In re: L.M.B.

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-406

No. COA21-544

Filed 21 June 2022

Alamance County, No. 19JT139

IN THE MATTER OF:

L.M.B.

Appeal by respondent mother and respondent father from orders entered 17

May 2021 and 2 June 2021 by Judge Frederick B. Wilkins Jr. in Alamance County

District Court. Heard in the Court of Appeals 22 February 2022.

Ewing Law Firm, P.C., by Robert W. Ewing, for respondent-appellant mother.

Kimberly Connor Benton for respondent-appellant father.

Jamie L. Hamlett for petitioner-appellee Alamance County Department of

Social Services.

Matthew D. Wunsche for the Guardian ad Litem.

GORE, Judge.

I. Factual and Procedural Background

¶1 On 28 July 2019, the Burlington Police Department (“BPD”) responded to a

service call at the Knights Inn motel. When law enforcement arrived, respondent

mother told the officer that respondent father had slapped her on the face and threw

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a remote control at her, which struck the infant L.M.B (“Lilly”) on the head.1

Respondent mother had a visible bruise from the slap. The responding officer also

noticed Lilly needed a diaper change and to be fed. Lilly was less than three months

old at the time. Respondent father was charged with assaulting respondent mother.

¶2 The Alamance County Department of Social Services (“DSS”) received a report

about the family on 8 August 2019. The social worker had difficulty arranging a

meeting with respondent parents. When the social worker met with respondent

mother, she denied any domestic violence with respondent father or that he hit Lilly

with a remote, but she agreed to have no contact with him pursuant to a no-contact

order. Once the no-contact order was lifted, however, respondent parents began

living together again.

¶3 On 3 September 2019, BPD received a service call at the Knights Inn for a child

welfare check. When the responding officer spoke to respondent mother, she was

“incoherent and said she had been up all night because she was concerned about

snakes” in the motel room. Respondent father was asleep on the bed and difficult to

wake up. It took several more minutes for respondent father to become coherent after

officers woke him. Respondent father also told the officers that there were snakes in

the motel room. Officers did not find any snakes in the room and contacted DSS.

1 We use a pseudonym to protect the identity of the juvenile and for ease of reading.

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¶4 DSS reported the motel room was in “complete disarray” and there was no

appropriate place for Lilly to sleep. There were open food containers, feminine

hygiene products on the floor, and no sheets on the bed.

¶5 On 20 September 2019, DSS filed a petition alleging Lilly was neglected and

dependent. DSS alleged respondent parents believed there were snakes in the motel

room where they lived with Lilly, although none were present. DSS requested

respondent parents submit to a drug screen, but both declined. During a later Child

and Family Team meeting, respondent parents denied substance misuse and

continued to assert there were snakes in the motel room. Respondent parents agreed

to a Temporary Safety Plan, which included placement with a maternal aunt and

uncle. Respondent father later objected to the placement. A Rule 17 Guardian ad

Litem was appointed for respondent father due to him suffering bipolar and

depressive episodes and a traumatic brain injury from being struck in the head.

¶6 On 6 November 2019, the trial court adjudicated Lilly neglected and

dependent. In the dispositional portion of the order, the trial court ordered

respondent mother: 1) maintain sufficient employment; 2) obtain and maintain safe

and stable housing; 3) utilize mental health services and undergo psychological

assessment; 4) engage in substance abuse treatment and submit to drug screens; 5)

participate in parenting and domestic violence classes; and 6) update DSS about her

progress on her case plan. The trial court ordered respondent father to take similar

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steps to achieve reunification, in addition to Substance Abuse Intensive Outpatient

Program (“SAIOP”) classes.

¶7 The trial court kept Lilly in her placement with the maternal aunt and uncle.

The trial court granted respondent parents weekly supervised visits with Lilly. In a

July 2020 order, the trial court expanded respondent parents’ visitation.

¶8 In September 2020, the trial court entered an initial permanency planning

order, which set a primary permanent plan of reunification and a secondary plan of

adoption. The trial court again ordered specific steps towards reunification as

outlined in its dispositional order. It further indicated visitation could expand to

include unsupervised visits if there were no issues or concerns with visitation.

¶9 A subsequent November 2020 order suspended all unsupervised visits between

respondent parents and Lilly. The trial court found that respondent parents had gone

to the home of a known drug dealer, that respondent father had suffered a cardiac

incident, and that respondent parents had submitted diluted urine samples for drug

screens. At the hearing, respondent father interrupted respondent mother’s

testimony and attempted to direct her. The next permanency planning hearing was

continued until January 2021, and the trial court changed the permanent plan to a

primary plan of adoption with a secondary plan of reunification.

¶ 10 On 29 January 2021, DSS filed a motion to terminate respondent parents’

parental rights to Lilly. As to both respondent parents, the motion alleged grounds

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of neglect, willful failure to make reasonable progress, and willful failure to pay a

reasonable portion of the cost of care. As to respondent father only, the motion also

alleged dependency.

¶ 11 At the termination hearing, social worker Freddie Omotosho testified that Lilly

came into DSS custody because of concerns about respondent parents’ domestic

violence, substance misuse, hallucinations, and lack of proper care and supervision.

Respondent parents were ordered in the initial disposition to resolve their housing,

mental health, substance abuse, and domestic violence issues to achieve reunification

with Lilly. Ms. Omotosho testified in detail about respondent parents’ lack of

progress on their case plans. Social worker Madalyn Schulz, who received the case

after Ms. Omotosho, similarly described respondent parents’ difficulties in working

with the services offered by DSS to complete the goals of their respective case plans.

¶ 12 Dr. Julianna Ludlam conducted psychological evaluations on both respondent

parents, which were admitted at the termination of parental rights adjudication

hearing. Dr. Ludlam described how both respondent parents denied the existence of

domestic violence and substance misuse despite evidence to the contrary, including

police reports from prior incidents. Dr. Ludlam testified she did not have “major

concerns” about respondent mother’s substance misuse, but that respondent father’s

frequent trips to the hospital “showed the extent of his potential substance abuse

problem,” in part because some addicts use the emergency department as a method

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of obtaining prescription drugs. Respondent parents described one another as great

parents, and they did not recognize any issues in their relationship with Lilly.

According to Dr. Ludlam, respondent mother’s ongoing relationship with respondent-

father and her continued defense of him placed Lilly “at higher risk.” Dr. Ludlam

testified:

So it was not my concern that either [respondent father] or

[respondent mother] would purposefully, intentionally

neglect or abuse their daughter. It was clear to me that

both parents love their daughter and want the best for her.

My concerns were, at the time of the evaluation, that

[respondent father’s] use of substances could—for one,

could either lead to her being neglected or being exposed to

risky situations involving drug use or the aftermath of drug

use. I think that was my primary concern.

¶ 13 After hearing the evidence, the trial court adjudicated grounds to terminate

respondent parents’ parental rights based on neglect, willful failure to make

reasonable progress, and willful failure to pay a reasonable portion of the cost of care.

In a separate dispositional order, the trial court also concluded that termination of

parental rights was in Lilly’s best interests. The dispositional order indicates that

the matter was heard by Judge Fred Wilkins, but the order is signed “F. Wilkins by

Bradley Reid Allen 6/1/21.”

II. Standard of Review

¶ 14 A termination of parental rights proceeding consists of a two-stage process:

adjudication and disposition. N.C. Gen. Stat. §§ 7B-1109, -1110 (2020). At

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adjudication, the trial court examines the evidence and determines whether sufficient

grounds exist under § 7B-1111 to authorize the termination of parental rights. § 7B-

1109(e). The burden is upon the petitioner to demonstrate that grounds for

termination exist, and the trial court’s findings of fact must be based on “clear, cogent,

and convincing evidence.” § 7B-1109(f). “If the trial court determines that any one

of the grounds for termination listed in § 7B-1111 exists, the trial court may then

terminate parental rights consistent with the best interests of the child.” In re T.D.P.,

164 N.C. App. 287, 288, 595 S.E.2d 735, 736-37 (2004); § 7B-1110(a).

¶ 15 “We review a trial court’s adjudication under N.C.G.S.§ 7B-1111 to determine

whether the findings are supported by clear, cogent and convincing evidence and the

findings support the conclusions of law. The trial court’s assessment of a juvenile’s

best interests at the dispositional stage is reviewed for abuse of discretion.” In re

E.H.P., 372 N.C. 388, 392, 831 S.E.2d 49, 52 (2019) (quotation marks and citations

omitted). The trial court’s conclusions of law are subject to de novo review. In re

N.D.A., 373 N.C. 71, 74, 833 S.E.2d 768, 771 (2019). An abuse of discretion occurs

“where the court’s ruling is manifestly unsupported by reason or so arbitrary that it

could not have been the result of a reasoned decision.” In re N.K., 375 N.C. 805, 819,

851 S.E.2d 321, 332 (2020).

¶ 16 “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 this

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situation, the trial judge acts as both judge and jury, thus resolving any conflicts in

the evidence.” In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 397 (1996)

(citations omitted). “[O]ur appellate courts are bound by the trial courts’ 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) (citations omitted). “Where no exception is taken to a

finding of fact by the trial court, the finding is presumed to be supported by competent

evidence and is binding on appeal.” Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d

729, 731 (1991) (citations omitted). “Moreover, we review only those findings

necessary to support the trial court’s determination that grounds existed to terminate

respondent’s parental rights.” In re T.N.H., 372 N.C. 403, 407, 831 S.E.2d 54, 58-59

(2019) (citation omitted).

III. Discussion

¶ 17 In the case sub judice, the trial court’s adjudication order was based on finding

grounds existed for terminating respondent parents’ parental rights pursuant to §

7B-1111(a)(1), (2), and (3) by clear, cogent, and convincing evidence. Specifically, the

trial court concluded as a matter of law that respondent parents had: (a) neglected

Lilly within the meaning of § 7B-101 and there is a high likelihood of repetition of

neglect if Lilly is returned to their care; (b) willfully left Lilly in foster care or

placement outside the home for more than 12 months without showing to the

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satisfaction of the court that reasonable progress under the circumstances had been

made in correcting those conditions which led to Lilly’s removal, and respondent

parents’ inability to provide care is not based upon their poverty; and (c) willfully

failed to pay a reasonable portion of the cost of care for Lilly although physically and

financially able to do so while Lilly was in DSS custody for a continuous period of six

months preceding the filing of the motion to terminate parental rights.

A. Adjudication

¶ 18 We first address the third ground for termination, failure to pay a reasonable

portion of the cost of care. Pursuant to § 7B-1111(a)(3), a parent’s rights can be

terminated if the parent willfully fails to pay, for six months preceding the filing of

the motion to terminate parental rights, a reasonable portion of the cost of care for

the juvenile although physically and financially able to do so. § 7B-1111(a)(3). DSS

filed its motion to terminate parental rights on 29 January 2021, and the relevant

six-month period to determine whether respondent parents had the ability to pay

their reasonable portion of the cost of care is from 29 July 2020 to 29 January 2021.

Our Supreme Court has held that a finding that a parent

has ability to pay support is essential to termination for

nonsupport. However, this Court has further clarified that

there is no requirement that the trial court make a finding

as to what specific amount of support would have

constituted a “reasonable portion” under the

circumstances, and therefore that the only requirement is

that the trial court make specific findings that a parent was

able to pay some amount greater than the amount the

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parent, in fact, paid during the relevant time period.

In re N.X.A., 254 N.C. App. 670, 676, 803 S.E.2d 244, 248, (purgandum), disc. rev.

denied, 370 N.C. 379, 807 S.E.2d 148 (2017).

¶ 19 Respondent parents selectively challenge several of the trial court’s findings of

fact as to each ground for termination. Regarding ground three, failure to pay a

reasonable portion of the cost of care, they argue the trial court erred by failing to

consider “in-kind” contributions they made in lieu of financial support and assert

their lack of support was not willful. Respondent father also challenges findings of

fact 88, 93 and 100, which indicate during the relevant six-month period, respondent

parents provided zero dollars towards the cost of Lilly’s care and made a conscious

decision not to pay child support.

¶ 20 However, there are a total of 245 remaining unchallenged findings of fact

which support the trial court’s reasoning. The trial court made many uncontested

findings of fact regarding child support which are binding on appeal. Some of those

unchallenged findings include but are not limited to the following:

80. The Respondent Mother was employed throughout the

majority of the life of the foster care case at K & W. During

the start of COVID, the mother was laid off but received

unemployment compensation.

81. The Respondent Mother then was employed through

Goodwill. That employment was short term as the mother

was terminated for stealing. She never informed the social

worker she was terminated or why she was terminated.

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82. The Respondent Mother then reported employment at

Food Lion. The Respondent Mother testified that she

works 30 hours a week at Food Lion. She had provided one

paycheck stub from Food Lion which indicates that

Respondent Mother works less than twenty hours a week.

83. The Respondent Father has received disability

payments through the life of the foster care case. He was

briefly employed through K & W.

84. In the dispositional order, the Respondent Parents

were ordered to provide child support and instructed on

how to get child support established. The mother could

work with Child Support Enforcement/IVD. The father

could establish a trust account. This was repeated in every

review and permanency planning order.

...

86. During the relevant six-month period, neither parent

made any effort to establish child support payments

through the appropriate options.

87. During the relevant six-month period, the mother

provided zero dollars towards the cost of care of the juvenile

despite having the ability to pay more than zero.

...

89. The parents have provided items during visitation such

as clothing, toys, diapers and wipes. There was no prior

agreement between the parents and the Alamance County

Department of Social Services that these items would be

counted towards child support or offset their child support

obligation. In fact, during this period of time, there were

ongoing court orders requiring the parents to pay their

reasonable portion of the cost of care of the juvenile.

90. The mother is able-bodied and has been employed

during the course of the foster care case and/or received

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unemployment benefits.

91. The Respondent Mother has willfully failed to pay her

reasonable portion for the cost of foster care during the

relevant six-month period.

92. The Respondent Mother has willfully failed to pay her

reasonable portion for the cost of foster care during the

relevant six-month period.

...

94. In the relevant six-month period prior to filing of the

motion to terminate parental rights, the parents paid zero

towards the cost of care for [Lilly].

...

97. In March of 2021, the Respondent Mother completed a

Voluntary support Agreement. It required her to pay

$50.00 a month effective March 1, 2021. The mother has

made one payment.

...

99. After filing of the motion to terminate parental rights,

the Respondent Father paid $300.00 into a trust account

established by the Alamance County Department of Social

Services for the benefit of [Lilly].

...

101. Further, during a Child and Family Team Meeting,

the Respondent Mother stated that her attorney advised

her not to worry about paying child support. This further

indicates a deliberate decision by the mother not to pay

child support despite a court order requiring such

payments.

102. The Alamance County Department of Social Services

has expended funds for the cost of care of the juvenile.

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¶ 21 Here, the uncontested findings support the trial court’s adjudication finding

grounds for termination of parental rights based on failure to pay a reasonable

portion of the cost of care. These findings indicate respondent mother was employed

throughout most of the life of the case and received unemployment benefits when she

lost her job. Respondent father also received disability payments and was briefly

employed. Respondent parents were ordered to establish child support and they

failed to do so.

¶ 22 Respondent mother cites In re J.A.E.W., 375 N.C. 112, 117, 846 S.E.2d 268,

271 (2020), for the proposition that a trial court is required to consider “in kind”

contributions as a form of support. However, In re J.A.E.W. contains no such holding.

This argument is premised upon one sentence, “[The respondent father] also did not

buy [the juvenile] clothing or other necessities while she was in foster care.” Id. In

context, this statement simply reinforces the undisputed fact that the respondent

father in that case failed to make any form of child support payment and failed to

make any other contribution to the care of his child while she was in DSS custody.

The In re J.A.E.W. decision does not require a trial court to consider items or gifts as

a form of support.

¶ 23 In this case, the trial court specifically acknowledged respondent parents had

provided “in kind” contributions in the form of clothing, toys, diapers, etc., during

their visits, but there was no agreement in place that these items would offset their

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support obligation. It was not error for the trial court to acknowledge these gifts but

also determine they did not qualify as court ordered financial support payments for

Lilly’s care.

¶ 24 Thus, the trial court’s adjudication order finding grounds existed for

termination of parental rights pursuant to § 7B-1111(a)(3) was based on clear, cogent,

and convincing evidence. Where there is sufficient evidence to support one ground of

termination for respondent parents’ parental rights, it is unnecessary for this Court

to address the remaining grounds for termination. See In re Moore, 306 N.C. 394, 404,

293 S.E.2d 127, 133 (1982) (“If either of the three grounds aforesaid is supported by

findings of fact based on clear, cogent and convincing evidence, the order appealed

from should be affirmed.”). Thus, we do not address respondent parents’ remaining

challenges to the trial court’s adjudication pursuant to § 7B-1111(a)(1) and (2) for

neglect and willful failure to make reasonable progress.

B. Best Interests Determination

¶ 25 Respondent mother has not challenged the trial court’s determination that the

termination of her parental rights would be in Lilly’s best interest. Therefore, we

affirm the trial court’s termination order with respect to respondent mother.

Respondent father does argue the trial court erred by finding it was in Lilly’s best

interests for his parental rights to be terminated. We address his arguments as

follows.

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¶ 26 Respondent father challenges findings of fact 12 and 28-31 of the dispositional

order and reasserts his prior challenges to the findings of fact as adopted from the

underlying adjudication order. However, most of his arguments do not allege the

findings are unsupported by evidence, but that the trial court weighed the evidence

improperly. In a termination of parental rights hearing, trial judge determines the

weight to be given the testimony and the reasonable inferences to be drawn

therefrom. If a different inference may be drawn from the evidence, the trial judge

alone determines the credibility of the witnesses and which inferences to draw and

which to reject. In re Hughes, 74 N.C. App. 751, 759, 300 S.E.2d 213, 218 (1985).

¶ 27 “After an adjudication that one or more grounds for terminating a parent’s

rights exist, the court shall determine whether terminating the parent’s rights is in

the juvenile’s best interest.” § 7B-1110(a).

In each case, the court shall consider the following criteria

and make written findings regarding the following that are

relevant:

(1) The age of the juvenile.

(2) The likelihood of adoption of the juvenile.

(3) Whether the termination of parental rights will

aid in the accomplishment of the permanent plan for

the juvenile.

(4) The bond between the juvenile and the parent.

(5) The quality of the relationship between the

juvenile and the proposed adoptive parent,

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guardian, custodian, or other permanent placement.

(6) Any relevant consideration.

Id.

¶ 28 Here, the trial court properly adjudicated grounds for terminating respondent

father’s parental rights. The dispositional order clearly states that the trial court

“considered all factors as outlined” in § 7B-1110 and includes written findings

addressing each of the relevant factors. We further note that these findings are

supported by competent evidence in the record. We conclude that the trial court did

not abuse its discretion by determining that it was in Lilly’s best interest to terminate

respondent father’s parental rights. See In re D.M., 378 N.C. 435, 440, 2021-NCSC-

95, ¶ 11 (discerning no abuse of discretion where the trial court made written findings

addressing each of the factors enumerated in § 7B-1110(a) and those findings were

supported by competent evidence presented at the termination hearing).

C. Valid Best Interests Order

¶ 29 In this case, Judge Bradley Reid Allen, Sr., signed the best interest order as

follows: “F. Wilkins by Bradley Reid Allen, Sr., 6/1/21.” Respondent parents contend

the trial court’s order terminating their parental rights was invalid because the

presiding trial judge, Frederick B. Wilkins, did not sign the best interests order. We

disagree.

¶ 30 North Carolina General Statutes Section 1A-1, Rule 52, governs findings by

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the trial court in non-jury proceedings. Under Rule 52, the trial court is “required to

do three things in writing: (1) To find the facts on all issues of fact joined on the

pleadings; (2) to declare the conclusions of law arising on the facts found; and (3) to

enter judgment accordingly.” Coggins v. Asheville, 278 N.C. 428, 434, 180 S.E.2d 149,

153 (1971) (purgandum) (emphasis added). Pursuant to § 7B-804, these

requirements apply to juvenile proceedings. Here, the presiding judge did not sign

the termination of parental rights order upon entry of judgment.

¶ 31 However, Rule 63 provides a procedure to follow when a district court judge is

unavailable:

If by reason of death, sickness or other disability,

resignation, retirement, expiration of term, removal from

office, or other reason, a judge before whom an action has

been tried or a hearing has been held is unable to perform

the duties to be performed by the court under these rules

after a verdict is returned or a trial or hearing is otherwise

concluded, then those duties, including entry of judgment,

may be performed:

...

(2) In actions in the district court, by the chief judge of the

district, or if the chief judge is disabled, by any judge of the

district court designated by the Director of the

Administrative Office of the Courts.

If the substituted judge is satisfied that he or she cannot

perform those duties because the judge did not preside at

the trial or hearing or for any other reason, the judge may,

in the judge’s discretion, grant a new trial or hearing.

§ 1A-1, Rule 63 (2020) (emphasis added). “The function of a substitute judge under

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this rule is ministerial rather than judicial.” In re Savage, 163 N.C. App. 195, 197,

592 S.E.2d 610, 611 (2004) (quotation marks and citations omitted).

¶ 32 Judge Allen did not sign the order in his own name, he signed it on behalf of

Judge Wilkins, over a signature block with Judge Wilkins’s name typed below. There

is no indication in the record that Judge Allen made any substantive determinations

in this case, and the written judgment is consistent with Judge Wilkins’s oral

rendering of judgment. Judge Allen signing the order on behalf of Judge Wilkins was

a ministerial act consistent with the plain language of Rule 63.

IV. Conclusion

¶ 33 For the foregoing reasons, we affirm the trial court’s adjudication and

disposition orders terminating respondent parents’ parental rights.

AFFIRMED.

Judges INMAN and ZACHARY concur.