An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA13-1362

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

IN RE:

S.M.W. Pasquotank County

No. 13 JT 17

Appeal by Respondent-Father from Order entered 6 September 

2013 by Judge C. Christopher Bean in Pasquotank County District

Court. Heard in the Court of Appeals 5 May 2014.

Melissa L. Skinner for Petitioner-Mother.

Mark Hayes for Respondent-Father.

STEPHENS, Judge.

Factual Background and Procedural History

This case arises from the termination of RespondentFather’s parental rights to the minor child, Sam,1 on the ground

of neglect. Sam was born to Respondent-Father and PetitionerMother (collectively, “the parents”) in April of 2010. The 

parents lived together for a short time after Sam’s birth. They 

were never married. On 3 December 2010, Respondent-Father

 

1 A pseudonym is used to protect the juvenile’s identity. 
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assaulted Petitioner-Mother and tried to prevent her from 

calling the police. As a result, Petitioner-Mother obtained a 

domestic violence protective order (“DVPO”) against RespondentFather and an order giving her temporary custody of Sam. The 

DVPO required Respondent-Father not to have any contact with 

Petitioner-Mother except “by email or text message and only 

regarding the health, safety, welfare, or visitation of [Sam].”

The temporary custody order provided that Respondent-Father

would have supervised visitation with Sam every Saturday from 

10:00 a.m. to 6:00 p.m., with supervision provided by Sam’s 

maternal grandmother. Petitioner-Mother was ordered not to be 

present for Respondent-Father’s visits with Sam.

During a visit on 14 May 2011, the grandmother noticed that 

Respondent-Father’s eyes were bloodshot and that his speech was 

“odd.” On 26 May 2011, Petitioner-Mother filed a complaint 

seeking physical and legal custody of Sam and the cessation of

visitation until Respondent-Father obtained psychological and 

drug assessments and followed any recommended treatment. After 

an entry of default on the custody complaint on 19 July 2011, 

the matter was set for hearing on 7 December 2011. On 12 August 

2011, Respondent-Father attempted to attend a Saturday visit

with Sam, but saw that Petitioner-Mother’s car was parked at the 
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grandmother’s home. Respondent-Father contacted the sheriff’s 

office and was arrested for violating the DVPO. PetitionerMother renewed the DVPO on 7 December 2011 and was awarded

permanent custody of Sam in an order entered 4 January 2012. The 

custody order provided that contact between Respondent-Father 

and Sam would be at Petitioner-Mother’s discretion, but that 

Respondent-Father could contact the grandmother, or any other 

person designated by Petitioner-Mother, “to inquire as to 

[Sam’s] welfare and well-being.” Respondent-Father was not 

present for the hearing. The record before this Court contains 

no indication that Respondent-Father appealed the custody order. 

On 26 March 2013, Petitioner-Mother filed a petition to 

terminate Respondent-Father’s parental rights. Petitioner-Mother

alleged that Respondent-Father had neglected and willfully 

abandoned Sam. The matter came on for hearing on 9 July 2013, 

and the trial court entered an order terminating RespondentFather’s parental rights on 6 September 2013. Therein, the trial 

court found that Respondent-Father had failed to provide proper 

care, supervision, or discipline for Sam and failed to provide 

financial support. Therefore, the court concluded that 

Respondent-Father neglected Sam as defined by N.C. Gen. Stat. § 
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7B-1111(a)(1) (2013) and that it was likely such neglect would 

continue. Respondent-Father appeals.

Discussion

In his sole argument on appeal, Respondent-Father contends

the trial court erred by concluding that the evidence supported 

terminating his parental rights on the ground that he neglected 

Sam. We disagree.

At the adjudicatory stage of a termination of parental 

rights hearing, the burden is on the petitioner to prove by 

clear, cogent, and convincing evidence that at least one ground 

for termination exists. N.C. Gen. Stat. § 7B-1109(f) (2013); 

In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 

(2001). Review in the appellate courts is limited to determining 

whether clear and convincing evidence exists to support the 

findings of fact, and whether the findings of fact support the 

conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 

S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 547 

S.E.2d 9 (2001). A finding of one statutory ground is sufficient 

to support the termination of parental rights. In re Humphrey, 

156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003).

“When the trial court is the trier of fact, the court is 

empowered to assign weight to the evidence presented at the 
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trial as it deems appropriate.” In re Oghenekevebe, 123 N.C. 

App. 434, 439, 473 S.E.2d 393, 397 (1996). “[F]indings of fact 

made by the trial court . . . are conclusive on appeal if there 

is evidence to support them.” In re H.S.F., 182 N.C. App. 739, 

742, 645 S.E.2d 383, 384 (2007) (citation and internal quotation 

marks omitted).

In pertinent part, a neglected juvenile is defined as “[a] 

juvenile who does not receive proper care, supervision, or 

discipline from the juvenile’s parent, guardian, custodian, or 

caretaker . . . .” N.C. Gen. Stat. § 7B-101(15) (2013); see also 

N.C. Gen. Stat. § 7B-1111(a)(1). “In determining whether neglect 

has occurred, the trial judge may consider . . . a parent’s 

complete failure to provide the personal contact, love, and 

affection that exists in the parental relationship.” In re 

Yocum, 158 N.C. App. 198, 204, 580 S.E.2d 399, 403 (citation, 

internal quotation marks, and brackets omitted), affirmed per 

curiam, 357 N.C. 568, 597 S.E.2d 674 (2003).

“Neglect must exist at the time of the termination 

hearing[.]” In re C.W., 182 N.C. App. 214, 220, 641 S.E.2d 725, 

729 (2007). However, where “the parent has been separated from 

the child for an extended period of time, the petitioner must 

show that the parent has neglected the child in the past and 
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that the parent is likely to neglect the child in the future.”

Id. (citation omitted). In such cases,

[o]ur Supreme Court has held that evidence 

of neglect by a parent prior to losing 

custody of a child — including an

adjudication of such neglect — is admissible 

in subsequent proceedings to terminate 

parental rights. However, termination of 

parental rights for neglect may not be based 

solely on conditions which existed in the 

distant past but no longer exist. The 

determinative factors must be the best 

interests of the child and the fitness of 

the parent to care for the child at the time 

of the termination proceeding.

In re Manus, 82 N.C. App. 340, 348, 346 S.E.2d 289, 294 (1986) 

(citations and internal quotation marks omitted; emphasis in 

original).

In this case, the trial court found the following relevant 

facts:

17. Respondent[-Father] last visited with 

[Sam] on May 14, 2011 at [the grandmother’s]

residence.

. . . 

19. [The grandmother] . . . was concerned 

about Respondent[-Father]’s behavior and 

actions while Respondent[-Father] was at her 

house. [She] testified that the visits 

between Respondent[-Father] and [Sam] were 

awkward.

. . .

21. Respondent[-Father] arrived at [the 
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maternal grandparents’] residence on August 

12, 2011. Respondent[-Father] called law 

enforcement to the residence as 

Petitioner[-Mother]’s car was at the 

residence. Respondent[-Father] was 

arrested . . . . Respondent[-Father] did not 

return to the residence after that date 

because he believed he would be arrested for 

violating the [DVPO].

. . .

23. Respondent[-Father] has not given 

Petitioner[-Mother] any financial support 

for [Sam] since 2011. The last item 

Respondent[-Father] gave to [Sam] was a 

Christmas gift in January 2011.

Respondent[-Father] has not acknowledged 

[Sam’s] birthday or holidays since January 

2011.

24. In May 2011, Respondent[-Father] called 

and texted Petitioner[-Mother] but none of 

the telephone calls or text messages had 

anything to do [with Sam] and 

Respondent[-Father] did not inquire about 

[Sam].

25. [The grandparents] continue to reside 

at the same residence that the visitations 

took place between Respondent[-Father] and 

[Sam] and their telephone numbers remained 

the same through the hearing date.

. . .

27. Respondent[-Father] has not attempted 

any contact with [Sam] for over 2 1⁄2 years 

and, during this time, Respondent[-Father]

has not mailed any cards or sent presents to 

[Sam].

28. From May 2011 to the present date, 

Respondent[-Father] has not made any efforts 
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to file any motions to modify the current 

child custody order.

29. Nothing has prohibited 

Respondent[-Father] from sending cards, 

gifts, financial support[,] or contacting 

Petitioner[-Mother] or [the grandparents] to 

inquire about [Sam]’s welfare.

. . .

31. Respondent[-Father] has another son 

. . . who is eleven years old and with whom 

he visits and pays child support.

32. Respondent[-Father] is employed with 

his father’s business and works with his 

father. Respondent[-Father] works with his 

father when he [is] not incarcerated.

Respondent[-Father] had the ability to 

financially support [Sam] and did not 

support him.

33. Respondent[-Father]’s failure to 

perform the natural and legal parental 

obligations of care and support and 

Respondent[-Father]’s withholding of his 

love, presence, care[,] and maintenance have 

been willful.

34. Respondent[-Father] has not shown any 

likelihood that his behavior would change 

and, instead, the Court finds that . . . 

Respondent[-Father]’s failure to perform any 

natural and legal parental obligations of 

care and support towards [Sam] would 

continue in the future.

On appeal, Respondent-Father contests the validity of findings

19, 27, 29, 32, and 33 as not supported by the evidence.

2 We 

 

2 In his brief, Respondent-Father erroneously labels findings of 
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agree in part with Respondent-Father’s argument as it relates to 

finding 27 and disagree as to the remaining findings. 

First, Respondent-Father asserts that finding 19 is not 

supported by the evidence because there was no awkwardness 

between Respondent-Father and his infant child, Sam, just 

awkwardness between Respondent-Father and the grandparents. To 

the extent that “awkwardness” could possibly be relevant to an 

adjudication of neglect,3 we hold that the undisputed fact that 

the interaction between Respondent-Father and the grandparents

was “awkward” is sufficient to support finding 19.

Second, Respondent-Father asserts that finding 27 is not 

supported by the evidence because he actually visited with Sam 

in May of 2011 and “attempted” to visit him in August of 2011, 

less than 2 1⁄2 years before the neglect hearing. This is correct. 

Respondent-Father’s 12 August 2011 attempted visit, which 

resulted in his arrest, occurred approximately one year and 

eleven months before the 9 July 2013 hearing on the termination 

of his parental rights. Therefore, finding 27 is not supported 

by clear and convincing evidence to the extent that it implies 

Respondent-Father failed to attempt physical contact with Sam in 

 

fact 29 and 33 as “#33” and “#30,” respectively. The substance 

of his argument makes it clear, however, that he is actually 

referring to findings 29 and 33, in that order.

3 We do not assert that it is. 
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more than 2 1⁄2 years. The remainder of the finding, which relates 

to Respondent-Father’s failure to attempt other forms of 

contact, is supported by undisputed evidence.

Third, Respondent-Father asserts that finding 29 is 

unsupported by the evidence because it fails to acknowledge 

that: (a) Petitioner-Mother prosecuted Respondent-Father for 

sending a text message asking “more or less about what [she] was 

doing” and (b) the custody order explicitly prohibited 

Respondent-Father from sending cards or gifts for Sam to 

Petitioner-Mother. This is inapposite. Finding 29 relates to 

Respondent-Father’s decision to refrain from taking steps to 

ensure Sam’s welfare or inquiring about Sam. Neither the DVPO 

nor the custody order prohibited Respondent-Father from sending 

cards or gifts to Sam, and both orders explicitly stated that 

Respondent-Father was allowed to make contact in order to

inquire about Sam’s welfare. Therefore, Defendant’s argument is 

overruled as it relates to finding 29. 

Fourth, Respondent-Father asserts that finding 32 is not 

supported by the evidence because “no evidence was presented 

about what sort of income [Respondent-Father] earned and whether 

that [income] provided him with anything beyond the basic 
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necessities.”4 This is incorrect. The evidence shows that 

Respondent-Father maintained employment when he was not 

incarcerated and provided child support for another child. This 

is clear and convincing evidence that “Respondent[-Father] had 

the ability to financially support [Sam] and did not support 

him.” 

Fifth, Respondent-Father asserts that finding 33 — that he 

“willfully” withheld love, presence, care, and maintenance — is 

not supported by the evidence because Respondent-Father believed 

further contact with Sam would result in imprisonment. This 

argument is without merit. As discussed above, both the DVPO and 

the custody order make clear that Respondent-Father could make 

contact to inquire about Sam’s welfare, and neither order 

prohibited him from providing maintenance for Sam or expressing 

his love to Sam. 

Respondent-Father does not contest the trial court’s 

remaining findings of fact. Therefore, those findings are 

conclusive on appeal. See In re Padgett, 156 N.C. App. 644, 649, 

577 S.E.2d 337, 340 (2003) (holding that the trial court’s 

findings of fact in a neglect case were deemed supported by the

evidence when the appellant did not argue otherwise). Thus,

 

4 Respondent-Father does not contest the trial court’s finding 

that he did not financially support Sam.
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pursuant to the trial court’s valid and relevant findings of 

fact, Respondent-Father voluntarily declined to: (1) provide 

financial support for Sam since 2011; (2) acknowledge Sam’s 

birthday or holidays since January of 2011; (3) attempt any nonphysical contact with Sam, i.e., by electronic communication, 

mail, or other means, in more than 2 1⁄2 years; (4) send cards or 

presents to Sam; or (5) make efforts to modify the current child 

custody order. These findings are sufficient to justify the 

trial court’s adjudication of neglect, its conclusion that such 

neglect is likely to continue, and the termination of 

Respondent-Father’s parental rights. Compare In re Yocum, 158 

N.C. App. at 198, 580 S.E.2d at 399 (holding that clear and 

convincing evidence supported the trial court’s finding of 

neglect in support of termination of the father’s parental 

rights when the father never paid any child support, did not 

send the child a gift or any acknowledgment on her birthday, 

visited the child approximately five times, and failed to 

participate in a charitable prison program that would have 

provided gifts to children at no charge to the inmates), with In 

re C.W., 182 N.C. App. at 214, 641 S.E.2d at 725 (holding that 

there was insufficient evidence to establish neglect and support 

a termination of parental rights when the father wrote to the 
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children; sent them birthday cards, holiday cards, and money; 

was initially unaware that the children had been placed in a 

care facility; testified that he spent time with and cared for 

the children before he was incarcerated; and was prohibited from 

having contact with the children upon release from prison). 

Accordingly, the trial court’s order is 

AFFIRMED.

Judges BRYANT and DILLON concur. 

Report per Rule 30(e).