An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA14-563

NORTH CAROLINA COURT OF APPEALS

Filed: 7 October 2014

IN THE MATTER OF: Lincoln County

J.L. 12 JT 08

Appeal by respondent from order entered 24 January 2014 by 

Judge Ali B. Paksoy in Lincoln County District Court. Heard in 

the Court of Appeals 9 September 2014.

Peter C. McCrea for petitioner-appellee Lincoln County 

Department of Social Services.

David A. Perez for respondent-appellant father.

McCULLOUGH, Judge.

Respondent, father of the minor child J.M.L. (“Joanna”1), 

appeals from an order terminating his parental rights. He also 

petitions this Court to review the order by writ of certiorari, 

in light of his counsel’s failure to provide proof of service of 

his notice of appeal upon the guardian ad litem (“GAL”). The 

record reflects the GAL was notified of respondent’s appeal by 

the appellate entries and by respondent’s service of the 

 

1The parties stipulated to this use of this pseudonym to protect 

the juvenile’s privacy.
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proposed and settled record on appeal. The GAL has not claimed 

prejudice or moved to dismiss the appeal based on the lack of 

service of the notice of appeal. Inasmuch as “failure to 

include a certificate of service for the notice of appeal does 

not support dismissal of the appeal if the appellee has waived 

the issue by failing to raise the issue by motion or 

otherwise[,]” we find respondent’s notice sufficient to invoke 

this Court’s jurisdiction. McQuillin v. Perez, 189 N.C. App. 

394, 396, 657 S.E.2d 924, 926 (2008). Therefore, we dismiss his

petition for writ of certiorari as moot.

Joanna was born out-of-wedlock in Pennsylvania in February 

2010. After a period in Florida, Joanna’s mother moved with her 

to Lincoln County, North Carolina. On 25 February 2012, the 

Lincoln County Department of Social Services (“DSS”) filed a 

juvenile petition alleging that Joanna was neglected and 

dependent. Joanna’s mother subsequently pled guilty to 

misdemeanor child abuse and served a 60-day jail sentence ending 

on 17 July 2012. The district court adjudicated Joanna a 

neglected juvenile on 16 July 2012.

Joanna’s mother initially identified another man, Mr. R., 

as the putative father. Mr. R. was determined not to be 

Joanna’s father on 29 October 2012. After relinquishing her own
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parental rights on 28 November 2012, Joanna’s mother named 

respondent as the father but provided DSS only with his first 

and middle names. Adoption worker Megan Homan was able to 

locate respondent on Facebook and sent him a message on 28 

December 2012. Respondent did not respond to the message but 

phoned foster care social worker Amy Ramsey on 25 January 2013. 

Ramsey notified respondent of Joanna’s permanency planning 

hearing scheduled for 28 January 2013, but he did not attend. 

Homan spoke with respondent by phone on 7 March 2013 and 

arranged a paternity test, which confirmed his paternity of 

Joanna on 13 May 2013.

DSS filed a petition to terminate respondent’s parental 

rights on 28 March 2013. After hearing evidence on 9 December

2013, the district court determined that grounds existed to 

terminate respondent’s parental rights based on his neglect and 

willful abandonment of Joanna. See N.C. Gen. Stat. § 7B1111(a)(1), (7) (2013). The court further concluded that the 

termination of respondent’s parental rights was in the best 

interest of the minor child. Respondent appealed from the 24 

January 2014 termination order.

Respondent challenges only the district court’s 

adjudication of grounds to terminate his parental rights under 
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N.C. Gen. Stat. § 7B-1111(a) (2013). In reviewing the

adjudication, we must determine whether the court’s findings of 

fact are supported by the evidence, and whether those findings 

in turn support the court’s conclusions of law. In re Gleisner, 

141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000). 

Unchallenged findings, or findings supported by competent 

evidence, are binding on appeal. Koufman v. Koufman, 330 N.C. 

93, 97, 408 S.E.2d 729, 731 (1991); In re McCabe, 157 N.C. App. 

673, 679, 580 S.E.2d 69, 73 (2003). Moreover, “erroneous 

findings unnecessary to the determination do not constitute 

reversible error” where the adjudication is supported by 

sufficient additional findings grounded in competent evidence. 

In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006). 

We review conclusions of law de novo. In re J.S.L., 177 N.C. 

App. 151, 154, 628 S.E.2d 387, 389 (2006).

Subsection 7B-1111(a) authorizes termination of parental 

rights where “[t]he parent has willfully abandoned the juvenile 

for at least six consecutive months immediately preceding the 

filing of the petition or motion[.]” N.C. Gen. Stat. § 7B1111(a)(7).

Abandonment has been defined as wil[l]ful 

neglect and refusal to perform the natural 

and legal obligations of parental care and 
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support. It has been held that if a parent 

withholds his presence, his love, his care, 

the opportunity to display filial affection, 

and wil[l]fully neglects to lend support and 

maintenance, such parent relinquishes all 

parental claims and abandons the child.

In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 427 

(2003) (citation and quotation marks omitted). “The word 

‘willful’ encompasses more than a mere intention, but also 

purpose and deliberation.” In re McLemore, 139 N.C. App. 426, 

429, 533 S.E.2d 508, 509 (2000). “[T]he 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). The willfulness of 

a parent’s conduct “is a question of fact to be determined from 

the evidence.” In re Searle, 82 N.C. App. 273, 276, 346 S.E.2d 

511, 514 (1986).

For purposes of N.C. Gen. Stat. § 7B-1111(a)(7), the 

“determinative period” in the case sub judice was 28 September 

2012 through 28 March 2013, the date DSS filed its petition. In 

re S.R.G., 195 N.C. App. at 84-85, 671 S.E.2d at 51-52. The 

district court found the following facts relevant to its 

adjudication:

15. . . . The respondent spoke to the mother 

sometime around April, 2012; the mother 
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told him at that time that he could be 

the child’s father and that the child was 

in North Carolina in foster care and that 

she needed him to be in the child’s life. 

This was the last time the respondent 

heard from the mother.

16. That the [respondent] made no further 

effort to contact the mother or to obtain 

any information about the mother or the 

child. He had wanted the mother to 

submit to a DNA test but wanted the 

mother to come to Pennsylvania to do 

that. She was said to be living in 

Florida at that time.

17. That one of petitioner’s social workers 

located [respondent] on Facebook. She 

sent him a Facebook message in December, 

2012. He received the message in 

January, 2013. On January 25, 2013, he 

spoke to Amy Ramsey . . . . Ms. Ramsey 

gave him contact information and 

explained to him that he may have a child 

in North Carolina. She explained to him 

that the next court date regarding the 

child was on January 28, 2013. The 

respondent . . . did not appear at that 

court hearing. The next contact that 

[respondent] had with the Department was 

not until March 7, 2013.

18. . . . [Respondent] . . . did not visit 

the child from January 25, 2013 when he 

spoke to Ms. Ramsey up to and including 

the time of the filing of the Termination 

of Parental Rights Petition . . . on 

March 7, 2013.

19. That [respondent] was incarcerated in 

Pennsylvania from March 23, 2013 through 

August 20, 2013. [DSS] arranged for 

paternity testing in May, 2013 and it was 
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later determined that the respondent was 

the father of the child.

20. That [respondent] testified at this 

hearing, and the Court so finds, that as 

early as April, 2012 he assumed he was 

the father of the juvenile who is the 

subject of this proceeding.

21. That [respondent] has never met the child 

or had any contact with the child.

22. That [DSS] had through its social 

workers, on a number of occasions, 

offered the father visits with the child 

but he never followed through with this. 

Furthermore, he never asked for any 

information about the child from [DSS].

23. That [respondent] has been on parole 

since his release from prison. He was 

able to get permission from his parole 

officer to attend this hearing. However, 

when [DSS] encouraged the respondent to 

visit with his child after he was 

released from prison he stated that he 

was not able to leave Pennsylvania 

because of his parole but that he would 

talk to his parole officer to see if an 

exception could be made. However, he 

never did that and did not visit with the 

child while he had the opportunity to do 

so.

24. That [respondent] could have attended the 

January 28, 2013 hearing concerning his 

daughter. However, despite knowing about 

the hearing he did not attend.

25. That [DSS] sent numerous letters to 

[respondent] informing him about his 

child and the case here in North 

Carolina. Furthermore, [DSS] informed 
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the [respondent] of services he would 

need to be undertaking including services 

for domestic violence, psychological 

exam, parenting classes and substance 

abuse. Furthermore, he was urged to 

maintain contact and was told that he 

would be responsible for paying child 

support. The respondent did not complete 

or undertake any of these things except 

that he did have a drug assessment.

. . . .

27. That approximately one month after 

[respondent] was released from jail, he 

contacted the social worker from [DSS] 

and discussed the things that he would 

need to be working on. However, he never 

followed through with these things. . . .

28. That [respondent] has not made any 

inquiries about the welfare of his child; 

nor has he sent any cards, letters, or 

gifts to the child or paid any support of 

any kind for the cost of care for the 

child.

29. That social [w]orker Megan Homan sent at

least six letters to [respondent] 

concerning his daughter [Joanna]. Up and 

through September 2013, [respondent] 

never contacted social worker Homan. Any 

contact they had was initiated by Ms. 

Homan. When [respondent] was released 

from prison he still made no effort to 

carry out any of the services that had 

been recommended or made any effort to 

visit his daughter, or pay any support of 

any kind.

30. That [respondent] is employed full time 

working 40 hours a week and making $11.00 

an hour.
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. . . .

35. That [respondent’s] failure to establish 

or maintain a relationship with the 

child, pay adequate support for the child 

and undertake or complete those tasks and 

services that were requested of him has 

continued up until the time of this 

hearing.

Based on these findings, the court concluded that respondent 

“has willfully abandoned the child for at least six consecutive 

months immediately preceding the filing of the petition.” See 

N.C. Gen. Stat. § 7B-1111(a)(7).

Respondent challenges many of the quoted findings as 

unsupported by the evidence. He objects to finding 16 as 

“misleading” in its depiction of his inaction toward determining

his paternity of Joanna after April 2012. Respondent asserts 

that Joanna’s mother “assured [him] repeatedly” she would return 

to Pennsylvania for the test. He further contends finding 16 

fails to note that he was on probation and thus could not leave 

Pennsylvania.

We find no merit to respondent’s claim. Homan provided the 

following account of her discussion with respondent about 

paternity:

During my first conversation [on 7 March 

2013], I asked if it was possible that he 
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could be J[oanna]’s father. And he said 

that he had been told by the mother, when 

J[oanna] was around a year old, that he 

could be the father, and that he and the 

mother both wanted paternity testing 

completed.

However, the mother was not in town at 

the time. And he was unwilling to travel to 

Florida for the paternity test. And the 

mother kept saying that she was going to 

come back to Pennsylvania, so that he could 

get the paternity testing done then.

He also said that he found out in the 

summer 2011 that J[oanna] was in foster 

care.2 However, he made no contact with the 

Department to set up any paternity testing 

at that time.

(Emphasis added). Although respondent testified that he 

“couldn’t leave the state” when the mother contacted him in 

April 2012 because of his probation, the district court was not 

required to find this claim credible. See State v. Harrison, 

164 N.C. App. 693, 697-98, 596 S.E.2d 834, 838 (2004). Nor does 

this testimony suggest that respondent was unable to leave 

Pennsylvania for paternity testing at any time between the 

summer of 2011 and his incarceration in March 2013.

Respondent contests finding 20 on the ground that no 

evidence established he “assumed” he was Joanna’s father when 

 

2Ramsey also attested to respondent’s awareness “in the summer of 

2011” that the child was in foster care.
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contacted by her mother in April 2012. Respondent actually

testified, “I assumed it was a possibility that . . . I could’ve 

been the father.” However, the precise nature of respondent’s

mental processes upon learning of Joanna’s existence is

immaterial, given his duty to her as a father. Cf. In re 

T.L.B., 167 N.C. App. 298, 303, 605 S.E.2d 249, 252 (2004) 

(noting fathers’ obligation to identify and assume 

responsibility for their illegitimate children); cf. also In re 

Adoption of S.D.W., __ N.C. __, __, 758 S.E.2d 374, 381 (2014)

(concluding biological father had no constitutionally protected 

interest as a parent when he “failed to grasp that opportunity 

by taking any of the steps that would establish him as a 

responsible father.”). Inasmuch as respondent was aware of his 

possible paternity of Joanna and took no action, we deem any 

error in this finding to be harmless. See generally Starco, 

Inc. v. AMG Bonding and Ins. Servs., 124 N.C. App. 332, 335, 477 

S.E.2d 211, 214 (1996) (“[A]n appellant must not only show 

error, but that . . . the error was material and prejudicial, 

amounting to denial of a substantial right that will likely 

affect the outcome of an action.”).

Contrary to respondent’s assertion, we find competent 

evidence to support finding 22. Homan testified that DSS 
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repeatedly offered respondent visits with Joanna, both in 

conversation and by letter. Respondent also objects to finding 

23, insofar as it states he failed to seek permission from his 

parole officer to visit Joanna following his release from jail 

in August 2013. We agree that respondent testified he asked his 

parole officer about visitation, and that such visits had been 

approved provided respondent otherwise complied with his parole. 

Nonetheless, respondent then conceded that he “still didn’t come 

to visit the child[.]” He explained this failure by noting that 

Lincoln County was “really far away and with my job that I just 

started, I can’t, can’t really be missing too many days.” Given 

this admission, and the fact that respondent’s release from jail 

postdated the relevant period under N.C. Gen. Stat. § 7B1111(a)(1), any error in this finding is harmless.

Respondent also challenges finding 24, which states he 

could have attended Joanna’s permanency planning hearing on 28 

January 2013. The evidence shows that Ramsey notified 

respondent of the hearing on 25 January 2013, and also provided 

him with her contact information and informed him of Joanna’s 

status in foster care. Respondent testified only that he “was 

working” during this period, which predated his incarceration in 

March 2013. Asked whether he had sought to be allowed to attend 
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court hearings while he was incarcerated, respondent replied, “I 

never knew I had to come to court.” The evidence permits a 

reasonable inference that respondent could have attended the 28 

January 2013 hearing had he chosen to do so. See generally In 

re Hughes, 74 N.C. App. 751, 759, 330 S.E.2d 213, 218 (1985)

(Where “different inference[s] may be drawn from the evidence, 

[the trial court] alone determines which inferences to draw and 

which to reject.”).

Respondent casts findings 25, 27, and 29 as “misleading” 

and “erroneous” to the extent they describe his failure to 

“complete or undertake” the services requested by DSS. Homan’s 

and respondent’s testimonies support the findings that 

respondent was repeatedly advised of the requirements of a case 

plan but “never followed through” with any of these requirements

other than the drug assessment completed for his probation

officer. While respondent averred he was ineligible for 

domestic violence treatment without a court order and that he 

“put [his] name in for” parenting classes starting in Spring of 

2014, the court was not obliged to credit these unsupported and 

self-serving claims. See State v. Harrison, 164 N.C. App. at

697-98, 596 S.E.2d at 838. As for finding 29, Honan testified 

that respondent “did [not] become any more active in doing the 
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things [DSS] suggested he do” following his release from jail in 

August 2013. Though respondent purported to have arranged for 

$187 in monthly child support to be deducted from his paycheck, 

he acknowledged that “[n]othing ever happened.”

Respondent next excepts to finding 28, arguing that the 

evidence shows he was in contact with DSS about Joanna before, 

during, and after his incarceration from 26 March to 20 August 

2013. Finding 28 specifically states, however, that respondent 

“has not made any inquiries about the welfare of his child; nor 

has he sent any cards, letters, or gifts to the child or paid 

any support of any kind[.]” (Emphasis added) Homan testified 

that, since DSS first contacted him in December 2012, respondent 

had no contact with Joanna and had not “asked . . . anyone in 

[DSS] to be able to have visits, contact, [or] anything like 

that” or “asked for any specific information about his 

daughter[.]” Finally, respondent acknowledged having paid no 

support for Joanna, even at the time of the termination hearing. 

Accordingly, this exception is overruled.

As summarized above, competent evidence also supports 

finding 35,

3 that respondent’s “failure to establish or maintain 

 

3Insofar as respondent objects to additional findings of fact, we 

find that they pertain to the adjudication of neglect under N.C. 
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a relationship with [Joanna], pay adequate support for the child 

and undertake or complete those tasks and services that were 

requested of him has continued up until the time” of the 9 

December 2013 termination hearing.

Having reviewed the contested findings, we turn to 

respondent’s exception to the district court’s conclusion that 

he “willfully abandoned [Joanna] for at least six (6) 

consecutive months immediately preceding the filing of the 

Petition” as required to establish grounds for termination under 

N.C. Gen. Stat. § 7B-1111(a)(7). He notes that his paternity 

was not established until May 2013, “more than a month after the 

filing of the termination petition[.]” Moreover, absent

evidence that he knew of his daughter’s whereabouts or contact 

information prior to January 2013, respondent argues that “he 

cannot be held to have willfully withheld . . . indications of 

his parental affection for Joanna during approximately half of 

the relevant six month time period.”

Respondent’s argument assumes that he is not accountable 

for his inaction toward Joanna prior to being contacted by DSS. 

Given his avowed awareness of the child’s existence as early as 

of 2011, and certainly by April 2012, this assumption is 

 

Gen. Stat. § 7B-1111(a)(1) and need not be addressed.
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unwarranted. Moreover, although the “determinative” period for 

purposes of N.C. Gen. Stat. § 7B-1111(a)(7) is 28 September 2012 

through 28 March 2013, we believe respondent’s conduct both 

prior and subsequent to this interval is instructive as to the 

willfulness of his conduct during the critical six months. See

In re Searle, 82 N.C. App. at 276, 346 S.E.2d at 514 (noting 

that “respondent’s behavior between 15 May 1983 and 15 November 

1983 is determinative” but considering his conduct prior 

thereto); see also In re Hendren, 156 N.C. App. 364, 369-70, 576 

S.E.2d 372, 376-77 (2003) (considering incarcerated father’s 

lack of effort to attend the termination hearing as evidence of 

abandonment).

We conclude the district court’s findings support its

adjudication of willful abandonment under N.C. Gen. Stat. § 7B1111(a)(7). The findings show that respondent made no effort to 

establish contact with Joanna, to provide support for her, or to 

obtain information about her. Although respondent was jailed

for a portion of the relevant six-month period, “a respondent's 

incarceration, standing alone, neither precludes nor requires a 

finding of willfulness” under N.C. Gen. Stat. § 7B-1111(a)(7). 

In re McLemore, 139 N.C. App. at 431, 533 S.E.2d at 510-11

(citing In re Harris, 87 N.C. App. 179, 184, 360 S.E.2d 485, 488
-17-

(1987)). Finally, while respondent consented to a paternity 

test arranged by DSS and spoke by telephone with two social 

workers, these minimal efforts do not preclude a finding of 

willful abandonment under N.C. Gen. Stat. § 7B-1111(a)(7). See 

In re R.R., 180 N.C. App. 628, 634, 638 S.E.2d 502, 506 (2006)

(Father’s effort “to legitimize the child through marriage and 

amendment of the child's birth certificate . . . does not 

adequately replace the presence, love and care of a parent–

delivered by whatever means available.”); In re McLemore, 139 

N.C. App. at 430, 533 S.E.2d at 510 (Incarcerated parent’s “one 

feeble attempt at providing financial support” or contacting the 

child during the six-month period does not preclude a finding of 

willful abandonment.).

Respondent next challenges the district court’s 

adjudication of neglect under N.C. Gen. Stat. § 7B-1111(a)(1). 

It is well established, however, that any “single ground . . . 

is sufficient to support an order terminating parental rights.”

In re J.M.W., 179 N.C. App. 788, 789, 635 S.E.2d 916, 917 

(2006). Having upheld the adjudication under N.C. Gen. Stat. § 

7B-1111(a)(7) we need not review the second ground found by the 

court. In re Humphrey, 156 N.C. App. at 540, 577 S.E.2d at 426. 

Because respondent does not separately contest the court’s 
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ruling at disposition, we hereby affirm the termination order.

Affirmed.

Judges CALABRIA and STEELMAN concur.

Report per Rule 30(e).