IN THE SUPREME COURT OF NORTH CAROLINA

2021-NCSC-71

No. 322A20

Filed 18 June 2021

IN THE MATTER OF: B.S.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 16

March 2020 by Judge Monica Bousman in District Court, Wake County. This matter 

was calendared for argument in the Supreme Court on 22 April 2021 but determined 

on the record and briefs without oral argument pursuant to Rule 30(f) of the North 

Carolina Rules of Appellate Procedure.

Mary Boyce Wells for petitioner-appellee Wake County Human Services.

Michelle FormyDuval Lynch for appellee Guardian ad Litem.

Garron T. Michael for respondent-appellant father.

BARRINGER, Justice.

¶ 1 Respondent appeals from the order terminating his parental rights to his 

minor child B.S. (Bailey).

1 The trial court found that grounds existed to terminate 

respondent’s parental rights pursuant to N.C.G.S. § 7B-1111(a)(1), (2), and (5) and 

that termination was in Bailey’s best interests. Respondent has not challenged on 

appeal the trial court’s conclusion that the ground for termination pursuant to 

 

1 The pseudonym “Bailey” is used throughout this opinion to protect the identity of 

the juvenile and for ease of reading.
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N.C.G.S. § 7B-1111(a)(5) existed or that termination was in Bailey’s best interests. 

Respondent instead contends that this Court should reverse the trial court’s order as 

to this ground for termination of respondent’s parental rights because he received

ineffective assistance of counsel. As we conclude that respondent has not carried his 

burden to show ineffective assistance of counsel, we affirm the trial court’s order 

terminating the parental rights of respondent to Bailey.

I. Background

¶ 2 Wake County Human Services (WCHS) became involved with Bailey at the 

time of her birth when Bailey and her mother tested positive for cocaine. Bailey’s 

mother was also homeless and suffering from mental health issues which required 

hospitalization.

¶ 3 On 18 July 2018, WCHS filed a petition alleging that Bailey and her two halfsiblings were neglected juveniles.

2 Respondent and Bailey’s mother subsequently 

consented to the entry of an order adjudicating Bailey a neglected juvenile, which was 

entered on 16 October 2018. In this consent order on adjudication and disposition, 

the trial court ordered respondent to submit to genetic marker testing and to 

establish legal paternity if found to be the biological father of Bailey. At the time, 

respondent was incarcerated and denied knowing Bailey’s mother and being Bailey’s 

biological father. Nevertheless, on 15 January 2019, respondent was determined to 

 

2 This appeal does not involve Bailey’s half-siblings or her mother.
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be the biological father of Bailey after respondent submitted to genetic marker 

testing. Respondent continued to deny that he was the biological father of Bailey until 

a social worker sent him a copy of the genetic marker report in late January 2019.

¶ 4 After respondent was released from incarceration, WCHS filed a motion for 

termination of the parental rights of Bailey’s mother, respondent, and the known or 

unknown fathers of Bailey’s two half-siblings. WCHS alleged that grounds existed to 

terminate respondent’s parental rights pursuant to N.C.G.S. § 7B-1111(a)(1), (2), and 

(5). The termination-of-parental-rights hearing was conducted over four days in 

November 2019 and January and February 2020. On 16 March 2020, the trial court 

entered an order terminating respondent’s parental rights. The trial court concluded 

that WCHS had proven all three alleged grounds for termination, see N.C.G.S. § 7B1111(a)(1), (2), (5), and that termination of respondent’s parental rights was in 

Bailey’s best interests. The trial court’s findings of fact included that:

[Respondent] was served with a copy of the petition filed 

July 18, 2018 which contained the name of the child and 

her date of birth. He had access to paper, envelopes, and 

stamps while he was incarcerated. He corresponded via 

U.S. Mail with both the social worker and his attorney in 

this case. He had the means to file an affidavit of paternity 

with [WCHS]. The same attorney has been appointed to 

represent him in this case and also in cases involving two 

other children. In a termination of parental rights order 

filed for two of [respondent]’s other children on August 7,

2019, finding of fact #31 indicates that [respondent] filed 

an affidavit of parentage for another of his children. In 

orders filed on October 16, 2018, February 1, 2019, and 

July 24, 2019 the [c]ourt ordered . . . [respondent] to 
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establish “legal paternity” if genetic marker testing showed 

him to be the biological father of the child. While N.C.G.S. 

§[ ]7B-1111(a)(5) does not require that an unwed father 

have actual notice that a ground exist[s] for termination of 

parental rights unless paternity and/or legitimation is 

established prior to the filing of a termination of . . .

parental rights action, [respondent] was on “notice” that he 

was to establish legal paternity beginning with the

disposition order filed October 16, 2018. He had “notice”

that he could have sired a child when he had a sexual 

encounter with [Bailey’s mother]. He further knew by late 

January 2019 that genetic marker testing showed him to 

be the biological father of [Bailey] which was more than six 

months before the motion to terminate his parental rights 

was filed.

¶ 5 Respondent appealed.

¶ 6 On appeal, respondent challenges several findings of fact as not supported by 

competent evidence and the trial court’s conclusion that grounds existed for 

termination pursuant to N.C.G.S. § 7B-1111(a)(1) and (2). However, respondent has 

neither challenged the trial court’s conclusion that the ground for termination 

pursuant to N.C.G.S. § 7B-1111(a)(5) had been established nor challenged any 

findings of fact supporting this conclusion. Thus, it is undisputed that respondent 

failed to establish legal paternity as required by the trial court’s order and failed to 

do any of the acts specified in N.C.G.S. § 7B-1111(a)(5)(a)–(e).

¶ 7 Subsection 7B-1111(a)(5) provides that a trial court may terminate parental 

rights upon a finding that:
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The father of a juvenile born out of wedlock has not, prior 

to the filing of a petition or motion to terminate parental 

rights, done any of the following:

a. Filed an affidavit of paternity in a central registry 

maintained by the Department of Health and Human 

Services. The petitioner or movant shall inquire of the 

Department of Health and Human Services as to 

whether such an affidavit has been so filed and the 

Department’s certified reply shall be submitted to and 

considered by the court.

b. Legitimated the juvenile pursuant to provisions of G.S. 

49-10, G.S. 49-12.1, or filed a petition for this specific 

purpose.

c. Legitimated the juvenile by marriage to the mother of 

the juvenile.

d. Provided substantial financial support or consistent 

care with respect to the juvenile and mother.

e. Established paternity through G.S. 49-14, 110-132, 

130A-101, 130A-118, or other judicial proceeding.

N.C.G.S. § 7B-1111(a)(5) (2019).

¶ 8 Respondent, however, argues for the first time on appeal that his appointed 

trial counsel was ineffective. Respondent contends that because he received 

ineffective assistance of counsel, this Court should reverse the portion of the trial 

court’s order concluding that the ground set forth in N.C.G.S. § 7B-1111(a)(5) existed 

to terminate his parental rights.
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II. Ineffective Assistance of Counsel Claim

¶ 9 As “a finding of only one ground is necessary to support a termination of 

parental rights,” In re A.R.A., 373 N.C. 190, 194 (2019), and respondent has not 

challenged the conclusion or findings of fact supporting the trial court’s conclusion 

that the ground set forth in N.C.G.S. § 7B-1111(a)(5) existed to terminate his parental 

rights, we must affirm the trial court’s order terminating respondent’s parental rights 

if respondent has not shown that he received ineffective assistance of counsel. The 

Juvenile Code provides that “[i]n cases where the juvenile petition alleges that a 

juvenile is abused, neglected, or dependent,” N.C.G.S. § 7B-602(a) (2019), and “[w]hen 

a petition [for termination of parental rights] is filed,” the parent “has the right to 

counsel, and to appointed counsel in cases of indigency, unless the parent waives the 

right,” N.C.G.S. § 7B-1101.1(a) (2019). When addressing a contention by a respondent 

that he or she received ineffective assistance of counsel, this Court has explained that:

Parents have a right to counsel in all proceedings dedicated 

to the termination of parental rights. Counsel necessarily 

must provide effective assistance, as the alternative would 

render any statutory right to counsel potentially

meaningless. To prevail on a claim of ineffective assistance 

of counsel, respondent must show that counsel’s 

performance was deficient and the deficiency was so 

serious as to deprive him of a fair hearing. To make the 

latter showing, the respondent must prove that there is a 

reasonable probability that, but for counsel’s errors, there 

would have been a different result in the proceedings.

In re G.G.M., 2021-NCSC-25, ¶ 35 (cleaned up).
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¶ 10 Respondent’s argument in his brief to this Court is as follows:

Although the trial court ordered him to “establish 

legal paternity” in three separate orders dating back to 16 

October 2018, no action was ever undertaken by 

[respondent] to do so. Nothing contained in the record on 

appeal or within the transcript of the termination hearing 

indicate appointed counsel ever advised or informed 

[respondent] of how or why he needed to “establish legal 

paternity” as [the] court ordered. Nothing in the record 

indicates that appointed counsel sent or provided an 

affidavit of paternity to [respondent] prior to the motion to

terminate parental rights being filed. Instead, appointed 

counsel argued during its closing on grounds that WCHS 

failed to make reasonable efforts to achieve reunification 

by assisting [respondent] in executing an affidavit of 

paternity.

Appointed counsel’s failure to advise, inform or 

assist [respondent] with filing an affidavit of paternity, or 

otherwise legally establish paternity as [the] court ordered 

in the underlying juvenile case fell below an objective 

standard [of] reasonableness. Specifically, the trial court 

formally ordered [respondent] to establish legal paternity 

over nine months before the motion to terminate parental 

rights was filed on 2 August 2019. Moreover [respondent]

was transported to Wake [C]ounty on both 7 May 2019 and 

24 June 2019 for scheduled hearings affording appointed 

counsel face to face access to [respondent] despite his 

incarceration. Had appointed counsel properly informed, 

advised, or assisted [respondent] in establishing legal 

paternity, a single filing would have precluded the trial 

court from terminating his parental rights pursuant to 

N.C.[G.S.] § 7B-1111(a)(5) (2019).

¶ 11 WCHS and the guardian ad litem contend that respondent has failed to show 

he received ineffective assistance of counsel and that respondent has not shown that 
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had counsel assisted with establishing paternity that there is a reasonable 

probability there would have been a different outcome in the proceeding.

¶ 12 We agree that respondent has not met his burden to establish ineffective 

assistance of counsel. This State’s jurisprudence has “recognized that there could be 

no law if knowledge of it was the test of its application” and has not permitted a 

respondent’s purported absence of knowledge of his or her parental duties to protect

the respondent from the termination of his or her parental rights. In re Wright, 64 

N.C. App. 135, 139 (1983); see also In re S.E., 373 N.C. 360, 366 (2020) (quoting In re

Wright in a parenthetical); In re T.D.P., 164 N.C. App. 287, 289 (2004) (quoting In re

Wright in a parenthetical), aff’d per curiam, 359 N.C. 405 (2005). Thus, when 

addressing a claim of ineffective assistance of counsel for failing to advise the 

respondent of what he needed to do to regain custody of a juvenile child, this Court 

has recognized that ignorance of an inherent duty of a parent to their child does not 

excuse a parent’s failure to fulfill this duty, and as a result, any alleged failure by 

counsel to advise concerning these inherent duties cannot be prejudicial. In re J.M., 

2021-NCSC-48, ¶¶ 35–36.

¶ 13 Based on the foregoing, our examination of the record, and the undisputed 

factual findings, we conclude that there is no reasonable probability that any of the 

alleged omissions by respondent’s counsel affected the outcome of the termination-ofparental-rights hearing. See State v. Braswell, 312 N.C. 553, 563 (1985) (“[I]f a 
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reviewing court can determine at the outset that there is no reasonable probability 

that in the absence of counsel’s alleged errors the result of the proceeding would have 

been different, then the court need not determine whether counsel’s performance was 

actually deficient.”). Respondent’s argument of ineffective assistance of counsel is 

without merit.

III. Conclusion

¶ 14 Because respondent has not challenged on appeal the trial court’s conclusion 

that the ground for termination pursuant to N.C.G.S. § 7B-1111(a)(5) existed or that 

termination was in Bailey’s best interests and because we conclude that respondent’s 

claim of ineffective assistance of counsel is without merit, we affirm the trial court’s 

order terminating respondent’s parental rights.

AFFIRMED.