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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA07-817

NORTH CAROLINA COURT OF APPEALS

Filed: 4 December 2007

IN RE:                        Harnett County
R.G.J.                        No. 05 J 208

    Appeal by respondent father from order entered 20 April 2007 by Judge Albert A. Corbett, Jr., in Harnett County District Court. Heard in the Court of Appeals 15 November 2007.

    E. Marshall Woodall and Duncan B. McCormick, for petitioner- appellee Harnett County Department of Social Services.

    Elizabeth Boone, for Guardian ad Litem.

    The Turrentine Group, PLLC, by Karlene Scott-Turrentine, for respondent-appellant.


    TYSON, Judge.

    R.G. (“respondent”) appeals from order entered terminating his parental rights to his minor child, R.G.J. We affirm.

I. Background

    On 23 November 2005, the Harnett County Department of Social Services (“DSS”) filed a petition alleging R.G.J. was a neglected juvenile, based on evidence that he lived in an environment injurious to his welfare. The petition stated:
        [R.G.J.]'s sibling has suffered serious injuries to include a subdural hematoma, a left femur fracture and bilateral rib fractures in various stages of healing. There is not a reasonable explanation as to how the sibling got injured. There has been recent domestic violence in the home between the mother and [R.G.J.'s sibling's father] in the presence of the children. That incident involved a knife. The mother moves around alot and has had trouble maintaining stable living arrangements.

    The trial court entered an order for nonsecure custody authorizing DSS to place R.G.J. in a licensed foster home or in respondent's home. DSS placed R.G.J. in respondent's home under an agreement, in which respondent agreed he would supervise any visitation between R.G.J. and R.G.J.'s mother. On 18 January 2006, DSS removed R.G.J. from respondent's home after he failed to supervise visitation between R.G.J. and R.G.J.'s mother.
    On 23 March 2006, the trial court adjudicated R.G.J. to be a neglected juvenile by his mother. In its dispositional order filed 12 May 2006, the trial court: (1) awarded custody of R.G.J. to DSS; (2) determined that a return to respondent would be contrary to R.G.J.'s welfare; and (3) established a plan of reunification with respondent and R.G.J.'s mother.
    On 7 July 2006, the trial court held a permanency planning review hearing. In its order filed 2 February 2007, the trial court found and ordered the reunification plan be changed to a plan of adoption and that visitation by respondent and R.G.J.'s mother should cease. Respondent gave oral notice to preserve his right to appeal this order.
    On 30 August 2006, DSS filed a motion to terminate respondent's parental rights. The termination hearing was held 16 February 2007. On 20 April 2007, the trial court entered its order terminating both respondent's and R.G.J.'s mother's parental rights. Respondent appeals.
II. Issues
    Respondent argues the trial court erred by: (1) ordering DSS to cease reunification efforts and to establish a plan of adoption and (2) entering findings of fact numbered 9, 12, 27, 28, 29, 31, 34, 36, and 38 and conclusions of law numbered 5, 6, and 8.
III. Standard of Review

    “On appeal, our standard of review for the termination of parental rights is whether the trial court's findings of fact are based upon clear, cogent, and convincing evidence and whether the findings support the conclusions of law. The trial court's conclusions of law are reviewable de novo on appeal.” In re J.N.S., ___ N.C. App. ___, ___, 637 S.E.2d 914, 915 (2006) (internal quotations omitted).
IV. Reunification Efforts and Plan of Adoption

    Respondent argues the trial court erred when it ordered DSS to cease reunification efforts and establish a plan of adoption for R.G.J. only three months after the trial court adjudicated R.G.J. neglected. We dismiss this assignment of error.
    Rule 3 of the North Carolina Rules of Appellate Procedure governs the notice of appeal in termination of parental rights cases. In re I.S., 170 N.C. App. 78, 84, 611 S.E.2d 467, 471 (2005). “Failure to comply with the requirements of Rule 3 of our Rules of Appellate Procedure requires the dismissal of the appeal as this rule is jurisdictional.” Id. (citation omitted). “Without proper notice of appeal, the appellate court acquires no jurisdiction and neither the court nor the parties may waive the jurisdictional requirements even for good cause shown under Rule2.” Bromhal v. Stott, 116 N.C. App. 250, 253, 447 S.E.2d 481, 483 (1994) (citation omitted), aff'd, 341 N.C. 702, 462 S.E.2d 219 (1995).
    Rule 3(d) of the North Carolina Rules of Appellate Procedure states: “[t]he notice of appeal required to be filed and served by subdivision (a) of this rule . . . shall designate the judgment or order from which appeal is taken . . . .” N.C.R. App. R. 3(d) (2008) (emphasis supplied). Here, respondent's notice of appeal states: “[r]espondent . . . hereby gives notice of appeal to the Court of Appeals of North Carolina from the order of termination of parental rights entered on April 20, 2007 . . . .” Respondent's appeal only designates the trial court's termination order entered 20 April 2007, and does not include his oral notice of appeal from the order entered 2 February 2007 to which respondent purports to assign error here.
    This assignment of error is not properly before this Court based on respondent's Appellate Rule 3 violation. This Court acquired no jurisdiction to review the trial court's 2 February 2007 order based on respondent's failure to appeal from that order. Id. This assignment of error is dismissed.
V. Findings of Fact and Conclusions of Law

    Respondent argues the trial court erred by entering findings of fact numbered 9, 12, 27, 28, 29, 31, 34, 36, and 38 and conclusions of law numbered 5, 6, and 8 because the findings cannot “be supported by the evidence prior to the March court date or following the July court date.”    Respondent's brief also challenged findings of fact numbered 11, 13, 17, 32, and 35. Respondent failed to assign error to these findings of fact. “If unchallenged on appeal, findings of fact 'are deemed supported by competent evidence' and are binding upon this Court.” In re J.M.W., ___ N.C. App. ___, ___, 635 S.E.2d 916, 919 (2006) (quoting In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003)). These findings of fact together with all remaining unchallenged findings of fact “are deemed supported by competent evidence and are binding upon this Court.” Id. (internal quotation omitted).
A. Finding of Fact Numbered 9

    The trial court's finding of fact numbered 9 states:
        9.    On March 23, 2006 with consent of the parents who were present, the court adjudicated the juvenile as a neglected juvenile in that the parents had allowed the juvenile to live in an environment injurious to his welfare and that he did not receive proper care and supervision from his parents.

    Finding of fact numbered 9 is not supported by clear, cogent, and convincing evidence. On 23 March 2006, the trial court adjudicated R.G.J. to be a neglected juvenile against his mother only. Respondent was never adjudicated to have neglected R.G.J. prior to the trial court's 20 April 2007 order. The trial court's finding of fact numbered 9 is not supported by clear, cogent, and convincing evidence. The trial court erred by entering finding of fact numbered 9.
B. Remaining Findings of Fact

    The trial court's remaining challenged findings of fact state:        12.    At a permanency planning hearing on July 7, 2006, the court continued custody of the juvenile with DSS, ceased further efforts by DSS on a plan of reunification, and established a plan of adoption for the juvenile.

        . . . .

        27.    Under his FSA, the father was to obtain and maintain employment, enroll in and complete parenting classes through the Pride program and support the juvenile. He has been, throughout the time of this proceeding, employed. At the time of the review hearing on July 7, 2006, he had not attended parenting classes. After the adjudication/disposition hearing in March, 2006, the father went to New York and did not make contact with the social worker [except for 2 brief calls]. He did not provide any support for his child. He failed to comply with any provision of the FSA as of the time of the July 7, 2006 permanency planning hearing.

        28.    As of July 7, 2006, the parents had a chance to make progress on the plan of reunification but fell woefully short. They had made only minimal efforts on their respective plans. They had failed to make reasonable progress on removing the conditions which existed at the time of the filing of these proceedings or in the alternative to demonstrate to the court within a reasonable time that they would be able to safely and appropriately parent the juvenile if returned to their custody. The parents failed to demonstrate any effective cooperation with DSS on the plan of reunification. The respondent parents failed to improve the likelihood of being able to parent the juvenile within a reasonable time.

        29.    As of July 7, 2006, DSS was released of efforts to work with the parents on a plan of reunification.

        . . . .
        31.    Since July 7, 2006, the father has contacted the social worker several times about the juvenile during the months of July, August and September 2006, completed parenting classes in Wake County and begun paying child support under a voluntary support agreement entered into by the father. The father had been aware or in the alternative should have been aware of the injurious environment in which the juvenile had been living while in the care of the mother. After the child's placement in the father's home [shortly after this proceeding was filed] with specific instruction of supervised visitation for the mother, the father violated the instruction [court ordered]. As a result, the child was removed from the father's home and care. Afterwards the father was not cooperative with DSS and the court, especially on a plan to reunite the child with him. The juvenile has visited with the father; however, his principal caretaker was the mother. It is not likely that the father will now become an appropriate parent for the juvenile within a reasonable time.

        . . . .

        34.    During the period of six (6) months immediately prior to the filing of the motion to terminate parental rights, the father did not pay any amount to defray the cost of his child's care. The father has been employed during the time the child has been in care. While he was in New York, he earned from $300 to $350 per week. He testified that he had other bills to pay. The father could have paid some amount and his failure to do so is willful. The payment of zero is not a reasonable amount to be paid for the cost his child's care. When he paid nothing, he failed to contribute a reasonable portion of the child's support - especially during the six month period immediately prior to the filing of the motion to terminate his parental rights.

        . . . .
        36.    The father had the opportunity to work with the social worker in planning for his child. He did not. The mother had the opportunity to participate in services offered to her through DSS efforts and as well to work with the social worker in planning for her child. She did not. Their actions were voluntary and therefore willful.

        . . . .

        38.    There is no positive relationship between the parents and their child - they have not visited for more than six (6) months. The mother had a final visit after July 7, 2006; the father had a final visit on July 12, 2006.

    After a thorough review of the record and transcript, we hold finding of fact numbered 34 is not supported by clear, cogent, and convincing evidence. The record on appeal and finding of fact numbered 31 support the fact that respondent has paid some money to “defray the cost of his child's care.” Between 12 July 2006 and DSS's filing of the motion to terminate respondent's parental rights, the record shows respondent purchased several items for R.G.J. The trial court's finding of fact numbered 34 is not supported by clear, cogent, and convincing evidence. The trial court erred by entering finding of fact numbered 34. Findings of fact numbered 12, 27, 28, 29, 31, 36, and 38 are supported by clear, cogent, and convincing evidence. The trial court did not err by entering these findings.
C. Conclusions of Law

    The trial court's challenged conclusions of law state:
        5.    Grounds exist for the termination of the parental rights of the respondent father to the juveniles pursuant to N.C. Gen.Stat. 7B-1111(a)(1) [he neglected the juvenile], and (2) [the child has been left in the custody of the Department of Social Services and the father, for a continuous period of six (6) months next preceding the filing of this motion to terminate, has willfully failed for said period to pay a reasonable portion of the cost of care for the child although physically and financially able to do so].

        6.    Neglect of the juvenile by the father has continued to the present and/or in the alternative, neglect is likely to continue if the juvenile were returned to and placed in his custody.

        . . . .

        8.    It is in the best interest of the juvenile to terminate the parental rights of the father.

(Alterations in original).
    The trial court found two independent bases for terminating respondent's parental rights: (1) neglect and (2) failure to pay a reasonable portion of the cost of care. A finding and conclusion of any one of the statutory grounds enumerated in N.C. Gen. Stat. § 7B-1111(a) is sufficient to support a termination of parental rights. N.C. Gen. Stat. § 7B-1111(a) (2005).
1. N.C. Gen. Stat. § 7B-1111(a)(1)

    N.C. Gen. Stat. § 7B-1111 (2005) states:
        (a) The court may terminate the parental rights upon a finding of one or more of the following:

                    (1) The parent has abused or neglected the juvenile. The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be . . . a neglected juvenile within the meaning of G.S. 7B-101.
    “A finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding.” In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997) (citing In re Ballard, 311 N.C. 708, 716, 319 S.E.2d 227, 232 (1984)). If the child has been removed from the parents' custody before the termination hearing and DSS presents evidence of prior neglect including an adjudication of such neglect, then “[t]he trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect.” In re Ballard, 311 N.C. at 715, 319 S.E.2d at 232.
    Reviewing the trial court's conclusions of law that grounds exist to terminate respondent's pursuant to N.C. Gen. Stat. § 7B- 1111(a)(1) (neglect) and its conclusions of law numbered 6 and 8, we hold the trial court's remaining findings of fact supported by clear, cogent, and convincing evidence support these conclusions of law. In re J.N.S., ___ N.C. App. at ___, 637 S.E.2d at 915. This assignment of error is overruled. In light of our holding, we need not determine whether the trial court's conclusion that grounds exist to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(3) (failure to pay a reasonable portion of the cost of care) was erroneous.
V. Conclusion

    Respondent failed to include in his notice of appeal the trial court's 2 February 2007 order. This Court does not have jurisdiction to review the 2 February 2007 order as a result ofthis failure. Respondent's assignment of error challenging the 2 February 2007 order is dismissed.
    The trial court's findings of fact numbered 12, 27, 28, 29, 31, 36, and 38 in the termination order are supported by clear, cogent, and convincing evidence. The trial court did not err by entering these findings. The trial court's findings of fact numbered 9 and 34 are not supported by clear, cogent, and convincing evidence. The trial court erred by entering findings of fact numbered 9 and 34.
    The trial court's remaining findings of fact are supported by clear, cogent, and convincing evidence, which supports its conclusion of law that grounds exist to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) and conclusions of law numbered 6 and 8. The trial court's order entered 20 April 2007 is affirmed.
    Affirmed.
    Judges JACKSON and STROUD concur.
    Report per Rule 30(e).

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