An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-205
                       NORTH CAROLINA COURT OF APPEALS

                            Filed: 16 September 2014


IN THE MATTER OF:

       C.V.M.                                 Surry County
                                              No. 13 JT 63




       Appeal by respondent from orders entered 13 November 2013

by Judge Charles M. Neaves, Jr. in Surry County District Court.

Heard in the Court of Appeals 18 August 2014.


       Gretchen Kirkman for petitioner-appellee mother.

       David A. Perez for respondent-appellant father.

       No brief filed for guardian ad litem.


       HUNTER, Robert C., Judge.


       Respondent, the father of C.V.M. (“the juvenile”), appeals

from   orders    terminating      his   parental     rights.      After    careful

review, we hold statutory grounds exist for the termination of

respondent’s parental rights.            Accordingly, we affirm the trial

court’s orders.

                                   Background
                                               -2-
      The   thirteen-year-old            juvenile       has    been    in       the       physical

custody     of     her    mother,        the     petitioner,         since          her    birth.

Respondent       neither       married     nor       lived    with     petitioner.             He

visited     with    the       juvenile    sporadically          prior          to    her    first

birthday.        When the juvenile was one-year-old, respondent was

arrested for kidnapping petitioner, stabbing her repeatedly with

a knife, leaving her in a field, and then attempting to drive

into the building where the juvenile was staying.                                    Petitioner

had   a   restraining         order    against        him     prior       to    the       attack.

Respondent has been incarcerated since that time and petitioner

testified     that       he    would     be     released       on    19     October         2013.

Petitioner intends to marry her boyfriend of seven years, and he

would     like     to    adopt     the        juvenile.         The       juvenile          wants

respondent’s parental rights to be terminated, and she wants to

be adopted by petitioner’s boyfriend.

      On 3 July 2013, petitioner filed a petition to terminate

respondent’s       parental       rights.             The     petition         alleged       that

respondent neglected and willfully abandoned the juvenile.                                    The

trial court held an adjudication and disposition hearing on 11

September     2013,       and,    on     13     November       2013,      entered          orders

terminating respondent’s parental rights pursuant to N.C. Gen.
                                    -3-
Stat. § 7B-1111(a)(1) (neglect) and (7) (willful abandonment).

Respondent appeals.

                             Grounds for Appeal

    We first address whether respondent’s appeal is properly

before this Court.      Recognizing that his appeal is subject to

dismissal because he did not serve the guardian ad litem with

his notice of appeal, see Mason v. Moore County Bd. of Comm’rs,

229 N.C. 626, 628, 51 S.E.2d 6, 7 (1948),                respondent filed a

petition for writ of certiorari seeking review of the orders.

Petitioner has also filed a motion to dismiss this appeal based

on respondent’s    failure to serve the guardian ad litem with

notice of appeal.      We deny petitioner’s motion to dismiss the

appeal, and dismiss respondent’s petition for writ of certiorari

as moot, because the guardian ad litem waived the failure of

service   when   she   and    petitioner     filed   a   joint   Motion   for

Extension of Time to File and Serve Brief.               See Hale v. Afro-

American Arts Int’l, 335 N.C. 231, 232, 436 S.E.2d 588, 589

(1993).

                                 Arguments

    Respondent argues that the trial court erred in concluding

grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) to
                                      -4-
terminate his parental rights because its findings of fact were

not supported by sufficient evidence.              We disagree.

    Termination of parental rights cases are conducted in two

stages.       In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d

906, 908 (2001).        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); Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908.

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).

“When   the    trial    court   is   the   trier    of   fact,    the   court   is

empowered to assign        weight to the       evidence presented         at the

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).
                                          -5-
    Grounds exist to terminate parental rights when the parent

has neglected the juvenile.               N.C. Gen. Stat. § 7B-1111(a)(1)

(2013).     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; or who

has been abandoned; . . .”           N.C. Gen. Stat. § 7B-101(15) (2013).

“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), aff’d per curiam, 357 N.C. 568, 597 S.E.2d

674 (2003).     We note that “[i]ncarceration, standing alone, is

neither a sword nor a shield in a termination of parental rights

decision.”     In re P.L.P., 173 N.C. App. 1, 10, 618 S.E.2d 241,

247 (2005) (citation and quotation marks omitted), aff’d per

curiam,    360 N.C.     360, 625 S.E.2d         779 (2006).     Nevertheless,

neglect    exists       when   an     incarcerated     respondent      “neither

provide[s] support for the minor child nor s[eeks] any personal

contact with or attempt[s] to convey love and affection for the

minor child.”       In re Bradshaw, 160 N.C. App. 677, 682, 587

S.E.2d 83, 86 (2003).          “The determinative factors must be the
                                 -6-
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)

(quoting In re Ballard, 311 N.C. 708, 715, 319 S.E. 2d 227, 232

(1984)) (emphasis in original).

    In this case, the trial court found the following relevant

facts:

         14.    The respondent has been incarcerated since
         the minor child was one year old due to an
         assault on the petitioner wherein he plead [sic]
         guilty to assault with a deadly weapon with
         intent to kill inflicting serious injury.

         15.   The minor child has been in the physical
         custody of the petitioner since birth . . . .

         16.        The   respondent   was   aware   of   the
         petitioner’s address for many years after his
         incarceration. The respondent was aware of the
         petitioner’s mother’s address as well as her
         father’s   address.   The   respondent   has   never
         contacted the petitioner’s mother or father since
         his incarceration in 2001 asking about the health
         and welfare of the minor child. The respondent
         has not contacted the petitioner asking about the
         health and welfare of the minor child since 2001.

         . . .

         18.    The respondent has not filed any pleadings
         or motions requesting visitation via skype or
         phone contact with the minor child since he was
         incarcerated in 2001.

         19. The respondent has not been prohibited or
         precluded from having contact with the minor
                       -7-
child. The respondent has voluntarily chosen to
have no contact with the minor child since 2003.

20. The minor child has not seen the respondent
since she was one year old. Prior to the
respondent’s incarceration when the child was one
year old, the minor child only had contact with
the respondent a few times.

21.   The respondent has not provided any care,
supervision, discipline or love and affection for
the minor child since 2003.

22.       Since the minor child’s birth, the
respondent has never supported the minor child
financially or emotionally.

23.       The minor child does    not know    the
respondent and does not have a    bond with   the
respondent.

24.   Whenever the respondent was incarcerated in
2001, the petitioner was living with [E.R.M.],
her grandmother. The respondent knew that the
petitioner and minor child were living with
[E.R.M.]. [E.R.M.] still lives at the same
address and has the same phone number. The
respondent knew the address (he had been there on
different occasions and knew the phone number
because he had called the number at different
times). The respondent has not called [E.R.M.]’s
home or sent any correspondence asking about the
welfare of the minor child since 2001. The
respondent never sent any letters or presents to
the minor child at this address since 2001.
Nothing precluded the respondent from calling
[E.R.M.]’s number or sending correspondence or
gifts to her address. The petitioner’s mother
([E.R.M.]) has never sought a restraining order
against the respondent and there has never been a
restraining order entered wherein the respondent
was prohibited from contacting the petitioner’s
mother.   (Again,  the   petitioner  received   a
restraining order against the respondent which
                       -8-
expired in March, 2003 which precluded the
respondent from being at [E.R.M.]’s residence.)

25.    The respondent knew the petitioner’s father
([C.M.]), knew his address and phone number. The
respondent had called [C.M.]’s number and been to
his residence. The respondent has not called
[C.M.]’s home or sent any correspondence asking
about the welfare of the minor child. The
respondent never sent any letters or presents to
the   minor   child  at   this  address.   Nothing
precluded the respondent from calling [C.M.]’s
number or sending correspondence or gifts to his
address for the child. [C.M.] never had a
restraining order against the respondent, nor did
he ever notify him or the prison that he was not
allowed to contact him or send correspondence to
that home. [C.M.] has had to help the petitioner
in the past, financially, to care for the minor
child where the respondent was not sending any
support for the care of the child.

26.    The minor child, [C.V.M.] testified during
trial during the adjudication and disposition
phases. . . . The minor child never sought a
restraining order against the respondent. The
minor child never received a phone call, money,
or a gift from the respondent.. . .     Other than
seeing the respondent in court on September 11,
2013 the minor child has no memory of the
respondent. The minor child never prohibited the
respondent from having any contact with her.

27.    The minor child, [C.[V.]M.], has an older,
half   sister   named   [B.N.M.].  In   2003   the
respondent sent letters to [B.[N.]M.]’s school
for the petitioner. Since 2003 [B.[N.]M.] has not
been contacted by the respondent concerning the
minor child. . . . [B.N.M.] has never contacted
the respondent or prison notifying the respondent
that he could have not have any contact with her
or   [C.[V.]M.].   [B.N.M.]   has  never   had   a
restraining order against the respondent.
                                    -9-
        28.      The    respondent,    [E.W.],  has  been
        incarcerated   since    2001.    Since  2003  the
        respondent has not sent the minor child any
        letters,   cards   or   gifts.    Since 2001  the
        respondent has not sent any money for the care
        and support of the minor child. The respondent
        worked in jail in the kitchen. Also, at times,
        the respondent sold drugs and tattoos in jail.
        Although the respondent made a nominal amount of
        money, the respondent could have sent something
        for the care and support of the minor child, but
        chose not to.

        29.    The aforementioned acts of neglect and
        abandonment    were   voluntary,    willful   and
        intentional on the part of the respondent. The
        actions, and inaction, of the respondent show a
        settled purpose to forego all parental duties and
        relinquish all parental claims to the minor
        child.

Respondent argues that findings of fact 16, 19, 20, 21, 22, 24,

25, 28, and 29 are not supported by evidence.             Respondent also

challenges findings of fact 9, 12, and 13, but we do not address

his   arguments   because   these   findings    are    not   essential   to

support the trial court’s conclusion.          See In re T.M., 180 N.C.

App. 539, 547, 638 S.E.2d 236, 240-41 (2006).             Respondent does

not   challenge   any   other   findings   of     fact    regarding   this

argument, and they are binding on appeal.             Koufman v. Koufman,

330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).              Respondent also

argues that conclusion of law number 3, that there is clear,

cogent and convincing evidence of neglect, is erroneous.                 We

disagree.
                                           -10-
       For the first year of C.V.M.’s life, respondent did not

provide housing or financial support.                     He did not provide child

support.       He did not take her to the doctor.                      He had sporadic

visits     with   her       and    did     not    request        additional      contact,

visitation, or custody.

       The only contact respondent made with C.V.M. in the twelve

years he was incarcerated was one birthday card in 2002 or 2003,

which was      included       in letters addressed to                 petitioner.       The

grandmother of one of respondent’s children pulled petitioner’s

older child out of the classroom without permission in order to

give     her   this     correspondence,           which    was    all       addressed   to

petitioner.           The    grandmother         continued       to    do    this   after

petitioner      asked       her   to     stop,    so   petitioner        contacted      the

Department of Corrections.                The prison superintendent issued a

letter to      respondent         in January 2004         informing him to cease

contacting petitioner either directly or indirectly.                           Petitioner

initially had a protective order against respondent, but it did

not include C.V.M. and expired in 2003.

       While respondent may have erroneously thought he was not

allowed to contact C.V.M. or her family members, he made no

effort to clarify that in the following ten years.                           After 2003,

respondent did not call, write, or in any way contact C.V.M.
                                          -11-
even    though     he    knew    her     home    address,     home    phone    number,

petitioner’s work address and phone number, the phone number of

her grandfather, and the phone number of her great grandparents.

Nor    did    he   provide      any    financial       support,    although     he   had

various jobs in prison                including working in the kitchen and

earned additional money for himself by selling illegal drugs and

inking illegal tattoos.

       Respondent       knew    and    had     means    to   communicate      with   his

family members and petitioner’s family members who lived in the

same     town.           These        included     petitioner’s           parents    and

grandparents; her older daughter; respondent’s older son and his

mother and grandmother; his mother; and his brother.                           However,

he never used his family members to get in contact with C.V.M.

None of those family members were prohibited from contacting

C.V.M.   or     petitioner,       and,    in    fact,    members     of   respondent’s

family had several chance encounters with petitioner and C.V.M.

at local establishments.

       Despite the fact that defendant had at least ten years free

from protective orders and contact prohibitions and the fact

that he had the ability to reach out to C.V.M. through multiple

family       members    in     close    proximity,      defendant     chose    not    to

contact C.V.M. or provide her with any emotional or financial
                                -12-
support.   Given the plenary evidence, we conclude that the trial

court’s findings of fact supporting the grounds for termination

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

on clear, cogent, and convincing evidence.

    Respondent argues further that the trial court erred in

finding evidence to support grounds pursuant to N.C. Gen. Stat.

§ 7B-1111(a)(7) (willful abandonment).          We do not address that

argument, however, because 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).

                             Conclusion

      Based   on   the   foregoing   reasons,    we   affirm   the   trial

court’s orders terminating respondent’s parental rights.



    Affirmed.

    Judges DILLON and DAVIS concur.

    Report per Rule 30(e).
