IN THE SUPREME COURT OF NORTH CAROLINA

2021-NCSC-1

No. 213A20

Filed 5 February 2021

IN THE MATTER OF: C.L.H.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 22 

January 2020 by Judge Christy E. Wilhelm in District Court, Cabarrus County. This 

matter was calendared for argument in the Supreme Court on 6 January 2021 but 

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

the North Carolina Rules of Appellate Procedure.

No brief for petitioner-appellee mother.

No brief for appellee Guardian ad Litem.

Anné C. Wright for respondent-appellant father.

EARLS, Justice.

¶ 1 Respondent appeals from the trial court’s order terminating his parental rights 

to C.L.H. (Cash).1 After careful review, we conclude that this case is in large part 

controlled by In re K.N., 373 N.C. 274, 837 S.E.2d 861 (2020), necessitating that we 

reverse in part and vacate and remand in part.

¶ 2 Respondent is the biological father of Cash, and petitioner is Cash’s biological 

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

reading. See N.C. R. App. P. 42(b)(1).
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mother. Cash was born in 2009 following a brief relationship between respondent and 

petitioner. Respondent and petitioner never married. On 19 August 2011, respondent 

and petitioner entered into a parenting agreement by which petitioner was granted 

primary custody of Cash, and respondent was granted visitation. Respondent and 

petitioner also entered into a child support consent order by which respondent agreed 

to pay petitioner $433 per month and fifty percent of any uninsured medical bills 

after the first $250 was paid by petitioner. However, neither the facts alleged in the 

termination petition and admitted in the answer nor the trial court’s factual findings 

indicate whether the child support consent order was in effect during the year 

preceding the filing of the termination petition. The last known contact between 

respondent and Cash was in April 2018.

¶ 3 On 1 May 2018, the trial court held a hearing after petitioner filed a motion in 

the cause for modification of custody and to hold respondent in contempt. Petitioner

stated that she filed the motion because of concerns she had regarding events that 

occurred during Cash’s visitation with respondent. Specifically, petitioner testified 

that Cash was visiting respondent on 25 February 2018 when she received a phone 

call claiming that she needed to pick up Cash because respondent had a medical issue. 

At the time, respondent was living in a camper behind his parents’ home, and Cash 

would stay in the grandparents’ home while visiting with respondent. When 

petitioner arrived at the grandparents’ home, she found that respondent had been 
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taken to the hospital. Petitioner testified that she went into respondent’s camper to 

retrieve Cash’s belongings and that it was “smoky” and smelled “chemically.” On 13 

June 2018, the trial court entered an order in which it found as fact that Cash found 

respondent unresponsive and sought help because respondent was “overdosing on 

heroin.” The trial court found respondent to be unfit to provide for Cash’s physical, 

emotional, and financial well-being and granted petitioner sole physical and legal 

custody of Cash. The trial court also terminated respondent’s visitation with Cash. 

¶ 4 On 30 January 2019, petitioner filed a petition to terminate respondent’s 

parental rights to Cash. Petitioner alleged that grounds existed to terminate 

respondent’s parental rights for neglect, willful failure to pay child support, 

dependency, and willful abandonment. N.C.G.S. § 7B-1111(a)(1), (4), (6)–(7) (2019). 

On 10 April 2019, respondent filed an answer in which he opposed the termination of 

his parental rights. On 22 January 2020, the trial court entered an order in which it 

determined grounds existed to terminate respondent’s parental rights pursuant to 

N.C.G.S. § 7B-1111(a)(1), (4), and (6). The trial court further determined that it was 

in Cash’s best interests that respondent’s parental rights be terminated. Respondent

appeals.

¶ 5 Respondent argues that the trial court erred by concluding that grounds 

existed to terminate his parental rights. “Our Juvenile Code provides for a two-step 

process for termination of parental rights proceedings consisting of an adjudicatory 
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stage and a dispositional stage.” In re Z.A.M., 374 N.C. 88, 94, 839 S.E.2d 792, 796–

97 (2020) (citing N.C.G.S. §§ 7B-1109, -1110 (2019)). “At the adjudicatory stage, the 

petitioner bears the burden of proving by ‘clear, cogent, and convincing evidence’ the 

existence of one or more grounds for termination under section 7B-1111(a) of the 

General Statutes.” In re A.U.D., 373 N.C. 3, 5–6, 832 S.E.2d 698, 700 (2019) (quoting 

N.C.G.S. § 7B-1109(f) (2019)). We review a trial court’s adjudication of grounds to 

terminate parental rights “to determine whether the findings are supported by clear, 

cogent and convincing evidence and the findings support the conclusions of law.” In

re E.H.P., 372 N.C. 388, 392, 831 S.E.2d 49, 52 (2019) (quoting In re Montgomery, 311 

N.C. 101, 111, 316 S.E.2d 246, 253 (1984)). “The trial court’s conclusions of law are 

reviewable de novo on appeal.” In re C.B.C., 373 N.C. 16, 19, 832 S.E.2d 692, 695 

(2019).

¶ 6 In this case, the trial court determined that grounds existed to terminate 

respondent’s parental rights based on neglect, willful failure to pay child support, and 

dependency. N.C.G.S. § 7B-1111(a)(1), (4), and (6). We begin our analysis with 

consideration of whether grounds existed to terminate respondent’s parental rights

for neglect, pursuant to N.C.G.S. § 7B-1111(a)(1). 

¶ 7 A trial court may terminate parental rights where it concludes the parent has 

neglected the juvenile within the meaning of N.C.G.S. § 7B-101. N.C.G.S. § 7B1111(a)(1). A neglected juvenile is defined, in pertinent part, as a juvenile “whose 
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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).

Termination of parental rights based upon this statutory

ground requires a showing of neglect at the time of the

termination hearing or, if the child has been separated

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

showing of past neglect and 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)). “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 In re Ballard, 311 N.C. at 715, 319 S.E.2d at 232)).

2

¶ 8 Here, Cash was not in respondent’s custody at the time of the termination 

hearing and had not been since at least 13 June 2018, when the trial court awarded 

petitioner sole physical and legal custody of Cash. The last known contact between 

respondent and Cash was in April 2018, approximately 18 months before the 

2 As we have noted in our recent opinion in In re R.L.D., No. 122A20, slip op. at 5 n.3 

(N.C. Dec. 11, 2020), it is not necessary in every case that a petitioner make a showing of past 

neglect and of a probability of future neglect to support a determination that a parent’s 

parental rights in a juvenile are subject to termination on the basis of neglect pursuant to 

N.C.G.S. § 7B-1111(a)(1). Such a determination is also permissible in the event that there is 

a showing of current neglect as defined in N.C.G.S. § 7B-101(15).
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termination hearing. Additionally, because this case does not arise from involvement 

by the Department of Social Services, no petition alleging neglect was ever filed, and 

Cash was never adjudicated to be a neglected juvenile. 

¶ 9 The sole finding of fact potentially supporting a conclusion that respondent had 

previously neglected Cash was finding of fact 17(a). In finding of fact 17(a), the trial 

court found that

[r]espondent was unable to care for [Cash] during the 

February 2018 incident, whether it was due to a drug 

overdose or some other medical condition, for some period 

of time the child was not cared for and there does not 

appear that there was a proper plan in place for alternative 

care.

Respondent argues that the portion of finding of fact 17(a) which states that Cash 

was not cared for during the February 2018 incident is not supported by clear, cogent, 

and convincing evidence. We agree. The only evidence in the record concerning Cash’s 

care during this incident was that he stayed in his grandparents’ home when visiting 

with respondent, that his paternal grandfather was the person who called for help 

with respondent’s medical issue, and that petitioner was called to pick up Cash from 

the grandparents’ home. There was no evidence presented that Cash was not cared 

for during this incident. Accordingly, we disregard this portion of finding of fact 17(a). 

See In re J.M.J.-J., 374 N.C. 553, 559, 843 S.E.2d 94, 101 (2020) (disregarding 

adjudicatory findings of fact not supported by clear, cogent, and convincing evidence).

¶ 10 We further note that the trial court’s findings of fact, even if supported, shed 
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little light on how this incident, and the alleged absence of care, impacted Cash. See 

In re K.L.T., 374 N.C. 826, 831, 845 S.E.2d 28, 34 (2020) (“In order to constitute 

actionable neglect, the conditions at issue must result in ‘some physical, mental, or 

emotional impairment of the juvenile or a substantial risk of such impairment.’ ”

(citation omitted)). Further, assuming arguendo that the incident and alleged lack of 

care constituted prior neglect, the trial court did not find that there would be a 

likelihood of future neglect should Cash be returned to respondent’s care, nor do the 

trial court’s sparse findings of fact support such a conclusion. See In re K.N., 373 N.C. 

at 282, 837 S.E.2d at 867 (stating that in light of the juvenile’s prior adjudication of 

neglect and his resulting removal from the home, “we must evaluate whether there 

are sufficient findings of fact in the termination order to support the trial court’s 

ultimate conclusion that there is a likelihood of future neglect by respondent”). 

Therefore, we hold the trial court erred by concluding that grounds existed pursuant 

to N.C.G.S. § 7B-1111(a)(1) to terminate respondent’s parental rights.

¶ 11 We next consider whether the trial court properly concluded that grounds 

existed to terminate respondent’s parental rights for dependency, pursuant to 

N.C.G.S. § 7B-1111(a)(6). A trial court may terminate parental rights based on 

dependency 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 [N.C.G.S. §] 7B-101, and that there is a reasonable probability that the 
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incapability will continue for the foreseeable future.” N.C.G.S. § 7B-1111(a)(6). A 

dependent juvenile is defined 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.G.S. § 7B-101(9). The incapability under 

N.C.G.S. § 7B-1111(a)(6) “may be the result of substance abuse, intellectual 

disability, 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.G.S. § 7B-1111(a)(6). 

To adjudicate the ground of dependency, the trial court “must address both (1) the 

parent’s ability to provide care or supervision, and (2) the availability to the parent 

of alternative child care arrangements.” In re K.R.C., 374 N.C. 849, 859, 845 S.E.2d 

56, 63 (2020) (citation omitted).

¶ 12 Here, the sole express finding of fact made by the trial court regarding this 

statutory ground was that “the ground of dependency exists in that there was no 

proper plan for care of the minor child.” Arguably, the trial court’s finding of fact 17(a) 

concerning the February 2018 incident and the lack of an alternative plan of care for 

Cash was also related to this statutory ground. However, the trial court made no 

finding of fact, and there was no evidence presented, that at the time of the 
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termination hearing respondent suffered from any condition which rendered him 

incapable of providing proper care or supervision to Cash. The only evidence 

presented that possibly supported a conclusion that respondent was incapable of 

parenting Cash was the incident in February 2018, which occurred over 18 months 

prior to the termination hearing. See In re Z.D., 258 N.C. App. 441, 452, 812 S.E.2d 

668, 676 (2018) (holding that the evidence was insufficient to support termination of 

respondent’s parental rights based on dependency where “[r]espondent’s mental 

health and parenting abilities pertain[ed] more to the historic facts of the case that 

occurred at least a year prior to the hearing, and the order contain[ed] no specific 

findings regarding [r]espondent’s condition, mental health, and alleged incapability 

at the time of the hearing”). Accordingly, we hold that the trial court erred by 

concluding that grounds existed pursuant to N.C.G.S. § 7B-1111(a)(6) to terminate 

respondent’s parental rights.

¶ 13 Finally, we consider the trial court’s conclusion that grounds existed pursuant 

to N.C.G.S. § 7B-1111(a)(4) to terminate respondent’s parental rights for his willful 

failure to pay for the child’s care without justification. A trial court may terminate a 

parent’s parental rights pursuant to this statutory ground when

[o]ne parent has been awarded custody of the juvenile by 

judicial decree or has custody by agreement of the parents, 

and the other parent whose parental rights are sought to 

be terminated has for a period of one year or more next 

preceding the filing of the petition or motion willfully failed 

without justification to pay for the care, support, and 
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education of the juvenile, as required by the decree or 

custody agreement.

N.C.G.S. § 7B-1111(a)(4). We agree with the Court of Appeals that, when seeking to 

terminate parental rights pursuant to this statutory ground, “petitioner must prove 

the existence of a support order that was enforceable during the year before the 

termination petition was filed.” In re I.R.L., 263 N.C. App. 481, 485, 823 S.E.2d 902, 

905 (2019) (quoting In re Roberson, 97 N.C. App. 277, 281, 387 S.E.2d 668, 670 

(1990)). When the trial court fails to make findings of fact “indicating that a child 

support order existed or that [the parent] failed to pay support ‘as required by’ the 

child support order,” its findings are insufficient to support the conclusion that 

grounds for termination exist pursuant to N.C.G.S. § 7B-1111(a)(4). Id. at 486, 823 

S.E.2d at 906. 

¶ 14 In In re I.R.L., the Court of Appeals concluded that the trial court’s findings 

were insufficient to support a conclusion that the father’s parental rights were subject 

to termination pursuant to N.C.G.S. § 7B-1111(a)(4). Id. The Court of Appeals noted 

that

while both parties testified that a child support order was 

entered in December 2014 ordering [the] father to pay 

$50.00 per month in child support, the trial court’s 

termination order [was] devoid of any findings indicating 

that a child support order existed or that [the f]ather failed 

to pay support “as required by” the child support order.

Id. Here, the trial court made no findings of fact that a child support order existed in 
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the year prior to the filing of the petition to terminate respondent’s parental rights.

Consequently, we conclude that the trial court’s findings of fact are insufficient to 

support the termination of respondent’s parental rights based on N.C.G.S. § 7B1111(a)(4).

¶ 15 The dissent, urging affirmance of the trial court’s decision, attempts to 

distinguish In re I.R.L. by pointing out that the trial court’s order in that case was 

“devoid of any findings indicating that a child support order existed or that [the 

respondent] failed to pay support ‘as required by’ the child support order.” In re I.R.L., 

263 N.C. App. at 486, 823 S.E.2d at 906. However, as discussed above, the trial court’s 

order in the instant case is similarly deficient. The dissent also points to the fact that 

“the only evidence [in In re I.R.L.] supporting the existence of a child support order 

was the testimony of both parties.” However, the source of the evidence, as opposed 

to its existence in the record, does not affect our decision on this issue. When 

reviewing an order terminating parental rights, our task as an appellate court is “to 

determine whether the findings are supported by clear, cogent and convincing 

evidence and the findings support the conclusions of law.” In re Z.A.M., 374 N.C. at

94, 839 S.E.2d at 797 (quoting In re C.B.C., 373 N.C. at 19, 832 S.E.2d at 695). Just 

as in this case, the trial court in In re I.R.L. failed to find as a fact that a child support 

order existed, and that the respondent had violated it, despite the existence of 

evidence in the record that would have supported such a finding. In re I.R.L., 263 
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N.C. App. at 486, 823 S.E.2d at 906. The source of that evidence, so long as it is clear, 

cogent, and convincing, is not relevant to our analysis. There is no material 

distinction between this case and In re I.R.L.

¶ 16 We note that here there appears to be evidence in the record which might 

support a conclusion that grounds existed to terminate respondent’s parental rights 

pursuant to this statutory ground. First, petitioner alleged in the termination 

petition, and respondent admitted in his answer, that the parties had entered into a 

child support consent order.3 Neither the allegation nor the admission, however, 

establish that the support order was in effect during the year prior to the filing of the 

termination petition. See N.C.G.S. § 7B-1111(a)(4) (permitting termination of 

parental rights if a parent has failed to pay support as required by a decree or custody 

agreement “for a period of one year or more next preceding the filing of the petition 

or motion”). Second, petitioner testified that there was a child support order in place 

at the time of the termination hearing. 

¶ 17 Also on this ground, the trial court found as fact, and respondent does not 

dispute, that respondent “paid no support, whether child support or other monetary 

support for the benefit of the minor child since September 2015.” Respondent does, 

3 The admitted allegation reads: “Within the same Cabarrus County file, the 

Petitioner and Respondent entered into a child support consent order wherein the 

Respondent agreed to pay the Plaintiff the sum of $433 per month and fifty percent (50%) of 

any uninsured medical bills after the first $250 is paid by the Petitioner.”
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however, argue that the trial court failed to make any findings of fact regarding 

whether his failure to pay support was willful, and, thus, the trial court’s conclusion 

on this issue was not supported by its factual findings. It is not necessary to resolve 

this argument because we have determined that the trial court failed to make factual 

findings that respondent failed to pay for the care, support, and education of the 

juvenile within the year prior to the filing of the termination petition “as required by 

the decree or custody agreement.” See N.C.G.S. § 7B-1111(a)(4). We note, however, 

that the existence of the child support order in effect at the relevant time, if it had 

been included in the factual findings, would support a conclusion that respondent had 

the ability to pay some portion of the cost of care for the juvenile. In re J.D.S., 170 

N.C. App. 244, 257, 612 S.E.2d 350, 358 (quoting In re Roberson, 97 N.C. App. 277, 

281, 387 S.E.2d 668, 670 (1990)), cert. denied, 360 N.C. 64, 623 S.E.2d 584 (2005) (“In 

a termination action pursuant to this ground, petitioner must prove the existence of 

a support order that was enforceable during the year before the termination petition 

was filed. . . . Because a proper decree for child support will be based on the supporting 

parent’s ability to pay as well as the child’s needs, . . . there is no requirement that 

petitioner independently prove or that the termination order find as fact respondent’s 

ability to pay support during the relevant statutory time period.” (alterations in 

original)). Where, as in this matter, the “trial court’s adjudicatory findings were 

insufficient to support its conclusion that termination of the parent’s rights was 
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warranted, but the record contained additional evidence that could have potentially 

supported a conclusion that termination was appropriate,” we “vacate[ ] the trial 

court’s termination order and remand[ ] the case for further proceedings, including 

the entry of a new order containing findings of fact and conclusions of law addressing 

the issue of whether [the] ground for termination existed.” In re K.N., 373 N.C. at 

284, 837 S.E.2d at 869.4

¶ 18 The dissent, urging the opposite result, argues that the trial court’s findings of 

fact 11 and 17(c) were supported by the record and support the trial court’s conclusion 

to terminate respondent-father’s parental rights pursuant to N.C.G.S. § 7B1111(a)(4). However, neither those nor any of the other findings of the trial court 

establish the existence of a child support order at the relevant time. In arguing that 

the record evidence supports the result below, it appears that the dissent is conflating 

the record with the factual findings of the trial court. However, it is our role to review 

4 The dissent incorrectly suggests that on the question of whether a remand is 

necessary for factual findings, this case is controlled by In re A.U.D., 373 N.C. 3, 10–11, 832 

S.E.2d 698, 702–03 (2019). In that case, we declined to remand to the trial court for written 

findings on specific factors that the trial court must consider during the best interests phase 

of the proceeding. In re A.U.D., 373 N.C. 3, 11, 832 S.E.2d 698, 703 (2019). Critically, N.C.G.S. 

§ 7B-1110(a) does not require written findings as to each factor. Id. at 10, 832 S.E.2d at 703. 

Because the trial transcript demonstrated that the trial court had carefully considered each 

factor, satisfying the statutory requirement, we concluded that remand for written findings

on each factor “would be an elevation of form over substance.” Id. at 11, 832 S.E.2d at 703. In 

any case, even were we to adopt the dissent’s view that written findings are never required

for uncontested facts, the uncontested evidence in this case does not establish that a child 

support order was in place during the relevant time period—namely, the year preceding the 

filing of the termination petition. See N.C.G.S. § 7B-1111(a)(4). 
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the trial court’s factual findings to determine whether they support the trial court’s 

conclusions of law. See, e.g., In re E.H.P., 372 N.C. at 392, 831 S.E.2d at 52. As the 

Court of Appeals has stated, “[i]t is the role of the trial court and not [the appellate 

court] to make findings of fact regarding the evidence.” In re F.G.J., 200 N.C. App. 

681, 693, 684 S.E.2d 745, 754 (2009); see also In re K.N., 373 N.C. at 283, 837 S.E.2d 

at 868 (rejecting argument of petitioner that evidence in the record supported 

affirmance of trial court’s ultimate conclusions and instead looking to “the trial 

court’s actual findings”).

¶ 19 This principle has long been followed by our courts. As Justice Exum explained 

forty years ago:

The purpose of the requirement that the court make 

findings of those specific facts which support its ultimate 

disposition of the case is to allow a reviewing court to 

determine from the record whether the judgment–and the 

legal conclusions which underlie it–represent a correct 

application of the law. The requirement for appropriately

detailed findings is thus not a mere formality or a rule of 

empty ritual; it is designed instead “to dispose of the issues 

raised by the pleadings and to allow the appellate courts to 

perform their proper function in the judicial system.”

Coble v. Coble, 300 N.C. 708, 712, 268 S.E. 2d 185, 189 (1980) (quoting Montgomery 

v. Montgomery, 32 N.C. App. 154, 158, 231 S.E.2d 26, 29 (1977) and citing Crosby v. 

Crosby, 272 N.C. 235, 158 S.E. 2d 77 (1967)). In deciding whether a trial court’s award 

of alimony followed the requirements of applicable statutes, this Court explained:

The requirement of special fact-finding did not begin with 
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implementation of our present Rules of Civil Procedure. In 

Martin v. Martin, 263 N.C. 86, 138 S.E. 2d 801 (1964) (per 

curiam), this Court reviewed a trial court order which 

directed alimony pendente lite and child support payments. 

The trial court made only limited findings of [fact] about 

the defendant’s financial circumstances. The hearing had 

been on affidavits and defendant submitted his own 

uncontradicted affidavit indicating his dire financial 

situation. However, no findings of fact concerning the 

matters in the affidavit were made. This Court stated, in 

remanding to the trial court:

If the facts set out in defendant’s affidavit are true, the 

payments required of defendant are clearly excessive, 

unrealistic and beyond the limits of judicial discretion. The 

court made no specific findings with respect to the matters 

set out in the affidavit, and it does not appear whether they 

were considered. 263 N.C. at 87–88, 138 S.E. 2d at 802 

(emphasis added).

Quick v. Quick, 305 N.C. 446, 452–53, 290 S.E.2d 653, 658 (1982). In the termination 

of parental rights context, this has long been the rule as well. See, e.g., In re T.P., 

197 N.C. App. 723, 730, 678 S.E.2d 781, 787 (2009) (“We have little doubt after 

studying the record that there existed evidence from which the trial court could have 

made findings and conclusions to support its orders for termination of parental rights. 

Unfortunately, the skeletal orders in the record are inadequate to allow for 

meaningful appellate review.”); In re B.G., 197 N.C. App. 570, 574, 677 S.E.2d 549, 

552 (2009) (“Although there may be evidence in the record to support a finding that 

Respondent acted inconsistently with his custodial rights, it is not the duty of this 

Court to issue findings of fact.”). The dissent’s position would have us make factual 
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findings for the trial court on a fundamental and material fact, which is not how we 

have applied the standard of review in these cases. As we did recently in In re K.N., 

and In re N.D.A., we are compelled to remand for further factual findings on this 

ground. See In re K.N., 373 N.C. at 284, 837 S.E.2d at 868; In re N.D.A., 373 N.C. 71, 

84, 833 S.E.2d, 768, 777 (2019).

¶ 20 In summary, the portions of the trial court’s order concluding that respondent’s 

parental rights were subject to termination under N.C.G.S. § 7B-1111(a)(1) and (6) 

are reversed. The portion of the trial court’s order adjudicating grounds for 

termination under N.C.G.S. § 7B-1111(a)(4) is vacated and remanded for further 

proceedings not inconsistent with this opinion, including the entry of a new order 

containing findings of fact and conclusions of law addressing whether there was a 

child support order in place that was enforceable during the year before the 

termination petition was filed and the issue of whether respondent willfully failed to 

pay support for Cash without justification. The trial court may, in the exercise of its 

discretion, receive additional evidence on remand if it elects to do so. See In re K.N., 

373 N.C. at 285, 837 S.E.2d at 869.

REVERSED IN PART; VACATED AND REMANDED IN PART.
Justice BARRINGER dissenting.

¶ 21 Based on a review of the record, respondent-father did not preserve for appeal 

the issue of whether petitioner-mother proved the existence of a child support order 

to terminate respondent-father’s parental rights under N.C.G.S. § 7B-1111(a)(4). 

Moreover, even if respondent-father had preserved the issue for appeal, the trial 

court’s findings are sufficient to support the conclusion that grounds for termination 

existed pursuant to N.C.G.S. § 7B-1111(a)(4).

¶ 22 N.C.G.S. § 7B-1111(a)(4) states:

(a) The court may terminate the parental rights upon a 

finding of one or more of the following:

. . . .

(4) One parent has been awarded custody of the juvenile 

by judicial decree or has custody by agreement of the 

parents, and the other parent whose parental rights are 

sought to be terminated has for a period of one year or more 

next preceding the filing of the petition or motion willfully 

failed without justification to pay for the care, support, and 

education of the juvenile, as required by the decree or 

custody agreement.

¶ 23 Here, respondent-father admitted that a child support order existed. 

Specifically, respondent-father admitted to the following allegation in his answer to 

petitioner-mother’s petition for termination:

Within [Cabarrus County File Number: 11-CVD-961], the 

Petitioner and Respondent entered into a child support 

consent order wherein the Respondent agreed to pay the 

Plaintiff the sum of $433 per month and fifty percent (50%) 

of any uninsured medical bills after the first $250 is paid 
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Barringer, J., dissenting

by the Petitioner.

¶ 24 Respondent-father never moved to amend his answer or otherwise present to 

the trial court any reason to disregard this admitted allegation. See N.C. R. App. P. 

10(a)(1). It is well-established law in this state that an admission in an answer binds 

the answering party and renders the fact uncontested. See Harris v. Pembaur, 84 

N.C. App. 666, 670 (1987) (“Facts alleged in the complaint and admitted in the answer 

are conclusively established by the admission.” (citing Champion v. Waller, 268 N.C. 

426 (1966))).

¶ 25 In re I.R.L., 263 N.C. App. 481 (2019)1 is incorrectly relied upon by respondentfather and the majority. On the contrary, the controlling precedent established by 

this Court is found in In re A.U.D., 373 N.C. 3, 10–11 (2019), where this Court held 

that “a remand by this Court to the trial court for written findings on these

uncontested issues—a disposition for which our dissenting colleague appears to be 

advocating—would be an elevation of form over substance and would serve only to 

delay the final resolution of this matter for the children.” Affirming the trial court’s 

termination of parental rights in this case does not involve improperly finding facts 

that a child support order exists, as the majority contends. Here, the fact of the 

1 While the majority relies on this decision from the Court of Appeals, it is worth 

noting that decisions from the Court of Appeals are only persuasive, not binding authority 

on this Court in cases not previously adopted.
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Barringer, J., dissenting

existence of a child support order is uncontested by respondent-father’s admission in 

his answer to petitioner-mother’s allegation in her petition for termination.

2 To 

remand this case and direct the trial court to make findings of fact on a fact already 

uncontested by both parties is “an elevation of form over substance.” Id.

¶ 26 Moreover, In re I.R.L. is distinguishable from the instant case. In that case, 

the “trial court’s termination order [was] devoid of any findings indicating that a child 

support order existed or that [the f]ather failed to pay support ‘as required by’ the 

child support order,” and the only evidence supporting the existence of a child support 

order was the testimony of both parties. Id. at 486.

¶ 27 In this case, the trial court determined that “[t]he Respondent-father paid no 

support, whether child support or other monetary support for the benefit of the minor 

child since September 2015, over four years next preceding the filing of this 

[termination].” Respondent-father did not challenge finding of fact 11 in the trial 

court’s termination order. Unchallenged findings of fact are “deemed supported by 

2 Moreover, a review of the record indicates that the parties apparently considered the 

issue of whether there was a child support order to be settled. Petitioner-mother, in her 

testimony during direct examination responded that there was a child support order in place 

for the minor child. On cross examination of the petitioner-mother, the respondent-father’s 

attorney did not question her regarding her testimony regarding the child support order. On 

direct examination, the respondent-father testified that he paid money in accordance with 

“the legal agreement we had.”
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Barringer, J., dissenting

competent evidence and are binding on appeal.” In re T.N.H., 372 N.C. 403, 407 

(2019). Therefore, finding of fact 11 is binding on this Court.

¶ 28 Finding of fact 11 is also supported by sufficient evidence. Respondent-father 

admitted that “Petitioner[-mother] and Respondent[-father] entered into a child 

support consent order wherein the Respondent[-father] agreed to pay the [Petitionermother] the sum of $433 per month.” The uncontroverted evidence showed that there

was a child-support order in place for Cash, the biological child of petitioner-mother 

and respondent-father, and that the last payment respondent-father made was in 

September 2015.

¶ 29 The record additionally supports the trial court’s finding of fact 17(c) that 

respondent-father willfully failed to pay child support. Respondent-father testified 

that he intentionally withheld financial support from Cash. Respondent-father 

testified that he was employed. When asked about his financial assistance after the 

25 February 2018 incident and the loss of his visitation rights, respondent-father 

responded as follows: “I’m not going to give the money when I’m not even allowed to 

spend time with my son.” Also, respondent-father did not give any justification for his 

failure to pay child support after the 25 February 2018 incident and admitted he was 

currently employed as a subcontractor and had worked as a contractor for most of his 

life. On this record, there is sufficient evidence to find that respondent-father had 

willfully and without justification failed to pay child support for four years.
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Barringer, J., dissenting

¶ 30 Respondent-father argues that finding of fact 17(c) should be treated as a 

conclusion of law and raises that the trial court used the same language in its third 

conclusion of law. The majority seems to implicitly adopt this argument. However, a 

finding that an act is willful is determined by the trier of fact whether it be a jury or 

the trial court. In re K.N.K., 374 N.C. 50, 53 (2020) (“The willfulness of a parent’s 

actions is a question of fact for the trial court.”); see also Brandon v. Brandon, 132 

N.C. App. 646, 651 (1999) (“Where the trial court sits as the finder of fact, ‘and where 

different reasonable inferences can be drawn from the evidence, the determination of 

which reasonable inference shall be drawn is for the trial [court].’ ” (alteration in 

original)). Plainly, the determination of whether a parent is acting willfully is a 

finding of fact and not a conclusion of law. In re J.S., 374 N.C. 811, 818 (2020). Finding 

of fact 17(c) is therefore properly classified as a finding of fact in the trial court’s 

termination order.

¶ 31 In conclusion, respondent-father’s admission in his answer to petitionermother’s allegation that he had entered into a consent child support order makes its 

existence an uncontested fact. Additionally, the trial court’s findings of fact 11 and 

17(c) were supported by sufficient evidence in the record and support the trial court’s 

conclusion to terminate respondent-father’s parental rights pursuant to N.C.G.S. 

§ 7B-1111(a)(4) for willfully failing to pay child support without justification.

¶ 32 For these reasons, the decision of the trial court should be upheld on the ground 
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Barringer, J., dissenting

for termination pursuant to N.C.G.S. § 7B-1111(a)(4).3 Accordingly, I respectfully 

dissent.

Chief Justice NEWBY and Justice BERGER join in this dissenting opinion.

3 Since I would affirm the trial court’s termination pursuant to N.C.G.S § 7B1111(a)(4) and only one termination ground is required under N.C.G.S. § 7B-1111(a), it is 

unnecessary to reach the remaining grounds found by the trial court.