IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-35

No. 268A21

Filed 18 March 2022

IN THE MATTER OF: D.I.L.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) (2019) from an order entered on 

1 June 2021 by Judge David V. Byrd in District Court, Yadkin County. This matter 

was calendared for argument in the Supreme Court on 18 February 2022 but 

determined on the record and briefs without oral argument pursuant to Rule 30(f) of 

the North Carolina Rules of Appellate Procedure.

J. Clark Fischer for petitioner-appellees.

No brief for Guardian ad Litem.

Peter Wood for respondent-appellant father.

BARRINGER, Justice.

¶ 1 Respondent appeals from the order terminating his parental rights to his 

minor child D.I.L. (Daniel).1 The trial court concluded that both respondent and 

Daniel’s biological mother (mother)2 had neglected Daniel and that there was a 

 

1 A pseudonym is used in this opinion to protect the juvenile’s identity and for ease of 

reading.

2 Daniel’s biological mother is not a party to this appeal.
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substantial likelihood of repetition of neglect of Daniel by respondent and the mother. 

Hence, the trial court found that the ground of neglect pursuant to N.C.G.S. § 7B1111(a)(1) existed to terminate respondent’s parental rights. The trial court further 

concluded that it was in the best interests of Daniel that respondent’s and the 

mother’s parental rights be terminated and thus terminated their parental rights.

¶ 2 On appeal, respondent challenges the trial court’s determination that there 

was a substantial likelihood of repetition of neglect if Daniel was returned to 

respondent’s care. Respondent contends this determination was erroneous because 

petitioners had custody pursuant to a civil custody order, rendering respondent 

unable to obtain custody without a substantial change in his ability to care for Daniel 

and his parenting skills. Since we conclude that this argument has no merit, we 

affirm the trial court’s order terminating the parental rights of respondent to Daniel.

I. Background

¶ 3 When Daniel resided with his mother and respondent, Daniel witnessed them 

sticking themselves with needles and selling drugs. They also instructed Daniel to 

obtain their “happy medicine,” which involved needles. Respondent overdosed once, 

necessitating emergency medical services, and had an ongoing drinking problem. As 

respondent and the mother passed out frequently from their substance use, Daniel’s 

older half-brother had to feed Daniel. The home was dirty and infested with roaches.
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¶ 4 Eventually, the Wilkes County Department of Social Services (DSS) became 

involved with the family because of illegal drug activity in respondent and the 

mother’s home. Respondent and the mother approached petitioners about taking care 

of Daniel’s older half-brother, and petitioners came to learn of Daniel’s situation 

through DSS.

¶ 5 Thereafter, on 24 February 2016, petitioners took Daniel and Daniel’s halfbrother into their care. Daniel arrived with educational deficits for his age, food 

insecurity, clothing infested with roaches and contaminated by intravenous needles, 

unprescribed medicine, and fears of corporal punishment if he was caught lying.

¶ 6 DSS subsequently filed a petition alleging that Daniel was a neglected 

juvenile. The trial court adjudicated Daniel a neglected juvenile by order entered on 

20 July 2016. Thereafter, on 7 September 2016, in a civil custody proceeding, the trial 

court granted petitioners primary legal and physical custody of Daniel. The order 

provided respondent with monthly supervised visitation.

¶ 7 Respondent initially utilized some of his visitation rights but did not interact 

with Daniel very much during the visits. Respondent visited with Daniel 

approximately eight times between 2016 and 2017. During this time period, 

respondent provided Daniel a bike, some clothes, and some toys. However, at a visit 

in 2016, respondent arrived high and could barely walk or talk, and at a visit in 2017, 

respondent smelled of alcohol and drank from a container in a brown bag. The visit 
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Opinion of the Court

in August 2017 was the last time respondent visited with Daniel or petitioners. 

Respondent did not contact petitioners to arrange subsequent visits and ceased 

calling petitioners. Respondent also had not written or sent any cards to Daniel since 

2015.

¶ 8 Respondent filed a motion to modify custody on 17 September 2018. On 

2 October 2018, petitioners filed a petition to terminate respondent’s and the 

mother’s parental rights, alleging neglect and willful abandonment pursuant to 

N.C.G.S. § 7B-1111(a)(1) and (a)(7). Petitioners subsequently amended the petition 

on 8 April 2019 to attach the custody orders referenced in the petition.

¶ 9 A termination-of-parental-rights hearing occurred over the course of three 

days. At the time, respondent was on probation. Respondent previously had been 

convicted of driving while impaired and one or more drug offenses, including 

maintaining a dwelling for purposes of controlled substances. Respondent was 

employed, had health insurance, resided in a two-bedroom mobile home, and paid 

child support for one of his children. However, he had not paid child support for 

Daniel (or any of his other children) or added Daniel to his health insurance plan 

despite its availability. Respondent acknowledged that he chose not to pay child 

support for Daniel’s care.

¶ 10 The trial court found that a ground existed to terminate respondent’s parental 

rights pursuant to N.C.G.S. § 7B-1111(a)(1) and that termination was in Daniel’s best 
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interests. Accordingly, the trial court terminated respondent’s parental rights. 

Respondent appealed.

II. Substantial Likelihood of Repetition of Neglect 

¶ 11 On appeal, respondent argues that the trial court committed prejudicial error 

for one reason: the trial court found a substantial likelihood of repetition of neglect 

when there was no chance for respondent to obtain custody of Daniel unless 

respondent showed a substantial change in his parenting skills and ability to care for 

Daniel. Respondent argues that this showing would be required for him to obtain 

custody because petitioners already had custody pursuant to a civil custody order.

¶ 12 Petitioners contend that the existence of a civil custody order does not bar a 

determination of a substantial likelihood of repetition of neglect. Petitioners argue 

that this Court’s decision in In re B.T.J., 377 N.C. 18, 2021-NCSC-23, directs the trial 

court to assess the fitness of the parent to care for the child at the time of the 

termination-of-parental-rights proceeding when determining a probability of 

repetition of neglect. Thus, according to petitioners, the custody order is irrelevant. 

Further, petitioners raise that respondent’s contention ignores the definitions of 

neglect and neglected juvenile under the applicable statutes, N.C.G.S. § 7B1111(a)(1) and N.C.G.S. § 7B-101(15).

¶ 13 We agree that respondent’s argument is contrary to this Court’s prior 

decisions. For several decades, this Court has recognized that in addition to evidence 
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Opinion of the Court

of prior neglect by the parents prior to losing custody of the juvenile, including an 

adjudication of neglect,

[t]he trial court must also consider any evidence of changed 

conditions in light of the evidence of prior neglect and the 

probability of a repetition of neglect. The determinative 

factors must be the best interests of the child and the 

fitness of the parent to care for the child at the time of the 

termination proceeding.

In re Ballard, 311 N.C. 708, 715 (1984) (cleaned up); see also In re B.T.J., ¶ 13.

¶ 14 Further, the applicable statutes do not deem the fitness necessary for a parent 

to regain custody of a child relevant to a determination of neglect under N.C.G.S. 

§ 7B-1111(a)(1). Pursuant to N.C.G.S. § 7B-1111(a)(1), a trial court “may terminate 

. . . parental rights upon a finding [that] . . . [t]he parent has . . . neglected the 

juvenile.” N.C.G.S. § 7B-1111(a) (2021) (emphasis added). And subsection 7B-101(15) 

of the General Statutes of North Carolina defines neglected juvenile to include “[a]ny 

juvenile less than 18 years of age . . . whose parent, guardian, custodian, or caretaker 

does not provide proper care, supervision, or discipline.” N.C.G.S. § 7B-101(15) (2019)

(emphasis added); see also N.C.G.S. § 7B-101(15) (2021) (defining neglected juvenile 

as “[a]ny juvenile less than 18 years of age . . . whose parent, guardian, custodian, or 

caretaker does any of the following: . . . [d]oes not provide proper care, supervision, or 

discipline” (emphasis added)). Notably, the applicable statutes use the present or 

present perfect tense—not the future—and make no mention of the fitness necessary 

for a parent to regain custody of his or her child.
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Opinion of the Court

¶ 15 Thus, we conclude that the trial court did not err.

III. Conclusion

¶ 16 Having addressed the one issue respondent identified on appeal3—whether 

“[t]he trial court committed prejudicial error by finding a probability of future neglect 

when there was no risk of future neglect because Daniel could not be returned to 

[respondent] under the civil custody order unless a court found there was no risk to 

the child”—and having found no merit to the argument, we affirm the trial court’s 

order terminating respondent’s parental rights.

AFFIRMED.

 

3 Respondent stated in his brief that he “dispute[d] conclusions of law six and seven.” 

However, respondent offered no argument or reason to support this statement other than the 

one issue that he identified on appeal, which we hold has no merit. Thus, we have addressed 

the issue presented to the Court. All other issues are deemed abandoned. See N.C. R. App. P.

28(a), (b)(6).