An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1393

                      NORTH CAROLINA COURT OF APPEALS

                              Filed: 3 June 2014


IN THE MATTER OF:

       D.C.M.                               Alleghany County
                                            Nos. 05 J 20, 12 JT 18



      Appeal by respondent from order entered 16 October 2013 by

Judge Michael Duncan in Alleghany County District Court.                  Heard

in the Court of Appeals 5 May 2014.


      James N. Freeman, Jr., for petitioner-appellees.

      Richard Croutharmel for respondent-appellant father.


      BRYANT, Judge.


      Respondent-father      appeals     from   an   order   terminating     his

parental rights.      After careful review, we affirm.

      On   24   October   2005,    the   Alleghany    County   Department     of

Social Services (“DSS”) filed a petition alleging that Danny1 was

a neglected juvenile.        At the time the petition was filed, Danny

1
  Danny is a pseudonym used to protect the identity                     of the
juvenile pursuant to N.C. R. App. P. 3.1(b) (2013).
                                          -2-
was    living    with    his    mother,       other    siblings,       and    maternal

grandparents.      DSS had visited Danny’s home on 4 October 2005

and found that it was in “disarray.”                       DSS claimed that it

found: (1) dirty clothes lying on the floor; (2) unclean carpet

and flooring, causing the children’s feet to turn black from the

dirt; and (3) bugs.            Additionally, a strong odor permeated the

apartment.      DSS further stated that it received several calls on

17    October    2005    reporting      that      there    were      three    children

standing next to a road unsupervised, one of whom was Danny.

Danny was just six years old at the time.                  On 22 November 2005,

DSS obtained non-secure custody of Danny.

      On   23    February       2006,     a      consent      order     was     entered

adjudicating     Danny    as     neglected.           Danny    was     placed     in     a

guardianship     arrangement       with    petitioners        and     respondent       was

granted visitation.            The trial court also authorized DSS to

cease reunification efforts.            On 26 January 2007, upon review of

the   guardianship      arrangement,       the    trial    court      concluded    that

continuing the guardianship arrangement with petitioners was in

Danny’s best interest.           The court noted that respondent had not

visited Danny since October 2006.                   At the conclusion of the

hearing, the court waived further review hearings.
                                               -3-
    On 23 July 2008, respondent filed a motion in the cause

seeking    visitation.              On   18    December       2008,       the   trial     court

entered an order requiring respondent to undergo a mental health

evaluation prior to being allowed renewed visitation with Danny.

A hearing was held on 2 June 2009, at which time the trial court

noted that respondent had moved to Virginia and had not yet

undergone a mental health evaluation.                         The court solicited the

assistance       of    the   Virginia         Department          of   Social       Services    in

completing       the    evaluation.            On    10     May    2012,    Danny’s      mother

relinquished her parental rights.

    On      30    August       2012,      petitioners             filed    a    petition       to

terminate    respondent’s            parental        rights.           Petitioners      alleged

that grounds existed to terminate respondent’s parental rights

pursuant    to    N.C.       Gen.    Stat.      §    7B-1111(a)(1)         (neglect),          (2)

(willful failure to correct conditions which led to removal of

the juvenile), (3) (failure to provide financial support), (6)

(dependency),          and   (7)    (abandonment).                N.C.G.S.      §    7B-1111(a)

(2013).     On 22 January 2013, the trial court consolidated the

underlying neglect proceeding (05 JA 20) with the newly filed

termination proceeding (12 JT 18).

    On 16 October 2013, the court entered an order terminating

respondent’s          parental      rights     on     the    grounds       of   neglect        and
                                       -4-
abandonment   pursuant      to   N.C.G.S.         §   7B-1111(a)     (1)   and   (7).

Respondent appeals.

                       ______________________________

    On appeal, respondent argues that: (I) the trial court’s

order terminating his parental rights was void; and that the

trial court erred in terminating his parental rights on grounds

of (II) abandonment and (III) neglect.

                                             I.

    Respondent      first    argues     that          the    trial   court’s     order

terminating   his    parental    rights       is      void    because   petitioners

failed to join DSS as a party to the case in violation of N.C.

Gen. Stat. § 7B-1106.1 (2013).         We disagree.

    We   must       first    address      petitioners’           contention      that

respondent waived this issue by failing to raise it in the trial

court. “A judgment which is determinative of a claim arising in

an action in which necessary parties have not been joined is

null and void.”       Rice v. Randolph, 96 N.C. App. 112, 113, 384

S.E.2d 295, 297 (1989) (citation omitted); see also N.C. Gen.

Stat. § 1A-1, Rule 19 (2013).           This Court has stated that “[a]

party does not waive the defense of failure to join a necessary

party; an objection on this basis can be raised at any time.”

Commonwealth Land Title Ins. Co. v. Stephenson, 97 N.C. App.
                                           -5-
123,     125,     387     S.E.2d   77,      79    (1990)       (citation   omitted).

Consequently, respondent’s argument has not been waived, and we

must determine whether DSS is a necessary party.

       Respondent       contends    that    DSS    was     a   necessary    party   in

accordance with N.C.G.S. § 7B-1106.1.                 Respondent’s argument is

misplaced, however, because petitioners filed this petition as

Danny’s guardians pursuant to N.C. Gen. Stat. § 7B-1103 (2013),

and    not   as   a     motion   pursuant    to   N.C.     Gen.   Stat.    §   7B-1102

(2013).      Thus, the notice requirements of N.C.G.S. § 7B-1106.1

were not invoked.

       The petition to terminate respondent’s parental rights was

later consolidated with the underlying juvenile file pursuant to

N.C.G.S. § 7B-1103(c) (2013).              There is no provision in N.C.G.S.

§ 7B-1103(c) regarding notice or joinder of parties.                       Therefore,

we must look to Rule 19 to determine whether DSS was a necessary

party.       See In re B.L.H., 190 N.C. App. 142, 146, 660 S.E.2d

255, 257 (2008) (“The Rules of Civil Procedure will . . . apply

to fill procedural gaps where Chapter 7B requires, but does not

identify, a specific procedure to be used in termination cases.”

(citations omitted)).

       This Court has stated:

              Rule 19 dictates that all necessary parties
              must be joined in an action. Rule 19
                                      -6-
            requires the [trial] court to join as a
            necessary party any persons ‘united in
            interest’ and/or any persons without whom a
            complete determination of the claim cannot
            be made . . . [s]ince a judgment without
            such necessary joinder is void.

Commonwealth Land Title, 97 N.C. App. at 125, 387 S.E.2d at 79

(citations and quotation omitted).            “A necessary party is one

who is so vitally interested in the controversy that a valid

judgment cannot be rendered in the action completely and finally

determining the controversy without his presence.”                  Karner v.

Roy White Flowers, Inc., 351 N.C. 433, 438—39, 527 S.E.2d 40, 44

(2000) (citation and quotation omitted).

      Under the facts of this case, we conclude that DSS was not

a necessary party, but a proper party.             Our Supreme Court has

defined a proper party as “a party who has an interest in the

controversy       or   subject   matter   which   is    separable   from    the

interest of the other parties before the court, so that it may,

but will not necessarily, be affected by a decree or judgment

which does complete justice between the other parties.” Id.

      In its order adjudicating Danny neglected, the trial court

granted guardianship to petitioners and authorized DSS to cease

efforts to reunify Danny with respondent.              Consequently, because

DSS   did   not    retain   custody   and   was   no    longer   required   to

continue reunification efforts, it was not a necessary party to
                                         -7-
this     action.      Accordingly,       we     conclude     the    trial    court’s

termination order was not void for failure to join DSS as a

necessary party.

                                  II. & III.

       Respondent     next   argues      that    the     trial     court    erred    by

concluding     that    grounds    existed        to     terminate    his     parental

rights.     We are not persuaded.

       N.C. Gen. Stat. § 7B-1111 sets out the statutory grounds

for terminating parental rights.                A finding of any one of the

separately     enumerated        grounds        is     sufficient      to     support

termination.       In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230,

233—34 (1990) (citation omitted).                    “The standard of appellate

review    is   whether   the     trial     court’s       findings    of     fact    are

supported by clear, cogent, and convincing evidence and whether

the findings of fact support the conclusions of law.”                          In re

D.J.D., 171 N.C. App. 230, 238, 615 S.E.2d 26, 32 (2005) (citing

In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000)).

The trial court’s findings of fact are conclusive even when

there is evidence supporting contrary findings.                       In re Helms,

127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997) (citations

omitted).
                                      -8-
     In the case sub judice, one of the grounds found by the

trial    court    to   support   termination    of     respondent’s     parental

rights   was     abandonment.      Pursuant    to   N.C.     Gen.   Stat.   §   7B-

1111(a)(7), parental rights may be terminated when a “parent has

willfully abandoned the juvenile for at least six consecutive

months    immediately     preceding   the     filing    of    the   petition    or

motion . . . .”        N.C.G.S. § 7B-1111(a)(7) (2013).             The petition

to terminate respondent’s parental rights was filed on 30 August

2012.    Thus, the relevant statutory period was from 29 February

2012 to 30 August 2012.            We note, however, that the statute

requires that the child be abandoned for “at least” six months

prior to the motion or petition to terminate parental rights.

Id. (emphasis added).            Therefore, it      was within the court’s

discretion to consider events occurring prior to the six-month

period immediately preceding the filing of the petition.

     This Court has defined abandonment as:

            wilful neglect and refusal to perform the
            natural and legal obligations of parental
            care and support. . . .       [I]f a parent
            withholds his presence, his love, his care,
            the opportunity to display filial affection,
            and wilfully neglects to lend support and
            maintenance, such parent relinquishes all
            parental claims and abandons the child.

In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 427

(2003) (quoting Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d
                                          -9-
597, 608 (1962)).         “Whether a biological parent has a willful

intent   to     abandon   his     child    is    a   question    of    fact   to   be

determined from the evidence.”                  In re Adoption of Searle, 82

N.C.    App.    273,    276,     346    S.E.2d    511,   514    (1986)    (citation

omitted).

       Here,     in    support     of     its    conclusion     that      respondent

abandoned Danny, the trial court found that:

               9. The Court find[s] a memorandum Judgment
               Order by Consent dated February 23, 2006
               [which] gave [respondent] the opportunity to
               visit with [Danny].     The Order also gave
               [respondent] reasonable telephone contact.

               10.    No    subsequent orders  restricted
               [respondent] with having contact with the
               minor child.

               11.   The Court finds [respondent] has not
               provided the child with support either
               physically,   emotionally   or   financially
               [which] is required and expected by a
               parent.   The Respondent father has withheld
               his presence, love[,] care and opportunity
               to display affection and has willfully
               neglected to lend support and maintenance at
               a minimum since 2007.

               . . .

               13.  The Court heard no evidence                    that
               [respondent] was incarcerated.

               14. The lack of contact with the child was
               in the Respondent Father[’s] . . . control.

               15. The Court specifically finds that the
               father has not provided presents, cards,
                                     -10-
           gifts or any other means of emotional[,]
           financial or physical support.    The father
           has not provided any care or support for the
           minor since the petition was filed in 2006.

           16. The Court finds the father[’s] actions
           are wholly inconsistent with the desire to
           maintain custody of [Danny].

           . . .

           20. [Petitioners] have remained living                at
           the same address for the past 7 years.

As respondent does not challenge the above findings of fact,

they are binding on appeal.          Koufman v. Koufman, 330 N.C. 93,

97, 408 S.E.2d 729, 731 (1991) (citations omitted).                   Based on

these findings, we conclude that grounds existed pursuant to

N.C.G.S.   §   7B-1111(a)(7)    to    terminate    respondent’s       parental

rights.

    Respondent additionally argues that the trial court erred

by concluding that grounds existed pursuant to N.C. Gen. Stat. §

7B-1111(a)(1)      to   terminate    his    parental   rights.        However,

because we conclude that grounds existed pursuant to N.C.G.S. §

7B-1111(a)(7) to support the trial court’s order of termination

based on abandonment, we need not address the remaining ground

found by the trial court to support termination.            In re Taylor,

97 N.C. App. at 64, 387 S.E.2d at 233—34.                 Accordingly, we

affirm.
                         -11-
Affirmed.

Judges STEPHENS and DILLON concur.

Report per Rule 30(e).
