                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                        No. COA18-366

                                     Filed: 2 October 2018

Pitt County, Nos. 14 JT 103-04

IN THE MATTER OF: I.P. and Q.P., Jr.


       Appeal by Respondent-Father from orders entered 17 January 2018 by Judge

P. Gwynett Hilburn in Pitt County District Court. Heard in the Court of Appeals 13

September 2018.


       The Graham, Nuckolls, Conner, Law Firm, PLLC, by Timothy E. Heinle, for
       petitioner-appellee Pitt County Department of Social Services.

       Assistant Appellate Defender Joyce L. Terres, for respondent-appellant father.

       Respondent-appellant father, pro se.

       Administrative Office of the Courts, by Guardian Ad Litem Appellate Counsel
       Matthew D. Wunsche, for guardian ad litem.


       HUNTER, JR., Robert N., Judge.


       Respondent-Father appeals from orders terminating his parental rights to his

minor children, I.P. (“Ian”) and Q.P., Jr. (“Quentin).1 Respondent-Father’s counsel

filed a no-merit brief, pursuant to North Carolina Rule of Appellate Procedure 3.1(d).

Respondent-Father failed to properly bring forth any pro se argument. We dismiss.




       1  We use pseudonyms throughout the opinion for ease of reading and to protect the juveniles’
identities. N.C. R. App. P. 3.1(b) (2017).
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                                         Opinion of the Court



                         I. Factual and Procedural Background

        On 25 June 2014, the Pitt County Department of Social Services (“DSS”)

obtained non-secure custody of Ian and Quentin and filed petitions alleging them to

be neglected and dependent juveniles. The petition alleged the following narrative.

On 11 February 2014, DSS received a child protective services (“CPS”) report alleging

Ian, then four months old, tested positive for cocaine and marijuana. The juvenile’s

mother (“mother) tested positive for cocaine and admitted to using marijuana.2

Mother refused drug treatment. On 16 June 2014, mother had no food in her home.

Although mother received $750 in food stamps per month, she sold her food stamps.

Mother used “marijuana and cocaine with [Ian] in her arms and strapped to her

chest[.]” Quentin ran around mother’s home, holding a butcher knife. Mother “pulled

a knife” on another and refused to submit to a drug screen. Mother offered Ian and

Quentin’s grandmother as a placement option, but CPS reported the grandmother

also “ha[d] her own drug abuse issues[.]” DSS further alleged the following: (1) Ian

and Quentin did not receive proper care, supervision or discipline; (2) they lived in an

environment injurious to their welfare; and (3) mother was unable to provide for their

care and supervision.         At the time DSS filed the petitions, Respondent-Father’s

whereabouts were unknown.3


        2Mother is not a party to this appeal. In the interest of brevity, this opinion omits most of the
background relevant to mother.
        3 At the termination hearing, a DSS social worker testified Respondent-Father

“surface[d] . . . a month and a half later.”

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                                         Opinion of the Court



         On 7 August 2014, the trial court held an adjudication hearing, which

Respondent-Father attended. On 29 August 2014, the court entered an adjudication

order.       The court concluded Ian and Quentin were neglected and dependent

juveniles.4 Following a disposition hearing on 4 September 2014, the court entered

an order on 8 October 2014. The court kept custody of Ian and Quentin with DSS

and granted Respondent-Father visitation with the juveniles. The trial court further

ordered Respondent-Father to do the following: (1) comply with the terms of his

probation and not acquire new criminal charges; (2) complete parenting classes; (3)

obtain and maintain stable employment; and (4) obtain and maintain stable housing.

         On 29 January 2015, the trial court held a permanency planning review

hearing. In an order entered 5 March 2015, the court found:

                19. The Department has only had contact with the
                Respondent Father once since the initiation of this case.
                The Respondent Father is currently incarcerated. His
                release date is unknown.

                20. Reunification efforts would not result in placement in
                the home within a reasonable period of time [and] would be
                futile and inconsistent with safety and the need for a safe
                permanent home for the following reasons: the Respondent
                Father has not been involved in the Juvenile[s’] case and
                has failed to show a lack [of] dedication to the Juveniles.
                He is currently incarcerated and his release date is
                unknown.



         4
         The trial court’s adjudication order and subsequent orders prior to the filing of petitions to
terminate parental rights also involved Ian and Quentin’s siblings, but they are not parties to this
appeal.

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                                       Opinion of the Court



Consequently, the trial court ceased reunification efforts with Respondent-Father.

The court allowed Respondent-Father’s counsel to withdraw from representation,

because Respondent-Father failed to stay in contact with counsel. The court set the

permanent plan for Ian and Quentin as reunification with mother, with a concurrent

plan of adoption.

       The court held another review hearing on 28 January 2016.5 In an order

entered 12 February 2016, the court found mother relapsed and used marijuana and

cocaine. The court ceased reunification efforts with mother. The court changed the

primary permanent plan to adoption, and the secondary plan to guardianship. The

court held another review hearing on 10 November 2016. At the hearing, the trial

court found paternity testing ruled Respondent-Father out as Ian’s biological father.

       On 5 December 2016, DSS filed a petition to terminate mother’s parental rights

to Ian. The same day, DSS filed a petition to terminate mother’s and Respondent-

Father’s parental rights to Quentin.6             DSS alleged the following grounds for

termination existed as to Quentin: (1) neglect; (2) failure to correct the conditions

which led to Quentin’s removal from his care; (3) failure to pay for Quentin’s cost of

care while Quentin was in DSS custody; (4) dependency; and (5) willful abandonment.

See N.C. Gen. Stat. § 7B-1111(a)(1)-(3), (6)-(7) (2017).


       5The court also held review hearings on 30 April 2015 and 16 July 2015.
       6Because paternity tests established Respondent-Father was not the biological father of Ian,
DSS did not seek to terminate Respondent-Father’s paternal rights to Ian.



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                                       Opinion of the Court



       The trial court held a hearing on the petitions on 28 September 2017 and 7

December 2017.7 DSS called Kelli Clay, a social worker. Due to Respondent-Father’s

probation conditions, DSS set up a “strict visitation plan” for him. Respondent-

Father did not comply with the visitation plan. Out of twenty-five opportunities for

visitation, Respondent-Father attended thirteen.              Respondent-Father last visited

with the juveniles on 11 July 2016. Respondent-Father owed $1,270.18 in arrears for

child support for Quentin. Respondent-Father did give the juveniles a few gifts, “but

nothing substantial[.]”

       Although the court ordered Respondent-Father to not obtain any new criminal

charges, authorities in North Carolina charged him for crimes “that involved

communicating threats[.]”          Additionally, Respondent-Father did not complete

parenting classes. Although Respondent-Father told DSS he obtained employment

and stable housing, he failed to provide any verification.

       DSS moved to amend the petition to terminate parental rights to Ian to include

allegations against Respondent-Father.            DSS contended it learned Respondent-

Father had been found to be the father of Ian in a prior child-support hearing and

that court ordered Respondent-Father to pay child support for Ian.                         Thus,

Respondent-Father is Ian’s legal father. With the consent of Respondent-Father’s

counsel, who joined in the motion, the court allowed the requested amendments so


       7The hearing was for the petitions to terminate mother’s parental rights to Ian and Quentin
and Respondent-Father’s parental rights to Quentin.

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                                   Opinion of the Court



the allegations against Respondent-Father as to Ian were identical to those in the

petition to terminate Respondent-Father’s parental rights to Quentin.

      Respondent-Father testified on his own behalf and largely narrated his

testimony. From 2013 until the hearing, Respondent-Father was intermittently

incarcerated. In February 2016, Respondent-Father returned to North Carolina. He

began working at Cracker Barrel and moved into an apartment in Greenville.

Respondent-Father “look[ed] for parenting classes to take, but . . . was unfortunate

enough to not find any classes.” Respondent-Father alleged DSS fought against him

getting custody of Ian and Quentin.

      On 17 January 2018, the trial court entered orders terminating Respondent-

Father’s parental rights to Ian and Quentin. The court found the following grounds

for termination existed: (1) neglect; (2) failure to correct the conditions which led to

the juveniles’ removal from his care; (3) failure to pay for the juveniles’ cost of care

while they were in DSS custody; (4) dependency; and (5) willful abandonment. See

N.C. Gen. Stat. § 7B-1111(a)(1)-(3), (6)-(7). In an order entered 17 January 2018, the

court found termination of Respondent-Father’s parental rights was in the juveniles’

best interests. On 30 January 2018, Respondent-Father filed timely notice of appeal.

                                      II. Analysis

      Appellate counsel for Respondent-Father filed a no-merit brief on Respondent-

Father’s behalf, in which counsel states she made a conscientious and thorough



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                                   Opinion of the Court



review of the record on appeal and concluded there is no issue of merit on which to

base an argument for relief. Pursuant to North Carolina Rule of Appellate Procedure

3.1(d), counsel requests this Court conduct an independent examination of the case.

N.C. R. App. P. 3.1(d) (2017). In accordance with Rule 3.1(d), counsel wrote a letter

to Respondent-Father on 2 May 2018, advising him of counsel’s inability to find error,

her request for this Court to conduct an independent review of the record, and his

right to file his own arguments directly with this Court. Counsel also avers she

provided Respondent-Father with copies of all relevant documents so that he may file

his own arguments with this Court.

      In addition to seeking review pursuant to Rule 3.1(d), counsel directs this

Court’s attention to potential issues with the trial court’s conclusions of law on the

grounds of failure to correct the conditions which led to the juveniles’ removal from

his care, failure to pay for the juveniles’ cost of care while they were placed in DSS

custody, dependency, and willful abandonment. Counsel concedes, however, the trial

court did not err in terminating Respondent-Father’s parental rights on the ground

of neglect. See In re B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004)

(citation omitted) (“Having concluded that at least one ground for termination of

parental rights existed, we need not address the additional ground[s] . . . found by

the trial court”). Counsel also concedes the trial court did not abuse its discretion in




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                                  Opinion of the Court



concluding termination of Respondent-Father’s parental rights was in the juveniles’

best interests.

      On 9 May 2018, counsel filed a motion, requesting this Court extend

Respondent-Father’s time to file a pro se brief. In an order entered 11 May 2018, we

granted this motion, ordering Respondent-Father to file his brief by 8 June 2018.

      On 18 June 2018, Respondent-Father filed his pro se brief, arguing:

             the trial court[’]s fact finding was flawed because it was
             influenced by specious testimony & acts. I am not able to
             prove my case in chief at this exact moment as I do not have
             access to vital paperwork/documents nor the resources to
             support my argument. Currently, I am being detained at
             the address listed on criminal charges, with a trial date set
             within the next 90 days. I humbly request that this court
             suspend any final ruling for the next 120 days. That will
             give my criminal case time to have been heard & me to
             compile & obtain what[’]s needed to support my argument.


      Inasmuch as Respondent-Father’s argument presents a request to hold his

appeal in abeyance, we deny the request.         Moreover, Respondent-Father’s sole

argument on appeal—the trial court’s fact finding was flawed—is a bare assertion of

error unsupported by citation to any record evidence or legal authority, and it is thus

not properly before this Court. In re C.D.A.W., 175 N.C. App. 680, 688, 625 S.E.2d

139, 144 (2006) (holding an issue on appeal was abandoned where it was “void of any

discernible argument or citation as authority for such a claim”). See also N.C. R. App.




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                                  Opinion of the Court



P. 28(b)(6) (2017) (“Issues . . . in support of which no reason or argument is stated,

will be taken as abandoned.”).

      Although Respondent-Father filed pro se arguments with this Court, his

arguments are not properly before this Court because they are untimely and nothing

more than unsupported allegations of error, as explained supra. Thus, “[n]o issues

have been argued or preserved for review in accordance with our Rules of Appellate

Procedure.” In re L.V., ___ N.C. App. ___, ___, ___ S.E.2d ___, ___, 2018 WL 3232738

(N.C. Ct. App. July 3, 2018). Accordingly, we must dismiss Respondent-Father’s

appeal. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (citations

omitted) (“Where a panel of the Court of Appeals has decided the same issue, albeit

in a different case, a subsequent panel of the same court is bound by that precedent,

unless it has been overturned by a higher court.”).

                                  III. Conclusion

      For the foregoing reasons, we dismiss Respondent-Father’s appeal.

      DISMISSED.

      Judge ARROWOOD concurs in result only in a separate opinion.

      Chief Judge McGEE dissents in a separate opinion.




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No. COA18-366 – In the Matter of: I.P. & Q.P., Jr.


      ARROWOOD, Judge, concurring in result only.


      I concur in result only for the reasons discussed in my concurrence in In the

Matter of: L.E.M., __ N.C. App. __, __ S.E.2d __, (2018) (No. COA18-380), filed

concurrently with this opinion.
 No. COA18-366 – In the Matter of: I.P. & Q.P., Jr.


      McGEE, Chief Judge, dissenting.


      I dissent for the reasons discussed in my dissenting opinion in In re L.E.M., __

N.C. App. __, __ S.E.2d __, (2018) (No. COA-380), filed concurrently with this opinion.
