An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                 NO. COA13-1068

                      NORTH CAROLINA COURT OF APPEALS

                           Filed: 18 February 2014


IN THE MATTER OF:
                                            Wake County
L.T.                                        No. 12 JT 62




       Appeal by respondent-mother from order entered 24 June 2013

by Judge Monica M. Bousman in Wake County District Court.                 Heard

in the Court of Appeals 27 January 2014.


       Roger A. Askew for petitioner-appellee Wake County Human
       Services.

       Pamela Newell for guardian ad litem.

       Levine & Stewart, by James E. Tanner III, for respondent-
       appellant mother.


       BRYANT, Judge.


       Respondent-mother     appeals    from   an   order    terminating     her

parental rights to her minor child Louis.1             Because petitioner’s


1
  Louis is a pseudonym used to protect the identity                     of the
juvenile pursuant to N.C.R. App. P. 3.1(b).
                                         -2-


evidence       and    the    district    court’s        findings      of     fact    are

sufficient to establish grounds for termination based on neglect

under N.C. Gen. Stat. § 7B-1111(a)(1) (2011), we affirm.

       Louis,    respondent’s       eighth     child,    was    born   in     December

2011.     At the time of Louis’ birth, respondent’s five oldest

children had been removed from her custody and placed in foster

care following her arrest in 2009.               She voluntarily relinquished

her parental rights as to four of the children in July 2010, and

the    fifth    child    was   placed    in    the   custody     of    the    paternal

grandmother in August 2010.              Respondent’s sixth child, born in

November 2009, was the subject of a Child Protective Services

(“CPS”) report in January 2010 following a series of domestic

disturbances in the home.            The paternal grandparents sought and

were    awarded        custody      of   the     child     in      February         2010.

Respondent’s seventh child was born in October 2010.                          She was

removed from         respondent’s    custody,     adjudicated neglected,              and

placed with her paternal grandparents in 2011 after multiple CPS

reports, including an incident in which respondent threatened to

kill a social worker and two police officers.

       Wake     County      Human   Services     (“WCHS”)       received      two     CPS

reports concerning Louis in February 2012.                       The first report

alleged    a    violent      confrontation      between     respondent        and     her
                                              -3-


roommate in the presence of their respective children.                                     The

second    report,     received         one        week    later,     described    a    verbal

altercation     in    Louis’      presence          between       respondent     and    Louis’

putative     father       R.T.,        who    was        living     with    respondent      in

violation of her lease.                The report further alleged that R.T.’s

brother     came     to    the    residence              following    the    incident     and

threatened respondent.             The landlord reported complaints from

neighbors    about        the   level        of    noise     caused    by   arguments      and

parties    at   the       residence,         and    expressed        concerns    about    the

number of persons coming in and out of the residence and about

respondent’s “ability to provide safe care for the child.”

    On 21 February 2012, WCHS obtained non-secure custody of

Louis and filed a juvenile petition alleging that he resided in

an injurious environment and was thus a neglected juvenile as

defined by N.C. Gen. Stat. § 7B-101(15) (2011).                             Respondent and

R.T. consented to an adjudication of neglect entered by the

district court on 11 April 2012.                          The consent order included

findings    consistent          with    the        CPS    reports     and   an   additional

finding    that      respondent         “continues          to    demonstrate     the    same

pattern of domestic violence, poor parenting skills, and mental

health problems which caused the removal of her other                                    seven

children, and at the time of the filing of the petition [Louis],
                                            -4-


her    eighth     child,     was    at    risk    of     harm.”         The    order      made

reference       to     respondent’s       pending      charges     for    communicating

threats     and      violating      probation       and    recounted          R.T.’s      more

extensive    criminal        history,      including       a    2011     conviction        for

assault with a deadly weapon and “a domestic violence incident

with     [respondent]”       on    10     February       2012     for    which       he    was

incarcerated.          In its disposition, the court ordered respondent

to comply with her probation; “obtain and maintain independent

housing sufficient to meet the needs of herself and her child;”

participate       in    parenting     classes      and    mental      health     services;

“and demonstrate skills learned in her interactions with the

child[.]”

       The district court ceased reunification efforts and changed

Louis’ permanent plan from reunification to adoption by order

entered 12 February 2013.                 In addition to noting respondent’s

ongoing    volatile       relationship          with   R.T.     and     lack    of     stable

housing,    the      court   found       that    she   “continues        to    demonstrate

severe      anger        management         problems        and        associate          with

inappropriate persons, such as her mother, with whom she was

with when recently arrested for shoplifting.”                            As evidence of

respondent’s         inability      “to    control        her     emotions,      even       in

controlled settings[,]” the court cited respondent’s “eruption”
                                              -5-


during the permanency planning hearing, which required her “to

be restrained by law enforcement officials and asked to leave

the Courthouse.”

     WCHS    filed       a    motion     to    terminate       respondent’s         parental

rights on 13 March 2013, alleging three grounds for termination:

(1) neglect; (2) failure to make reasonable progress to correct

the conditions leading to Louis’ removal from her care; and (3)

dependency.        See       N.C.G.S.    §    7B-1111(a)(1),         (2),     (6)   (2011).

After hearing evidence on 4 June 2013, the court adjudicated

grounds for termination based on neglect and lack of reasonable

progress under N.C.G.S. § 7B-1111(a)(1) and (2), and further

determined that termination of respondent’s parental rights was

in the best interest of the minor child.2                      Respondent appeals.

                              _____________________________

     Respondent         has    filed     a    petition    for    writ    of    certiorari

asking      this        Court      to        review      the      termination          order

notwithstanding         her      trial       counsel’s     failure       to     sign     her

otherwise    timely      notice     of       appeal   filed     25   July     2013.      See

N.C.R.   App.      P.        3.1(a)(1)       (“[B]oth    the     trial      counsel      and

appellant must sign the notice of appeal, and the appellant



2
  The court terminated the parental rights of R.T. on the same
grounds; R.T. is not a party to this appeal.
                                               -6-


shall    cooperate          with    counsel     throughout       the    appeal.”).         It

appears counsel’s failure to sign the notice was the product of

confusion about the scope of his representation.

      This          Court     has     previously       held     that      Rule   3.1       is

“jurisdictional, and if not complied with, the appeal must be

dismissed.”          In re L.B., 187 N.C. App. 326, 332, 653 S.E.2d 240,

244 (2007).          Assuming arguendo that counsel’s failure to sign a

notice of appeal under Rule 3.1(a)(1) is a jurisdictional defect

requiring dismissal, we find that respondent clearly evinced her

intent     to       appeal    by    signing     and    filing     notice     within       the

statutory appeal period.                Accordingly, we allow her petition for

the   purpose        of     reviewing    the    termination      order.      See     In    re

I.T.P-L., 194 N.C. App. 453, 460, 670 S.E.2d 282, 285 (2008)

(issuing        a    writ    of     certiorari       “to    permit     consideration       of

[respondents’] appeals on the merits so as to avoid penalizing

[them] for their attorneys’ errors.”).

      On     appeal,         respondent        challenges       the     adjudication       of

grounds to terminate her parental rights based on neglect under

N.C.G.S. § 7B-1111(a)(1).                Specifically, she argues the district

court    erred        in    finding     clear    and       convincing    evidence     of    a

“probability of a repetition of neglect” if Louis were returned

to her care.          In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227,
                                            -7-


232 (1984).

    In reviewing an adjudication under N.C. Gen. Stat. § 7B-

1109(e)     (2011),     we    determine       whether   the    district      court’s

findings of fact are supported by clear, cogent and convincing

evidence,     and     whether        the     findings   support       the   court’s

conclusions of law.          In re Gleisner, 141 N.C. App. 475, 480, 539

S.E.2d 362, 365 (2000).              “If there is competent evidence, the

findings of the trial court are binding on appeal[,] . . . even

though the evidence might support a finding to the contrary.”

In re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003)

(citations omitted).          The appellant is bound by any unchallenged

findings of fact.            Koufman v. Koufman, 330 N.C. 93, 97, 408

S.E.2d 729, 731 (1991) (citation omitted).                  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)

(citation omitted).           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)

(citation omitted).

    A neglected juvenile is one who “does not receive proper

care, supervision, or discipline . . .; or who is not provided
                                         -8-


necessary medical care; or who lives in an environment injurious

to the juvenile’s welfare[.]”                  N.C. Gen. Stat.         §     7B-101(15)

(2013).      In order to support an adjudication under N.C.G.S. §

7B-1111(a)(1),       “[n]eglect        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).            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   that   the   parent    is   likely       to    neglect   the     child    in    the

future.”     Id.     The determination that a child is neglected is a

conclusion of law.          In re Helms, 127 N.C. App. 505, 510, 491

S.E.2d 672, 675 (1997).

      The district court heard testimony from WCHS foster care

social    worker     Toni   Marshall      and       respondent.       It     also    took

judicial notice of all material “in the underlying file for

which     judicial    notice      is    appropriate[.]”              Based     on    this

evidence, the court made the following findings pertinent to

adjudication under N.C.G.S. § 7B-1111(a)(1):

             10. [Louis was] adjudicated as a neglected
             juvenil[e] . . . pursuant to a consent [sic]
             entered by the parties, dated April 11,
             2012.

             11. [Respondent], who has had 8 children in
             all,  had   a   history  of  mental  health
                     -9-


problems, domestic violence, and instability
which had resulted in her children being
adjudicated as neglected children.   All the
children were placed with others, some in
adoptive placements, pursuant to her signing
relinquishments, and others in relative
placements.

12. [Respondent] and [R.T.] engaged in
several   very   serious   domestic    violence
incidents, and     [respondent]   continued a
pattern   of   poor   parenting    skills   and
associating with persons who created safety
risks for the child.      [R.T.], the father,
was also involved in an incident of domestic
violence    with    his    mother    and    was
incarcerated.

. . .

20.    Subsequent   to     the  adjudication
[respondent] and [R.T.] continued a pattern
of domestic violence, several incidents
being quite serious. . . .

21. [R.T.] . . . engaged in a boisterous
altercation with [respondent] at a November
2012 planning meeting at WCHS. . . .

. . .

25. [Respondent] has consistently visited
her child in accordance with her visitation
plan.

26. [Respondent] states that she is no
longer in a relationship with [R.T.], and
she did take out a domestic violence
protective order against him.       However,
[respondent] has not stopped seeing and
calling [R.T.].   She is due to deliver a
child in September of 2013, and she states
that [R.T.] is the father of the child. The
                    -10-


child   was   probably  conceived   in   late
November or early December 2012.

27. Since the adjudication, [respondent] has
been charged with two counts of larceny (one
pending), and she was therefore in violation
of a [sic] her probation from another
charge.    She is awaiting trial on the
pending charges.

. . .

28. [Respondent] began to engage earnestly
in therapy in November 2012 with Upward
Change Services, who also work with her
medication management; however, she has not
demonstrated that she is able to control her
emotions sufficiently to provide a safe
environment for the child.

29. Although [respondent] in November 2012
began in earnest to engage in services
ordered   by   the   Court,   she   has  not
demonstrated that she has corrected the
conditions which have resulted in her losing
custody of her 7 older children and the
removal of [Louis] in February 2012.

30. [Respondent] continued to demonstrate
severe   anger   management    problems and
associate with inappropriate persons, such
as her mother, with whom she was with when
she was arrested for shoplifting.

31. [Respondent] was still living with
[R.T.] when she obtained new housing in
November 2012, and he didn’t leave the home
until after the November 2012 planning
meeting.     She indicated that she was
“through” with him, but soon after the huge
argument she had with him at that . . .
meeting, she was seen with [R.T.] in the
community.
                    -11-



32.   In   January   2013,   [R.T.]   entered
[respondent’s] home and tried to suffocate
her with a pillow . . . .        [Respondent]
filed for a[nd] received a Domestic Violence
Protective Order.     The domestic violence
incidents reflect a continual repetition of
behaviors that raise grave concerns that she
is not able to safely care for the child.
In addition, she erupted at the January 2013
Court proceeding and exemplified for the
Court that she is not able to control her
emotions, even in controlled settings.    She
had to be restrained by law enforcement
officials and [was] asked to leave the
Courthouse. . . . [S]he still calls [R.T.],
has gotten into a car for rides with him,
and is due in three months to have his baby.
She   has    not   demonstrated    that   she
understands the impact of domestic violence
on her child.

33.   [Respondent]   had   housing  at   the
beginning of this matter, but was evicted
due to not complying with the rules of the
apartment complex. . . . She was homeless
for a long period of time and found a home
in November 2012.   The home is damaged and
not suitable for habitation. There is black
mold, floors are falling in, there are
appliance problems, and water problems.
[Respondent] has secured the assistance of
legal aid to help bring a case against the
landlord. Throughout her 3 year involvement
with WCHS she has moved from place to place.
She has not demonstrated the ability to
maintain stability in her housing.

34.   [Respondent]  began   engaging  in   a
parenting program, Families on the Grow with
Maria Weeks, who did some “home” visits with
[respondent] one on one after [respondent]
was evicted and moved to a motel.       Once
                                      -12-


              [respondent] moved to Wendell, NC she did
              not attend the classes, and claimed that she
              had   no  transportation.      Transportation
              vouchers were offered to her. The Court did
              not find this to be a valid excuse for not
              attending an essential program.

              35.   In light of the findings above it is
              probable that    [respondent’s] pattern of
              neglect would continue if the child were
              placed in her care.

Most of these findings are uncontested by respondent and, thus,

are binding.      See Koufman, 330 N.C. at 97, 408 S.E.2d at 731.

We address her exceptions below.

       As to Finding 11, respondent asserts the district court

heard no evidence regarding her mental health diagnoses or the

circumstances surrounding the removal from her care of her seven

other children prior to 2012.           She does not contest the accuracy

of the finding per se, but claims the court improperly relied

upon   this    general    statement   about    her    history   to   support   a

“foregone conclusion” that her rights as to Louis should be

terminated.

       We conclude that      Finding 11       was    fully supported by     the

social worker’s testimony at the termination hearing and the

findings to which respondent consented at the time of Louis’

original adjudication of neglect in April 2012.                 The court was

free   to   consider     respondent’s    history     —   including   her   prior
                                          -13-


neglect of other children — in assessing the likelihood of her

future neglect of Louis under N.C.G.S. § 7B-1111(a)(1).                             See In

re McLean, 135 N.C. App. 387, 395, 521 S.E.2d 121, 126 (1999).

       Respondent also challenges the portion of Finding 30 that

she “continued to demonstrate severe anger management problems”

and    the   related    averment         in    Finding      28   that    she    “has    not

demonstrated     that        she    is        able    to     control     her     emotions

sufficiently to provide a safe environment for the child.”                               She

casts these findings as based on just two incidents since the

initial adjudication of neglect: her argument with R.T. at the

November 2012 planning meeting and her “emotional meltdown in

court” at the permanency planning hearing on 31 January 2013.

Respondent makes a similar argument about Finding 32 and the

court’s reference to the risk posed to Louis by her involvement

in domestic violence with                R.T.        Respondent insists         that her

argument with R.T. in November 2012 and the single incident when

R.T.    attempted      to    suffocate         her    in    January      of    2013     were

insufficient to show a likelihood of a repetition of neglect,

given that she had obtained a domestic violence protection order

(“DVPO”) against R.T.              Likewise, while she concedes that she

lacked suitable housing for Louis as stated in Finding 33, she

emphasizes    that     her    current         housing      problems     were   no     longer
                                           -14-


based on R.T.’s presence in her home or the type of issues with

noise    and    domestic        violence    that    resulted          in   the    original

adjudication of neglect.

      We       believe        the    aforementioned             findings          regarding

respondent’s         emotional      instability,         involvement         in   domestic

violence, and lack of stable and suitable housing are sufficient

to support the court’s ultimate finding of a probability of a

repetition of neglect if Louis were returned to her care.                            In re

K.D.,    178    N.C.     App.    322,     329,    631    S.E.2d       150,    155    (2006)

(affirming      adjudication        of    neglect       based    on    the    respondent-

mother’s    “struggles with parenting skills, domestic violence,

and     anger    management,         as    well     as     her        unstable      housing

situation”).         We are unpersuaded by respondent’s suggestion that

the   number     of    specific      incidents      detailed          by   the    court   is

insufficient to demonstrate a pattern suggestive of a likelihood

of future neglect.         Viewed in their totality, and in the context

of respondent’s prior neglect of Louis’ siblings, these findings

support the court’s adjudication under N.C.G.S. § 7B-1111(a)(1).

      Respondent separately objects to the court’s statement in

Finding 30 that “she was seen with [R.T.] in the community”

subsequent      to    their     argument    at     the    November         2012   planning

meeting.        She argues this finding was based improperly on a
                                             -15-


dispositional finding from a prior order, which was not found by

clear and convincing evidence and was supported only by double

hearsay included in a WCHS report.                     See generally In re A.K.,

178 N.C. App. 727, 731, 637 S.E.2d 227, 229 (2006) (noting the

different       proof     standards      for    adjudicatory       and    dispositional

facts).          Assuming,        arguendo,         that    this     finding        lacked

evidentiary support, any error was harmless.                         See In re T.M.,

180   N.C.     App.     at    547,     638    S.E.2d   at   240—41.        The    court’s

remaining       findings      showed     that    respondent       continued       to    have

contact      with     R.T.     after     the    domestic     violence      incident      in

January    of     2013     and   the     issuance      of   the   DVPO.         Respondent

testified that she rode to the termination hearing with R.T.                              We

further note respondent consented to a finding in support of the

April     2012      adjudication         that    her    involvement        in    domestic

violence was a factor in Louis’ status as a neglected juvenile.

Accordingly,        the      essential       portion   of   Finding      32,     that    she

failed    to     “demonstrate[]         that    she    understands       the    impact   of

domestic violence on her child[,]” was fully supported by the

evidence and other findings.                    Accordingly, the trial court’s

findings support the adjudication of grounds for termination of

respondent’s parental rights based on neglect under N.C.G.S. §

7B-1111(a)(1).            Having upheld this ground for termination, we
                               -16-


need not review the court’s adjudication under N.C. Gen. Stat. §

7B-1111(a)(2).   See In re P.L.P., 173 N.C. App. 1, 8, 618 S.E.2d

241, 246 (2005) (citations omitted).

    Affirmed.

    Judges STEELMAN and DAVIS concur.

    Report per Rule 30(e).
