In re K.M.S.
This text of In re K.M.S. (In re K.M.S.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-6
No. 302A21
Filed 11 February 2022
IN THE MATTER OF: K.M.S.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 27 May
2021 by Judge John K. Greenlee in District Court, Gaston County. This matter was
calendared for argument in the Supreme Court on 22 December 2021 but determined
on the record and brief without oral argument pursuant to Rule 30(f) of the North
Carolina Rules of Appellate Procedure.
No brief filed for petitioner-appellee mother.
No brief filed for appellee Guardian ad Litem.
W. Michael Spivey for respondent-appellant father.
NEWBY, Chief Justice.
¶1 Respondent-father appeals from the trial court’s order terminating his
parental rights to K.M.S. (Alice).1 Counsel for respondent filed a no-merit brief under
Rule 3.1(e) of the North Carolina Rules of Appellate Procedure. We conclude that the
two issues identified by counsel in respondent’s brief as arguably supporting the
appeal are meritless, and we therefore affirm the trial court’s order.
1 A pseudonym is used in this opinion to protect the juvenile’s identity and for ease of
reading. IN RE K.M.S.
Opinion of the Court
¶2 This case arises from a private termination action filed by petitioner, Alice’s
mother. Petitioner and respondent, Alice’s father, met when petitioner was a senior
in high school. Immediately after finishing high school, petitioner and respondent
moved into an apartment, where they lived together for approximately nine months.
Three months after she moved out of the apartment and about six weeks after she
and respondent were no longer in a relationship, petitioner learned she was pregnant.
The parties never married, though petitioner told respondent about the pregnancy.
Respondent was unemployed while petitioner was pregnant. Respondent was present
at Alice’s birth on 23 June 2013, but no father is listed on Alice’s birth certificate.
Alice has lived with petitioner since her birth.
¶3 Respondent bought diapers for Alice when she was an infant. Respondent also
testified that he provided formula, which petitioner contested. Respondent also made
one car payment for petitioner. By the time Alice was one year old, respondent and
petitioner’s relationship “totally cease[d].” A year and a half after Alice was born,
petitioner obtained a Chapter 50B restraining order against respondent because “[h]e
was mentally abusive” and “was constantly in a rage and upset.” Around the same
time, respondent allegedly “tried to sign up [to pay child support] at [the Gaston
County Department of] Social Services and didn’t know [petitioner]’s address.”
Though respondent recalled speaking to a social worker there and submitting
paperwork, he did not execute an affidavit acknowledging his paternity nor did IN RE K.M.S.
petitioner ever receive child support. Respondent has not seen Alice since she was
about a year and a half old. Respondent acknowledged that he never pursued legal
action to legitimate Alice. Respondent did file a complaint for custody of Alice and to
pay child support, but paternity has not been established in that action.2
¶4 On 19 January 2021, petitioner filed a petition alleging a ground existed to
terminate respondent’s parental rights pursuant to N.C.G.S. § 7B-1111(a)(5) (failure
to legitimate). Respondent filed an answer on 11 March 2021 wherein he admitted
that he had neither legitimated Alice through marriage to petitioner nor “established
his paternity with respect to the juvenile through N.C.G.S. § 49-14, 110-132,
130[A]-101, 130A-118, or any other judicial proceeding.” At the termination hearing,
petitioner submitted into evidence an affidavit from the North Carolina Department
of Health and Human Services (DHHS) stating that no affidavit of paternity had been
received. Petitioner also testified that she never “receive[d] any kind of letter or
correspondence . . . that [respondent] had filed a petition . . . to legitimate [Alice].”
¶5 Based on all the evidence, the trial court found respondent did not establish
2 In June of 2020, respondent’s first attorney filed a complaint for custody. Shortly
thereafter, however, the attorney discovered she had a conflict of interest and withdrew from the case. Respondent hired a second attorney, who filed a new complaint for custody on 3 December 2020. The trial court found that respondent “never took any action to prosecute his [c]omplaint in the first filed custody action.” Moreover, the trial court found “that no hearing was ever held to make any substantive findings of fact or judicial decree relative to [respondent’s] paternity of the juvenile in the second filed case.” The guardian ad litem’s report filed with the trial court states the second action “is stayed pending the outcome of the case at bar.” IN RE K.M.S.
paternity under any of the five prongs set forth in the statute. See N.C.G.S.
§ 7B-1111(a)(5) (2019). Thus, the trial court concluded that a ground existed to
terminate respondent’s parental rights under N.C.G.S. § 7B-1111. The trial court also
concluded that terminating respondent’s parental rights was in Alice’s best interests.
See id. § 7B-1110 (2019). Accordingly, the trial court terminated respondent’s
parental rights.
¶6 Counsel for respondent filed a no-merit brief on his client’s behalf under Rule
3.1(e) of the Rules of Appellate Procedure, identifying two issues that could arguably
support an appeal but also stating why those issues lacked merit. First, counsel noted
that respondent objected at the hearing to admission of the certified reply of DHHS
to petitioner stating that no affidavit of paternity had been received. Counsel
conceded, however, that the Juvenile Code requires that DHHS’s “certified reply shall
be submitted to and considered by the court.” N.C.G.S. § 7B-1111(a)(5)(a). Because
respondent did not argue at the trial court that the document was not DHHS’s
certified reply to petitioner’s inquiry regarding whether an affidavit had been filed,
counsel concluded this issue lacked merit.
¶7 Counsel next discussed whether the trial court’s findings of fact were
supported by clear, cogent, and convincing evidence and supported the conclusions of
law. Counsel asserted the trial court’s findings of fact “are supported by the testimony
of both [petitioner and respondent].” Moreover, counsel noted that “[t]he trial court IN RE K.M.S.
made findings that encompass all of the statutory factors” required to determine
whether termination of respondent’s parental rights was in Alice’s best interests.
Thus, counsel concluded that this second issue also lacked merit. Finally, counsel
advised respondent of his right to file pro se written arguments on his own behalf and
provided him the documents necessary to do so. Respondent has not submitted
written arguments to this Court.
¶8 Rule 3.1(e) of the Rules of Appellate Procedure “plainly contemplates appellate
review of the issues contained in a no-merit brief.” In re L.E.M., 372 N.C. 396, 402,
831 S.E.2d 341, 345 (2019). When a no-merit brief is filed pursuant to Rule 3.1(e), it
“will, in fact, be considered by the appellate court and . . . an independent review will
be conducted of the issues identified therein.” Id. at 402, 831 S.E.2d at 345. This Court
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