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
R.G. (respondent) appeals from order entered terminating his
parental rights to his minor child, R.G.J. We affirm.
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
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.
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
, ___ 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
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.
. 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
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
. . . .
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
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
(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
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
, 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.
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.
Judges JACKSON and STROUD concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***