An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-563
                       NORTH CAROLINA COURT OF APPEALS

                             Filed:     7 October 2014


IN THE MATTER OF:                             Lincoln County
J.L.                                          12 JT 08



      Appeal by respondent from order entered 24 January 2014 by

Judge Ali B. Paksoy in Lincoln County District Court.                     Heard in

the Court of Appeals 9 September 2014.


      Peter C. McCrea for petitioner-appellee                    Lincoln    County
      Department of Social Services.

      David A. Perez for respondent-appellant father.


      McCULLOUGH, Judge.


      Respondent, father of the minor child J.M.L. (“Joanna”1),

appeals from an order terminating his parental rights.                     He also

petitions this Court to review the order by writ of certiorari,

in light of his counsel’s failure to provide proof of service of

his notice of appeal upon the guardian ad litem (“GAL”).                        The

record reflects the GAL was notified of respondent’s appeal by

the   appellate      entries     and   by    respondent’s      service     of   the

1
 The parties stipulated to this use of this pseudonym to protect
the juvenile’s privacy.
                                            -2-


proposed and settled record on appeal.                      The GAL has not claimed

prejudice or moved to dismiss the appeal based on the lack of

service      of    the    notice     of   appeal.       Inasmuch      as    “failure     to

include a certificate of service for the notice of appeal does

not support dismissal of the appeal if the appellee has waived

the     issue      by     failing    to    raise      the    issue     by    motion      or

otherwise[,]” we find respondent’s notice sufficient to invoke

this Court’s jurisdiction.                McQuillin v. Perez, 189 N.C. App.

394, 396, 657 S.E.2d 924, 926 (2008).                   Therefore, we dismiss his

petition for writ of certiorari as moot.

       Joanna was born out-of-wedlock in Pennsylvania in February

2010.       After a period in Florida, Joanna’s mother moved with her

to Lincoln County, North Carolina.                     On 25 February 2012, the

Lincoln County Department of Social Services (“DSS”) filed a

juvenile       petition      alleging      that      Joanna     was    neglected        and

dependent.              Joanna’s     mother     subsequently         pled    guilty      to

misdemeanor child abuse and served a 60-day jail sentence ending

on    17    July   2012.       The    district       court    adjudicated     Joanna      a

neglected juvenile on 16 July 2012.

       Joanna’s mother initially identified another man, Mr. R.,

as    the    putative      father.        Mr.   R.    was    determined      not   to   be

Joanna’s father on 29 October 2012.                   After relinquishing her own
                                                 -3-


parental       rights        on    28   November       2012,      Joanna’s            mother       named

respondent as the father but provided DSS only with his first

and   middle       names.          Adoption      worker        Megan    Homan          was    able       to

locate    respondent          on    Facebook       and    sent       him       a     message       on    28

December 2012.           Respondent did not respond to the message but

phoned foster care social worker Amy Ramsey on 25 January 2013.

Ramsey      notified         respondent       of       Joanna’s        permanency            planning

hearing scheduled for 28 January 2013, but he did not attend.

Homan    spoke       with     respondent         by    phone      on       7       March     2013       and

arranged       a    paternity       test,     which      confirmed             his    paternity          of

Joanna on 13 May 2013.

      DSS    filed       a    petition      to     terminate         respondent’s            parental

rights on 28 March 2013.                  After hearing evidence on 9 December

2013,    the       district       court    determined          that    grounds             existed       to

terminate respondent’s parental rights based on his neglect and

willful     abandonment            of   Joanna.          See    N.C.       Gen.       Stat.     §       7B-

1111(a)(1), (7) (2013).                   The court further concluded that the

termination         of   respondent’s         parental         rights          was    in     the    best

interest of the minor child.                      Respondent appealed from the 24

January 2014 termination order.

      Respondent             challenges           only         the         district            court’s

adjudication of grounds to terminate his parental rights under
                                                -4-


N.C.    Gen.    Stat.     §     7B-1111(a)             (2013).      In    reviewing        the

adjudication, we must determine whether the court’s findings of

fact are supported by the evidence, and whether those findings

in turn support the court’s conclusions of law.                           In re Gleisner,

141    N.C.     App.     475,        480,        539     S.E.2d    362,     365       (2000).

Unchallenged      findings,          or     findings        supported      by        competent

evidence, are binding on appeal.                       Koufman v. Koufman, 330 N.C.

93, 97, 408 S.E.2d 729, 731 (1991); In re McCabe, 157 N.C. App.

673,   679,    580     S.E.2d    69,        73    (2003).         Moreover,      “erroneous

findings      unnecessary       to    the       determination       do    not    constitute

reversible      error”    where           the     adjudication       is    supported       by

sufficient additional findings grounded in competent evidence.

In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006).

We review conclusions of law de novo.                        In re J.S.L., 177 N.C.

App. 151, 154, 628 S.E.2d 387, 389 (2006).

       Subsection      7B-1111(a)         authorizes        termination         of   parental

rights where “[t]he parent has willfully abandoned the juvenile

for at least six consecutive months immediately preceding the

filing of the petition or motion[.]”                         N.C. Gen. Stat. § 7B-

1111(a)(7).

              Abandonment has been defined as wil[l]ful
              neglect and refusal to perform the natural
              and legal obligations of parental care and
                                     -5-


            support. It has been held that if a parent
            withholds his presence, his love, his care,
            the opportunity to display filial affection,
            and wil[l]fully 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)   (citation     and   quotation     marks    omitted).          “The   word

‘willful’   encompasses      more   than   a   mere       intention,    but   also

purpose and deliberation.”          In re McLemore, 139 N.C. App. 426,

429, 533 S.E.2d 508, 509 (2000).            “[T]he findings must clearly

show that the parent’s actions are wholly inconsistent with a

desire to maintain custody of the child.”                   In re S.R.G., 195

N.C. App. 79, 87, 671 S.E.2d 47, 53 (2009).                 The willfulness of

a parent’s conduct “is a question of fact to be determined from

the evidence.”      In re Searle, 82 N.C. App. 273, 276, 346 S.E.2d

511, 514 (1986).

    For     purposes   of    N.C.   Gen.   Stat.      §    7B-1111(a)(7),      the

“determinative period” in the case sub judice was 28 September

2012 through 28 March 2013, the date DSS filed its petition.                    In

re S.R.G., 195 N.C. App. at 84-85, 671 S.E.2d at 51-52.                        The

district    court    found   the    following      facts     relevant    to    its

adjudication:

            15. . . . The respondent spoke to the mother
                sometime around April, 2012; the mother
                     -6-


   told him at that time that he could be
   the child’s father and that the child was
   in North Carolina in foster care and that
   she needed him to be in the child’s life.
   This was the last time the respondent
   heard from the mother.

16. That the [respondent] made no further
    effort to contact the mother or to obtain
    any information about the mother or the
    child.    He had wanted the mother to
    submit to a DNA test but wanted the
    mother to come to Pennsylvania to do
    that.    She was said to be living in
    Florida at that time.

17. That one of petitioner’s social workers
    located [respondent] on Facebook.     She
    sent him a Facebook message in December,
    2012.     He received the message in
    January, 2013.   On January 25, 2013, he
    spoke to Amy Ramsey . . . . Ms. Ramsey
    gave   him    contact   information   and
    explained to him that he may have a child
    in North Carolina. She explained to him
    that the next court date regarding the
    child was on January 28, 2013.        The
    respondent . . . did not appear at that
    court hearing.    The next contact that
    [respondent] had with the Department was
    not until March 7, 2013.

18. . . . [Respondent] . . . did not visit
    the child from January 25, 2013 when he
    spoke to Ms. Ramsey up to and including
    the time of the filing of the Termination
    of Parental Rights Petition . . . on
    March 7, 2013.

19. That [respondent] was incarcerated in
    Pennsylvania from March 23, 2013 through
    August 20, 2013.     [DSS] arranged for
    paternity testing in May, 2013 and it was
                     -7-


   later determined that the respondent was
   the father of the child.

20. That   [respondent]  testified  at  this
    hearing, and the Court so finds, that as
    early as April, 2012 he assumed he was
    the father of the juvenile who is the
    subject of this proceeding.

21. That [respondent] has never met the child
    or had any contact with the child.

22. That   [DSS]  had   through   its  social
    workers, on a number of occasions,
    offered the father visits with the child
    but he never followed through with this.
    Furthermore, he never asked for any
    information about the child from [DSS].

23. That [respondent] has been on parole
    since his release from prison.     He was
    able to get permission from his parole
    officer to attend this hearing. However,
    when [DSS] encouraged the respondent to
    visit with his child after he was
    released from prison he stated that he
    was not able to leave Pennsylvania
    because of his parole but that he would
    talk to his parole officer to see if an
    exception could be made.     However, he
    never did that and did not visit with the
    child while he had the opportunity to do
    so.

24. That [respondent] could have attended the
    January 28, 2013 hearing concerning his
    daughter. However, despite knowing about
    the hearing he did not attend.

25. That [DSS] sent numerous letters to
    [respondent] informing him about his
    child   and the   case  here  in  North
    Carolina.   Furthermore, [DSS] informed
                     -8-


   the [respondent] of services he would
   need to be undertaking including services
   for   domestic   violence,  psychological
   exam, parenting classes and substance
   abuse.    Furthermore, he was urged to
   maintain contact and was told that he
   would be responsible for paying child
   support. The respondent did not complete
   or undertake any of these things except
   that he did have a drug assessment.

. . . .

27. That   approximately   one  month   after
    [respondent] was released from jail, he
    contacted the social worker from [DSS]
    and discussed the things that he would
    need to be working on. However, he never
    followed through with these things. . . .

28. That [respondent] has not made any
    inquiries about the welfare of his child;
    nor has he sent any cards, letters, or
    gifts to the child or paid any support of
    any kind for the cost of care for the
    child.

29. That social [w]orker Megan Homan sent at
    least   six    letters    to [respondent]
    concerning his daughter [Joanna]. Up and
    through   September    2013, [respondent]
    never contacted social worker Homan. Any
    contact they had was initiated by Ms.
    Homan.    When [respondent] was released
    from prison he still made no effort to
    carry out any of the services that had
    been recommended or made any effort to
    visit his daughter, or pay any support of
    any kind.

30. That [respondent] is employed full time
    working 40 hours a week and making $11.00
    an hour.
                                       -9-



            . . . .

            35. That [respondent’s] failure to establish
                or maintain a relationship with the
                child, pay adequate support for the child
                and undertake or complete those tasks and
                services that were requested of him has
                continued up until the time of this
                hearing.

Based on these findings, the court concluded that respondent

“has willfully abandoned the child for at least six consecutive

months immediately preceding the filing of the petition.”                        See

N.C. Gen. Stat. § 7B-1111(a)(7).

    Respondent        challenges     many     of    the   quoted    findings      as

unsupported    by   the    evidence.         He    objects   to   finding   16   as

“misleading” in its depiction of his inaction toward determining

his paternity of Joanna after April 2012.                    Respondent asserts

that Joanna’s mother “assured [him] repeatedly” she would return

to Pennsylvania for the test.               He further contends finding 16

fails to note that he was on probation and thus could not leave

Pennsylvania.

    We find no merit to respondent’s claim.                  Homan provided the

following     account     of   her   discussion       with    respondent    about

paternity:

            During my first conversation [on 7 March
            2013], I asked if it was possible that he
                                       -10-


            could be J[oanna]’s father.    And he said
            that he had been told by the mother, when
            J[oanna] was around a year old, that he
            could be the father, and that he and the
            mother   both  wanted   paternity   testing
            completed.

                 However, the mother was not in town at
            the time. And he was unwilling to travel to
            Florida for the paternity test.      And the
            mother kept saying that she was going to
            come back to Pennsylvania, so that he could
            get the paternity testing done then.

                 He also said that he found out in the
            summer 2011 that J[oanna] was in foster
            care.2 However, he made no contact with the
            Department to set up any paternity testing
            at that time.

(Emphasis    added).       Although      respondent            testified   that   he

“couldn’t leave the state” when the mother contacted him in

April 2012 because of his probation, the district court was not

required to find this claim credible.                   See State v. Harrison,

164 N.C. App. 693, 697-98, 596 S.E.2d 834, 838 (2004).                     Nor does

this   testimony    suggest     that   respondent         was    unable    to   leave

Pennsylvania   for     paternity   testing         at    any    time   between    the

summer of 2011 and his incarceration in March 2013.

       Respondent    contests    finding      20    on    the     ground   that    no

evidence established he “assumed” he was Joanna’s father when



2
 Ramsey also attested to respondent’s awareness “in the summer of
2011” that the child was in foster care.
                                           -11-


contacted by her           mother in April 2012.                 Respondent actually

testified, “I assumed it was a possibility that . . . I could’ve

been the father.”           However, the precise nature of respondent’s

mental     processes       upon     learning       of     Joanna’s        existence         is

immaterial, given his             duty    to her       as a     father.       Cf. In re

T.L.B.,    167     N.C.    App.    298,    303,    605    S.E.2d      249,    252    (2004)

(noting       fathers’       obligation           to      identify        and        assume

responsibility for their illegitimate children); cf. also In re

Adoption of S.D.W., __ N.C. __, __, 758 S.E.2d 374, 381 (2014)

(concluding biological father had no constitutionally protected

interest as a parent when he “failed to grasp that opportunity

by   taking    any    of    the    steps    that       would    establish      him     as   a

responsible father.”).             Inasmuch as respondent was aware of his

possible paternity of Joanna and took no action, we deem any

error in this finding to be harmless.                          See generally Starco,

Inc. v. AMG Bonding and Ins. Servs., 124 N.C. App. 332, 335, 477

S.E.2d    211,     214    (1996)    (“[A]n    appellant         must   not    only     show

error, but that . . . the error was material and prejudicial,

amounting to denial of a substantial right that will likely

affect the outcome of an action.”).

      Contrary       to    respondent’s       assertion,         we    find     competent

evidence      to   support    finding       22.        Homan     testified      that    DSS
                                     -12-


repeatedly    offered       respondent    visits      with    Joanna,    both     in

conversation and by letter.         Respondent also objects to finding

23, insofar as it states he failed to seek permission from his

parole officer to visit Joanna following his release from jail

in August 2013.      We agree that respondent testified he asked his

parole officer about visitation, and that such visits had been

approved provided respondent otherwise complied with his parole.

Nonetheless, respondent then conceded that he “still didn’t come

to visit the child[.]”         He explained this failure by noting that

Lincoln County was “really far away and with my job that I just

started, I can’t, can’t really be missing too many days.”                   Given

this admission, and the fact that respondent’s release from jail

postdated    the    relevant    period    under     N.C.     Gen.   Stat.   §    7B-

1111(a)(1), any error in this finding is harmless.

    Respondent       also    challenges     finding    24,    which     states    he

could have attended Joanna’s permanency planning hearing on 28

January     2013.      The     evidence     shows     that     Ramsey    notified

respondent of the hearing on 25 January 2013, and also provided

him with her contact information and informed him of Joanna’s

status in foster care.          Respondent testified only that he “was

working” during this period, which predated his incarceration in

March 2013.    Asked whether he had sought to be allowed to attend
                                       -13-


court hearings while he was incarcerated, respondent replied, “I

never knew I had to come to court.”                 The evidence permits a

reasonable inference that respondent could have attended the 28

January 2013 hearing had he chosen to do so.                    See generally In

re Hughes, 74 N.C. App. 751, 759, 330 S.E.2d 213, 218 (1985)

(Where “different inference[s] may be drawn from the evidence,

[the trial court] alone determines which inferences to draw and

which to reject.”).

      Respondent casts findings 25, 27, and 29 as “misleading”

and   “erroneous”       to   the   extent   they   describe      his    failure    to

“complete or undertake” the services requested by DSS.                     Homan’s

and     respondent’s         testimonies      support    the     findings     that

respondent was repeatedly advised of the requirements of a case

plan but “never followed through” with any of these requirements

other    than   the     drug   assessment     completed    for    his    probation

officer.        While    respondent     averred     he    was    ineligible       for

domestic violence treatment without a court order and that he

“put [his] name in for” parenting classes starting in Spring of

2014, the court was not obliged to credit these unsupported and

self-serving claims.           See State v. Harrison, 164 N.C. App. at

697-98, 596 S.E.2d at 838.            As for finding 29, Honan testified

that respondent “did [not] become any more active in doing the
                                     -14-


things [DSS] suggested he do” following his release from jail in

August 2013.      Though respondent purported to have arranged for

$187 in monthly child support to be deducted from his paycheck,

he acknowledged that “[n]othing ever happened.”

     Respondent next excepts to finding 28, arguing that the

evidence shows he was in contact with DSS about Joanna before,

during, and after his incarceration from 26 March to 20 August

2013.     Finding 28 specifically states, however, that respondent

“has not made any inquiries about the welfare of his child; nor

has he sent any cards, letters, or gifts to the child or paid

any support of any kind[.]”          (Emphasis added)      Homan testified

that, since DSS first contacted him in December 2012, respondent

had no contact with Joanna and had not “asked . . . anyone in

[DSS] to be able to have visits, contact, [or] anything like

that”     or   “asked   for   any    specific   information    about   his

daughter[.]”      Finally, respondent acknowledged having paid no

support for Joanna, even at the time of the termination hearing.

Accordingly, this exception is overruled.

     As    summarized    above,     competent   evidence    also   supports

finding 35,3 that respondent’s “failure to establish or maintain



3
 Insofar as respondent objects to additional findings of fact, we
find that they pertain to the adjudication of neglect under N.C.
                                        -15-


a relationship with [Joanna], pay adequate support for the child

and undertake or complete those tasks and services that were

requested of him has continued up until the time” of the 9

December 2013 termination hearing.

      Having    reviewed    the        contested    findings,     we     turn    to

respondent’s exception to the district court’s conclusion that

he   “willfully       abandoned    [Joanna]        for   at    least     six    (6)

consecutive     months    immediately      preceding     the    filing    of    the

Petition” as required to establish grounds for termination under

N.C. Gen. Stat. § 7B-1111(a)(7).                He notes that his paternity

was not established until May 2013, “more than a month after the

filing   of    the    termination       petition[.]”          Moreover,    absent

evidence that he knew of his daughter’s whereabouts or contact

information prior to January 2013, respondent argues that “he

cannot be held to have willfully withheld . . . indications of

his parental affection for Joanna during approximately half of

the relevant six month time period.”

      Respondent’s argument assumes that he is not accountable

for his inaction toward Joanna prior to being contacted by DSS.

Given his avowed awareness of the child’s existence as early as

of   2011,    and    certainly    by    April    2012,   this    assumption      is


Gen. Stat. § 7B-1111(a)(1) and need not be addressed.
                                         -16-


unwarranted.         Moreover, although the “determinative” period for

purposes of N.C. Gen. Stat. § 7B-1111(a)(7) is 28 September 2012

through       28   March   2013,   we   believe   respondent’s     conduct    both

prior and subsequent to this interval is instructive as to the

willfulness of his conduct during the critical six months.                     See

In re Searle, 82 N.C. App. at 276, 346 S.E.2d at 514 (noting

that “respondent’s behavior between 15 May 1983 and 15 November

1983     is    determinative”      but      considering     his   conduct    prior

thereto); see also In re Hendren, 156 N.C. App. 364, 369-70, 576

S.E.2d      372,    376-77   (2003)     (considering      incarcerated   father’s

lack of effort to attend the termination hearing as evidence of

abandonment).

       We     conclude     the   district    court’s   findings     support    its

adjudication of willful abandonment under N.C. Gen. Stat. § 7B-

1111(a)(7).        The findings show that respondent made no effort to

establish contact with Joanna, to provide support for her, or to

obtain information about her.                Although respondent was jailed

for a portion of the relevant six-month period, “a respondent's

incarceration, standing alone, neither precludes nor requires a

finding of willfulness” under N.C. Gen. Stat. § 7B-1111(a)(7).

In re McLemore, 139 N.C. App. at 431, 533 S.E.2d at 510-11

(citing In re Harris, 87 N.C. App. 179, 184, 360 S.E.2d 485, 488
                                           -17-


(1987)).      Finally, while respondent consented to a paternity

test arranged by DSS and spoke by telephone with two social

workers, these minimal efforts do not preclude a finding of

willful abandonment under N.C. Gen. Stat. § 7B-1111(a)(7).                             See

In re R.R., 180 N.C. App. 628, 634, 638 S.E.2d 502, 506 (2006)

(Father’s effort “to legitimize the child through marriage and

amendment    of     the    child's    birth       certificate     .   .   .     does   not

adequately replace the presence, love and care of a parent–

delivered by whatever means available.”); In re McLemore, 139

N.C. App. at 430, 533 S.E.2d at 510 (Incarcerated parent’s “one

feeble attempt at providing financial support” or contacting the

child during the six-month period does not preclude a finding of

willful abandonment.).

      Respondent          next     challenges         the       district         court’s

adjudication of neglect under N.C. Gen. Stat. § 7B-1111(a)(1).

It is well established, however, that any “single ground . . .

is sufficient to support an order terminating parental rights.”

In   re   J.M.W.,    179    N.C.     App.   788,     789,   635   S.E.2d        916,   917

(2006).     Having upheld the adjudication under N.C. Gen. Stat. §

7B-1111(a)(7) we need not review the second ground found by the

court.     In re Humphrey, 156 N.C. App. at 540, 577 S.E.2d at 426.

Because    respondent       does     not    separately      contest       the    court’s
                              -18-


ruling at disposition, we hereby affirm the termination order.

    Affirmed.

    Judges CALABRIA and STEELMAN concur.

    Report per Rule 30(e).
