An unpublished opinion of the North Carolina Court of Appeals does not constitute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    Respondent-

Father’s parental rights to the minor child, Sam,1 on the ground

of neglect. Sam was born to Respondent-Father and Petitioner-

Mother    (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.
                                           -2-
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 Respondent-

Father 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
                                           -3-
grandmother’s       home.    Respondent-Father           contacted    the    sheriff’s

office    and   was   arrested       for       violating    the    DVPO.    Petitioner-

Mother    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 Respondent-

Father’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. §
                                     -4-
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
                                            -5-
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
                                  -6-
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
                    -7-
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 ½ 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
                                -8-
            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
                                        -9-
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 ½ 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.
                                           -10-
more than 2 ½ 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
                                             -11-
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.
                                          -12-
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 non-

physical contact with Sam, i.e., by electronic communication,

mail, or other means, in more than 2 ½ 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
                                   -13-
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).
