An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-132 NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
IN THE MATTER OF: Davidson County L.E.S.W., I.A.S-W. Nos. 11 JT 152 12 JT 8
Appeal by respondent-father from orders entered 6 June 2012
by Judge Carlton Terry and 23 October 2013 by Judge Mary F.
Covington in Davidson County District Court. Heard in the Court
of Appeals 8 July 2014.
Christopher M. Watford, Assistant Davidson County Attorney for appellee Davidson County Department of Social Services.
Laura Bodenheimer for Guardian ad litem.
J. Thomas Diepenbrock for respondent-appellant father.
STEELMAN, Judge.
The unchallenged findings of fact in the trial court’s
permanency planning order support its conclusion that the
permanent plan for the children should be termination of
father’s parental rights and adoption.
I. Factual and Procedural History
M.S-W. (father) is the father of L.E.S.W. and I.A.S-W., who
were born in January and December 2011 respectively. The -2- children’s mother, M.W. (mother), has a lengthy history of
untreated substance abuse, unstable housing, and involvement
with the Davidson County Department of Social Services (DSS),
which is documented in the record. On 8 November 2011 DSS
obtained non-secure custody of L.E.S.W. and S.D.P. (another of
mother’s children), and filed petitions alleging that they were
neglected and dependent juveniles. The petitions described the
children’s exposure to substance abuse by mother, who was then
pregnant with I.A.S-W., and to domestic violence between mother
and father, and recounted S.D.P.’s disclosure that father abused
alcohol. Father attended a Child and Family Team meeting on 14
December 2011, at which DSS explained his case plan. Father was
required to “obtain a substance abuse assessment and comply with
all recommendations, attend parenting classes, maintain
employment, obtain and maintain suitable housing, and attend
abuser treatment or anger management classes.”
I.A.S-W. was born prematurely in late December 2011, and
tested positive for a metabolite of cocaine. On 11 January 2012,
DSS filed a juvenile petition alleging that she was neglected
and dependent. Based on mother and father’s stipulation that the
minor children lived “in an environment injurious to their
welfare” and were “neglected juveniles as defined by G.S. § 7B-
101(15),” the court entered orders on 2 February 2012 -3- adjudicating the children neglected.
An order was entered on 29 February 2012, in which father
was directed to attend supervised visitation with the children
at least two times per week, obtain a substance abuse assessment
and follow any treatment recommendations, complete parenting
classes, maintain a source of income, and enter into a Voluntary
Support Agreement within 60 days. The court also ordered mother
and father to “obtain and maintain a suitable residence for
themselves and the minor children[.]”
Judge Terry conducted a permanency planning hearing on 3
May 2012. In an order entered 6 June 2012, the court ceased
reunification efforts as to both parents and established a
permanent plan of termination of parental rights and adoption
for the minor children. DSS filed petitions for termination of
father’s parental rights on 27 March 2013. Judge Covington
conducted a hearing beginning on 29 August 2013, and entered
termination orders on 23 October 2013. The court concluded that
there were three grounds for termination: (1) father had
neglected L.E.S.W. and I.A.S-W.; (2) father had willfully left
the children in DSS custody for more than twelve months without
showing reasonable progress in correcting the conditions leading
to their placement outside the home; and (3) father had
willfully failed to pay a reasonable portion of their cost of -4- care. The court concluded that terminating father’s parental
rights was in the best interests of the minor children.
Father appeals from the 6 June 2012 permanency planning
order directing DSS to cease reunification efforts, and from the
termination orders.
II. Permanency Planning Order
In his sole argument on appeal, father challenges Judge
Terry’s decision to cease reunification efforts. He asserts that
the trial court’s order did not comply with the requirements of
N.C. Gen. Stat. § 7B-507(b)(1), and that its conclusion was not
supported by evidentiary findings or competent evidence. We
disagree.
A. Standard of Review
“A trial court may cease reunification efforts upon making
a finding that further efforts ‘would be futile or would be
inconsistent with the juvenile’s health, safety, and need for a
safe, permanent home within a reasonable period of time[.]’” In
re C.M., 183 N.C. App. 207, 214, 644 S.E.2d 588, 594 (2007)
(quoting N.C. Gen. Stat. § 7B-507(b)(1)). Although characterized
by statute as a finding, “the determination that grounds exist
to cease reunification efforts under [N.C. Gen. Stat.] § 7B-
507(b)(1) is in the nature of a conclusion of law that must be
supported by adequate findings of fact.” In re E.G.M., __ N.C. -5- App. __, __, 750 S.E.2d 857, 867 (2013) (citing In re I.K., __
N.C. App. __, __, 742 S.E.2d 588, 595 (2013)).
“This Court reviews an order that ceases reunification
efforts to determine whether the trial court made appropriate
findings, whether the findings are based upon credible evidence,
whether the findings of fact support the trial court’s
conclusions, and whether the trial court abused its discretion
with respect to disposition.” C.M., 183 N.C. App. at 213, 644
S.E.2d at 594. “We are bound by the trial court’s findings of
fact ‘where there is some evidence to support those findings,
even though the evidence might sustain findings to the
contrary.’ Findings of fact not challenged on appeal are
presumed to be supported by competent evidence and are also
binding.” In the Matter of T.J.C., __ N.C. App. __, __, 738
S.E.2d 759, 763-64 (quoting In re Montgomery, 311 N.C. 101, 110-
11, 316 S.E.2d 246, 252-53 (1984), and citing In re J.K.C. and
J.D.K., __ N.C. App. __, __ , 721 S.E.2d 264, 268 (2012)), disc.
review denied, 366 N.C. 592, 743 S.E.2d 194 (2013). In addition,
“[a] trial court may be reversed for abuse of discretion only
upon a showing that its actions are manifestly unsupported by
reason.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833
(1985).
B. Analysis -6- Father concedes that the permanency planning order includes
the requisite statutory language concluding that further efforts
Free access — add to your briefcase to read the full text and ask questions with AI
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. COA14-132 NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
IN THE MATTER OF: Davidson County L.E.S.W., I.A.S-W. Nos. 11 JT 152 12 JT 8
Appeal by respondent-father from orders entered 6 June 2012
by Judge Carlton Terry and 23 October 2013 by Judge Mary F.
Covington in Davidson County District Court. Heard in the Court
of Appeals 8 July 2014.
Christopher M. Watford, Assistant Davidson County Attorney for appellee Davidson County Department of Social Services.
Laura Bodenheimer for Guardian ad litem.
J. Thomas Diepenbrock for respondent-appellant father.
STEELMAN, Judge.
The unchallenged findings of fact in the trial court’s
permanency planning order support its conclusion that the
permanent plan for the children should be termination of
father’s parental rights and adoption.
I. Factual and Procedural History
M.S-W. (father) is the father of L.E.S.W. and I.A.S-W., who
were born in January and December 2011 respectively. The -2- children’s mother, M.W. (mother), has a lengthy history of
untreated substance abuse, unstable housing, and involvement
with the Davidson County Department of Social Services (DSS),
which is documented in the record. On 8 November 2011 DSS
obtained non-secure custody of L.E.S.W. and S.D.P. (another of
mother’s children), and filed petitions alleging that they were
neglected and dependent juveniles. The petitions described the
children’s exposure to substance abuse by mother, who was then
pregnant with I.A.S-W., and to domestic violence between mother
and father, and recounted S.D.P.’s disclosure that father abused
alcohol. Father attended a Child and Family Team meeting on 14
December 2011, at which DSS explained his case plan. Father was
required to “obtain a substance abuse assessment and comply with
all recommendations, attend parenting classes, maintain
employment, obtain and maintain suitable housing, and attend
abuser treatment or anger management classes.”
I.A.S-W. was born prematurely in late December 2011, and
tested positive for a metabolite of cocaine. On 11 January 2012,
DSS filed a juvenile petition alleging that she was neglected
and dependent. Based on mother and father’s stipulation that the
minor children lived “in an environment injurious to their
welfare” and were “neglected juveniles as defined by G.S. § 7B-
101(15),” the court entered orders on 2 February 2012 -3- adjudicating the children neglected.
An order was entered on 29 February 2012, in which father
was directed to attend supervised visitation with the children
at least two times per week, obtain a substance abuse assessment
and follow any treatment recommendations, complete parenting
classes, maintain a source of income, and enter into a Voluntary
Support Agreement within 60 days. The court also ordered mother
and father to “obtain and maintain a suitable residence for
themselves and the minor children[.]”
Judge Terry conducted a permanency planning hearing on 3
May 2012. In an order entered 6 June 2012, the court ceased
reunification efforts as to both parents and established a
permanent plan of termination of parental rights and adoption
for the minor children. DSS filed petitions for termination of
father’s parental rights on 27 March 2013. Judge Covington
conducted a hearing beginning on 29 August 2013, and entered
termination orders on 23 October 2013. The court concluded that
there were three grounds for termination: (1) father had
neglected L.E.S.W. and I.A.S-W.; (2) father had willfully left
the children in DSS custody for more than twelve months without
showing reasonable progress in correcting the conditions leading
to their placement outside the home; and (3) father had
willfully failed to pay a reasonable portion of their cost of -4- care. The court concluded that terminating father’s parental
rights was in the best interests of the minor children.
Father appeals from the 6 June 2012 permanency planning
order directing DSS to cease reunification efforts, and from the
termination orders.
II. Permanency Planning Order
In his sole argument on appeal, father challenges Judge
Terry’s decision to cease reunification efforts. He asserts that
the trial court’s order did not comply with the requirements of
N.C. Gen. Stat. § 7B-507(b)(1), and that its conclusion was not
supported by evidentiary findings or competent evidence. We
disagree.
A. Standard of Review
“A trial court may cease reunification efforts upon making
a finding that further efforts ‘would be futile or would be
inconsistent with the juvenile’s health, safety, and need for a
safe, permanent home within a reasonable period of time[.]’” In
re C.M., 183 N.C. App. 207, 214, 644 S.E.2d 588, 594 (2007)
(quoting N.C. Gen. Stat. § 7B-507(b)(1)). Although characterized
by statute as a finding, “the determination that grounds exist
to cease reunification efforts under [N.C. Gen. Stat.] § 7B-
507(b)(1) is in the nature of a conclusion of law that must be
supported by adequate findings of fact.” In re E.G.M., __ N.C. -5- App. __, __, 750 S.E.2d 857, 867 (2013) (citing In re I.K., __
N.C. App. __, __, 742 S.E.2d 588, 595 (2013)).
“This Court reviews an order that ceases reunification
efforts to determine whether the trial court made appropriate
findings, whether the findings are based upon credible evidence,
whether the findings of fact support the trial court’s
conclusions, and whether the trial court abused its discretion
with respect to disposition.” C.M., 183 N.C. App. at 213, 644
S.E.2d at 594. “We are bound by the trial court’s findings of
fact ‘where there is some evidence to support those findings,
even though the evidence might sustain findings to the
contrary.’ Findings of fact not challenged on appeal are
presumed to be supported by competent evidence and are also
binding.” In the Matter of T.J.C., __ N.C. App. __, __, 738
S.E.2d 759, 763-64 (quoting In re Montgomery, 311 N.C. 101, 110-
11, 316 S.E.2d 246, 252-53 (1984), and citing In re J.K.C. and
J.D.K., __ N.C. App. __, __ , 721 S.E.2d 264, 268 (2012)), disc.
review denied, 366 N.C. 592, 743 S.E.2d 194 (2013). In addition,
“[a] trial court may be reversed for abuse of discretion only
upon a showing that its actions are manifestly unsupported by
reason.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833
(1985).
B. Analysis -6- Father concedes that the permanency planning order includes
the requisite statutory language concluding that further efforts
to reunify him with the minors “are clearly futile and would be
inconsistent with the children’s health, safety, and need for a
safe, permanent home within a reasonable period of time[.]”
However, he contends that this conclusion is not supported by
the court’s findings of fact or by competent evidence. We
The trial court’s findings of fact include the following:
. . .
22. . . . [Father] entered into a family services case plan with [DSS]. He agreed to obtain and maintain suitable housing for himself and the minor children to reside; obtain and maintain a steady source of income; attend and complete . . . parenting classes; obtain a substance abuse assessment and comply with treatment recommendations; and attend visits with the minor children.
24. [Father] has resided at various residences since the children came into [DSS’s] care. When he and [mother] are on good terms, he lives with her. At other times he lives with relatives. At this time it is unclear exactly where [father] intends to live and what his intentions are for his children.
25. [Father] has been employed . . . since the children came into [DSS’s] care.
26. [Father] has not completed parenting classes. -7-
27. [Father] has not obtained a substance abuse assessment.
29. [Father] has paid nothing in child support and has not entered into any type of Voluntary Support Agreement to date.
30. [Father has] Court ordered visitation with the children two days per week[.] . . . [Father] visits once per week due to his work schedule. He interacts well with the children during his visits but has never visited for more than once a week.
. . . .
33. [DSS] attempted to complete a homestudy on the home of [father]. [DSS’s] interpreter contacted [father] on February 10, 2012 and he stated that the relative he was staying with was no longer an option for [L.E.S.W. and I.A.S-W.]
41. . . . Neither [father nor mother] has made an improvement in their situation since November of 2011 when the . . . children came into care. . . .
42. The Court would also find that relieving [DSS] from making reasonable efforts with the respondents does not prevent [mother or father] from working their case plans and demonstrating, through their efforts, their desire to reunify with their children.
Father does not dispute the evidentiary support for the court’s
findings that he had not completed a parenting class, had not
obtained suitable housing for himself and the children, had -8- visited with the children only once a week rather than twice a
week as set out in the disposition order, had paid nothing
towards the support of his children, and had not entered into a
Voluntary Support Agreement. These undisputed findings by
themselves establish that father failed to comply with his case
plan, and support the trial court’s conclusion that DSS should
be relieved of further efforts towards reunification.
Father’s only challenge to the evidentiary support for the
findings is his contention that, because he had obtained a
substance abuse assessment the day before the hearing, the court
erred by finding that he had not obtained a substance abuse
assessment. Petitioner concedes that this assertion is accurate.
However, the case plan required him to “obtain a substance abuse
assessment and follow any and all treatment recommendations,”
which he clearly had not done. Therefore, he failed to complete
this part of the case plan. Furthermore, given the trial court’s
other findings, which are not challenged on appeal, any error
was harmless. It is well established that “erroneous findings
unnecessary to the determination do not constitute reversible
error” if the court makes sufficient additional findings
grounded in the evidence. In re Beck, 109 N.C. App. 539, 548,
428 S.E.2d 232, 238 (1993) (inclusion of erroneous finding in
order adjudicating child neglected was immaterial and not -9- prejudicial given that “[if] the erroneous finding [were]
deleted, there remain[ed] an abundance of clear, cogent, and
convincing evidence to support a finding of neglect”).
Given the family history and father’s failure to fully
complete any of the requirements of his case plan, the trial
court did not abuse its discretion in concluding that further
reunification efforts would be clearly futile or inconsistent
with the children’s need for a safe, permanent home within a
reasonable period of time. Accordingly, we affirm the order
ceasing reunification efforts.
Father’s only challenge to the orders terminating his
parental rights is that they were based on an erroneous
permanency planning order. Because we have upheld the permanency
planning order, the termination orders are also affirmed.
AFFIRMED.
Judges McGEE and ERVIN concur.
Report per Rule 30(e).