                  IN THE SUPREME COURT OF NORTH CAROLINA

                                         No. 272A19

                                     Filed 17 July 2020

 IN THE MATTER OF: M.C., M.C., M.C.



      Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from orders entered on 29 April

2019 by Judge Joseph Moody Buckner in District Court, Orange County. This matter

was calendared in the Supreme Court on 19 June 2020 but was determined on the

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

Rules of Appellate Procedure.


      Stephenson & Fleming, LLP, by Deana K. Fleming, for petitioner-appellee
      Orange County Department of Social Services.

      Parker Poe Adams & Bernstein LLP, by Tiffany M. Burba and Spencer J. Guld,
      for appellee Guardian ad Litem.

      Richard Croutharmel for respondent-appellant mother.


      HUDSON, Justice.


      Respondent appeals from the trial court’s orders terminating her parental

rights to M.C. (Megan), M.C. (Miranda), and M.C. (Margot).1 We affirm.

      Respondent and the children’s father, Walter, were married in September

2010. Miranda was born in February 2012. Respondent and Walter divorced in April




      1    Pseudonyms have been used to protect the identity of the juveniles and for ease of
reading.
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                                   Opinion of the Court



2013, though they maintained an “on and off” relationship subsequent to the divorce.

Megan was born in August 2016.

         On 15 February 2017, Orange County Department of Social Services (DSS)

received a report alleging neglect of Miranda and Megan due to their exposure to

domestic violence. The report alleged Walter was verbally abusive, possessed a

firearm, and that respondent was afraid for her life. Walter was arrested and charged

for this incident. The report also alleged there had been an incident during the

previous week where Walter pushed respondent against a wall and punched her in

the face. When Miranda attempted to intervene, Walter threw her across the room.

Law enforcement was not notified of that incident.

         As a result of the report, DSS conducted an assessment and decided to provide

in-home services to the family. DSS determined there was a history of domestic

violence. Respondent had obtained five previous domestic violence protective orders

(DVPOs) against Walter, though each was subsequently violated, and she obtained a

sixth following the February 2017 incidents. As part of a safety plan, DSS mandated

respondent and Walter have no contact for three months. Services were recommended

to address the domestic violence, respondent’s mental health, and Walter’s substance

abuse.

         As with the previous DVPOs, Walter violated the sixth, and respondent

became pregnant with Margot during the mandated no-contact period. In June 2017,

respondent informed her social worker that she had resumed her relationship with


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Walter and that services were no longer needed. Respondent and Walter moved back

in together on 19 June 2017.

      On 21 June 2017, Walter became enraged because respondent lost her wallet,

and he told her over the phone that he would put her “in the ground.” When he

subsequently showed up at her workplace, the police were called, and Walter was

arrested for violating the DVPO. Respondent amended her DVPO to prevent Walter

from contacting her or the children.

      On 27 June 2017, DSS filed juvenile petitions alleging Miranda and Megan

were neglected but allowed the children to remain in respondent’s physical custody.

On 12 July 2017, respondent entered into a consent order with DSS in which she

agreed to have no contact with Walter. On 1 August 2017, respondent’s social worker

learned that respondent went to the emergency room on 21 July 2017, accompanied

by Walter and the children. The social worker also learned that respondent was

staying at the apartment she had previously shared with Walter, though she claimed

to be staying with her mother. DSS took Miranda and Megan into non-secure custody

on 2 August 2017. They were placed in the home of their maternal grandmother.

      Following a hearing on 17 August 2017, Miranda and Megan were adjudicated

to be neglected juveniles. The trial court concluded it was in the best interests of the

children for DSS to maintain custody and allowed respondent one hour of visitation

with the children per week. The court also ordered respondent to complete a mental

health assessment and follow all recommendations, to sign a release for her


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treatment providers to release relevant information to DSS, and to abide by the

DVPO against Walter.

      Walter was incarcerated for violating the DVPO from the end of July 2017 to

November 2017. During that period, respondent was “highly engaged” and attended

weekly visitations with the children, as well as a weekly domestic violence support

group and monthly therapy sessions.

      Margot was born in January 2018. Because respondent was progressing with

her case plan and “on track for reunification,” DSS did not remove Margot from her

care. Respondent continued to make progress throughout the beginning of 2018. She

continued therapy, started a parenting program, and claimed to be “done” with

Walter. DSS expanded respondent’s visitation with Miranda and Megan, allowing

respondent to be supervised by her mother instead of DSS and to visit the children in

their grandmother’s home.

      On 22 March 2018, respondent was seen with Walter in the DSS parking lot.

When confronted by her social worker the next day, respondent admitted having been

in contact with Walter since December 2017. She also admitted she and Walter had

argued in the car after leaving the DSS parking lot, and she had left Margot in the

car with Walter following the argument. As a result of these admissions, DSS filed a

petition alleging Margot was a neglected juvenile and obtained non-secure custody

the same day.




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      Following Margot’s removal, both parents appeared to make efforts toward

reunification. They agreed to not contact each other but indicated their ultimate goal

was reunification as a family. Less than one month after Margot’s removal, however,

respondent and Walter were seen at a funeral together. DSS was informed they

arrived together and held hands during the ceremony.

      In the weeks that followed, Walter was repeatedly observed driving

respondent’s car. DSS was aware respondent and Walter continued seeing each other

during the summer of 2018 and advised respondent that her relationship with Walter

would prevent reunification with her daughters. Despite these warnings, the

relationship continued.

      After a permanency planning hearing on 16 August 2018, the trial court

changed the children’s primary permanent plan to adoption with a secondary plan of

reunification. DSS moved the children from their placement with respondent’s

mother into an adoptive foster home.

      After the permanency planning hearing, DSS lost contact with Walter, and he

ceased all services with the agency. Respondent continued to report that she and

Walter were still together. On 30 October 2018, respondent told her social worker

that her relationship with Walter was stable and free of violence. At their next weekly

meeting, the social worker learned that Walter had threatened to kill respondent on

29 October 2018 and 30 October 2018 and had threatened to burn down her

apartment on one of those occasions. Respondent sought another DVPO in November


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2018. Respondent again reported to DSS that she was not seeing Walter anymore and

would not allow his presence to keep her from getting her children back.

      Police saw Walter and respondent together in her car at her apartment

complex on 13 November 2018. The officers spoke with her, but respondent and

Walter left together in her car before the officers could serve Walter with the DVPO.

Two days later, the property manager at respondent’s apartment complex saw Walter

enter respondent’s apartment alone and called the police. Respondent later reported

that she had given Walter a key. On 1 December 2018, two days after Walter was

served with the DVPO, respondent called the police to report that Walter had taken

her debit card and her car. Respondent later reported she had previously given him

the PIN for the debit card. Police were waiting for Walter when he arrived back at

the apartment. He became aggressive toward the officers, was arrested, and charged

with violating the DVPO and resisting arrest.

      On 16 November 2018, DSS filed motions to terminate respondent’s and

Walter’s parental rights to each of the children. Following a hearing on 21 February

2019, the trial court adjudicated grounds to terminate respondent’s and Walter’s

parental rights to the children. The court further concluded that the termination of

respondent’s and Walter’s parental rights was in the best interests of the children.

Respondent appeals.2




      2   Walter did not appeal the trial court’s orders and is not a party to this appeal.

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                                  Opinion of the Court



      Termination of parental rights consists of a two-stage process: adjudication

and disposition. 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)).

      On appeal, respondent argues the trial court erred in adjudicating the

existence of grounds to terminate her parental rights under N.C.G.S. § 7B-1111(a)(1),

(2), and (6). As “an adjudication of any single ground in N.C.G.S. § 7B-1111(a) is

sufficient to support a termination of parental rights,” In re E.H.P., 372 N.C. 388,

395, 831 S.E.2d 49, 53 (2019), we need only to address respondent’s arguments as to

the ground of neglect under N.C.G.S. § 7B-1111(a)(1).

      “We review a trial court’s adjudication under N.C.G.S. § 7B-1111 ‘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. at 392, 831 S.E.2d

at 52 (quoting In re Montgomery, 311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984)).

“[A]ppellate courts are bound by the trial courts’ findings of fact where there is some

evidence to support those findings, even though the evidence might sustain findings

to the contrary.” In re Montgomery, 311 N.C. at 110–11, 316 S.E.2d at 252–53.

Unchallenged findings are deemed binding on appeal. Koufman v. Koufman, 330 N.C.

93, 97, 408 S.E.2d 729, 731 (1991). “Moreover, we review only those [challenged]


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                                    Opinion of the Court



findings necessary to support the trial court’s determination that grounds existed to

terminate respondent’s parental rights.” In re T.N.H., 372 N.C. 403, 407, 831 S.E.2d

54, 58–59 (2019). The trial court’s conclusions of law are reviewed de novo. In re

N.D.A., 373 N.C. 71, 74, 833 S.E.2d 768, 772 (2019).

       A neglected juvenile is one “whose 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 for neglect “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. at 843, 788 S.E.2d at 167 (citing In re

Ballard, 311 N.C. 708, 713–15, 319 S.E.2d 227, 231–32 (1984)).

       Respondent challenges several of the trial court’s findings of fact. She first

contends there is no evidence to support the trial court’s finding of fact 35 and 373

that she and Walter had dinner together for his birthday. While there was no

testimony at the termination hearing related to the dinner meeting, the social

worker’s adjudicatory hearing report, admitted into evidence without objection,



       3 The trial court entered a separate termination order for each child, which resulted
in differences between the numbering of the findings of fact in 17 JT 39 and 17 JT 40 with
18 JT 19. As such, respondent’s challenges to a single finding of fact refer to two numbers,
both of which we include. Because the orders contain findings of fact and conclusions of law
which are essentially identical, any quotes are from a representative order entered in file
number 17 JT 39.

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describes multiple meetings between respondent and Walter, including the birthday

dinner, in violation of the no-contact orders and DVPOs. Respondent does not

challenge the court’s findings concerning these additional meetings between

respondent and Walter, including their appearance together at a funeral and a court

hearing, as well as Walter’s ongoing use of respondent’s car and his presence in her

apartment.

      Assuming, arguendo, the evidence is insufficient to support the trial court’s

finding about the shared birthday dinner, the remaining unchallenged findings

establish respondent’s continued engagement with Walter, notwithstanding the

DVPOs and voluntary consent orders. Accordingly, the erroneous finding is not

necessary to support the trial court’s legal determination that grounds existed for the

termination of respondent’s parental rights. In re T.N.H., 372 N.C. at 407, 831 S.E.2d

at 58–59.

      Respondent next challenges the trial court’s finding of fact 47 and 49:

             It is likely that the neglect experienced by the juvenile in
             the care of Respondent mother will repeat or continue if the
             juvenile is returned to Respondent mother’s care and
             custody. Specifically, this court finds the following facts:

             ....

             b. Respondent mother minimizes the risk to herself, the
                juvenile, and her siblings.

             c. Respondent mother has had contact with Respondent
                father despite DVPO’s she sought, agreements not to
                have contact, and orders of this court as set forth herein.


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             d. Respondent mother has engaged in and completed
                several domestic violence education and support groups
                with the Compass Center, but she continued to
                maintain a relationship with Respondent father.

             e. Respondent mother has engaged in individual therapy,
                but she continued to have contact with and maintain a
                relationship with Respondent father.

             f. Respondent mother’s continued relationship with
                Respondent father despite engagement in services and
                no contact orders, and failure to maintain a safe home
                free from domestic violence subjects the juvenile to the
                likelihood of repetition of neglect if the juvenile were
                returned to her care and custody.

      Respondent argues her testimony at the termination hearing contradicts the

finding that she minimizes the risk to herself or the children. At the hearing, she

acknowledged it was a “terrible decision to get back together with [Walter] in March

2018 and she was sorry for having done so.” She testified that she was no longer in a

relationship with Walter, and she would not return to him again.

      Respondent also challenges the trial court’s finding that there would be a likely

repetition of neglect if the children were returned to her care. She asserts her trial

testimony, as well as Walter’s possible incarceration for offenses with long prison

sentences, are evidence of changed circumstances at the time of the termination

hearing, which the trial court failed to consider in its findings.

      Respondent cites In re A.B., 253 N.C. App. 29, 799 S.E.2d 445 (2017), to support

her assertion that the trial court failed to make adequate findings related to the



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evidence of changed circumstances. In that matter, the Court of Appeals determined

“the trial court’s findings and conclusions do not adequately account for respondent-

mother’s circumstances at the time of the termination hearing.” Id. at 38, 799 S.E.2d

at 452. In that case both a social worker and the respondent “presented testimony

that would support additional findings up to the time of the termination hearing,”

and the Court “believe[d] the evidence would support different inferences and

conclusions regarding the likelihood of a repetition of neglect based on evidence

regarding respondent-mother’s circumstances at the time of the hearing.” Id. at 35,

799 S.E.2d at 451. That testimony included evidence of the respondent’s (1) unbroken

period of negative drug screens, (2) participation in therapy, (3) separation from the

children’s father and her obtaining a DVPO against him, (4) full-time employment,

(5) consistent and appropriate visitation with her children, and (6) her willingness

and ability to meet minimal living standards for the children, all of which had been

at issue at the adjudication hearing. Id. at 36–37, 799 S.E.2d at 451–52.

      At the time of the termination hearing in this matter, Walter was in jail on

pending felony and misdemeanor charges. This, along with respondent’s testimony

that she was no longer in a relationship with Walter and would not return to him, is

the extent of the changed circumstances respondent presented. At the outset, the trial

court heard respondent’s evidence of purported “changed circumstance,” but it “was

not required to credit [respondent’s] testimonial evidence, particularly in light of




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other testimony admitted during the hearing.” In re Z.V.A., 373 N.C. 207, 212, 835

S.E.2d 425, 430 (2019) (citing In re D.L.W., 368 N.C. at 843, 788 S.E.2d at 167–68).

      Further, “[i]n predicting the probability of repetition of neglect, the court ‘must

assess whether there is a substantial risk of future abuse or neglect of a child based

on the historical facts of the case.’ ” In re M.P.M., 243 N.C. App. 41, 48, 776 S.E.2d

687, 692 (2015) (quoting In re McLean, 135 N.C. App. 387, 396, 521 S.E.2d 121, 127

(1999)), aff’d per curiam, 368 N.C. 704, 782 S.E.2d 510 (2016).

      In addition to the above challenged finding of fact, the trial court found

numerous other unchallenged findings that show respondent repeatedly prioritized

her relationship with Walter over the safety of Miranda, Megan, and Margot by

continuing to allow Walter in her life and around the children; by violating court

orders; and by lying to her social workers, doctors, and family members in the process.

Walter has been confined for varying lengths of time during the course of the

children’s lives, and each time he was released, respondent welcomed him back into

the home. We conclude respondent’s evidence of changed circumstances does not

“support different inferences and conclusions regarding the likelihood of a repetition

of neglect based on evidence regarding [respondent’s] circumstances at the time of

the hearing.” In re A.B., 253 N.C. App at 35, 799 S.E.2d at 451. Moreover,

respondent’s refusal to acknowledge the effect of domestic violence on the children

and her inability to sever her relationship with Walter, even during or immediately

following his periods of incarceration, supports the trial court’s determination that


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                                    Opinion of the Court



the neglect of the children would likely be repeated if they were returned to

respondent’s care. See In re Z.V.A., 373 N.C. at 212, 835 S.E.2d at 430 (affirming a

finding of neglect based on a respondent’s inability to sever a relationship with an

unsafe parent).

      Respondent also asserts that finding of fact 8 is actually a conclusion of law,

and as such this Court “must assess it in the context of whether findings contained

elsewhere in the TPR orders support it.” Finding of fact 8 states, in relevant part,

that DSS has proved “by clear and convincing evidence that grounds exist to

terminate [respondent’s] parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1)

. . . as set forth herein.” We agree that this finding is better labeled as a conclusion of

law. Matter of Adoption of C.H.M., 371 N.C. 22, 28, 812 S.E.2d 804, 809 (2018) (“[A]ny

determination requiring the exercise of judgment or the application of legal principles

is more properly classified a conclusion of law.” (citation omitted)); see also In re

Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675–76 (1997) (“The determination

of neglect requires the application of [statutory] legal principles . . . and is therefore

a conclusion of law.” (citation omitted)). The trial court’s labels are not binding upon

this Court, and we “may reclassify them as necessary before applying the appropriate

standard of review.” N.C. Farm Bureau Mut. Ins. Co. v. Cully’s Motorcross Park, Inc.,

366 N.C. 505, 512, 742 S.E.2d 781, 786 (2013) (citing In re Foreclosure of Gilbert, 211

N.C. App. 483, 487–88, 711 S.E.2d 165, 169 (2011)).




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      Thus, having determined the challenged findings of fact are supported by clear,

cogent, and convincing evidence, and having reviewed the findings as a whole, we

conclude the findings of fact support the trial court’s conclusion that DSS proved “by

clear and convincing evidence that grounds exist to terminate [respondent’s] parental

rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) . . . .” In re E.H.P., 372 N.C. at 392,

831 S.E.2d at 52.

      Finally, respondent argues that the trial court erred as its conclusions of law

do not include the phrase “probability of future neglect.” She asserts this renders the

orders reversible. However, the trial court did make findings regarding the

probability of future neglect, stating, “It is likely that the neglect experienced by the

juvenile in the care of Respondent mother will repeat or continue if the juvenile is

returned to Respondent mother’s care and custody,” and that the juvenile was

subjected to “the likelihood of repetition of neglect if the juvenile were returned to

[respondent’s] care and custody.” Again, the trial court’s labels are not binding upon

this Court, and we “may reclassify them as necessary before applying the appropriate

standard of review.” N.C. Farm Bureau Mut. Ins. Co. 366 N.C. at 512, 742 S.E.2d at

786. To the extent these determinations are more appropriately treated as

conclusions of law, we will consider them as such, and we conclude there are sufficient

findings of fact, supported by clear, cogent, and convincing evidence, to support the

trial court’s conclusion that grounds existed to terminate respondent’s parental rights

for neglect under N.C.G.S. 7B-1111(a)(1).


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                                 Opinion of the Court



      For the foregoing reasons, none of respondent’s arguments demonstrate that

the trial court erred in terminating her parental rights. Accordingly, we affirm the

termination orders.

      AFFIRMED.




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