An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA13-1113

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

IN RE: 

G.A.A. New Hanover County

No. 12 JT 171

Appeal by Respondent from order entered 11 July 2013 by 

Judge Jeffrey E. Noecker in New Hanover County District Court. 

Heard in the Court of Appeals 27 February 2014.

No brief for Petitioners.

Ryan McKaig for Respondent.

No brief for Guardian ad Litem.

STEPHENS, Judge.

Factual and Procedural Background

Respondent appeals from the order terminating his parental 

rights to the minor child G.A.A. (“George”).

1 We reverse.

 

1 The parties stipulated to the use of this pseudonym in order to 

protect the identity of the juvenile.
-2-

George was born out-of-wedlock to petitioners’ daughter2 in 

October 2010. As a result of his mother’s drug use, George was 

undersized, hypotonic, and developmentally delayed. He 

experienced severe difficulties with feeding, “oral tactile 

defensiveness and aversion[,]” “moderately severe” acid reflux, 

and a sensory processing disorder known as Self Regulation 

Disorder. Because of this disorder, George requires an 

environment that is extremely stable and predictable. At the 

time of the termination hearing, George was two and one-half 

years old and had attained the developmental level of a twelvemonth-old. 

Petitioners are George’s maternal grandparents who have 

provided a home for George and served as his primary caretakers 

since his birth. Petitioner-grandmother is a pediatric nurse. 

In addition to his multiple treatment providers, petitioners 

employ a full-time nanny experienced with special-needs children 

to care for George while they are at work.

Respondent was not listed as George’s father on the birth 

certificate but established his paternity through genetic 

testing in a child custody proceeding he initiated against 

 

2 George’s mother was named as a respondent in the petition to 

terminate parental rights, but according to the termination 

order, is now deceased, and thus not a party to this appeal.
-3-

George’s mother in New Hanover County District Court. 

Petitioners intervened in the custody proceeding and were 

awarded sole legal and physical custody of George by order 

entered 5 January 2012, nunc pro tunc to 31 October 2011. The 

custody order includes a finding by the district court that 

Respondent “acted inconsistently with his constitutionally 

protected status” as George’s father, as evidenced by his lack 

of contact with, and failure to provide support for, George in

his first year of life. Respondent was not determined to be 

George’s legal father until entry of the 5 January 2012 custody 

order.

When George was born, Respondent was living in 

Pennsylvania, but he relocated in April 2012 to Wilmington and 

then Myrtle Beach, South Carolina in order to be closer to 

George.

3 On 8 May 2012, Respondent was arrested and charged with 

four offenses involving allegations of domestic violence against 

his then-girlfriend. Respondent spent 120 days in jail before 

 

3 Respondent testified he initially “came down to Wilmington and 

then to Myrtle Beach[,]” but claimed he “couldn’t find housing 

in Wilmington, where I intended to be for my son.” He stayed 

briefly at a campground in Wilmington before moving to South 

Carolina. 
-4-

being released on bond in September 2012.4 On 30 September 2012, 

he was arrested and charged with breach of the peace. 

Petitioners filed a petition to terminate Respondent’s 

parental rights on 28 June 2012. The district court heard 

testimony from petitioners, Respondent, and a social worker from 

the New Hanover County Department of Social Services, as well as

George’s pediatrician, occupational therapist, physical 

therapist, speech pathologist, and nanny. Based on the 

evidence, the court concluded that grounds existed for 

termination of parental rights under N.C. Gen. Stat. § 7B1111(a)(1) (neglect), (2) (failure to make reasonable progress), 

and (7) (abandonment).

5 The court further concluded that 

George’s best interests would be served by terminating 

Respondent’s parental rights. Respondent gave timely notice of 

appeal from the order. 

 

4 The 8 May 2012 charges were pending at the time of the 

termination hearing. 

5 The district court made a finding of fact that the petition 

alleged grounds existed under subsections (1), (2), (4) (willful 

failure to pay reasonable support), and (6) (dependency) of N.C. 

Gen. Stat. § 7B-1111(a) (2013). However, the petition does also 

allege that Respondent “willfully abandoned [George] for at 

least six [] consecutive months” prior to the petition’s filing, 

the ground for termination set forth in subsection (7). See

N.C. Gen. Stat. § 7B-1111(a)(7). We also note that the 

termination order consistently cites the termination statute as 

“N.C.G.S. § 7B-111.” 
-5-

Discussion

Respondent argues that the district court erred in finding 

that grounds for termination existed pursuant to section 7B1111(a)(1) (neglect), (2) (failure to make reasonable progress), 

(6) (dependency), and (7) (abandonment) and erred in concluding 

that termination was in the best interests of George. We agree.

We review an order terminating parental rights to determine 

whether the district court’s findings of fact are supported by 

clear, cogent, and convincing evidence and whether the 

conclusions of law are supported by the findings of fact. In re 

Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6, disc. review 

denied, 358 N.C. 543, 599 S.E.2d 42 (2004). Conclusions of law 

are reviewed de novo. In re S.N., 194 N.C. App. 142, 146, 669 

S.E.2d 55, 59 (2008), affirmed per curiam, 363 N.C. 368, 677 

S.E.2d 455 (2009). 

I. Neglect

Respondent first argues that the district court erred in 

finding that grounds existed to terminate his parental rights 

based upon his neglect of George. We agree.

Under section 7B-1111(a)(1), “[t]he trial court may 

terminate the parental rights to a child upon a finding that the 

parent has neglected the child.” In re Humphrey, 156 N.C. App. 
-6-

533, 540, 577 S.E.2d 421, 427 (2003) (citation omitted). A

“neglected” juvenile is defined, inter alia, as one “who does 

not receive proper care, supervision, or discipline from the 

juvenile’s parent, . . .; or who has been abandoned; . . . 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). “In addition, this Court has 

required that there be some physical, mental, or emotional 

impairment of the juvenile or a substantial risk of such 

impairment as a consequence of the failure to provide proper 

care, supervision, or discipline in order to adjudicate a 

juvenile neglected.” In re E.P., 183 N.C. App. 301, 307, 645 

S.E.2d 772, 775 (citation and internal quotation marks omitted), 

affirmed per curiam, 362 N.C. 82, 653 S.E.2d 143 (2007). 

“A finding of neglect sufficient to terminate parental 

rights must be based on evidence showing neglect at the time of 

the termination proceeding.” In re Young, 346 N.C. 244, 248, 

485 S.E.2d 612, 615 (1997) (citation omitted; emphasis added). 

Thus, if a child is in the custody of his parent at the time of 

the termination proceeding, such a determination is made by 

examining the parent’s care of the child at that time. However, 

when, as is frequently the case in termination proceedings, the 
-7-

child has been removed from his parent’s custody long before the 

termination proceeding, courts 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). 

[A] prior adjudication of neglect may be 

admitted and considered by the trial court 

in ruling upon a later petition to terminate 

parental rights on the ground of neglect. 

However, such prior adjudication, standing 

alone, will not suffice where the natural 

parents have not had custody for a 

significant period prior to the termination 

hearing. Therefore, the court must take 

into consideration any evidence of changed 

conditions in light of the evidence of prior 

neglect and the probability of a repetition 

of neglect.

In re Brim, 139 N.C. App. 733, 742, 535 S.E.2d 367, 372 (2000)

(citation and internal quotation marks omitted; alteration and 

emphasis in original). In such cases, “a showing of a history 

of neglect by the parent and the probability of a repetition of 

neglect” is sufficient to establish grounds for termination 

under section 7B-1111(a)(1). In re L.O.K., 174 N.C. App. 426, 

435, 621 S.E.2d 236, 242 (2005) (citation and internal quotation 

marks omitted; emphasis added). 

Thus, in situations where the child has been removed from 

the parent, the court considers the parent’s past neglect of the 
-8-

child and whether the current circumstances suggest the neglect 

probably will reoccur in the future. However, while a 

“probability of a repetition of neglect” can constitute a ground 

for termination, id., “parental rights may not be terminated for 

threatened future harm” in the absence of any previous neglect. 

In re Evans, 81 N.C. App. 449, 452, 344 S.E.2d 325, 327 (1986); 

see also In re Phifer, 67 N.C. App. 16, 25-26, 312 S.E.2d 684, 

689 (1984) (rejecting the petitioner’s “strenuous[] conten[tion]

that a threat of future harm is sufficient grounds for 

termination of parental rights”).6 

Here, George has never been adjudicated a neglected 

juvenile as defined in section 7B-101(15). The custody order 

does not contain any findings that Respondent neglected George

in the past. Respondent has never had custody of George, and 

George has never lived with Respondent. Instead, George has 

 

6 Under the Juvenile Code then in effect, a neglected child was 

defined as one who “does not receive proper care, supervision, 

or discipline from his parent, guardian, custodian, or 

caretaker; or who has been abandoned; or who is not provided 

necessary medical care or other remedial care recognized under 

State Law, or who lives in an environment injurious to his 

welfare, or who has been placed for care or adoption in 

violation of law.” N.C. Gen. Stat. § 7A-517(21) (1981). This 

language is virtually identical to that in current section 7B101(15) and nothing suggests the relevant reasoning employed in 

In re Phifer would be inapplicable to determinations of neglect 

under section 7B-101(15).
-9-

lived with petitioners from birth, with the exception of a few 

brief periods when it appears his mother (petitioners’ daughter) 

left petitioners’ home and took George with her.7 The 

termination order contains no findings of fact regarding any 

“physical, mental, or emotional impairment of” George due to the 

actions or omissions of Respondent. In re E.P., 183 N.C. App. 

at 307, 645 S.E.2d at 775. 

In support of its adjudication of neglect under N.C. Gen. 

Stat. § 7B-1111(a)(1), the district court made the following 

findings of fact:

11. The minor child was placed in the care 

and custody of [p]etitioners by prior 

court order and Respondent was found to 

have acted inconsistently with his 

constitutionally protected status as a 

parent of the minor child at issue 

herein. Respondent was also found to be 

unfit to provide for the care and 

custody of the minor child at the time 

of the custody order noted herein above 

dated January 5, 2012.

12. Based on the findings of fact herein and 

pursuant to [section] 7B-111[1] et[]

seq., grounds exist to terminate the 

parental rights of Respondent to the 

minor child as follows:

 

7 The record does not reveal the exact details of these 

occasions, but the termination order notes that George had lived 

with petitioners for more than two of his two and one-half years 

of life at the time of the proceeding and nothing in the record 

suggests that George ever resided with Respondent.
-10-

. . .

(c) In accordance with [section] 7B111[1](a)(1)[,] (2), Respondent 

neglected the juvenile in numerous 

ways, including but not limited to:

. . .

iii. Respondent is incapable of 

providing for the proper care and 

supervision [of the child] and the 

child would live in an injurious 

environment if in [] Respondent’s 

care such that the juvenile is a 

neglected juvenile within the 

meaning of [section] 7B-101, and 

there is a reasonable probability 

that such incapability will 

continue for the foreseeable 

future.

. . .

v. Through evidence of his past 

behavior and current behavior, 

Respondent’s actions detail that 

he has largely untreated mental 

health issues including major 

depression, post-traumatic stress 

disorder, anger management issues,

and tendencies towards aggressive 

and violent behavior. Although 

Respondent has been in therapeutic 

counseling for the past eight 

months, which began after his most 

recent incarceration, he is not 

taking medications previously 

prescribed to assist him in the 

management of these illnesses.

vi. From the date of the minor child’s 

birth, through the time that the 

Petition was filed, Respondent 
-11-

made one payment of $50.00 and 

sent gifts in the form of clothing 

and Christmas gifts to 

[p]etitioners for the child. 

Respondent has never paid for any 

of the minor child’s specialized 

medical needs.

vii. Respondent has prior allegations 

of domestic violence against the 

mother of the minor child, which 

he was later found not guilty of 

at trial. After moving to Myrtle 

Beach the police were called to a 

gas station due to a conflict 

between Respondent and his then 

girlfriend. . . .

viii. Shortly after the incident at the 

gas station . . . , Respondent had 

another incident with the same 

girlfriend . . . . From said 

incident, Respondent has current 

pending criminal charges of 

Kidnapping, Pointing and 

Presenting Firearms at a Person, 

Possession of a Weapon During a 

Violent Crime, and Criminal 

Domestic Violence of a High and 

Aggravated Nature. One of the 

allegations against him was that 

he pointed a loaded weapon at the 

head of his girlfriend at the time 

and law enforcement noticed marks 

on her neck, which Respondent 

believes she inflicted on herself.

ix. Once released from incarceration 

on the above noted charges, 

Respondent was arrested again for 

disturbing the peace in Myrtle 

Beach.

x. In addition to the current pending 
-12-

charges, Respondent’s criminal 

record over the past number of 

years includes multiple charges 

for which he either plead[ed] 

guilty or was found guilty which 

include violent offenses and 

illegal substance charges. . . .

xi. Respondent has suffered 

significant residential 

instability. . . . 

xii. While in South Carolina, 

Respondent lived in no less than 

six (6) separate residences, 

generally renting on a week[-]to[-

]week basis. He rarely stayed in 

any rental for a month, often . . 

. reporting problems with 

neighbors or landlords. 

Respondent slept on a bench in a 

church playground for . . . one 

night after release from 

incarceration.

xiii. Respondent suffers from 

relationship instability. . . . 

xiv. The conditions in Respondent’s 

life all combine so that he did 

not make reasonable progress 

towards correcting his 

circumstances. . . . 

xv. Although [R]espondent has not had 

placement of the minor child, due 

to his residence instability, 

untreated mental health, 

incarcerations, and violent 

altercations, had the minor child 

been with him, it is presumed the 

child would have been neglected. 

Respondent’s instability, 

violence, and other conditions 
-13-

noted herein would likely have led 

to G[eorge] not receiving proper 

care, supervision, or having his 

needs adequately met.

xvi. All the findings are overlain by 

the substantial nature of the 

minor child’s medical issues. 

G[eorge] is a fragile child with 

excessive special needs, requiring 

daily and intensive special needs 

which Respondent cannot meet and 

has not made any reasonable 

efforts to be able to meet, 

despite having knowledge of the 

child’s special needs from 

[p]etitioners.

xvii. Respondent asserted that due to 

his criminal allegations, he is 

not in a position to have custody 

of the minor child at this time. 

However, he stated that he 

believes with additional time he 

could.

xviii. Respondent has attended a 

significant number of counseling 

sessions, has attended physical 

therapy sessions, and has recently 

started sessions with a parenting 

counselor. The Court finds that 

despite those efforts, Respondent 

has not shown reasonable progress 

to fix the conditions which caused 

the court to determine that he 

acted contrary to his 

constitutionally protected status 

as a parent in the underlying 

custody matter.

. . . 

xx. . . . . Respondent did not take 
-14-

the opportunities that he was 

offered [to visit George]. . . . 

Prior to the filing of the 

Petition, Respondent had only 

attended three (3) visitation 

times with the minor child.

xxi. Respondent could have requested 

additional visitation during the 

time noted herein . . . until 

[p]etitioners ceased any and all 

visitation between Respondent and 

the minor child due to the 

Respondent’s pending criminal 

allegations. Respondent indicated 

to the Court that it was not 

practical to travel to North 

Carolina from Pennsylvania for 

short four[-]hour visit[s], nor 

[was it] financially feasible.

(Emphasis added). The court further found “a high probability 

of repetition of neglect of the minor child, if the minor child 

were in the care of the Respondent[,]” even though there was no 

finding of any prior neglect.

These findings of fact are insufficient to support a

determination of neglect as a ground for termination of 

Respondent’s parental rights to George.

8 As shown in the 

emphasized portions of the order quoted supra, the court found 

only a “presumed” hypothetical risk that George would have been

 

8 These findings would perhaps support the conclusion that 

grounds for termination of Respondent’s parental rights existed 

based upon George’s dependency pursuant to section 7B1111(a)(6). This ground for termination is addressed in section 

III below.
-15-

neglected if he had been in Respondent’s care and, on the basis 

of that hypothetical risk, the trial court then presumed a 

future risk of neglect. Thus, both the evidence and the 

district court’s findings of fact are insufficient to establish 

neglect as a ground for termination under N.C. Gen. Stat. § 7B1111(a)(1). See In re Evans, 81 N.C. App. at 452, 344 S.E.2d at 

327 (holding that “parental rights may not be terminated for 

threatened future harm” in the absence of any previous neglect). 

II. Failure to make reasonable progress

Respondent next argues that the district court erred in 

finding that grounds existed to terminate his parental rights 

under subsection (2), to wit, that Respondent “willfully left 

the juvenile in foster care or placement outside the home for 

more than 12 months without showing to the satisfaction of the 

court that reasonable progress under the circumstances has been 

made in correcting those conditions which led to the removal of 

the juvenile.” N.C. Gen. Stat. § 7B-1111(a)(2). Again, we 

agree.

“Where the ‘more than twelve months’ threshold requirement 

in [section] 7B-1111(a)(2) did not expire before the motion or 

petition was filed, a termination on this basis cannot be 

sustained. Indeed, this threshold requirement is related to the 
-16-

court’s jurisdiction or authority to act.” In re A.C.F., 176 

N.C. App. 520, 527, 626 S.E.2d 729, 735 (2006) (citation and 

footnote omitted). This Court also specified that the twelvemonth period does not begin to run until after “a court has 

entered a court order requiring that a child be in foster care 

or other placement outside the home.” Id. at 525-26, 626 S.E.2d

at 734 (emphasis omitted). 

Here, the order giving custody of George to petitioners was 

entered 3 January 2012, nunc pro tunc to 31 October 2011. 

Petitioners filed the petition to terminate Respondent’s 

parental rights on 28 June 2012. Thus, twelve months had not 

elapsed between entry of the custody order and the filing of the 

petition for termination. Accordingly, termination of 

Respondent’s parental rights on the basis of subsection (2) 

cannot be sustained. 

III. Dependency

Respondent also argues that the district court erred in 

terminating his parental rights based upon George’s dependency. 

Subsection (6) provides that a ground for termination of 

parental rights exists when

the parent is incapable of providing for the 

proper care and supervision of the juvenile, 

such that the juvenile is a dependent 

juvenile within the meaning of [section] 7B-
-17-

101, and that there is a reasonable 

probability that such incapability will 

continue for the foreseeable future.

Incapability under this subdivision may be 

the result of substance abuse, mental 

retardation, mental illness, organic brain 

syndrome, or any other cause or condition 

that renders the parent unable or 

unavailable to parent the juvenile and the 

parent lacks an appropriate alternative 

child care arrangement.

N.C. Gen. Stat. § 7B-1111(a)(6). In turn, section 7B-101 

defines a dependent juvenile as “[a] juvenile in need of 

assistance or placement because (i) the juvenile has no parent, 

guardian, or custodian responsible for the juvenile’s care or 

supervision or (ii) the juvenile’s parent, guardian, or 

custodian is unable to provide for the juvenile’s care or 

supervision and lacks an appropriate alternative child care 

arrangement.” N.C. Gen. Stat. § 7B-101(9).

As noted in footnote 8 supra, portions of findings of fact 

11 and 12(c) could support the conclusion that a ground to 

terminate parental rights existed under section 7B-1111(a)(6)

because George was a dependent child as defined in section 7B101(9). However, finding of fact 12(b) explicitly states that, 

“[i]n accordance with [section 7B-1111](a)(6), [p]etitioners did 

not meet their burden.” (Emphasis added). This is tantamount 

to a finding that no clear, cogent, and convincing evidence was 
-18-

offered to support a conclusion that George was a dependent 

child.

Further, the termination order does not conclude that 

dependency exists as a basis to terminate Respondent’s parental 

rights. Rather, conclusion of law 4 merely states that 

“Respondent is incapable of providing for the proper care and 

supervision of [George] while in his care so that [George] is a 

dependent juvenile within the meaning of [section] 7B-101.” In 

contrast, conclusions of law 3 and 5 each begin, “Pursuant to 

[section] 7B-111[1] et[] seq., grounds exist to terminate the 

parental rights of . . . Respondent” before going on to state 

the grounds of neglect, abandonment, and failure to make 

reasonable progress. This distinction, in combination with the 

explicit statement in finding of fact 12(b), suggests that the 

district court did not intend to conclude that dependency could

serve as a ground for the termination of Respondent’s parental 

rights to George. Even if we were to interpret conclusion of 

law 4 as referring to dependency as a ground for termination of 

parental rights, in light of finding of fact 12(b), we cannot

hold that this conclusion of law is supported by the findings of 

fact as they appear in the order. In re Shepard, 162 N.C. App.

at 221, 591 S.E.2d at 6. 
-19-

IV. Abandonment

Respondent also argues that the district court erred in 

finding that grounds existed to terminate his parental rights 

based upon his abandonment of George. We agree.

Parental rights may be terminated when “[t]he parent has 

willfully abandoned the juvenile for at least six consecutive 

months immediately preceding the filing of the petition . . . .” 

N.C. Gen. Stat. § 7B-1111(a)(7). “Abandonment implies conduct 

on the part of the parent which manifests a willful 

determination to forego all parental duties and relinquish all 

parental claims to the child.” In re Adoption of Searle, 82 

N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986) (citation 

omitted). Willfulness is “more than an intention to do a thing; 

there must also be purpose and deliberation.” Id. (citation 

omitted). 

A judicial determination that a parent 

willfully abandoned h[is] child, 

particularly when we are considering a 

relatively short six[-]month period, needs 

to show more than a failure of the parent to 

live up to h[is] obligations as a parent in 

an appropriate fashion; the findings must 

clearly show that the parent’s actions are 

wholly inconsistent with a desire to 

maintain custody of the child. 

In re S.R.G., 195 N.C. App. 79, 87, 671 S.E.2d 47, 53 (2009)

(citation omitted; emphasis added).
-20-

Here, our task is complicated due to the lack of dates in

many of the findings of fact in the termination order which 

discuss Respondent’s actions relevant to assessing his desire to 

remain George’s father. However, the unchallenged findings of 

fact reveal the following: Up until seven months before the 

petition was filed, Respondent was engaged in the custody action 

which he initiated and which certainly indicates a strong desire 

to maintain his parental rights. After George’s birth, 

Respondent moved from Pennsylvania to live closer to George, 

established paternity, made at least one support payment, and 

sent clothing and other gifts to George. Respondent 

acknowledged that his pending criminal allegations prevented him 

from having custody of George, but expressed hope that he could 

regain custody in the future. Respondent “attended a 

significant number of counseling sessions” and parenting 

sessions. Indeed, the district court found that “Respondent has 

expressed a desire and a demand to visit and maintain rights to 

contact [George]. He has appeared in court and asserted his 

rights.” We simply do not believe that Respondent’s “actions 

are wholly inconsistent with a desire to maintain custody of” 

George. See In re S.R.G., 195 N.C. App. at 87, 671 S.E.2d at 

53. The district court’s own findings of fact summarized supra
-21-

do not support its ultimate finding that Respondent abandoned 

George. 

V. Termination of parental rights

Because none of the grounds for termination found by the 

district court are supported by the findings of fact, we need 

not address Respondent’s argument that the district court erred

in concluding that it would be in George’s best interests to 

terminate Respondent’s parental rights. 

Conclusion

The district court’s findings of fact are not supported by 

clear, cogent, and convincing evidence and do not support its 

conclusions of law. See In re Shepard, 162 N.C. App. at 221, 

591 S.E.2d at 6. Accordingly, the termination order is

REVERSED.

Judges CALABRIA and ELMORE concur.

Report per Rule 30(e).