An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-170
                          NORTH CAROLINA COURT OF APPEALS

                                    Filed: 1 July 2014


IN THE MATTER OF:                                  Haywood County
                                                   Nos. 12-JT-95, 12-JT-96
     K.M.S., K.A.S.,
     Juveniles.



      Appeal by respondent from order entered 24 October 2013 by

Judge Donna F. Forga in Haywood County District Court.                          Heard in

the Court of Appeals 16 June 2014.


      Rachael J. Hawes for petitioner-appellee                          Haywood   County
      Department of Social Services.

      Nelson Mullins Riley & Scarborough LLP,                           by    Wallace   C.
      Hollowell, III, for guardian ad litem.

      Robert W. Ewing for respondent-appellant.


      HUNTER, JR. Robert N., Judge.


      Respondent         is   the    father      of    K.M.S.     (“Keith”),      K.A.S.

(“Kristin”),       and    a   third       child,      “John,”1    who    is    deceased.

Respondent appeals from an order terminating his parental rights

to   Keith   and    Kristen.         At    the     time   of    the   hearing     on    the


1
  Names are pseudonyms adopted by the parties for confidentiality
and ease of reading.
                                             -2-
petition       to      terminate          parental     rights,      respondent      was

incarcerated awaiting trial on charges of first degree murder,

felony child abuse with serious bodily injury, and possession of

a firearm by a felon.                The charges of first degree murder and

felony child abuse arose out of fatal injuries to John, who had

a different mother than Keith and Kristin.                       Keith and Kristin’s

mother relinquished her parental rights to them at the close of

the evidence.

       The juvenile proceeding at bar was set in motion on the

night of 16 August 2012 when respondent called 911 to report

that his son was not breathing.                    The first responders to arrive

at respondent’s residence found John lying on the floor in a

hallway.       They observed that John was not breathing, his pulse

was    very    weak,    and    his    color     was   yellowish-blue.        John   was

transported by helicopter to Mission Hospital in Asheville but

he died en route.             Keith and Kristen were present in the home

with their parents that night.

       Nonsecure custody of Keith and Kristen was granted to the

Haywood       County    Department         of      Social    Services   (“DSS”)     the

following morning.            They were adjudicated abused, neglected, and

dependent juveniles on 12 March 2013 based largely upon findings

that    John    was    beaten        by    respondent       on   multiple   occasions,
                                             -3-
including the night of his death, and that Keith and Kristen’s

mother was aware of the beatings but failed to intervene or

report them.      On the same date, the permanent plan was changed

to termination of parental rights and adoption.

      DSS filed petitions to terminate parental rights on 13 May

2013.   After conducting an evidentiary hearing over the course

of two days, the court filed an adjudication order on 15 October

2013 concluding the following grounds existed for termination of

respondent’s parental rights:                (1) pursuant to N.C. Gen. Stat. §

7B-1111(a)(1),     respondent          has       neglected      the    children;     (2)

pursuant   to    N.C.    Gen.    Stat.       §     7B-1111(a)(7),       respondent   has

willfully abandoned the children for at least six consecutive

months immediately preceding the filing of the petitions; and

(3)   pursuant   to     N.C.    Gen.    Stat.       §   7B-1111(a)(8),       respondent

murdered the minor children’s half-sibling and the murder was

not committed in self-defense, defense of others, or with any

other   justification.          On     the       same   date,    the    court   filed   a

disposition order concluding that it was in the best interest of

the juveniles to terminate respondent’s parental rights.                             The

court accordingly terminated respondent’s parental rights.                              On

24 October 2013, the court filed an amended disposition order
                                      -4-
correcting clerical mistakes.         Respondent filed timely notice of

appeal from the amended order on 22 November 2013.

       We review a court’s order terminating parental rights to

determine whether the findings of fact are supported by clear,

cogent, and convincing evidence and whether the conclusions of

law are supported by the findings of fact.           In re Shepard, 162

N.C. App. 215, 221, 591 S.E.2d 1, 6 (2004).          We conduct de novo

review of the court’s conclusions of law.          In re S.N., 194 N.C.

App. 142, 146, 669 S.E.2d 55, 59 (2008), aff’d per curiam, 363

N.C.   368,    677   S.E.2d   455   (2009).   Furthermore,   we   need   not

review every ground for termination of parental rights concluded

by the trial court to exist if we determine one of the grounds

is supported by the findings of fact.            In re Parker, 90 N.C.

App. 423, 424, 368 S.E.2d 879, 880 (1988).

       Parental rights may be terminated pursuant to N.C. Gen.

Stat. § 7B-1111(a)(8) if:

              [t]he   parent   has  committed  murder   or
              voluntary manslaughter of another child of
              the parent or other child residing in the
              home;   has    aided,  abetted,   attempted,
              conspired, or solicited to commit murder or
              voluntary manslaughter of the child, another
              child of the parent, or other child residing
              in the home; has committed a felony assault
              that results in serious bodily injury to the
              child, another child of the parent, or other
              child residing in the home; or has committed
              murder or voluntary manslaughter of the
                               -5-
         other parent of the child.    The petitioner
         has the burden of proving any of these
         offenses in the termination of parental
         rights hearing by (i) proving the elements
         of the offense or (ii) offering proof that a
         court   of    competent   jurisdiction   has
         convicted the parent of the offense, whether
         or not the conviction was by way of a jury
         verdict or any kind of plea.

N.C. Gen. Stat. § 7B-1111(a)(8) (2013).   The adjudication order

at bar contains the following conclusions of law:

         7.     There    are   sufficient   grounds  to
         terminate   the    parental   rights   of  the
         Respondent Father, pursuant to N.C.G.S. 7B-
         1111(a)(8), in that he committed murder of
         the minor children’s 4 year old half-sibling
         and the murder was not committed in self
         defense or in the defense of others or with
         any other justification.

         8. The Respondent Father committed murder of
         another child of the Parent or other child
         residing in the home in that he did
         unlawfully, willfully, and feloniously, and
         of malice aforethought did kill and murder
         [John].    The Respondent Father did show
         malice   in   his   actions    in  that   he
         intentionally inflicted wounds on [John]
         that resulted in [John’s] death.

         9.     In the alternative, the Respondent
         Father committed murder of another child of
         the Parent or other child residing in the
         home in that he did unlawfully kill another
         human being, to wit [John], with malice but
         without premeditation or deliberation.  The
         Respondent Father did show malice in his
         actions in that he intentionally inflicted
         wounds on [John] that resulted in [John’s]
         death.
                                     -6-
            10. In the alternative, that the Respondent
            Father committed voluntary manslaughter of
            another child of the Parent or other child
            residing in the home in that he did
            unlawfully kill another human being, to wit
            [John],    without   malice    and   without
            premeditation or deliberation.

            11.   The Respondent Father committed felony
            child abuse on [John] in that he was a
            Parent   or    person   providing  care   or
            supervision to a child less than 16 years of
            age, to wit [John], [and] who intentionally
            inflicted serious physical injuries upon
            that child and who intentionally committed
            an assault upon that child which resulted in
            serious physical injuries to that child. In
            committing   the   offense,   the Respondent
            Father used his hands, feet, and belt in
            such a manner as to constitute a deadly
            weapon.

       Respondent   contends   the   trial     court   erred     by    concluding

that he committed first degree murder, second degree murder,

voluntary manslaughter, and felony child abuse based upon the

same   transaction.       He   argues   the    court    could    not    properly

conclude    that    he   committed   all      of    these   offenses     because

elements of these offenses materially conflict with each other.

       Given that N.C. Gen. Stat. § 7B-1111(a)(8) requires the

juvenile court to make a finding that the parent perpetrated one

of   the   listed   criminal    offenses,      we    look   to   our    criminal

jurisprudence for guidance in addressing respondent’s argument.

We note that “a defendant may be found guilty of multiple crimes
                                               -7-
arising from the same conduct so long as each crime requires

proof of an additional or separate fact.”                            State v. James, 182

N.C. App. 698, 704, 643 S.E.2d 34, 38 (2007).                              A defendant tried

upon   an    indictment          “may    be    convicted        of    the     crime       charged

therein or of a less degree of the same crime, or of an attempt

to commit the crime so charged, or of an attempt to commit a

less   degree     of   the       same    crime.”         N.C.    Gen.       Stat.     §    15-170

(2013).      If   an   appellate         court       subsequently          “finds     that      the

evidence with regard to a charge is insufficient as a matter of

law,   the   judgment        must       be    reversed    and        the    charge    must      be

dismissed unless there is evidence to support a lesser included

offense.”       N.C. Gen. Stat. § 15A-1447(c) (2013).                           If there is

evidence to support a lesser offense, N.C. Gen. Stat. § 15A-

1447(c) provides for a new trial on the lesser offense as an

available    form      of   relief.           Id.      However,        our    Supreme       Court

recently reiterated that an appellate court may alternatively

remand    for     entry     of    judgment       on    the   lesser         offense       if,    in

finding a defendant guilty of the greater offense,                                    the jury

necessarily found the existence of the elements of the lesser

offense.     State v. Stokes, ___ N.C. ___, ___, 756 S.E.2d 32, 36–

38 (2014).

       To charge a person with homicide, an indictment
                                 -8-
          is sufficient in describing murder to allege
          that   the   accused   person    feloniously,
          willfully, and of his malice aforethought,
          did kill and murder (naming the person
          killed) . . . and   it   is   sufficient   in
          describing manslaughter to allege that the
          accused feloniously and willfully did kill
          and slay (naming the person killed) . . .
          and any bill of indictment containing the
          averments and allegations herein named shall
          be good and sufficient in law as an
          indictment for murder or manslaughter, as
          the case may be.

N.C. Gen. Stat. § 15-144 (2013).       “An indictment for homicide in

the words of G.S. § 15-144 will support a verdict of murder in

the first degree, murder in the second degree, or manslaughter.”

State v. Talbert, 282 N.C. 718, 721, 194 S.E.2d 822, 825 (1973).

Second degree murder, voluntary manslaughter, and involuntary

manslaughter   are   lesser   included    offenses   of   first   degree

murder.   State v. Thomas, 325 N.C. 583, 591, 386 S.E.2d 555, 559

(1989).

    In comparison, the offense of felony child abuse contains

additional or different elements.        A person is guilty of felony

child abuse if the person is the parent of a child less than 16

years of age and the person “intentionally inflicts any serious

physical injury upon or to the child or . . . intentionally

commits an assault upon the child which results in any serious

physical injury to the child.”         N.C. Gen. Stat. § 14-318.4(a)
                                           -9-
(2013).       Serious physical injury is a physical injury “that

causes great pain and suffering” and “includes serious mental

injury.”      N.C. Gen. Stat. § 14-318.4(d)(2).

       We conclude that by phrasing its conclusions of law “[i]n

the alternative,” the court sought to inform a reviewing court

that it found respondent committed the elements of two lesser

offenses of first degree murder—namely, second degree murder and

voluntary manslaughter—should the appellate court determine that

the evidence did not support a verdict of first degree murder

but    did   support       a   verdict    upon   one      or    more   of     the   lesser

offenses.      The court also informed the appellate court that it

found     respondent       committed      felony        child    abuse,     a    separate

criminal offense.          We accordingly overrule respondent’s argument

that the conclusions of law are inconsistent.

       We now examine the findings of fact at bar and determine

whether      they   support       the    court’s    conclusion         that     defendant

murdered John.        We are bound by findings of fact “where there is

some    evidence      to       support   those     findings,       even     though       the

evidence      might    sustain      findings       to    the    contrary.”          In    re

Montgomery, 311 N.C. 101, 110–11, 316 S.E.2d 246, 252–53 (1984).

Findings of fact are also binding if they are not challenged on
                                          -10-
appeal.     Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729,

731 (1991).

     Here,       respondent      does     not     challenge      findings      of    fact

indicating       that   an     autopsy    revealed      that     John    had   multiple

bruises over his body, particularly his face, back, buttocks,

arms, and legs.         The bruises had been inflicted over a course of

several days, the oldest bruising being four days old and the

freshest being less than four hours old.                       The injuries to his

buttocks were linear, suggesting they had been inflicted by some

sort of cylindrical object such as a belt that would whip the

skin.     John had lacerations in the upper and lower portion of

the inside of his mouth on his lips.                    Altogether, John had 64

separate injuries to his body.

     When     confronted        by     investigators      about        inconsistencies

between    her    statements      and     respondent’s,        Keith    and    Kristen’s

mother    admitted      that    John     had    been   staying    with    them      for   a

month, though the respondent had instructed her to say the prior

Friday.     On Sunday or Monday, 12 or 13 August, respondent beat

John with a belt and belt buckle leaving bruises on the child’s

buttocks.        After this incident, she saw respondent take John

into a bedroom.         Before John went into the bedroom, he did not

have any bruises on his face.                    She heard respondent beating
                                            -11-
John’s head into the wall.                 When John came out of the bedroom,

he had bruising on his face.                    After this incident, respondent

beat John again with a belt and belt buckle.                        On the night of

John’s death, respondent took the boy into the bathroom.                             She

heard respondent tell the boy to put his head under the faucet.

She    did    not   hear     anything      else    until    she     heard   respondent

yelling at her to call 911.

       The    autopsy      disclosed       that    John    died   as   a    result    of

subdural hematomas and brain swelling due to one or a series of

blunt force injuries to the head.                  The pathologist who performed

the autopsy opined that the child’s injuries were consistent

with a statement given by Keith and Kristen’s mother indicating

that respondent beat the child on multiple occasions over a span

of several days using a belt, a belt buckle, and slamming the

child’s      head   into     a    wall.     The    pathologist      found   a   pattern

bruise on John’s left temple that strongly resembled the shape

of a belt and buckle seized from respondent.                         The pathologist

also   discovered       at       least    two   traumatic    brain     injuries,     one

occurring days prior to John’s death and the other occurring at

the time of death.

       Although respondent had reported that the child had fallen

in    the    bathtub,      the     first    responders      noted    that    John    was
                                      -12-
completely dry and his body and feet were dirty.                     They also

noted that the towel on the floor was dry.            Respondent also made

other   inconsistent   or     conflicting     statements    to    EMS   and   law

enforcement personnel.

    We      conclude   that     the     foregoing    findings       support     a

conclusion of law that respondent murdered John and committed

felony child abuse by intentionally and repeatedly inflicting

injuries to the boy’s body and to his head over the course of a

few days leading to John’s death.             Because we hold the findings

of fact support termination of parental rights pursuant to N.C.

Gen. Stat. § 7B-1111(a)(8), we need not consider respondent’s

arguments     concerning      the     other    grounds     of     neglect     and

abandonment.

    The      adjudication      and     disposition       orders    terminating

respondent’s parental rights are affirmed.

    AFFIRMED.

    Chief Judge MARTIN and Judge ELMORE concur.

    Report per Rule 30(e).
