In re: I.P. & Q.P. , 261 N.C. App. 638 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-366
Filed: 2 October 2018
Pitt County, Nos. 14 JT 103-04
IN THE MATTER OF: I.P. and Q.P., Jr.
Appeal by Respondent-Father from orders entered 17 January 2018 by Judge
P. Gwynett Hilburn in Pitt County District Court. Heard in the Court of Appeals 13
September 2018.
The Graham, Nuckolls, Conner, Law Firm, PLLC, by Timothy E. Heinle, for
petitioner-appellee Pitt County Department of Social Services.
Assistant Appellate Defender Joyce L. Terres, for respondent-appellant father.
Respondent-appellant father, pro se.
Administrative Office of the Courts, by Guardian Ad Litem Appellate Counsel
Matthew D. Wunsche, for guardian ad litem.
HUNTER, JR., Robert N., Judge.
Respondent-Father appeals from orders terminating his parental rights to his
minor children, I.P. (“Ian”) and Q.P., Jr. (“Quentin).1 Respondent-Father’s counsel
filed a no-merit brief, pursuant to North Carolina Rule of Appellate Procedure 3.1(d).
Respondent-Father failed to properly bring forth any pro se argument. We dismiss.
1 We use pseudonyms throughout the opinion for ease of reading and to protect the juveniles’
identities. N.C. R. App. P. 3.1(b) (2017).
IN RE: I.P. & Q.P, JR.
Opinion of the Court
I. Factual and Procedural Background
On 25 June 2014, the Pitt County Department of Social Services (“DSS”)
obtained non-secure custody of Ian and Quentin and filed petitions alleging them to
be neglected and dependent juveniles. The petition alleged the following narrative.
On 11 February 2014, DSS received a child protective services (“CPS”) report alleging
Ian, then four months old, tested positive for cocaine and marijuana. The juvenile’s
mother (“mother) tested positive for cocaine and admitted to using marijuana.2
Mother refused drug treatment. On 16 June 2014, mother had no food in her home.
Although mother received $750 in food stamps per month, she sold her food stamps.
Mother used “marijuana and cocaine with [Ian] in her arms and strapped to her
chest[.]” Quentin ran around mother’s home, holding a butcher knife. Mother “pulled
a knife” on another and refused to submit to a drug screen. Mother offered Ian and
Quentin’s grandmother as a placement option, but CPS reported the grandmother
also “ha[d] her own drug abuse issues[.]” DSS further alleged the following: (1) Ian
and Quentin did not receive proper care, supervision or discipline; (2) they lived in an
environment injurious to their welfare; and (3) mother was unable to provide for their
care and supervision. At the time DSS filed the petitions, Respondent-Father’s
whereabouts were unknown.3
2Mother is not a party to this appeal. In the interest of brevity, this opinion omits most of the
background relevant to mother.
3 At the termination hearing, a DSS social worker testified Respondent-Father
“surface[d] . . . a month and a half later.”
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IN RE: I.P. & Q.P, JR.
Opinion of the Court
On 7 August 2014, the trial court held an adjudication hearing, which
Respondent-Father attended. On 29 August 2014, the court entered an adjudication
order. The court concluded Ian and Quentin were neglected and dependent
juveniles.4 Following a disposition hearing on 4 September 2014, the court entered
an order on 8 October 2014. The court kept custody of Ian and Quentin with DSS
and granted Respondent-Father visitation with the juveniles. The trial court further
ordered Respondent-Father to do the following: (1) comply with the terms of his
probation and not acquire new criminal charges; (2) complete parenting classes; (3)
obtain and maintain stable employment; and (4) obtain and maintain stable housing.
On 29 January 2015, the trial court held a permanency planning review
hearing. In an order entered 5 March 2015, the court found:
19. The Department has only had contact with the
Respondent Father once since the initiation of this case.
The Respondent Father is currently incarcerated. His
release date is unknown.
20. Reunification efforts would not result in placement in
the home within a reasonable period of time [and] would be
futile and inconsistent with safety and the need for a safe
permanent home for the following reasons: the Respondent
Father has not been involved in the Juvenile[s’] case and
has failed to show a lack [of] dedication to the Juveniles.
He is currently incarcerated and his release date is
unknown.
4
The trial court’s adjudication order and subsequent orders prior to the filing of petitions to
terminate parental rights also involved Ian and Quentin’s siblings, but they are not parties to this
appeal.
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IN RE: I.P. & Q.P, JR.
Opinion of the Court
Consequently, the trial court ceased reunification efforts with Respondent-Father.
The court allowed Respondent-Father’s counsel to withdraw from representation,
because Respondent-Father failed to stay in contact with counsel. The court set the
permanent plan for Ian and Quentin as reunification with mother, with a concurrent
plan of adoption.
The court held another review hearing on 28 January 2016.5 In an order
entered 12 February 2016, the court found mother relapsed and used marijuana and
cocaine. The court ceased reunification efforts with mother. The court changed the
primary permanent plan to adoption, and the secondary plan to guardianship. The
court held another review hearing on 10 November 2016. At the hearing, the trial
court found paternity testing ruled Respondent-Father out as Ian’s biological father.
On 5 December 2016, DSS filed a petition to terminate mother’s parental rights
to Ian. The same day, DSS filed a petition to terminate mother’s and Respondent-
Father’s parental rights to Quentin.6 DSS alleged the following grounds for
termination existed as to Quentin: (1) neglect; (2) failure to correct the conditions
which led to Quentin’s removal from his care; (3) failure to pay for Quentin’s cost of
care while Quentin was in DSS custody; (4) dependency; and (5) willful abandonment.
See N.C. Gen. Stat. § 7B-1111(a)(1)-(3), (6)-(7) (2017).
5The court also held review hearings on 30 April 2015 and 16 July 2015.
6Because paternity tests established Respondent-Father was not the biological father of Ian,
DSS did not seek to terminate Respondent-Father’s paternal rights to Ian.
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IN RE: I.P. & Q.P, JR.
Opinion of the Court
The trial court held a hearing on the petitions on 28 September 2017 and 7
December 2017.7 DSS called Kelli Clay, a social worker. Due to Respondent-Father’s
probation conditions, DSS set up a “strict visitation plan” for him. Respondent-
Father did not comply with the visitation plan. Out of twenty-five opportunities for
visitation, Respondent-Father attended thirteen. Respondent-Father last visited
with the juveniles on 11 July 2016. Respondent-Father owed $1,270.18 in arrears for
child support for Quentin. Respondent-Father did give the juveniles a few gifts, “but
nothing substantial[.]”
Although the court ordered Respondent-Father to not obtain any new criminal
charges, authorities in North Carolina charged him for crimes “that involved
communicating threats[.]” Additionally, Respondent-Father did not complete
parenting classes. Although Respondent-Father told DSS he obtained employment
and stable housing, he failed to provide any verification.
DSS moved to amend the petition to terminate parental rights to Ian to include
allegations against Respondent-Father. DSS contended it learned Respondent-
Father had been found to be the father of Ian in a prior child-support hearing and
that court ordered Respondent-Father to pay child support for Ian. Thus,
Respondent-Father is Ian’s legal father. With the consent of Respondent-Father’s
counsel, who joined in the motion, the court allowed the requested amendments so
7The hearing was for the petitions to terminate mother’s parental rights to Ian and Quentin
and Respondent-Father’s parental rights to Quentin.
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IN RE: I.P. & Q.P, JR.
Opinion of the Court
the allegations against Respondent-Father as to Ian were identical to those in the
petition to terminate Respondent-Father’s parental rights to Quentin.
Respondent-Father testified on his own behalf and largely narrated his
testimony. From 2013 until the hearing, Respondent-Father was intermittently
incarcerated. In February 2016, Respondent-Father returned to North Carolina. He
began working at Cracker Barrel and moved into an apartment in Greenville.
Respondent-Father “look[ed] for parenting classes to take, but . . . was unfortunate
enough to not find any classes.” Respondent-Father alleged DSS fought against him
getting custody of Ian and Quentin.
On 17 January 2018, the trial court entered orders terminating Respondent-
Father’s parental rights to Ian and Quentin. The court found the following grounds
for termination existed: (1) neglect; (2) failure to correct the conditions which led to
the juveniles’ removal from his care; (3) failure to pay for the juveniles’ cost of care
while they were in DSS custody; (4) dependency; and (5) willful abandonment. See
N.C. Gen. Stat. § 7B-1111(a)(1)-(3), (6)-(7). In an order entered 17 January 2018, the
court found termination of Respondent-Father’s parental rights was in the juveniles’
best interests. On 30 January 2018, Respondent-Father filed timely notice of appeal.
II. Analysis
Appellate counsel for Respondent-Father filed a no-merit brief on Respondent-
Father’s behalf, in which counsel states she made a conscientious and thorough
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IN RE: I.P. & Q.P, JR.
Opinion of the Court
review of the record on appeal and concluded there is no issue of merit on which to
base an argument for relief. Pursuant to North Carolina Rule of Appellate Procedure
3.1(d), counsel requests this Court conduct an independent examination of the case.
N.C. R. App. P. 3.1(d) (2017). In accordance with Rule 3.1(d), counsel wrote a letter
to Respondent-Father on 2 May 2018, advising him of counsel’s inability to find error,
her request for this Court to conduct an independent review of the record, and his
right to file his own arguments directly with this Court. Counsel also avers she
provided Respondent-Father with copies of all relevant documents so that he may file
his own arguments with this Court.
In addition to seeking review pursuant to Rule 3.1(d), counsel directs this
Court’s attention to potential issues with the trial court’s conclusions of law on the
grounds of failure to correct the conditions which led to the juveniles’ removal from
his care, failure to pay for the juveniles’ cost of care while they were placed in DSS
custody, dependency, and willful abandonment. Counsel concedes, however, the trial
court did not err in terminating Respondent-Father’s parental rights on the ground
of neglect. See In re B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004)
(citation omitted) (“Having concluded that at least one ground for termination of
parental rights existed, we need not address the additional ground[s] . . . found by
the trial court”). Counsel also concedes the trial court did not abuse its discretion in
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IN RE: I.P. & Q.P, JR.
Opinion of the Court
concluding termination of Respondent-Father’s parental rights was in the juveniles’
best interests.
On 9 May 2018, counsel filed a motion, requesting this Court extend
Respondent-Father’s time to file a pro se brief. In an order entered 11 May 2018, we
granted this motion, ordering Respondent-Father to file his brief by 8 June 2018.
On 18 June 2018, Respondent-Father filed his pro se brief, arguing:
the trial court[’]s fact finding was flawed because it was
influenced by specious testimony & acts. I am not able to
prove my case in chief at this exact moment as I do not have
access to vital paperwork/documents nor the resources to
support my argument. Currently, I am being detained at
the address listed on criminal charges, with a trial date set
within the next 90 days. I humbly request that this court
suspend any final ruling for the next 120 days. That will
give my criminal case time to have been heard & me to
compile & obtain what[’]s needed to support my argument.
Inasmuch as Respondent-Father’s argument presents a request to hold his
appeal in abeyance, we deny the request. Moreover, Respondent-Father’s sole
argument on appeal—the trial court’s fact finding was flawed—is a bare assertion of
error unsupported by citation to any record evidence or legal authority, and it is thus
not properly before this Court. In re C.D.A.W., 175 N.C. App. 680, 688, 625 S.E.2d
139, 144 (2006) (holding an issue on appeal was abandoned where it was “void of any
discernible argument or citation as authority for such a claim”). See also N.C. R. App.
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IN RE: I.P. & Q.P, JR.
Opinion of the Court
P. 28(b)(6) (2017) (“Issues . . . in support of which no reason or argument is stated,
will be taken as abandoned.”).
Although Respondent-Father filed pro se arguments with this Court, his
arguments are not properly before this Court because they are untimely and nothing
more than unsupported allegations of error, as explained supra. Thus, “[n]o issues
have been argued or preserved for review in accordance with our Rules of Appellate
Procedure.” In re L.V., ___ N.C. App. ___, ___, ___ S.E.2d ___, ___, 2018 WL 3232738(N.C. Ct. App. July 3, 2018). Accordingly, we must dismiss Respondent-Father’s
appeal. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (citations
omitted) (“Where a panel of the Court of Appeals has decided the same issue, albeit
in a different case, a subsequent panel of the same court is bound by that precedent,
unless it has been overturned by a higher court.”).
III. Conclusion
For the foregoing reasons, we dismiss Respondent-Father’s appeal.
DISMISSED.
Judge ARROWOOD concurs in result only in a separate opinion.
Chief Judge McGEE dissents in a separate opinion.
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No. COA18-366 – In the Matter of: I.P. & Q.P., Jr.
ARROWOOD, Judge, concurring in result only.
I concur in result only for the reasons discussed in my concurrence in In the
Matter of: L.E.M., __ N.C. App. __, __ S.E.2d __, (2018) (No. COA18-380), filed
concurrently with this opinion.
No. COA18-366 – In the Matter of: I.P. & Q.P., Jr.
McGEE, Chief Judge, dissenting.
I dissent for the reasons discussed in my dissenting opinion in In re L.E.M., __
N.C. App. __, __ S.E.2d __, (2018) (No. COA-380), filed concurrently with this opinion.