An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-854 NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
IN THE MATTER OF:
D.D.D., D.D.D., Cherokee County K.D.D., K.A.D. Nos. 02 JT 59-60 08 JT 38-39
On writ of certiorari from orders entered 22 March 2013 by
Judge Richard K. Walker in District Court, Cherokee County.
Heard in the Court of Appeals 7 January 2014.
Hyde, Hoover & Lindsay, by R. Scott Lindsay, for Petitioner-Appellee Cherokee County Department of Social Services.
Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson, for Respondent-Appellant Father.
Womble Carlyle Sandridge & Rice, LLP, by Theresa M. Sprain and Carolyn C. Pratt, for Guardian ad Litem.
McGEE, Judge.
This matter is before this Court for the second time. We
previously reversed the 2010 orders terminating the parental
rights of Respondent-Father. In re D.D.D., COA11-114, 214 N.C.
App. 560, 714 S.E.2d 866 (2011) (unpublished) (“DDD I”). In DDD -2- I, the trial court concluded the evidence supported four grounds
to terminate Respondent-Father’s parental rights: neglect;
willful failure to make reasonable progress; failure to pay the
cost of care; and commission of sexual assault. Id., slip op.
at 2-3.
This Court reversed on all four grounds in DDD I. On
neglect, we held the trial court could not rely solely on a
prior adjudication of neglect. The trial court also failed to
make findings addressing the likelihood of repetition of
neglect. Id., slip op. at 10-11. On willful failure to make
reasonable progress, the trial court failed to make findings
addressing Respondent-Father’s attempt to correct the conditions
that led to the removal of the juveniles from the home. Id.,
slip op. at 12. On failure to pay cost of care, Cherokee County
Department of Social Services (“DSS”) did not allege that ground
in the termination petitions. Id., slip op. at 12-13. On
assault, Respondent-Father’s conviction for indecent liberties
was insufficient to support the termination. Id., slip op. at
14-15. This Court concluded that “none of the grounds alleged
by DSS [were] supported by the findings of fact,” and reversed
and remanded the matter to the trial court for further findings
of fact. Id., slip op. at 15. -3- On remand, a hearing was held by the trial court on 19
December 2011 and additional testimony was received from David
Layfield (“Layfield”), a social worker; Donna Pendergrass
(“Pendergrass”), a supervisor in the foster care unit for DSS;
and Respondent-Father. Layfield testified about the lack of
contact between Respondent-Father and the juveniles.
Pendergrass also testified about the lack of contact between
Respondent-Father and the juveniles. Respondent-Father
testified about his appeal from his criminal conviction.
The trial court entered an order on 22 March 2013,
terminating Respondent-Father’s parental rights as to each of
the juveniles on the grounds of neglect, abuse, willful failure
to make reasonable progress, and failure to pay a reasonable
portion of the cost of care. Respondent-Father filed notices of
appeal from the orders terminating his parental rights on 29 May
2013.
Respondent-Father filed a petition for writ of certiorari
on 30 August 2013, acknowledging the following defects in his
notices of appeal: (1) his notices of appeal were not timely
filed; and (2) Respondent-Father failed to sign the notices of
appeal. Untimely notice of appeal and failure to have the notice
of appeal signed by the appellant subject an appeal to -4- dismissal. N.C.R. App. P. 3.1(a); In re I.T.P-L., 194 N.C. App.
453, 459, 670 S.E.2d 282, 285 (2008). Nevertheless, when the
record indicates the parent desired to appeal and cooperated
with counsel’s efforts to give proper notice of appeal, this
Court has exercised its discretion to issue the writ of
certiorari to review a termination order. Id. at 459-60, 670
S.E.2d at 285. Because it appears Respondent-Father desired to
appeal and cooperated with counsel’s efforts to enter notice of
appeal, we allow Respondent-Father’s petition for writ of
certiorari.
Respondent-Father argues the trial court erred in
adjudicating neglect as a ground to terminate Respondent-
Father’s parental rights “where its findings were practically
identical to its findings in the prior order[.]” The trial
court made the following additional findings in support of the
ground of neglect in its 22 March 2013 orders:
46. [Respondent-Father] earned a minimal hourly wage for work he performs while incarcerated in the North Carolina Department of Corrections.
47. [Respondent-Father] has also received gifts of money from relatives and friends since he has been incarcerated in the North Carolina Department of Corrections.
48. Any money earned by [Respondent-Father] or gifts of money received by him while he -5- has been incarcerated in the North Carolina Department of Corrections has been used for his personal needs. He has provided no support or gifts to his children while he has been incarcerated.
49. While [Respondent-Father] has been incarcerated in the Cherokee County Detention Center and in the North Carolina Department of Corrections, he has not contacted the Department to inquire about his children or how they were progressing.
50. While [Respondent-Father] has been incarcerated in the Cherokee County Detention Center and in the North Carolina Department of Corrections, he has not sent any letters to his children or to the Department to inquire about his children.
51. While [Respondent-Father] has been incarcerated in the Cherokee County Detention Center and in the North Carolina Department of Corrections, he has not sent any birthday cards, Christmas cards or gifts of any kind to his children.
52. While [Respondent-Father] has been incarcerated in the Cherokee County Detention Center and in the North Carolina Department of Corrections, he has not made any telephone calls to his children or to the Department to inquire about his children.
53. That [the juvenile] had been in [DSS] custody and in foster care for fifteen and one-half (15 ½) continuous, uninterrupted months prior to the filing of the Petition for Termination of Parental Rights on December 15, 2009.
54. [Respondent-Father] has neglected the child within the meaning of G.S. § 7B- -6- 101(15) not due solely to poverty and said neglect is ongoing and likely to continue.
Respondent-Father does not challenge the findings as
lacking support, and our review of the transcript indicates that
evidence does support the trial court’s findings; instead,
Respondent-Father argues that the trial court erred by merely
repeating its prior findings from the 2010 order. However, the
trial court’s findings in its 22 March 2013 orders, while
similar, are not identical to the trial court’s previous
findings.
“The determinative factors must be the best interests of
the child and the fitness of the parent to care for the child at
the time of the termination proceeding.” In re P.L.P., 173 N.C.
App. 1, 10, 618 S.E.2d 241
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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. COA13-854 NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
IN THE MATTER OF:
D.D.D., D.D.D., Cherokee County K.D.D., K.A.D. Nos. 02 JT 59-60 08 JT 38-39
On writ of certiorari from orders entered 22 March 2013 by
Judge Richard K. Walker in District Court, Cherokee County.
Heard in the Court of Appeals 7 January 2014.
Hyde, Hoover & Lindsay, by R. Scott Lindsay, for Petitioner-Appellee Cherokee County Department of Social Services.
Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson, for Respondent-Appellant Father.
Womble Carlyle Sandridge & Rice, LLP, by Theresa M. Sprain and Carolyn C. Pratt, for Guardian ad Litem.
McGEE, Judge.
This matter is before this Court for the second time. We
previously reversed the 2010 orders terminating the parental
rights of Respondent-Father. In re D.D.D., COA11-114, 214 N.C.
App. 560, 714 S.E.2d 866 (2011) (unpublished) (“DDD I”). In DDD -2- I, the trial court concluded the evidence supported four grounds
to terminate Respondent-Father’s parental rights: neglect;
willful failure to make reasonable progress; failure to pay the
cost of care; and commission of sexual assault. Id., slip op.
at 2-3.
This Court reversed on all four grounds in DDD I. On
neglect, we held the trial court could not rely solely on a
prior adjudication of neglect. The trial court also failed to
make findings addressing the likelihood of repetition of
neglect. Id., slip op. at 10-11. On willful failure to make
reasonable progress, the trial court failed to make findings
addressing Respondent-Father’s attempt to correct the conditions
that led to the removal of the juveniles from the home. Id.,
slip op. at 12. On failure to pay cost of care, Cherokee County
Department of Social Services (“DSS”) did not allege that ground
in the termination petitions. Id., slip op. at 12-13. On
assault, Respondent-Father’s conviction for indecent liberties
was insufficient to support the termination. Id., slip op. at
14-15. This Court concluded that “none of the grounds alleged
by DSS [were] supported by the findings of fact,” and reversed
and remanded the matter to the trial court for further findings
of fact. Id., slip op. at 15. -3- On remand, a hearing was held by the trial court on 19
December 2011 and additional testimony was received from David
Layfield (“Layfield”), a social worker; Donna Pendergrass
(“Pendergrass”), a supervisor in the foster care unit for DSS;
and Respondent-Father. Layfield testified about the lack of
contact between Respondent-Father and the juveniles.
Pendergrass also testified about the lack of contact between
Respondent-Father and the juveniles. Respondent-Father
testified about his appeal from his criminal conviction.
The trial court entered an order on 22 March 2013,
terminating Respondent-Father’s parental rights as to each of
the juveniles on the grounds of neglect, abuse, willful failure
to make reasonable progress, and failure to pay a reasonable
portion of the cost of care. Respondent-Father filed notices of
appeal from the orders terminating his parental rights on 29 May
2013.
Respondent-Father filed a petition for writ of certiorari
on 30 August 2013, acknowledging the following defects in his
notices of appeal: (1) his notices of appeal were not timely
filed; and (2) Respondent-Father failed to sign the notices of
appeal. Untimely notice of appeal and failure to have the notice
of appeal signed by the appellant subject an appeal to -4- dismissal. N.C.R. App. P. 3.1(a); In re I.T.P-L., 194 N.C. App.
453, 459, 670 S.E.2d 282, 285 (2008). Nevertheless, when the
record indicates the parent desired to appeal and cooperated
with counsel’s efforts to give proper notice of appeal, this
Court has exercised its discretion to issue the writ of
certiorari to review a termination order. Id. at 459-60, 670
S.E.2d at 285. Because it appears Respondent-Father desired to
appeal and cooperated with counsel’s efforts to enter notice of
appeal, we allow Respondent-Father’s petition for writ of
certiorari.
Respondent-Father argues the trial court erred in
adjudicating neglect as a ground to terminate Respondent-
Father’s parental rights “where its findings were practically
identical to its findings in the prior order[.]” The trial
court made the following additional findings in support of the
ground of neglect in its 22 March 2013 orders:
46. [Respondent-Father] earned a minimal hourly wage for work he performs while incarcerated in the North Carolina Department of Corrections.
47. [Respondent-Father] has also received gifts of money from relatives and friends since he has been incarcerated in the North Carolina Department of Corrections.
48. Any money earned by [Respondent-Father] or gifts of money received by him while he -5- has been incarcerated in the North Carolina Department of Corrections has been used for his personal needs. He has provided no support or gifts to his children while he has been incarcerated.
49. While [Respondent-Father] has been incarcerated in the Cherokee County Detention Center and in the North Carolina Department of Corrections, he has not contacted the Department to inquire about his children or how they were progressing.
50. While [Respondent-Father] has been incarcerated in the Cherokee County Detention Center and in the North Carolina Department of Corrections, he has not sent any letters to his children or to the Department to inquire about his children.
51. While [Respondent-Father] has been incarcerated in the Cherokee County Detention Center and in the North Carolina Department of Corrections, he has not sent any birthday cards, Christmas cards or gifts of any kind to his children.
52. While [Respondent-Father] has been incarcerated in the Cherokee County Detention Center and in the North Carolina Department of Corrections, he has not made any telephone calls to his children or to the Department to inquire about his children.
53. That [the juvenile] had been in [DSS] custody and in foster care for fifteen and one-half (15 ½) continuous, uninterrupted months prior to the filing of the Petition for Termination of Parental Rights on December 15, 2009.
54. [Respondent-Father] has neglected the child within the meaning of G.S. § 7B- -6- 101(15) not due solely to poverty and said neglect is ongoing and likely to continue.
Respondent-Father does not challenge the findings as
lacking support, and our review of the transcript indicates that
evidence does support the trial court’s findings; instead,
Respondent-Father argues that the trial court erred by merely
repeating its prior findings from the 2010 order. However, the
trial court’s findings in its 22 March 2013 orders, while
similar, are not identical to the trial court’s previous
findings.
“The determinative factors must be the best interests of
the child and the fitness of the parent to care for the child at
the time of the termination proceeding.” In re P.L.P., 173 N.C.
App. 1, 10, 618 S.E.2d 241 (2005), aff’d per curiam, 360 N.C.
360, 625 S.E.2d 779 (2006). As a preliminary matter, we note
that, in addition to the findings quoted above, the trial court
also made findings that Respondent-Father has been incarcerated
since 3 November 2008; that Respondent-Father pled guilty to six
felony counts of taking indecent liberties with a child and was
sentenced to two consecutive terms of imprisonment of not less
than 21 months and not more than 26 months; and that Respondent-
Father is under a “no contact” order that prevented any case -7- plan being developed for him and prevented him from having
contact with any of his children.
In In re P.L.P., the trial court terminated the father’s
parental rights and found that the father “(1) ‘could have
written’ but did not do so; (2) ‘made no efforts to provide
anything for the minor child’; (3) ‘has not provided any love,
nurtur[ing] or support for the minor child’; and (4) ‘would
continue to neglect the minor child if the child was placed in
his care[.]’” Id. at 10-11, 618 S.E.2d at 247 (alterations in
original).
Similarly, in the present case, the trial court’s findings
quoted above indicate that Respondent-Father has made no efforts
to provide financial support for the juveniles, despite having
the resources to do so and that Respondent-Father would continue
to neglect the children in the future. The findings in the
trial court’s 22 March 2013 orders regarding neglect are
substantially similar to the findings in In re P.L.P.
Therefore, we conclude that the trial court did not err in
adjudicating neglect as a ground to terminate Respondent-
Father’s parental rights.
Because we determine there exists “at least one ground to
support a conclusion that parental rights should be terminated, -8- it is unnecessary to address the remaining grounds.” Id. at 8,
618 S.E.2d at 246. We therefore do not address Respondent-
Father’s remaining arguments on appeal.
Affirmed.
Judges McCULLOUGH and DILLON concur.
Report per Rule 30(e).