An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-115
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 15 July 2014


IN THE MATTER OF:

      L.F.G.K. and A.L.K.                     Cleveland County
                                              Nos. 09 JT 128; 10 JT 125




      Appeal by respondent parents from order entered 28 October

2013 by Judge Meredith A. Shuford in Cleveland County District

Court.    Heard in the Court of Appeals 30 June 2014.


      Charles E. Wilson, Jr. for petitioner-appellee Cleveland
      County Department of Social Services.

      Leslie Rawls for respondent-appellant mother.

      Mercedes O. Chut for respondent-appellant father.

      Parker Poe Adams & Bernstein LLP, by Deborah L. Edney, for
      guardian ad litem.


      ELMORE, Judge.


      Respondent parents appeal from an order terminating their

parental rights to their minor children, L.F.G.K. (“Linda”1) and

A.L.K. (“Anna”).         Respondent father also appeals from a prior

1
  Pseudonyms are used to protect the identity of the juveniles
and for ease of reading.
                                     -2-
order    ceasing     reunification   efforts.        We   affirm     the     order

terminating respondent’s parental rights.

       The Cleveland County Department of Social Services (“DSS”)

became involved with respondent mother in January 2009, when it

filed juvenile petitions alleging her minor children J.K. and

B.K.2 were abused and neglected juveniles.                Linda was born to

respondents in June 2009, and the day after her birth DSS took

non-secure custody of her and filed a petition alleging she was

a neglected juvenile.        On 23 November 2009, respondents entered

into a consent order of adjudication in which Linda and her

older    siblings     were   adjudicated    neglected.      The    trial     court

entered a combined disposition, review, and permanency planning

order on 4 January 2010, in which it continued custody of Linda

and her siblings with DSS and set the permanent plan for the

children as reunification with their parents.

       In   August   2010,   respondent     mother   gave    birth    to     Anna.

Shortly after her birth, DSS took non-secure custody of Anna and

filed a petition alleging she was a neglected juvenile.                        The

trial court entered an adjudication and disposition order on 22

February     2011,    adjudicating   Anna     a   neglected       juvenile     and

continuing custody of her with DSS.           The court also relieved DSS



2
    Respondent father is not the father of J.K. and B.K.
                                         -3-
from its obligation to make reasonable efforts to return Anna to

respondents’ home.         That same day, the trial court entered an

order regarding Linda and her older siblings in which it awarded

the custody of Linda’s siblings to their father, released DSS

from its obligation to make reasonable efforts to return Linda

to respondents’ home, and set the permanent plan for Linda as

adoption.      On   24    February      2011,    the    court     entered     an   order

setting the permanent plan for Anna as adoption.                         Respondents

appealed     from   the    trial     court’s     orders      entered     22    and    24

February 2011, and this Court affirmed all three orders.                           In re

J.K., 216 N.C. App. 416, 716 S.E.2d 875 (2011).

      On 5 March 2012, by the agreement of all parties, the trial

court entered a permanency planning and review order in which it

sanctioned a permanent plan for Linda and Anna of reunification

with respondents, with a concurrent plan of adoption.                       The court

ordered DSS to resume making reasonable efforts to return the

children to respondents’ home, granted respondents supervised

visitation     with      the   children,        and     ordered      respondents      to

cooperate with DSS’s reunification efforts.                        DSS worked with

respondents toward reunification with their children. However,

by   order   entered      22   January    2013,        the   trial    court    ordered

reunification       efforts        to    cease,        terminated       respondents’
                                              -4-
visitation with the children, and set the permanent plan for the

juveniles     as     adoption.          Respondents       filed    timely      notices    to

preserve their right to appeal from the 22 January 2013 order

ceasing reunification efforts.

      DSS    filed          petitions    to     terminate       respondents’     parental

rights to Linda and Anna on 11 February 2013.                               DSS alleged

grounds of neglect, failure to make reasonable progress toward

correcting        the       conditions    that      led    to   the   removal     of     the

children, and failure to pay a reasonable portion of the cost of

care for the children.                   N.C. Gen. Stat. § 7B-1111(a)(1)-(3)

(2013).       On 28 October 2013, after a multi-day hearing, the

trial court entered an order terminating respondents’ parental

rights to Linda and Anna, based upon the grounds of neglect and

failure      to    make       reasonable        progress     toward      correcting      the

conditions that led to the removal of the children.                            Respondents

filed timely notices of appeal.

                                          II. Analysis

      We    first       address    respondents’           common   argument      that    the

trial      court    lacked       jurisdiction        to     hear   the     petitions      to

terminate their parental rights because DSS failed to include in

the   petitions         a    statement     of    facts     sufficient     to    warrant    a
                                      -5-
determination that one or more of the grounds for terminating

parental rights existed.

       A   petition    to     terminate   parental     rights   must     include

“[f]acts that are sufficient to warrant a determination that one

or more of the grounds for terminating parental rights exist.”

N.C.   Gen.    Stat.   §    7B-1104(6)    (2013).      “While    there    is   no

requirement     that    the     factual   allegations     be    exhaustive     or

extensive, they must put a party on notice as to what acts,

omissions or conditions are at issue.”              In re Hardesty, 150 N.C.

App. 380, 384, 563 S.E.2d 79, 82 (2002).                “Merely using words

similar to the relevant statutory ground for termination is not

sufficient to comply with N.C. Gen. Stat. 7B-1104(6).”                    In re

H.L.A.D., 184 N.C. App. 381, 392, 646 S.E.2d 425, 433-34 (2007),

aff’d, 362 N.C. 170, 655 S.E.2d 712 (2008).

       We agree with respondents that the petitions to terminate

their parental rights lack statements of facts in support of any

grounds for termination.           Nevertheless, this deficiency is not

jurisdictional and instead constitutes a claim for relief under

Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.

In re Quevedo, 106 N.C. App. 574, 578, 419 S.E.2d 158, 159

(1992).       Respondents never moved for a dismissal under Rule

12(b)(6) in the trial court, and “a Rule 12(b)(6) motion may not
                                          -6-
be made for the first time on appeal.”                  In re H.L.A.D., 184 N.C.

App. at 392, 646 S.E.2d at 434.                 Accordingly, respondents have

failed to preserve this issue for appellate review.                         Respondent

mother     presents     no    other    arguments      for     our   review,    and    we

therefore dismiss her appeal.

      Respondent father also argues that the trial court erred in

ceasing reunification efforts.                Respondent father contends three

of   the    trial     court’s    findings       of    fact     in   support    of    its

conclusion       to   cease    reunification         efforts    with   him    are    not

supported by record evidence.             Respondent father’s arguments are

misplaced.

      Our    review    of     orders    ceasing      reunification      efforts      “is

limited to whether there is competent evidence in the record to

support the findings [of fact] and whether the findings support

the conclusions of law.              The trial court’s findings of fact are

conclusive on appeal if supported by any competent evidence.”

In re L.M.T., 367 N.C. 165, 168, 752 S.E.2d 453, 455 (2013)

(citations and quotation marks omitted).

      Respondent      father     specifically        argues    that    in    the    trial

court’s     22    January     2013    order   ceasing    reunification        efforts,

findings of fact 13, 22, and 23 are unsupported by any record

evidence.        In these findings, the trial court stated:
                                       -7-
            13. That although the parents have received
            [] liberal three-hour weekly visitation
            since March, 2012, the parents have failed
            to demonstrate an ability to re-direct the
            children; and failed to demonstrate the
            ability to provide appropriate meals and
            snacks on a consistent basis.

            . . . .

            22. That the respondent parents have been
            resistant to complete all of the recommended
            services.   The parents refused to meet with
            a budget counselor; and refused to meet with
            a nutritionist, which would have been at no
            cost to the parents.    That when requested,
            the parents stated that they have already
            done these things, although they have not
            demonstrated these skills.

            23.   That the respondent parents have not
            demonstrated to the Court that they have
            improved their situation, and have not
            demonstrated to the Court their ability to
            provide a safe and stable residence or that
            they will be able to do so within a
            reasonable time.

These findings of fact are fully supported by both the testimony

of Sharon Moore, a social worker assigned to the juvenile case,

and her report to the trial court.             In turn, these findings,

coupled with the trial court’s unchallenged findings that a safe

return of the juveniles to respondent’s home was not likely

within    the   next    six   months   and   that   further   reunification

efforts    would   be    futile,   support    its   conclusion   to   cease
                                             -8-
reunification efforts.             Accordingly, we affirm the trial court’s

order ceasing reunification efforts with respondent father.

       Respondent father additionally argues the trial court erred

in concluding that grounds existed to terminate his parental

rights.          We   first        address     respondent          father’s      arguments

regarding the ground of neglect.

       Grounds exist to terminate parental rights where the parent

has    neglected      the    juvenile        such    that     the    court      finds    the

juvenile to be a neglected juvenile within the meaning of N.C.

Gen. Stat. § 7B-101.              N.C. Gen. Stat. § 7B-1111(a)(1) (2013).                   A

neglected       juvenile     is    defined     in   part      as   one   who     “does    not

receive     proper       care,      supervision,         or    discipline        from    the

juvenile’s parent, guardian, custodian, or caretaker; or who has

been abandoned; or who is not provided necessary medical care;

or who is not provided necessary remedial care; or who lives in

an environment injurious to the juvenile’s welfare[.]”                                   N.C.

Gen.   Stat.      §   7B-101(15)       (2013).           Generally,      “[i]n    deciding

whether     a    child      is     neglected       for    purposes       of    terminating

parental rights, the dispositive question is the fitness of the

parent to care for the child ‘at the time of the termination

proceeding.’”         In re L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d

236, 242 (2005) (quoting In re Ballard, 311 N.C. 708, 715, 319
                                        -9-
S.E.2d 227, 232 (1984)).              However, “[w]here, as here, a child

has not been in the custody of the parent for a significant

period of time prior to the termination hearing, the trial court

must employ a different kind of analysis to determine whether

the evidence supports a finding of neglect.”                   In re Shermer, 156

N.C.    App.    281,    286,   576    S.E.2d    403,    407    (2003)       (citations

omitted).        A trial court may terminate parental rights based

upon prior neglect of the juvenile if “the trial court finds by

clear and convincing evidence a probability of repetition of

neglect if the juvenile were returned to her parents.”                             In re

Reyes,   136     N.C.   App.   812,    815,    526   S.E.2d     499,    501       (2000).

“Relevant to the determination of probability of repetition of

neglect is whether the parent has made any meaningful progress

in eliminating the conditions that led to the removal of [the]

child[].”       In re J.H.K., 215 N.C. App. 364, 369, 715 S.E.2d 563,

567 (2011) (citation and quotation marks omitted).

       Here,    Linda    and   Anna    had    previously       been    found       to    be

neglected juveniles, and the trial court made numerous findings

of   fact      regarding   respondent        father’s   failure        to    make       any

meaningful progress in his case plan, which evince a probability

of repetition of neglect if the children were returned to his

care.       After   over   three      years    of    working    with        DSS   toward
                                        -10-
reunification,         the   court     found       respondent   father    had     not

developed a significant bond with Linda or Anna.                         Respondent

father was often disengaged from the children during visits,

failed to assist the mother with parenting during the visits,

and   had   to    be   prompted   by    the       supervising   social   worker   to

interact with his children.             The court found respondent father

would     occasionally       demonstrate          appropriate   parenting    skills

after direction from the social worker, but would not be able to

demonstrate the same skills just a week or two later without

prompting from the social worker.                  Respondent father also failed

to comply with recommended treatment services, including budget

and nutrition education or counseling, asserting that he had

previously received the services and they were unneeded, even

though      DSS     determined       that      respondents      were     struggling

financially, falling behind in their bills, and not providing

appropriate food or snacks for the children.                    Ultimately, after

visiting     with      respondents,         the     children    began    displaying

oppositional behavior outside of the visits, and Linda needed

counseling for dealing with anxiety that she developed from the

visits.     The court further found that respondent father had not

demonstrated an ability to take Anna to the therapy and medical

appointments she required due to her speech apraxia, or even had
                                          -11-
an understanding of her disorder.                Additionally, the court found

respondent father had failed to provide a safe and sanitary home

for the juveniles, and continued to fail to acknowledge any

responsibility for the reasons why Linda and Anna were in the

custody of DSS.

      The    trial    court’s      findings      are    either   unchallenged       by

respondent     father,      and    thus    binding      on    appeal,   Koufman      v.

Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991), or are

supported by record evidence.                  We hold these findings support

the trial court’s conclusion that grounds exist to terminate

respondent father’s parental rights based on his past neglect of

his children and the probability of repetition of that neglect

if   Linda   and     Anna   were    returned       to   his    care.       We    reject

respondent father’s contention that the trial court’s conclusion

is founded solely upon their poverty, as throughout the history

of this case respondents rejected assistance offered by DSS to

alleviate the impact of their financial hardships.                       Similarly,

there is no evidence suggesting that respondent father’s recent

employment    ameliorated         the   conditions      underlying      the     court’s

findings suggesting a probability of repetition of neglect.

      Accordingly, we hold the that trial court did not err in

concluding     grounds      existed       to   terminate      respondent      father’s
                                           -12-
parental rights to Linda and Anna pursuant to N.C. Gen. Stat. §

7B-1111(a)(1).      As    such,       we    need    not     address    his    arguments

regarding the trial court’s conclusion that grounds to terminate

his parental rights also existed under N.C. Gen. Stat. § 7B-

1111(a)(2).     In re P.L.P., 173 N.C. App. 1, 8, 618 S.E.2d 241,

246   (2005),   aff’d    per   curiam,       360     N.C.    360,     625    S.E.2d   779

(2006)   (holding   that       when    “the        trial    court     finds    multiple

grounds on which to base a termination of parental rights, and

an appellate court determines there is at least one ground to

support a conclusion that parental rights should be terminated,

it is unnecessary to address the remaining grounds”). Respondent

father does not challenge the trial court’s conclusion that it

is in the children’s best interests to terminate his parental

rights, and we thus affirm the trial court’s order terminating

the respondent father’s parental rights to Linda and Anna.

      Dismissed in part, affirmed in part.

      Chief Judge MARTIN and Judge HUNTER, Robert N., concur.

      Report per Rule 30(e).
