IN THE SUPREME COURT OF NORTH CAROLINA

No. 458A19

Filed 18 December 2020

IN THE MATTER OF: W.K. and N.K.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from orders entered on 12 

September 2019 by Judge Christine Underwood, in District Court, Alexander County. 

Heard in the Supreme Court on 13 October 2020.

Thomas R. Young for petitioner-appellee Alexander County Department of 

Social Services.

Elisabeth C. Kelly for appellee Guardian ad Litem.

Kathleen M. Joyce for respondent-appellant father.

MORGAN, Justice.

In this matter, respondent-father appeals from the trial court’s orders

terminating respondent-father’s parental rights to his biological children, “Wesley” 

and “Natasha.”1 Respondent-father’s primary challenge to the termination orders is 

that his guardian ad litem (GAL), appointed pursuant to Rule 17 of the North 

Carolina Rules of Civil Procedure and N.C.G.S. § 7B-1101.1, did not participate 

sufficiently to satisfy the statutory requirements of his role and, thus, that the trial 

court abused its discretion in advancing the adjudication and disposition proceedings

 

1 The minor children will be referred to throughout this opinion as Wesley and 

Natasha, which are pseudonyms used to protect their identities and for ease of reading. 
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which ultimately resulted in the termination of respondent-father’s parental rights.

See N.C.G.S. § 1A-1, Rule 17 (2019); N.C.G.S. § 7B-1101.1 (2019). We disagree and 

therefore affirm the trial court’s orders.

Factual Background and Procedural History

Wesley and Natasha each tested positive for the presence of controlled 

substances at birth. In juvenile petitions filed by the Alexander County Department 

of Social Services (DSS) on 3 March 2016, the children’s mother was alleged to have

“a sustained addiction to controlled substances which ha[d] impaired her ability to 

provide appropriate care” for Wesley and Natasha. Respondent-father was not living 

with the mother and the children, but he was named in the petition as the father of 

Wesley and Natasha. Wesley and Natasha were adjudicated to be neglected juveniles 

in April 2016 and placed in the custody of DSS. Following a review hearing on 12 

January 2017, the trial court entered an order on 2 February 2017 relieving DSS of 

reunification efforts and establishing adoption as the sole plan. On 10 October 2017, 

DSS filed motions to terminate the parental rights of respondent-father and the 

mother, alleging the grounds of neglect and failure to make reasonable progress to 

correct the conditions which led to removal of the juveniles. See N.C.G.S. § 7B1111(a)(1)–(2) (2019). Following a 29 March 2018 hearing, the trial court entered 

orders on 10 May 2018 terminating respondent-father’s and the mother’s parental 

rights after adjudicating the existence of both grounds alleged in the motions for 
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termination. Both parents filed notices of appeal.2 At that stage, respondent-father’s 

sole appellate issue was that the trial court erroneously deprived him of his right to 

be represented by counsel at the termination hearing. Upon review, the Court of 

Appeals agreed and vacated those portions of the orders terminating respondentfather’s parental rights to the juveniles and remanded for a new hearing on the 

motions to terminate respondent-father’s parental rights. In re K.S.K., No. COA18-

814, 2019 WL 1472981 (N.C. Ct. App. Apr. 2, 2019) (unpublished).3

On remand, respondent-father was appointed new counsel, and the trial court 

made the following findings:

Respondent has previously admitted to being diagnosed 

with bi[-]polar disorder, depression, and schizophrenia. He 

previously received special education classes. He received 

a psychiatric evaluation on October 17, 2017, in which he 

admitted having auditory hallucinations in the past. He 

receives disability for psychiatric issues, and has an 

alternate payee. His intellectual function is well below 

normal. He has poor insight and judgment. He is a poor 

historian. He had hydrocephalus as a child. He did not 

graduate high school. He has previously had his IQ 

evaluated and was placed on the scale at 71. He has 

difficulty with information processing skills. A Rule 17 

hearing was held in October 2017. Respondent presents 

today in court with a blank and confused look on his face. 

On December 17, 2009 he received a diagnosis of 

schizophrenia and mental retardation[.]

 

2 The children’s mother is not a party to this appeal.

3 Wesley and Natasha’s half-sibling, “K.,” was the first named party in the previous 

appeal but is not a subject of this appeal.
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Accordingly, respondent-father was appointed a GAL pursuant to Rule 17. N.C.G.S. 

§ 1A-1, Rule 17(b)(2) (“In actions or special proceedings when any of the defendants

are . . . incompetent persons, . . . the court in which said action or special proceeding 

is pending . . . may appoint some discreet person to act as guardian ad litem, to defend 

in behalf of such . . . incompetent persons . . . .”). Thereafter, a termination hearing 

was held in July and August 2019. 

Prior to the termination hearing, respondent-father met with both his counsel

and his Rule 17-appointed GAL, Edward Hedrick, both of whom jointly discussed the 

case with respondent-father. At the 25 July 2019 hearing, respondent-father’s 

counsel reported to the trial court that respondent-father wanted his counsel to 

withdraw because respondent-father did not believe his counsel was working on his

behalf. The Rule 17 GAL was asked for any thoughts, and he expressed that he had 

none at that moment. The trial court denied counsel’s motion to withdraw. Testimony 

from a DSS social worker was received during which counsel for respondent-father

objected and then moved for and received a continuance to review pertinent records.

Respondent-father’s Rule 17 GAL was not directly consulted in regard to the motion 

to continue, but he had joined with respondent-father’s counsel in making two 

objections to the evidence, and he also assisted in identifying a date for the new 

hearing. 

On 15 August 2019 when the termination hearing resumed, respondent-father

did not appear. Respondent-father’s GAL was silent at this hearing but did confer 
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with respondent-father’s counsel. Counsel for respondent-father moved to continue 

the matter, which was denied. Respondent-father’s counsel again moved for a 

continuance at the close of DSS’s evidence. The trial court denied the second motion 

to continue. No evidence was presented on respondent-father’s behalf. The trial court 

proceeded to the disposition stage and again denied a motion to continue by counsel 

for respondent-father. Orders terminating respondent-father’s parental rights on 

both grounds were entered on 12 September 2019. Respondent-father’s direct appeal 

is now before our Court.4

 

4 Respondent-father’s notice of appeal states that he is appealing from “the Order 

Terminating Parental Rights that was filed on August 15, 2019.” The termination hearing 

concluded on 15 August 2019, and the trial court stated that termination was in the best 

interests of the juveniles and provided written findings to counsel on that date. The trial 

court subsequently filed two orders terminating respondent-father’s parental rights on 12 

September 2019. The notice of appeal thus does not properly designate the orders from which 

respondent-father appeals.

Rule 3(d) of the North Carolina Rules of Appellate Procedure provides that a notice of

appeal “shall designate the judgment or order from which appeal is taken . . . .” N.C. R. App. 

P. 3(d). “Compliance with the requirements for entry of notice of appeal is jurisdictional.” 

State v. Oates, 366 N.C. 264, 266, 732 S.E.2d 571, 573 (2012) (citing Dogwood Dev. & Mgmt. 

Co. v. White Oak Transp. Co., 362 N.C. 191, 197–98, 657 S.E.2d 361, 365 (2008)). “As such, 

‘the appellate court obtains jurisdiction only over the rulings specifically designated in the 

notice of appeal as the ones from which the appeal is being taken.’ ” Sellers v. Ochs, 180 N.C. 

App. 332, 334, 638 S.E.2d 1, 2–3 (2006) (citation omitted). An exception exists where “a 

mistake in designating the judgment, or in designating the part appealed from if only a part 

is designated, should not result in loss of the appeal as long as the intent to appeal from a 

specific judgment can be fairly inferred from the notice and the appellee is not misled by the 

mistake.” Evans v. Evans, 169 N.C. App. 358, 363, 610 S.E.2d 264, 269 (2005) (citation 

omitted).

In this matter, DSS and the children’s guardian ad litem have fully participated in 

the appeal, do not challenge this Court’s jurisdiction, and do not appear to have been misled 

by the mistake. Respondent-father’s inclusion of the correct lower-court numbers and his 

characterization of the order at issue as terminating his parental rights make sufficiently 

clear his intent to appeal the orders entered on 12 September 2019, and we thus address the 
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Analysis

In his appeal before this Court, respondent-father’s first argument is that his 

Rule 17 GAL did not appropriately represent him. Respondent-father and DSS agree 

that this question is a matter of discretion for the trial court. “An ‘[a]buse of discretion 

results where the court’s ruling is manifestly unsupported by reason or is so arbitrary 

that it could not have been the result of a reasoned decision.’ ” In re T.L.H., 368 N.C. 

101, 107, 772 S.E.2d 451, 455 (2015) (alteration in original). 

In his second argument, respondent-father challenges several of the trial 

court’s findings of fact as unsupported by the evidence produced during the 

adjudication stage. Because a finding of only one ground is necessary to support a 

termination of parental rights, see In re T.N.H., 372 N.C. 403, 413, 831 S.E.2d 54, 62 

(2019), we only address respondent-father’s argument regarding alleged error in the 

trial court’s ultimate finding as to the existence of the basis for termination of neglect. 

See N.C.G.S. § 7B-1111(a)(1). We review 

trial court orders in cases in which a party seeks to have 

a parent’s parental rights in a child terminated by 

determining whether the trial court’s findings of fact are 

supported by clear, cogent, and convincing evidence and 

whether those findings support the trial court’s 

conclusions of law. A trial court’s finding of fact that is 

supported by clear, cogent, and convincing evidence is 

deemed conclusive even if the record contains evidence 

that would support a contrary finding.

 

merits of respondent-father’s appeal.
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In re B.O.A., 372 N.C. 372, 379, 831 S.E.2d 305, 310 (2019) (citations omitted).

Here we hold that the ground of neglect was so supported. Grounds exist to 

terminate parental rights when “[t]he parent has . . . neglected the juvenile . . . within 

the meaning of G.S. 7B-101.” N.C.G.S. § 7B-1111(a)(1). A neglected juvenile is 

defined, in pertinent part, as a juvenile “whose parent, guardian, custodian, or 

caretaker does not provide proper care, supervision, or discipline; . . . or who lives in 

an environment injurious to the juvenile’s welfare . . . .” N.C.G.S. § 7B-101(15) (2019). 

When termination of parental rights is based on neglect, “if the child has been 

separated from the parent for a long period of time, there must be a showing of . . . a 

likelihood of future neglect by the parent.” In re D.L.W., 368 N.C. 835, 843, 788 S.E.2d 

162, 167 (2016) (citing In re Ballard, 311 N.C. 708, 713–15, 319 S.E.2d 227, 231–32 

(1984)).5 “When determining whether such future neglect is likely, the district court 

must consider evidence of changed circumstances occurring between the period of 

past neglect and the time of the termination hearing.” In re Z.V.A., 373 N.C. 207, 212, 

835 S.E.2d 425, 430 (2019) (citing Ballard, 311 N.C. at 715, 319 S.E.2d at 232).

I. Sufficiency of performance by respondent-father’s Rule 17 GAL

 

5 The Court in In re Ballard held that an adjudication of past neglect is admissible in 

subsequent proceedings to terminate parental rights, but is not, standing alone, enough to 

prove that a ground exists to terminate parental rights on the basis of neglect. 311 N.C. 708, 

713–15, 319 S.E.2d 227, 231–32 (1984). The Court in In re Ballard did not suggest that a 

showing of past neglect is necessary in order to terminate parental rights in every case. 

Indeed, N.C.G.S. § 7B-1111(a)(1) does not require a showing of past neglect if the petitioner 

can show current neglect as defined in N.C.G.S. § 7B-101(15). To the extent other cases have 

relied upon In re D.L.W. as creating such a requirement, we disavow such an interpretation.
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Respondent-father’s first contention is that the trial court abused its discretion 

when it proceeded through the adjudication and disposition hearings without the 

active participation of respondent-father’s Rule 17 GAL. We disagree with 

respondent-father’s characterization of his GAL’s performance.

Under Rule 17(e),

[a]ny guardian ad litem appointed for any party pursuant 

to any of the provisions of this rule shall file and serve such 

pleadings as may be required within the times specified by 

these rules, unless extension of time is obtained. After the 

appointment of a guardian ad litem under any provision of 

this rule and after the service and filing of such pleadings 

as may be required by such guardian ad litem, the court 

may proceed to final judgment, order or decree against any 

party so represented as effectually and in the same manner 

as if said party had been under no legal disability, had been 

ascertained and in being, and had been present in court 

after legal notice in the action in which such final 

judgment, order or decree is entered.

N.C.G.S. § 1A-1, Rule 17(e); see also In re T.L.H., 368 N.C. 101, 106, 772 S.E.2d 451, 

454 (2015). Appointed counsel and an appointed Rule 17 GAL serve different roles.

The parent’s counsel shall not be appointed to serve as the 

guardian ad litem and the guardian ad litem shall not act 

as the parent’s attorney. Communications between the 

guardian ad litem appointed under this section and the 

parent and between the guardian ad litem and the parent’s 

counsel shall be privileged and confidential to the same 

extent that communications between the parent and the 

parent’s counsel are privileged and confidential.

N.C.G.S. § 7B-1101.1(d). 
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While acknowledging that Rule 17 and N.C.G.S. § 7B-1101.1 do not specify 

exact duties of a GAL appointed under those provisions, respondent-father contends 

that the trial court abused its discretion by proceeding to judgment on these 

circumstances, asserting that Rule 17 permits a trial court to proceed against a party 

only after a GAL performs his or her necessary duties. N.C.G.S. § 1A-1, Rule 17(e)

(“After the appointment of a guardian ad litem under any provision of this rule and 

after the service and filing of such pleadings as may be required by such guardian ad 

litem, the court may proceed to final judgment, order or decree against any party 

[represented thereby] . . . .”). 

Respondent-father asserts that the performance of his Rule 17 GAL was 

insufficient in that (1) he could not immediately refer to his GAL by name during the 

July 2019 hearing and (2) the Rule 17 GAL spoke on the record only five times during 

the July 2019 hearing and did not speak on the record at the August 2019 hearing. 

In regard to the first assertion, given respondent-father’s mental health status and 

the pressure which the hearing would present for any respondent, we cannot infer 

from respondent-father’s query in reference to the Rule 17 GAL asking “what’s your 

name?”, standing alone, that the Rule 17 GAL had failed to fulfill his statutory duties. 

Respondent-father cites no evidence that respondent-father’s question indicated that

the GAL had not met with respondent-father or that the Rule 17 GAL had failed to 

appropriately interact with and adequately represent respondent-father’s interests 

during the termination-of-parental-rights process. As to the Rule 17 GAL’s 
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participation during the August 2019 hearing, respondent-father now contends that 

the Rule 17 GAL could have been more active by making statements in support of 

respondent-father’s counsel’s motion for a continuance and could have “worked with” 

respondent-father’s counsel to present evidence in respondent-father’s favor at the 

August 2019 hearing after the motion for a continuance was denied. 

We disagree given that respondent-father has not identified any actions his 

Rule 17 GAL could have taken that would have improved his chances to obtain a 

decision in his favor, has not shown the Rule 17 GAL did not guard his due-process 

rights, and has not shown his Rule 17 GAL did not otherwise adequately assist him 

in executing his legal rights. It is well-established that “we will not presume error 

from a silent record.” State v. Bond, 345 N.C. 1, 26, 478 S.E.2d 163, 176 (1996); see 

also Wall v. Timberlake, 272 N.C. 731, 733, 158 S.E.2d 780, 782 (1968) (“The appellate 

courts approve when the evidence is sufficient to warrant the findings and when error 

of law does not appear on the face of the record.”). For example, there is no evidence 

of what, if anything, the Rule 17 GAL could have offered in support of respondentfather’s arguments to the trial court regarding the potential replacement of 

respondent-father’s trial counsel. Similarly, respondent-father argues his GAL 

should have addressed the trial court in support of his counsel’s multiple motions to 

continue, but there is no evidence that the Rule 17 GAL could have offered anything 

beyond repeating counsel’s arguments. Respondent-father contends his Rule 17 GAL 

could have worked with his counsel to present evidence favorable to him, but 
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respondent-father does not show his GAL had any such evidence. Moreover, the 

record establishes that the evidence needed by respondent-father’s counsel could only 

come from respondent-father, not from his GAL. 

Respondent-father’s arguments are founded on unwarranted assumptions that 

presume error where none is shown on the record. Bond, 345 N.C. at 26, 478 S.E.2d 

at 176; see also Wall, 272 N.C. at 733, 158 S.E.2d at 782. We therefore reject 

respondent-father’s first appellate argument because he has failed to show any 

reversible error by his Rule 17 GAL in the execution of his role in respondent-father’s 

case.

II. Findings of Fact 9, 32, 38, and 39

Respondent-father next asserts that portions of Finding of Fact 9 (respondentfather was appropriately represented by a Rule 17 GAL) and Finding of Fact 32 

(respondent-father received a high-school diploma or GED, and respondent-father

made poor financial choices in spending disability payments on drugs), and the 

entirety of Finding of Fact 38 (the ultimate finding of fact of the existence of the 

ground for termination of neglect) and Finding of Fact 39 (the ultimate finding of fact 

of the existence of the ground for termination of failure to make reasonable progress)

were not supported by clear and convincing evidence. We affirm the trial court’s 

termination orders on the basis of its finding that the statutory ground for 

termination of neglect existed, having determined that any errors in the challenged 

underlying findings of fact are not necessary to the trial court’s ultimate finding 
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regarding neglect.

6 Accordingly, we do not consider respondent-father’s challenge to 

Finding of Fact 39.

Findings of fact used to support the termination of a parent’s parental rights 

must be proven by “clear and convincing evidence.” N.C.G.S. § 7B-1111(b). This Court 

has defined this standard as “greater than the preponderance of the evidence 

standard required in most civil cases, but not as stringent as the requirement of proof 

beyond a reasonable doubt required in criminal cases.” In re Montgomery, 311 N.C. 

101, 109–10, 316 S.E.2d 246, 252 (1984). As explained above, Finding of Fact 9—that 

the Rule 17 GAL provided appropriate representation—is supported by clear and 

convincing evidence here given the facts and circumstances as previously discussed. 

As to the challenged portion of Finding of Fact 32 that respondent-father

received “either a diploma or a GED,” we agree with respondent-father that the 

documentary evidence before the trial court indicated that while respondent-father

sometimes self-reported that he had graduated from high school or had received his 

GED, respondent-father actually finished high school with either a “certificate of 

completion” or a “certificate of attendance,” designations given to students in an 

Exceptional Child Program. However, respondent-father does not explain how this 

relatively minor error in the characterization of respondent-father’s educational 

 

6 In light of our holding regarding neglect, we do not address respondent-father’s 

argument regarding the trial court’s ultimate finding regarding the existence of the ground 

for termination of failure to make reasonable progress in correcting the conditions that led to 

the removal of the children. See N.C.G.S. § 7B-1111(a)(2) (2019).
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history would have had any impact on the trial court’s ultimate findings that grounds 

existed to terminate respondent-father’s parental rights, and we likewise perceive 

none. 

In regard to the portion of Finding of Fact 327 which states that respondentfather “makes poor choices with the financial resources that are made available to 

him [and w]ith his disability payments, aside from taking care of his personal needs, 

[respondent-father] purchases a large amount of marijuana and some amounts of 

cocaine,” respondent-father acknowledges that evidence presented at the hearing did 

indicate his use of marijuana and cocaine, but respondent-father contends that no 

evidence was presented in the trial court revealing how respondent-father may have 

paid for the illegal controlled substances. The trial court appears to have made an 

inference based upon such evidence that respondent-father, having no other apparent 

source of income beyond his disability payments and having admitted to having used 

the aforementioned controlled substances, must have paid for those controlled 

substances with the funds he received for his disability. To the extent that this 

portion of Finding of Fact 32 is unsupported or represents an unsupported inference, 

it is not necessary or relevant to the trial court’s ultimate finding of the existence of 

neglect as a basis for termination of respondent-father’s parental rights.

 

7 A separate order was entered for each child, which are virtually identical. For ease 

of reading, we quote from the order as to Wesley.
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As noted above, Wesley and Natasha were adjudicated to be neglected 

juveniles in April 2016. In order to correct the conditions that led to the children’s 

neglect adjudication and to prevent future instances of neglect, respondent-father

was ordered to: (1) complete a Comprehensive Clinical Assessment and comply with 

all recommendations; (2) complete a domestic violence evaluation and comply with 

all recommendations; (3) submit to random drug screens; (4) not use or possess 

alcohol, illegal controlled substances, or drug paraphernalia; (5) use all medications 

in the amount and manner prescribed; (6) not associate with known substance 

abusers; (7) not engage in acts of domestic violence; (8) complete parenting classes 

and demonstrate skills learned during interactions with the juveniles; (9) submit to 

inpatient substance abuse treatment; (10) refrain from incurring additional criminal 

charges; and (11) complete a sexual abuse prevention services assessment and follow 

all recommendations. However, the unchallenged adjudicatory findings of fact 

establish that respondent-father (1) entered into a case plan to address issues related 

to those which led to the removal of the children and the potential for future 

additional neglect of the children; (2) had a long and serious history of substance 

abuse involving both marijuana and cocaine; (3) never followed the recommendations 

of his substance abuse assessments and had not taken serious attempts to achieve 

sobriety; (4) admitted to continuing to use marijuana, had continued to test positive 

for that substance, and had repeatedly refused to complete drug screens; (5) failed to 

complete parenting classes; (6) had no contact with his children in years, including 
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his failure to send cards or gifts despite being able to do so; (7) never procured reliable 

transportation or availed himself of transportation assistance offered to him; (8)

never demonstrated that he had obtained and maintained an appropriate home and 

refused to allow the social worker to visit the premises; (9) continued to accumulate 

serious criminal charges including various drug-related offenses and four charges of 

sex offense with a child by an adult; and (10) had been largely unavailable to his 

social worker. Based on respondent-father’s failure to follow his case plan and the 

trial court’s orders and his continued abuse of controlled substances, the trial court 

found that there was a likelihood the children would be neglected if they were 

returned to his care. 

These findings of fact, inter alia, provide support for the trial court’s ultimate 

finding of the existence of the ground for termination of neglect. Respondent-father

has not challenged the trial court’s conclusion that termination of his parental rights 

was in the children’s best interests, and we thus affirm the trial court’s orders.

AFFIRMED.