grounds to terminate respondent's
parental rights existed under each of the three statutory
provisions alleged in the petition, and that it was in the best
interest of D.W.P. to terminate respondent's parental rights, the
trial court terminated respondent's parental rights.
Respondent appeals from the trial court's order of 18 July
2005 which terminated his parental rights to D.W.P. For the
reasons stated below, the trial court's order is affirmed.
In his first argument, respondent contends the trial court's
three separate grounds for termination are in error. This argument
is supported by a single assignment of error which encompassesthirty-four findings of fact and six conclusions of law. However,
Rule 10 of the North Carolina Rules of Appellate Procedure requires
that “[e]ach assignment of error shall, so far as practicable, be
confined to a single issue of law; and shall state plainly,
concisely and without argumentation the legal basis upon which
error is assigned.” N.C. R. App. P. 10(c)(1). When an assignment
of error attempts to present several separate questions of law, it
is ineffectual as a broadside assignment. See State v. McCoy, 303
N.C. 1, 19, 277 S.E.2d 515, 529 (1981). Because respondent's
supporting assignment of error for his first argument encompasses
three different cognizable and specific legal reasons why the trial
court allegedly erred, it is broadside and therefore ineffective.
See Isom v. Bank of America, N.A., ___ N.C. App. ___, ___, 628
S.E.2d 458, 464 (2006) (appeal dismissed when “broadside assignment
of error encompasse[d] at least three, if not more, cognizable and
specific legal reasons why the trial court erred.”). Given the
potential consequences of counsel's failure to assign error
properly, this Court nevertheless in its discretion invokes Rule 2
of our appellate rules in order “[t]o prevent manifest injustice”
and reviews the trial court's termination of respondent's parental
rights. N.C. R. App. P. 2.
The trial court's decision to terminate respondent's parental
rights was based in part upon the ground found in North Carolina
General Statutes, section 7B-1111(a)(3), which provides that
[t]he juvenile has been placed in the custody
of a county department of social services
. . . and the parent, for a continuous period
of six months next preceding the filing of thepetition or motion, has willfully failed for
such period to pay a reasonable portion of the
cost of care for the juvenile although
physically and financially able to do so.
N.C. Gen. Stat. § 7B-1111(a)(3) (2005). The trial court found that
respondent had been employed sporadically during the time in which
D.W.P. was in the custody of DSS, and that respondent had
acknowledged both that he was not disabled and that he was
physically able to work. After finding that respondent “was
physically and financially able to earn income and provide support
for the minor child” and “was able to make financial provisions for
himself[,]” the trial court found respondent had not paid child
support since the child had been in DSS' custody. At the time of
the trial court's order, the child had been in DSS' custody for
more than twenty-three months. Clear, cogent and convincing
evidence in the form of respondent's own testimony, and of the
trial court's prior orders in the record on appeal, support these
findings of fact. We hold that these findings and the others set
forth in the trial court's order support its conclusion that
grounds to terminate existed pursuant to section 7B-1111(a)(3).
Because grounds for termination have been established under section
7B-1111(a)(3), respondent's remaining arguments regarding the
additional two grounds relied upon by the trial court under section
7B-1111(a)(1) and (2) need not be addressed. See In re Bradshaw,
160 N.C. App. 677, 682-83, 587 S.E.2d 83, 87 (2003).
Once a statutory ground for termination of parental rights has
been established, terminating a parent's rights is within the trial
court's discretion. See In re McMillon, 143 N.C. App. 402, 408,546 S.E.2d 169, 174, disc. review denied, 354 N.C. 218, 554 S.E.2d
341 (2001). In the instant case, the trial court observed that
D.W.P. had “very significant special needs” for which respondent
was unable to provide, and which were due to an environment created
in part by respondent. After finding respondent had not been able
to “overcome the shortcomings of his environment and makeup to any
extend [sic] upon which the Court could find that it would not be
in the best interest of the juvenile to terminate” respondent's
parental rights, the trial court found it was in the child's best
interest to terminate respondent's parental rights. As these
findings and others established by the balance of the record
demonstrate, the trial court did not abuse its discretion by
concluding it was in the best interests of the child that
respondent's parental rights be terminated. This assignment of
error is overruled, and the trial court's order is affirmed.
Affirmed.
Chief Judge MARTIN and Judges CALABRIA concur.
Report per Rule 30(e).
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