An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA13-1473

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

IN THE MATTER OF:

J.R.1 Mecklenburg County

No. 10 JA 739

Appeal by Respondent-Father from Order entered 1 October 

2013 by Judge Regan A. Miller in Mecklenburg County District

Court. Heard in the Court of Appeals 19 May 2014.

Senior Associate Attorney Twyla HollingsworthRichardson, for Petitioner Mecklenburg County 

Department of Social Services, Youth and Family 

Services, and Administrative Office of the Courts, by 

Appellate Counsel Tawanda Foster, for Guardian ad 

Litem (joint brief).

Michael E. Casterline for Respondent-Father.

STEPHENS, Judge.

Procedural History and Factual Background

On 20 December 2010, Mecklenburg County Department of 

Social Services, Youth and Family Services (“DSS”) filed a 

juvenile petition alleging that “Jade” and her two half-siblings 

 

1 Initials and a pseudonym are used to protect the identity of 

the juvenile and for ease of reading. 
-2-

were neglected and dependent based on the actions of their 

mother. Respondent-Father had not been identified as Jade’s 

father at that time. By order entered 1 March 2011, the children 

were adjudicated neglected and dependent.

Respondent-Father’s paternity was established in February

2011, and the juvenile court placed Jade in his custody. 

Placement ended in November of 2011 when Respondent-Father was 

arrested and jailed for driving while impaired (“DWI”). On 19 

September 2012, the juvenile court conducted a permanency 

planning review hearing. The following month, on 18 October 

2012, the juvenile court awarded guardianship of Jade to her 

maternal aunt and granted visitation to Respondent-Father.

Respondent-Father appealed the juvenile court’s order.

In an opinion filed 4 June 2013, this Court reversed the 

juvenile court’s permanency planning review and guardianship

order. Citing “clear” case law, we held that the juvenile court 

erred by failing to determine that Respondent-Father was unfit 

or acted inconsistently with his status as a parent before the 

court applied a best interests analysis to establish

guardianship of Jade with her aunt. In re J.R., __ N.C. App. __, 

745 S.E.2d 375 (2013) (unpublished opinion), available at 2013 

WL 2432251 [hereinafter J.R.]. “[E]ven when a juvenile has 
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previously been adjudicated dependent and neglected,” we stated, 

the juvenile court has to specifically find that a natural 

parent is unfit or that his conduct is inconsistent with a 

parent’s constitutionally protected status in order to award 

permanent custody of the child to a nonparent over the 

objections of a natural parent. Id. at *5. Because the juvenile 

court failed to do so, we reversed its order. Id. at *6. 

The juvenile court conducted another permanency planning 

review hearing on 18 July 2013. Following the hearing, on 1 

October 2013, the court filed its written order, concluding that 

Respondent-Father acted inconsistently with his constitutionally 

protected status as Jade’s parent. Accordingly, the juvenile 

court ordered Jade to be placed in the guardianship of her aunt 

pursuant to N.C. Gen. Stat. § 7B-600 (2013). Respondent-Father 

appeals that order. 

Discussion

On appeal, Respondent-Father argues that the juvenile court

(1) exceeded its authority by concluding that he “acted 

inconsistently with his parental role,” (2) made factual 

findings leading to this conclusion were not supported by

competent evidence, and (3) erred by finding that efforts to 
-4-

reunite Jade with Respondent-Father would be inconsistent with 

her need for a permanent home. We affirm.

I. The Juvenile Court’s Authority

In his first argument on appeal, Respondent-Father contends

that the juvenile court exceeded its authority at the permanency 

planning review hearing and violated his right to due process of 

law under N.C. Gen. Stat. § 7B-802 by “mak[ing] what is 

effectively an adjudicatory determination at a review hearing.” 

Citing the typically different standards of proof in an 

adjudicatory hearing and a permanency planning review hearing, 

Respondent-Father contends the juvenile court “stripped [him] of 

his constitutionally[ ]protected status [by deciding this issue 

in a permanency planning review hearing] without any of the 

procedural safeguards set forth in Article 8 of the Juvenile 

Code [for an adjudicatory hearing].” We disagree. 

DSS and the Guardian ad Litem assert in their joint brief 

that Respondent-Father waived this argument by failing to object 

at the hearing. Respondent-Father admits his failure to object, 

but contends that the issue is nonetheless preserved for 

appellate review because the juvenile court acted contrary to

the statutory mandate of section 7B-802. This argument is 

without merit. 
-5-

The standard of proof for an adjudicatory hearing is clear 

and convincing evidence. N.C. Gen. Stat. § 7B-805 (2013). In 

this case, the trial court states at the beginning of its 

permanency planning review hearing and guardianship order that 

its findings of fact are based on “clear, cogent, and convincing 

evidence.” This is the proper standard of proof for determining 

whether a parent has acted in accordance with his or her 

constitutionally protected status as a parent. Owenby v. Young, 

357 N.C. 142, 147, 579 S.E.2d 264, 268 (2003) (“Moreover, the 

trial court’s determination [in a custody hearing] that a 

parent’s conduct is inconsistent with his or her 

constitutionally protected status must be supported by clear and 

convincing evidence.”) (citation omitted). 

Whether Respondent-Father waived his argument or not, the 

trial court’s order plainly states that it applied the same 

evidentiary standard in the permanency planning review hearing 

as is required for an adjudicatory hearing and for the process 

of determining whether a parent’s conduct is inconsistent with 

his or her status as a parent. Therefore, the trial court’s 

conclusion that Respondent-Father acted inconsistently with his 

status as a father could not have “stripped him” of his 

constitutional rights, as he argues, for failure to use the 
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proper evidentiary standard. The trial court used the same 

standard of proof in the permanency planning review hearing that

it would have used in an adjudicatory hearing or in a custody 

hearing. Moreover, it is uncontested that Respondent-Father was 

given notice of the hearing and an opportunity to be heard and, 

in light of this Court’s opinion in his prior appeal, the issues 

to be determined at that hearing were clear. Accordingly, 

Respondent-Father’s first argument is overruled. 

II. The Trial Court’s Findings of Fact

“Appellate review of a permanency planning order is limited to 

[determining] whether there is competent evidence in the record to 

support the findings and [whether] the findings support the 

conclusions of law.” In re J.C.S., 164 N.C. App. 96, 106, 595 

S.E.2d 155, 161 (2004) (citation omitted). “If the trial court’s 

findings of fact are supported by any competent evidence, they are 

conclusive on appeal.” Id. (citation omitted). Because the juvenile 

court properly employed a “clear and convincing” evidentiary 

standard in this case, the evidence presented at the hearing must 

be admissible under that standard in order to be considered

“competent.” Cf. In re McMillon, 143 N.C. App. 402, 411, 546 S.E.2d 

169, 175 (2001) (referring to hearsay testimony as incompetent 

evidence for purposes of determining whether the trial court’s 

findings of fact are based on competent evidence). 
-7-

On appeal, Respondent-Father contends that the factual 

determinations supporting the juvenile court’s conclusion that 

he acted inconsistently with his status as a parent are not

based on competent evidence. Respondent-Father also contests 

some of the court’s findings of fact by arguing that certain 

evidence suggests a contrary finding. In making this argument,

Respondent-Father specifically challenges the juvenile court’s 

findings of fact surrounding child support, visitation, and his 

actions before February 2011. He goes on to argue that, without 

these findings, the remaining facts do not support a 

determination that he acted inconsistently with his status as a 

parent. We are unpersuaded.

A. Child Support

First, Respondent-Father challenges the following findings 

of fact on the issue of child support: 

2. The primary problems that led to [Jade] 

coming to [DSS]’s custody and remaining in 

custody were: The mother’s substance abuse 

issues, the lack of knowledge of [Jade’s] 

father’s identity until 8 February 2011, 

[Respondent-Father’s] relapse and arrest for 

DWI, his unstable housing, and his irregular 

employment. Prior to February 2011, 

Respondent[-F]ather had not provided any 

emotional or financial support for [Jade] 

and was not providing a safe and stable 

environment for her. At the time she came 

into the custody of [DSS], [RespondentFather] was suffering from substance abuse 
-8-

issues and was not protecting [Jade] from 

the substance abuse issues of the mother. 

After paternity was established . . . , 

[Jade] was placed with her father by [the 

juvenile court], but that placement ended in 

November 2011 due to his arrest for DWI and 

being placed in jail. [Respondent-Father] 

was again not able to establish a safe and 

stable home for [Jade].

. . . .

13. [Respondent-Father] has been on notice 

that [Jade] might be his child for almost 

two and one[-]half years. He has known he is 

her father since 8 February 2011. During 

that time, he has paid no child support for 

[Jade].

14. [Respondent-Father] has had the ability 

and means to pay support. He has had 

lucrative employment for at least the last 

three and one[-]half months, driving a 

forklift truck for two different companies. 

He had unstable employment before these two 

recent jobs, but always made enough money to 

support himself and maintain his housing.

. . . .

16. [Jade’s aunt] filed a child support 

action in an attempt to have child support 

be ordered from [Respondent-Father]. [The 

maternal aunt] and [Respondent-Father] 

attended a child support court hearing in 

June 2013. That hearing was continued, but 

[Respondent-Father] still has paid no 

support for [Jade] to [DSS] or [Jade’s 

maternal aunt] during the twenty[-]six 

months he has been aware she is his child 

and she has been placed with [her maternal 

aunt].
-9-

Respondent-Father does not contend that these findings are 

not based on competent evidence. Rather, he contends that they

“do not support [the juvenile court’s] conclusion that [he was]

an unfit parent” because (1) evidence was presented at the 

hearing that he also took care of Jade when she visited with him

and (2) he was not required to pay child support. This argument

is misplaced. 

A trial court’s finding of fact is not invalid merely 

because there is evidence to support a contrary finding. Cf. In 

re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997) 

(“In a non-jury neglect adjudication, the trial court’s findings 

of fact supported by clear and convincing competent evidence are 

deemed conclusive, even where some evidence supports contrary 

findings.”). As we noted above, a finding of fact in a 

permanency planning review hearing is invalid only if it is not 

based on “any” competent evidence. In re J.C.S., 164 N.C. App. at

106, 595 S.E.2d at 161. Respondent-Father does not challenge 

these findings as not supported by competent evidence. 

Therefore, they are binding on appeal. See Koufman v. Koufman, 

330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (“Where no exception 

is taken to a finding of fact by the trial court, the finding is 

presumed to be supported by competent evidence and is binding on 
-10-

appeal.”). The fact that Respondent-Father was not required to 

pay child support does not relieve him of the parental 

obligation to support his child. See Boyd v. Boyd, 81 N.C. App. 

71, 77, 343 S.E.2d 581, 585 (1986) (“Support for minor children 

is an obligation shared by both parents according to their 

relative abilities to provide support and the reasonable needs 

and estate of the child.”); see also Price v. Howard, 346 N.C. 

68, 84, 484 S.E.2d 528, 537 (1997) (noting that “support of a 

child is ordinarily a parental obligation[, which] . . . should 

accompany the right to custody in cases such as this one”). 

Accordingly, Respondent-Father’s argument as it relates to child 

support is overruled. 

B. Visitation

Second, Respondent-Father challenges the following findings 

of fact on the issue of visitation:

7. As part of its [o]rder of 19 September 

2012, the [c]ourt granted [RespondentFather] unsupervised overnight weekend 

visitation with [Jade]. [Respondent-Father] 

was to pick up [Jade] at her day care center 

on Friday afternoon and return her to the 

day care center on Monday morning.

8. The visits did not take place as ordered. 

Sometimes, [Respondent-Father] would not 

pick up [Jade] on Friday and she would spend 

the weekend with [her maternal aunt]. On 

other occasions, [Respondent-Father] would 

end the visit early and return [Jade] to 
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[her maternal aunt] before Monday morning. 

9. [Respondent-Father] told [the aunt] he 

often had to work on weekends[,] but did not 

seek to add additional time with the child 

during the week. He also told her he faced 

financial hardships. He once asked [the 

aunt] if he could add [Jade] to his [f]ood 

[s]tamp allotment although she was not 

primarily living in his home. 

10. [Respondent-Father] missed at least 8 

scheduled weekend visits in their entirety. 

There should have been 21 or 22 weekend 

visits. In addition to the missed visits, 

others were shortened by [RespondentFather].

. . . .

15. He missed some of his weekend visits 

because he had to work[,] but did not seek 

additional time with [Jade]. 

. . . .

22. [Jade] cannot be placed with 

[Respondent-Father] at this time or within 

the next six months. [Respondent-Father] has 

been unable to provide care and supervision 

for [Jade] for two days out of fourteen on a 

consistent basis under the current 

visitation schedule. He has missed nearly 

forty percent of his scheduled visits with 

[Jade] entirely and cut other visits short. 

Respondent-Father argues that these findings are “largely 

unsupported” by the evidence and “do not support [the trial 

court’s] conclusion that [his] conduct has been inconsistent 

with being a good parent.” Specifically, Respondent-Father 
-12-

argues that the court’s findings of fact are erroneous in the 

following ways: (1) Finding 7 incorrectly suggests that 

visitation was to occur every week, not every other week; (2) 

findings 10 and 22 incorrectly suggest that Respondent-Father 

missed a larger percentage of visits than he may have actually 

missed because the aunt said she was “unsure” about the 

visitation schedule; (3) finding 8 is suspect because of the 

aunt’s lack of certainty; (4) findings 9 and 15, regarding 

Respondent-Father’s missed visits, are wholly unsupported by the 

evidence at the hearing. We disagree.

Finding 7 makes no statement about whether visitation was 

to occur every week or every other week. Rather, it clarifies 

the period of days that visitation was set to occur doing those 

weeks. This is based on the aunt’s testimony that RespondentFather was to pick Jade up from her daycare on Friday and drop 

her off at the daycare on Monday. Therefore, it is based on 

competent evidence. 

Findings 10 and 22 are based on the aunt’s testimony that 

Respondent-Father missed approximately eight scheduled visits. 

The visitation order indicates that visitation was scheduled to 

occur every other week. As Respondent-Father admits in his 

brief, this provided for 21 or 22 scheduled visits. As a result, 
-13-

the aunt’s testimony could be interpreted to mean that 

Respondent-Father missed 36% or “nearly forty percent of 

scheduled visits with Jade.” This is competent evidence to 

support findings 10 and 22. The fact that the evidence could be 

interpreted to support a contrary finding is of no consequence. 

See In re J.C.S., 164 N.C. App. at 106, 595 S.E.2d at 161.

Finding 8 is based on the following testimony by the aunt:

Q Okay. Has [Respondent-Father] exercised 

his visitation rights?

A We started out doing that, then, no, it 

stopped. He would call me, tell me that he 

couldn’t get her, then I would pick her up. 

He would call me on a Sunday and tell me 

that he has to be at work so early, he don’t 

have time to take her to the daycare, can I 

get her, so I would go pick her up. 

This is competent evidence to support finding 8. The fact that 

the aunt was unsure about the visitation schedule goes to the 

weight of her testimony, not whether her testimony is competent. 

See Harrington v. Rice, 245 N.C. 640, 643, 97 S.E.2d 239, 241 

(1957) (“The credibility of the witnesses and the weight of the 

evidence were for determination by the court below in 

discharging its duty to find facts.”).

Findings 9 and 15 are supported by the testimony quoted 

above. They are also supported by the fact that no evidence was 

presented at the hearing that Respondent-Father sought 
-14-

additional time with Jade. This is competent evidence to support 

those findings. Therefore, Defendant’s argument is overruled as 

it relates to visitation. 

C. Respondent-Father’s Conduct Before February 2011

Third, Respondent-Father challenges findings of fact 2 and 

23 regarding his conduct before February 2011. Finding of fact 2 

is quoted above and finding of fact 23 reads as follows:

23. [Respondent-Father] has acted 

inconsistently with his constitutionally 

protected status as [Jade’s] father. At the 

time she came into the custody of [DSS] he 

was not providing for the emotional and 

financial support of the child and had not 

acknowledged paternity. He has paid no child 

support. He has failed to take advantage of 

his court-ordered visitation opportunities.

Respondent-Father contends these findings are not supported by 

the evidence because he did not know that he was Jade’s father 

until February 2011, after Jade entered DSS custody. We need not 

resolve this question here. 

“Where there are sufficient findings of fact based on 

competent evidence to support the trial court’s conclusions of 

law, the judgment will not be disturbed because of other 

erroneous findings which do not affect the conclusions.” In re 

H.D.F., 197 N.C. App. 480, 490, 677 S.E.2d 877, 883-84 (2009). 

Here, the juvenile court’s relevant findings of fact regarding 
-15-

visitation and child support are supported by competent 

evidence. These findings support the juvenile court’s conclusion 

that Respondent-Father acted inconsistently with his 

constitutionally protected status as a parent. Therefore, even 

assuming the juvenile court’s findings regarding his actions 

prior to February 2011 are erroneous, its conclusion that 

Respondent-Father acted inconsistently with his role as a parent 

is supported by the other findings of fact, which are in turn 

supported by competent evidence. Accordingly, Defendant’s second 

argument is overruled. 

III. The Juvenile Court’s Finding Regarding the Cessation 

of Reunification

In his final argument, Respondent-Father contends that the 

juvenile court erred in finding efforts to reunite Jade with 

either parent would be inconsistent with her need for a 

permanent home in a reasonable period of time because this 

finding essentially and invalidly ceased reunification efforts 

under N.C. Gen. Stat. § 7B-507(b)(1). This is incorrect. 

As we noted in In re Padgett, 

[t]he clear language of section 7B-507 . . . 

states [that] . . . a finding [regarding the 

cessation of reunification efforts] must be 

made in any order “placing or continuing the 

placement of a juvenile in the custody or 

placement responsibility of DSS.” N.C. [Gen. 

Stat.] § 7B-507(a) [(2013)]. In this case, 
-16-

the [o]rder on [r]eview did not place or 

continue the placement of the children with

DSS, nor did it continue placement 

responsibility with DSS. To the contrary, 

the order granted custody to the children’s 

grandparents and specifically released DSS 

“from all duties over the minor children.” 

Thus, section 7B-507 was not applicable, and 

the trial court did not err in awarding 

custody of the children to their 

grandparents in the [o]rder on [r]eview. 

156 N.C. App. 644, 649, 577 S.E.2d 337, 341 (2003). 

In this case, as in In re Padgett, the permanency planning 

review hearing and guardianship order did not place or continue 

placement of Jade with DSS or continue placement responsibility 

with DSS. Rather, the order placed Jade in her aunt’s 

guardianship and specifically released DSS. Accordingly, section 

7B-507 is not applicable, and the juvenile court did not err by 

placing Jade in her aunt’s guardianship. Defendant’s argument is 

overruled. 

AFFIRMED. 

Judges BRYANT and DILLON concur. 

Report per Rule 30(e).