An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-896
Filed 20 May 2026
Alamance County, No. 25JA000004-000
IN THE MATTER OF: K.S.D.
Appeal by Respondent-father from an order entered 16 June 2025 by Judge
Frederick B. Wilkins, Jr. in Alamance County District Court. Heard in the Court of
Appeals 21 April 2026.
Parent Defender Annick Lenior-Peek, by Assistant Parent Defender Benjamin J. Kull, for respondent-appellant father.
Jamie L. Hamlett for petitioner-appellee Alamance County Department of Social Services.
NC GAL Staff Counsel Michelle FormyDuval Lynch, for guardian ad litem.
WOOD, Judge. IN RE: K.S.D.
Opinion of the Court
Respondent-father (“Father”) appeals from the trial court’s order adjudicating
K.S.D. (“Kimberly”) a neglected juvenile.1 Respondent-mother (“Mother”) is not a
party to this appeal. Father argues the trial court erred because (1) the trial court
relied on post-petition evidence in concluding there was a risk of future neglect and
(2) without the post-petition evidence there was not clear and convincing evidence to
support the trial court’s conclusion Kimberly was neglected. For the reasons set forth
below, we affirm the trial court’s adjudication of Kimberly as neglected.
I. Factual and Procedural Background
Kimberly was born on 30 December 2024 to Mother and Father. This action
regarding Kimberly was initiated by the filing of a juvenile petition alleging neglect
on 3 January 2025. However, the family’s history with the Alamance County
Department of Social Services (“DSS”) began much earlier.
On 1 November 2022, Mother gave birth to Kimberly’s older brother Kevin.2
On 3 November 2022, DSS received a report alleging neglect due to the fact both
Kevin and Mother tested positive for cocaine and marijuana at his birth. Mother
reported she had five other children living with family in Connecticut but had limited
support in North Carolina. DSS began in-home services with the family.
1 Pseudonyms are used to protect the identity of the juveniles pursuant to N.C. R. App. P.
42(b). 2 Pseudonyms are used to protect the identity of the juveniles pursuant to N.C. R. App. P.
42(b).
-2- IN RE: K.S.D.
On 11 October 2023, Mother gave birth to David.3 On 17 October 2023 DSS
received another report alleging neglect as both Mother and son tested positive for
cocaine and marijuana. In addition, David tested positive for benzodiazepines and
opiates. During the family’s stay in the hospital for David’s birth there was ongoing
conflict between Mother and Father causing hospital security to intervene. A Child
and Family team meeting was held the same day at which Mother and Father became
verbally hostile to the DSS social worker, denied substance use, and did not have an
alternative plan for the children.
After the meeting, DSS filed petitions alleging both Kevin and David were
neglected and dependent. A non-secure custody order was issued the same day and
DSS took custody of both boys.
The petitions came on for hearing 21 February 2024. The trial court
adjudicated the boys neglected and dependent and continued custody with DSS. The
boys were placed in a foster home. Both parents were ordered to engage in services
with DSS in order to make progress towards reunification. In pertinent part, Father
was ordered to: obtain a sufficient source of income to support himself and develop a
budget, provide a safe and appropriate home environment, refrain from allowing
mental health or substance abuse to impact his parenting by completing a mental
health and substance abuse assessment and implementing strategies, attend a
3 Pseudonyms are used to protect the identity of the juveniles pursuant to N.C. R. App. P.
-3- IN RE: K.S.D.
domestic violence program and have a home free of domestic violence and
chaos/discord, demonstrate age appropriate discipline and parenting skills,
demonstrate the ability to ensure the children’s medical needs are met, and provide
a reasonable portion of the cost of care for the children.
A permanency planning hearing was held during the 17 July 2024 session of
court. In the order filed 12 August 2024, the trial court found Mother was not making
adequate progress towards reunification and Father was making some progress but
continued to act in a manner inconsistent with the health and safety of the children.
Father had not secured his own housing but was living at his sister’s home, in hotel
rooms, and sometimes in a car. He had not gained employment but was receiving
social security disability He had been purchasing diapers and wipes for the boys.
The trial court further noted that on 17 February 2024, police found 1.5 grams of
marijuana and .6 grams of crack cocaine in his possession during a traffic stop, and
he was driving without a license. Father agreed to a plea deal and received twelve
months of supervised probation.
During the hearing, the trial court noted Father had completed a mental
health and substance abuse assessment and based on his responses, no immediate
recommendations were given. Father was adamant he had completed everything in
his case plan, but he had continued to be hostile to DSS case workers on numerous
occasions. When DSS inquired about the domestic violence classes, the instructor
reported Father had not been consistent with attendance and missed almost half of
-4- IN RE: K.S.D.
the sessions. The instructor reported he was unable to observe Father utilize skills
he had learned due to his poor attendance and if Father did not have an open case
with DSS he would already have been released from the program. The trial court
found Father had completed a four-hour on-line parenting class. The trial court
continued the plan of reunification.
On 4 December 2024, the trial court conducted another permanency planning
hearing. The trial court found that neither Father nor Mother was making adequate
progress towards reunification. DSS reported an incident between Mother and
Father on 18 September. DSS noted Mother was frequently covering bruises with
makeup and Father would break her phones to control her communication. Father
also raised his voice and became aggressive with DSS social workers in September.
Father provided DSS with proof of an apartment and utility bills; however, the
apartment was in the name of someone who had given him permission to reside there.
When DSS social workers attempted to locate the parents, they were unable to
establish exactly where Father and Mother were living, but it appeared they were
together. Father also misled social workers about his location at various times,
refused rides to drug testing, and became frustrated when the foster parent requested
more diapers. The trial court changed the primary plan to adoption and made
reunification the secondary plan.
After the 4 December hearing, Mother enrolled in a residential substance
abuse treatment program called Cascades in Charlotte, North Carolina. During the
-5- IN RE: K.S.D.
telephone intake Mother indicated that she currently was using marijuana and
suboxone and that there was a past and present issue of domestic violence. She asked
Rebecca Kefer (“Kefer”), the DSS social worker, if she could give her a ride to
Charlotte. She provided Father’s address as the location to pick her up on 12
December. Father attempted to call Mother on the way to the program, but her phone
was off, so he called Kefer multiple times. Mother also reported she and Father had
argued while she was packing and he had thrown all her shirts away.
Three days after check-in to the treatment center on 12 December, Mother
tested positive for THC and cocaine. She also reported she had been with Father for
four years but there had been domestic violence for the last two years.
Kefer attempted to stay in contact with Mother while she was in treatment;
however, Mother rarely responded and communication with her was difficult.
Kimberly was born on 30 December 2024 by a scheduled c-section. At the time
of delivery, Mother tested positive for Hepatitis C and Strep B. Kimberly’s urine did
not test positive for substances, but her meconium was sent for testing. It was
negative for amphetamines, opiates, and oxycodone but there was not enough of the
sample to test for cocaine, THC, or benzodiazepines. However, medical records
indicated Kimberly was affected by maternal use of cannabis, opiates, and tobacco as
Mother tested positive multiple times during pregnancy. Father was present at the
birth and cut the umbilical cord. He also visited Mother several times.
-6- IN RE: K.S.D.
Mother did not inform DSS when Kimberly was born. The boys’ foster mother
informed DSS on 31 December that Kimberly had been born. Kefer reached out to
Mother but received no response. The care manager from Atrium Health, the hospital
where Kimberly was born, reached out to DSS on 31 December with questions but
could not give DSS any information as Mother instructed hospital staff that they were
not allowed to release information to DSS. When Kefer contacted Father, he stated
he did not know anything about the birth even though he had been present.
On 3 January 2025, DSS filed a petition alleging Kimberly was a neglected
juvenile as she did not have proper care or supervision and lived in an injurious
environment. DSS sought and received nonsecure custody of Kimberly.
A continued non-secure custody hearing was held on 8 January 2025. The trial
court continued non-secure custody with DSS but allowed DSS to place Kimberly with
Mother at the treatment facility as long as Mother complied with treatment and DSS
facilitated interactions between Kimberly and Father.
On 7 May 2025, the adjudication on the neglect petition for Kimberly as well
as the petition for termination of parental rights for her two older brothers came on
for hearing, and the trial court heard both matters together. During adjudication the
trial court heard testimony from Kefer; Vinneshia Covington, Mother’s manager
when she worked at Hardee’s; Linette Myers (“Myers”) a friend of Mother and foster
mother for the boys; and Tabitha Brown (“Brown”), another DSS employee. The trial
court adjudicated Kimberly to be neglected. The trial court then proceeded to
-7- IN RE: K.S.D.
disposition. Kefer, Myers, and Brown provided additional testimony. Mother,
Father, and the children’s guardian ad litem also testified. The trial court found it
was in Kimberly’s best interest for DSS to maintain custody with placement to
continue with Mother provided she maintained her treatment at Cascades.
The trial court filed the adjudication and disposition order on 16 June 2024.
Father gave notice of appeal on 11 July 2025.
II. Analysis
On appeal, Father contends the trial court erred because (1) the trial court
relied on post-petition evidence in concluding there was a risk of future neglect and
(2) without the post-petition evidence there was not clear and convincing evidence to
support the trial court’s conclusion that Kimberly was neglected. We disagree.
A. Post Petition Evidence
“[R]eview at the adjudicatory stage is to determine whether there is clear,
cogent, and convincing evidence in the record to support the trial court’s findings of
fact, and whether the findings of fact support the conclusions of law.” In re S.R., 384
N.C. 516, 527, 886 S.E.2d 166, 175 (2023). Further,
if a trial court’s finding of fact . . . is supported by clear, cogent, and convincing evidence, it will be deemed conclusive even if the record contains evidence that would support a contrary finding. We review whether the findings of fact support the conclusions of law, and conclusions of law are reviewed de novo.
-8- IN RE: K.S.D.
Id. at 520, 886 S.E.2d at 171 (cleaned up). “[T]he purpose of the adjudication hearing
is to adjudicate ‘the existence or nonexistence of any of the conditions alleged in a
petition.’” In re A.B., 179 N.C. App. 605, 609, 635 S.E.2d 11, 15 (2006) (quoting N.C.
Gen. Stat. § 7B–802). “[T]he conditions underlying determination of whether a
juvenile is an abused, neglected, or dependent juvenile are fixed at the time of the
filing of the petition. This inquiry focuses on the status of the child at the time the
petition is filed, not the post-petition actions of a party.” In re L.N.H., 382 N.C. 536,
543, 879 S.E.2d 138, 144 (2022).
However, this rule is not absolute. An exception exists for evidence
demonstrating a “fixed and ongoing circumstance” such as mental illness or
paternity. In re V.B., 239 N.C. App. 340, 344, 768 S.E.2d 867, 870 (2015).
Consequently, this Court has held when the post-petition evidence relates “in whole
or in part to ongoing circumstances relevant to the existence or nonexistence of
conditions alleged in the adjudication petition” then it is admissible during
adjudication. In re G.W., 286 N.C. App. 587, 594, 882 S.E.2d 81, 88 (2022) (internal
quotations and citations omitted).
In the case sub judice, Father contends findings of fact 25, 41, 42, 43, 44, 45
and 46 all relied on post-petition evidence.
25. On January 27, 2025, [Father] completed his exit interview. During the interview, he reported no problems or concerns, successfully completed quiz, stated he had been non-violent and non-abusive. [Father] stated he learned a lot. [Father] did not report kicking [Mother] out
-9- IN RE: K.S.D.
of the shared home on December 4, 2024 or throwing her clothing away on December 12, 2024. [Father] did not report the domestic violence tendencies or control tactics observed by Hardee’s employees. [Father] did not report his ongoing difficulties managing his behaviors with social work staff or arguing with the social worker in front of the children.
41. . . . [Mother] continues to engage with [Father]. . . .
42. . . . [Mother] continued to communicate with him and have him visit her in Charlotte.
43. [Mother] has facilitated [Father’s] phone contact with [Kimberly] even though the court order says that [DSS] shall facilitate contact between [Kimberly] and [Father].
44. [Mother] contacts [Father] during her limited visitation with the boys.
45. It appears that [Father] continues to exercise significant control over [Mother]. She is in an environment where she could separate herself from [Father] but she has chosen not too. It is not believable that they are only coparenting when they communicate daily and he continues to financially provide for [Mother].
46. Prior to [DSS] assuming custody of Kimberly, [Father] was going to Charlotte to visit the mother. When the Department indicated all contact with Kimberly had to be supervised by the Department, [Father] reported that he could not travel to Charlotte. The Department feared for the safety of social workers due to [Father’s] belligerent attitude towards social workers so the social workers would not transport [Father]. When he was seeing the mother, [Father] had no issues with getting to Charlotte. However, when the visitation was between him and the infant only, [Father] could not arrange transportation. The Court infers the father was going to see [Mother] more than to see his child.
Findings of fact 41, 42 and 45 have a basis in the circumstances on the day of the
- 10 - IN RE: K.S.D.
petition and do not rely on post-petition facts although those same circumstances
continued post-petition. Mother and Father had a long relationship history that
Mother reported multiple times in December 2024 was violent. However, Mother
“continued to engage” with Father as evidenced by the fact that she requested Kefer
pick her up from Father’s apartment when she left for treatment, and Father
continued to call and talk to Mother. It was also clear based on medical records and
Mother’s testimony that Father was present for Kimberly’s birth in Charlotte and
was listed on Mother’s visitors list for the treatment center. This provides clear,
cogent and convincing pre-petition evidence sufficient to support findings of fact 41,
42, and 45.
Findings of fact 25, 43, 44, and 46 clearly relate to events, visitation situations
and domestic violence classes, which occurred after Kimberly’s birth on 31 December
and the filing of the petition on 3 January. Because the visitation and classes were a
“discrete occurrence that occur[ed] over a designated period of time” this evidence is
not admissible at adjudication on the neglect petition despite its purported relevancy
on the termination of parental rights petitions. In re G.W., 286 N.C. App. at 596, 882
S.E.2d at 89. “[W]hen an appellate court determines that a finding of fact is not
supported by sufficient evidence, the court must disregard that finding and examine
whether the remaining findings of fact support the trial court’s conclusions of law.”
In re A.J., 386 N.C. 409, 410, 904 S.E.2d 707, 710 (2024). Therefore, we disregard
- 11 - IN RE: K.S.D.
findings of fact 25, 43, 44, and 46 and examine whether the remaining findings
support the trial court’s conclusion that Kimberly is neglected.
B. Neglect
“When neglect cases involve newborns, the decision of the trial court must of
necessity be predictive in nature, as the trial court must assess whether there is a
substantial risk of future abuse or neglect of a child based on the historical facts of
the case.” In re G.W., 286 N.C. App. at 592, 882 S.E.2d at 86–87 (cleaned up). “The
fact of prior abuse, standing alone, is not sufficient to support an adjudication of
neglect. Instead, we require the presence of other factors to suggest that the neglect
or abuse will be repeated.” In re J.A.M., 372 N.C. 1, 9–10, 822 S.E.2d 693, 699 (2019)
(cleaned up).
To that end, we look first to the trial court’s remaining findings of fact. In
addition to his arguments regarding post-petition findings of fact, Father also argues
portions of two additional findings of fact, findings 16 and 17, are not sufficiently
supported by the evidence.
Regarding finding of fact 16, Father argues the statement “[t]he results of the
meconium screen are not immediately available” was unsupported. In fact, the
results of the meconium screening took longer than the urine screening and were not
“immediately” available at the hospital. However, testing was completed 7 January
2025 and was reflected in the medical records DSS entered into evidence. Regardless,
this finding is irrelevant for the adjudication and “erroneous findings unnecessary to
- 12 - IN RE: K.S.D.
the determination do not constitute reversible error.” In re T.M., 180 N.C. App. 539,
547, 638 S.E.2d 236, 240 (2006).
Finding of fact 17 states in pertinent part, “Since enrolling in the current
program, SW Keffer [sic] was unable to communicate with [Mother].” We agree this
statement is inaccurate. Kefer testified she had “difficulty” communicating with
Mother during treatment but had communicated with her especially when it
“pertain[ed] to visitation.” In addition, Mother testified about her conversations with
Kefer while she was in treatment. Therefore, this portion of finding 17 is unsupported
and will be disregarded.
While we disregard findings of fact 25, 43, 44, 46 and parts of findings of fact
16 and 17, approximately 73 findings of fact remain unchallenged.4 Additionally, as
noted supra findings of fact 41, 42, and 45 were supported by competent evidence and
“[a] trial court’s findings of fact are binding on appeal if supported by competent
evidence. Unchallenged findings of fact are also binding on appeal.” In re H.R.P.,
297 N.C. App. 339, 344, 910 S.E.2d 738, 743 (2024) (quoting
Durham Hosiery Mill Ltd. P’ship v. Morris, 217 N.C. App. 590, 592, 720 S.E.2d 426,
427 (2011)). A thorough review of the 76 binding findings of fact reveals “the presence
of other factors” that support the trial court’s conclusion of the likelihood that “neglect
4 We recognize the trial court’s order has multiple numbering patterns, but it appears there
are 82 total findings of fact with some findings containing multiple subparts.
- 13 - IN RE: K.S.D.
or abuse will be repeated.” In re J.A.M., 372 N.C. at 9–10, 822 S.E.2d at 699 (quoting
In re J.C.B., 233 N.C. App. 641, 644, 757 S.E.2d 487, 489 (2014)).
Based on the remaining findings of fact Mother and Father have a long history
of domestic violence and drug abuse. Two older brothers were adjudicated neglected
and dependent on 21 February 2024 based on domestic violence concerns and
substance abuse as both boys were born testing positive for illicit substances. On 4
December 2024, less than a month before Kimberly’s birth, the primary plan for the
boys was changed to adoption and DSS was required to file a petition for termination
of parental rights due to lack of progress addressing the issues of removal. Mother
admitted to continuing to use drugs, including cocaine and marijuana, during her
pregnancy with Kimberly and tested positive for cocaine and marijuana three days
after admittance to inpatient treatment on 12 December 2024. Mother also admitted
that there were domestic violence issues in the home until she left for treatment on
12 December 2024. DSS social workers testified Father was aggressive with social
workers and policies had to be put in place to ensure their safety when engaging with
Father. Further, Father missed approximately nineteen of his domestic violence
classes causing the program to take about twice as long as it should, and he had not
completed the classes at the time of the petition. Even so, Mother continued to engage
with Father, placed him on her visitors list at treatment, informed him of the
scheduled c-section so that he was present, and maintained phone contact with him.
- 14 - IN RE: K.S.D.
At the time of the neglect petition, 3 January 2025, Mother had been barely
sober for two weeks but continued to communicate and visit with Father despite a
domestic violence incident having occurred just two-weeks earlier. Father had not
completed his domestic violence classes after nearly a year, and DSS still had to take
protective measures for social workers due to Father’s behavior. Therefore, the trial
court’s conclusion that neglect would be repeated if Kimberly were to be placed in the
custody of her parents was supported by the findings of fact which in turn was based
on clear and convincing evidence in the record.
III. Conclusion
For the foregoing reasons, we affirm the trial court’s adjudication of Kimberly
as neglected.
AFFIRMED.
Judges CARPENTER and STADING concur.
Report per Rule 30(e).
- 15 -