An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA14-115

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

IN THE MATTER OF:

L.F.G.K. and A.L.K. Cleveland County

Nos. 09 JT 128; 10 JT 125

Appeal by respondent parents from order entered 28 October 

2013 by Judge Meredith A. Shuford in Cleveland County District

Court. Heard in the Court of Appeals 30 June 2014.

Charles E. Wilson, Jr. for petitioner-appellee Cleveland 

County Department of Social Services.

Leslie Rawls for respondent-appellant mother.

Mercedes O. Chut for respondent-appellant father.

Parker Poe Adams & Bernstein LLP, by Deborah L. Edney, for 

guardian ad litem.

ELMORE, Judge.

Respondent parents appeal from an order terminating their 

parental rights to their minor children, L.F.G.K. (“Linda”1) and 

A.L.K. (“Anna”). Respondent father also appeals from a prior 

 

1 Pseudonyms are used to protect the identity of the juveniles 

and for ease of reading.
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order ceasing reunification efforts. We affirm the order 

terminating respondent’s parental rights.

The Cleveland County Department of Social Services (“DSS”) 

became involved with respondent mother in January 2009, when it 

filed juvenile petitions alleging her minor children J.K. and 

B.K.2 were abused and neglected juveniles. Linda was born to 

respondents in June 2009, and the day after her birth DSS took 

non-secure custody of her and filed a petition alleging she was 

a neglected juvenile. On 23 November 2009, respondents entered 

into a consent order of adjudication in which Linda and her 

older siblings were adjudicated neglected. The trial court 

entered a combined disposition, review, and permanency planning 

order on 4 January 2010, in which it continued custody of Linda 

and her siblings with DSS and set the permanent plan for the 

children as reunification with their parents.

In August 2010, respondent mother gave birth to Anna. 

Shortly after her birth, DSS took non-secure custody of Anna and 

filed a petition alleging she was a neglected juvenile. The 

trial court entered an adjudication and disposition order on 22 

February 2011, adjudicating Anna a neglected juvenile and 

continuing custody of her with DSS. The court also relieved DSS 

 

2 Respondent father is not the father of J.K. and B.K.
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from its obligation to make reasonable efforts to return Anna to 

respondents’ home. That same day, the trial court entered an 

order regarding Linda and her older siblings in which it awarded 

the custody of Linda’s siblings to their father, released DSS 

from its obligation to make reasonable efforts to return Linda 

to respondents’ home, and set the permanent plan for Linda as 

adoption. On 24 February 2011, the court entered an order 

setting the permanent plan for Anna as adoption. Respondents 

appealed from the trial court’s orders entered 22 and 24 

February 2011, and this Court affirmed all three orders. In re 

J.K., 216 N.C. App. 416, 716 S.E.2d 875 (2011).

On 5 March 2012, by the agreement of all parties, the trial 

court entered a permanency planning and review order in which it 

sanctioned a permanent plan for Linda and Anna of reunification 

with respondents, with a concurrent plan of adoption. The court 

ordered DSS to resume making reasonable efforts to return the 

children to respondents’ home, granted respondents supervised 

visitation with the children, and ordered respondents to 

cooperate with DSS’s reunification efforts. DSS worked with 

respondents toward reunification with their children. However, 

by order entered 22 January 2013, the trial court ordered 

reunification efforts to cease, terminated respondents’ 
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visitation with the children, and set the permanent plan for the 

juveniles as adoption. Respondents filed timely notices to 

preserve their right to appeal from the 22 January 2013 order

ceasing reunification efforts.

DSS filed petitions to terminate respondents’ parental 

rights to Linda and Anna on 11 February 2013. DSS alleged 

grounds of neglect, failure to make reasonable progress toward 

correcting the conditions that led to the removal of the 

children, and failure to pay a reasonable portion of the cost of 

care for the children. N.C. Gen. Stat. § 7B-1111(a)(1)-(3)

(2013). On 28 October 2013, after a multi-day hearing, the 

trial court entered an order terminating respondents’ parental 

rights to Linda and Anna, based upon the grounds of neglect and 

failure to make reasonable progress toward correcting the 

conditions that led to the removal of the children. Respondents 

filed timely notices of appeal.

II. Analysis

We first address respondents’ common argument that the 

trial court lacked jurisdiction to hear the petitions to 

terminate their parental rights because DSS failed to include in 

the petitions a statement of facts sufficient to warrant a 
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determination that one or more of the grounds for terminating 

parental rights existed.

A petition to terminate parental rights must include 

“[f]acts that are sufficient to warrant a determination that one 

or more of the grounds for terminating parental rights exist.” 

N.C. Gen. Stat. § 7B-1104(6) (2013). “While there is no 

requirement that the factual allegations be exhaustive or 

extensive, they must put a party on notice as to what acts, 

omissions or conditions are at issue.” In re Hardesty, 150 N.C. 

App. 380, 384, 563 S.E.2d 79, 82 (2002). “Merely using words

similar to the relevant statutory ground for termination is not 

sufficient to comply with N.C. Gen. Stat. 7B-1104(6).” In re 

H.L.A.D., 184 N.C. App. 381, 392, 646 S.E.2d 425, 433-34 (2007), 

aff’d, 362 N.C. 170, 655 S.E.2d 712 (2008).

We agree with respondents that the petitions to terminate 

their parental rights lack statements of facts in support of any 

grounds for termination. Nevertheless, this deficiency is not 

jurisdictional and instead constitutes a claim for relief under 

Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. 

In re Quevedo, 106 N.C. App. 574, 578, 419 S.E.2d 158, 159 

(1992). Respondents never moved for a dismissal under Rule 

12(b)(6) in the trial court, and “a Rule 12(b)(6) motion may not 
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be made for the first time on appeal.” In re H.L.A.D., 184 N.C. 

App. at 392, 646 S.E.2d at 434. Accordingly, respondents have 

failed to preserve this issue for appellate review. Respondent 

mother presents no other arguments for our review, and we 

therefore dismiss her appeal.

Respondent father also argues that the trial court erred in 

ceasing reunification efforts. Respondent father contends three 

of the trial court’s findings of fact in support of its 

conclusion to cease reunification efforts with him are not

supported by record evidence. Respondent father’s arguments are 

misplaced.

Our review of orders ceasing reunification efforts “is 

limited to whether there is competent evidence in the record to 

support the findings [of fact] and whether the findings support 

the conclusions of law. The trial court’s findings of fact are 

conclusive on appeal if supported by any competent evidence.” 

In re L.M.T., 367 N.C. 165, 168, 752 S.E.2d 453, 455 (2013)

(citations and quotation marks omitted).

Respondent father specifically argues that in the trial 

court’s 22 January 2013 order ceasing reunification efforts, 

findings of fact 13, 22, and 23 are unsupported by any record 

evidence. In these findings, the trial court stated:
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13. That although the parents have received 

[] liberal three-hour weekly visitation 

since March, 2012, the parents have failed 

to demonstrate an ability to re-direct the 

children; and failed to demonstrate the 

ability to provide appropriate meals and 

snacks on a consistent basis.

. . . .

22. That the respondent parents have been 

resistant to complete all of the recommended 

services. The parents refused to meet with 

a budget counselor; and refused to meet with 

a nutritionist, which would have been at no 

cost to the parents. That when requested, 

the parents stated that they have already 

done these things, although they have not 

demonstrated these skills.

23. That the respondent parents have not 

demonstrated to the Court that they have 

improved their situation, and have not 

demonstrated to the Court their ability to 

provide a safe and stable residence or that 

they will be able to do so within a 

reasonable time.

These findings of fact are fully supported by both the testimony 

of Sharon Moore, a social worker assigned to the juvenile case, 

and her report to the trial court. In turn, these findings, 

coupled with the trial court’s unchallenged findings that a safe 

return of the juveniles to respondent’s home was not likely 

within the next six months and that further reunification 

efforts would be futile, support its conclusion to cease 
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reunification efforts. Accordingly, we affirm the trial court’s 

order ceasing reunification efforts with respondent father.

Respondent father additionally argues the trial court erred 

in concluding that grounds existed to terminate his parental 

rights. We first address respondent father’s arguments 

regarding the ground of neglect.

Grounds exist to terminate parental rights where the parent 

has neglected the juvenile such that the court finds the 

juvenile to be a neglected juvenile within the meaning of N.C. 

Gen. Stat. § 7B-101. N.C. Gen. Stat. § 7B-1111(a)(1) (2013). A 

neglected juvenile is defined in part as one who “does not 

receive proper care, supervision, or discipline from the 

juvenile’s parent, guardian, custodian, or caretaker; or who has 

been abandoned; or who is not provided necessary medical care; 

or who is not provided necessary remedial care; or who lives in 

an environment injurious to the juvenile’s welfare[.]” N.C. 

Gen. Stat. § 7B-101(15) (2013). Generally, “[i]n deciding 

whether a child is neglected for purposes of terminating 

parental rights, the dispositive question is the fitness of the 

parent to care for the child ‘at the time of the termination 

proceeding.’” In re L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d 

236, 242 (2005) (quoting In re Ballard, 311 N.C. 708, 715, 319 
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S.E.2d 227, 232 (1984)). However, “[w]here, as here, a child 

has not been in the custody of the parent for a significant 

period of time prior to the termination hearing, the trial court 

must employ a different kind of analysis to determine whether 

the evidence supports a finding of neglect.” In re Shermer, 156 

N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003) (citations 

omitted). A trial court may terminate parental rights based 

upon prior neglect of the juvenile if “the trial court finds by 

clear and convincing evidence a probability of repetition of 

neglect if the juvenile were returned to her parents.” In re 

Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000). 

“Relevant to the determination of probability of repetition of 

neglect is whether the parent has made any meaningful progress 

in eliminating the conditions that led to the removal of [the] 

child[].” In re J.H.K., 215 N.C. App. 364, 369, 715 S.E.2d 563, 

567 (2011) (citation and quotation marks omitted).

Here, Linda and Anna had previously been found to be 

neglected juveniles, and the trial court made numerous findings 

of fact regarding respondent father’s failure to make any 

meaningful progress in his case plan, which evince a probability 

of repetition of neglect if the children were returned to his 

care. After over three years of working with DSS toward 
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reunification, the court found respondent father had not 

developed a significant bond with Linda or Anna. Respondent 

father was often disengaged from the children during visits, 

failed to assist the mother with parenting during the visits, 

and had to be prompted by the supervising social worker to 

interact with his children. The court found respondent father 

would occasionally demonstrate appropriate parenting skills 

after direction from the social worker, but would not be able to 

demonstrate the same skills just a week or two later without 

prompting from the social worker. Respondent father also failed 

to comply with recommended treatment services, including budget 

and nutrition education or counseling, asserting that he had 

previously received the services and they were unneeded, even 

though DSS determined that respondents were struggling 

financially, falling behind in their bills, and not providing 

appropriate food or snacks for the children. Ultimately, after 

visiting with respondents, the children began displaying 

oppositional behavior outside of the visits, and Linda needed 

counseling for dealing with anxiety that she developed from the 

visits. The court further found that respondent father had not 

demonstrated an ability to take Anna to the therapy and medical 

appointments she required due to her speech apraxia, or even had 
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an understanding of her disorder. Additionally, the court found 

respondent father had failed to provide a safe and sanitary home 

for the juveniles, and continued to fail to acknowledge any 

responsibility for the reasons why Linda and Anna were in the 

custody of DSS.

The trial court’s findings are either unchallenged by 

respondent father, and thus binding on appeal, Koufman v. 

Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991), or are 

supported by record evidence. We hold these findings support 

the trial court’s conclusion that grounds exist to terminate 

respondent father’s parental rights based on his past neglect of 

his children and the probability of repetition of that neglect 

if Linda and Anna were returned to his care. We reject 

respondent father’s contention that the trial court’s conclusion 

is founded solely upon their poverty, as throughout the history 

of this case respondents rejected assistance offered by DSS to 

alleviate the impact of their financial hardships. Similarly, 

there is no evidence suggesting that respondent father’s recent 

employment ameliorated the conditions underlying the court’s 

findings suggesting a probability of repetition of neglect.

Accordingly, we hold the that trial court did not err in 

concluding grounds existed to terminate respondent father’s 
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parental rights to Linda and Anna pursuant to N.C. Gen. Stat. § 

7B-1111(a)(1). As such, we need not address his arguments 

regarding the trial court’s conclusion that grounds to terminate 

his parental rights also existed under N.C. Gen. Stat. § 7B1111(a)(2). In re P.L.P., 173 N.C. App. 1, 8, 618 S.E.2d 241,

246 (2005), aff’d per curiam, 360 N.C. 360, 625 S.E.2d 779 

(2006) (holding that when “the trial court finds multiple 

grounds on which to base a termination of parental rights, and 

an appellate court determines there is at least one ground to 

support a conclusion that parental rights should be terminated, 

it is unnecessary to address the remaining grounds”). Respondent 

father does not challenge the trial court’s conclusion that it 

is in the children’s best interests to terminate his parental 

rights, and we thus affirm the trial court’s order terminating 

the respondent father’s parental rights to Linda and Anna.

Dismissed in part, affirmed in part.

Chief Judge MARTIN and Judge HUNTER, Robert N., concur.

Report per Rule 30(e).