North Carolina Lawyers Weekly November 7, 2022

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PORTRAIT OF A PIONEER

4 judges certified in Science and Technology

student body.

“Learning about Sylvia Allen has been one of the best and most rewarding parts of this journey for us,” Peeler said in the release. “Our friend, Destiny Planter, who was a Carolina Law student at the time, and I were talking one day, and she told me Mrs. Allen’s story. I was embarrassed that I hadn’t heard it before and deeply moved and inspired by all she had accomplished and overcome.”

Allen enrolled in law school in 1958, after the birth of her sixth child. She commuted to Chapel Hill from Fayetteville, N.C. every day,

North Carolina Court of Appeals Chief Judge Donna Stroud recently recognized Court of Appeals Judge Valerie Zachary, Superior Court Judge Eric Morgan, Superior Court Judge Gale Adams, and Superior Court Judge Greg Horne, all of whom have been certified as Science and Technology Resource Judges for our State by the National Courts and Sciences Institute (NCSI), according to a news release from North Carolina Courts.

“Our courts must address many new issues in cases arising from the COVID-19 pandemic, and North Carolina is fortunate to have this specialized training and resources for our judges,” Stroud said in the release. “Our judges must be prepared to manage and decide these cases fairly and impartially, and I encourage all North Carolina’s judges to take advantage of this excellent desk book prepared by our certified judges.”

These judges specialized in “Health Care Outcomes Research Evidence Related to the Case Management and Evidence Adjudication of Issues Emanating from the COVID Pandemic.” Led by Team Coordinator Judge Eric Morgan, who serves on the NCSI Board and was previously certified as a resource judge, the judges have prepared a case-management and evidence-adjudication desk book for use by judges in COVID-19-related litigation.

NCSI is a national organization created to improve our courts’ ca-

See PIONEER Page 6 ►

See Judges Page 4 ►

Carolina Law has unveiled a portrait of civil rights trailblazer Sylvia X. Allen. (Photo/Provided)

Carolina Law honors civil rights icon Sylvia X. Allen with portrait ■ BY JASON THOMAS jthomas@scbiznews.com On Nov. 4, Carolina Law alumni, students, faculty and staff joined members of Sylvia X. Allen’s family as well as special guests for the unveiling of the portrait of Sylvia X. Allen, a 1962 graduate.

The unveiling took place in the in the reading room of the Kathrine R. Everett Law Library.

Special guests included Provost Chris Clemens, University of North Carolina board of trustees Chair Dave Boliek and the Honorable James F. Ammons, Cumberland County senior resident superior court judge.

In 2021, two alumni, M. Scott Peeler (’97) and Diana Florence (’95), wanted to honor Allen, who was a public servant, civil rights activist and a woman of many firsts, a Carolina Law news release stated.

She was the first Black female to graduate from Carolina Law, one of the first three Black female lawyers admitted to the bar in North Carolina and the first Black female assistant district attorney in the state.

With an initial gift, Peeler and Florence launched the Sylvia X. Allen Scholarship Endowment Fund. The scholarship will be awarded annually to a Carolina Law student who will enhance the social, economic, and cultural diversity of the school’s

Raleigh firm adds shareholder to lineup Ogletree Deakins, one of the largest labor and employment law firms representing management, announced that Michael (Mike) Rubin has joined the firm’s Raleigh office as shareholder.

Rubin joins Ogletree Deakins from Goldberg Segalla, where he was a partner, chair of the firm’s Occupational Safety and Health Administration (OSHA) and Worksite Safety Practice Group, and co-leader of the firm’s Construction Practice Group. Rubin is the seventh shareholder to join Ogletree Deakins nationwide since September, a release from the firm stated.

Rubin has more than a decade of experience advising and representing employers on a variety of labor and employment issues, with a specific focus on managing workplace safety matters. He helps employers across myriad industries and localities Michael (Mike) with OSHA inspections, investigations, and enforcement acRubin tions. Rubin manages accident investigations, including those involving multiple fatalities, and assists em-

ployers throughout the entire OSHA inspection process, including ensuring the proper production of documents, negotiating protocol for the inspection, representing management during interviews, preventing overreach, and litigating before the Occupational Safety and Health Review Commission (OSHRC). In addition, Rubin develops and audits safety programs and policies and counsels employers on related riskmanagement strategies.

“Mike has deep knowledge and a breadth of See SHAREHOLDER Page 4 ►

INSIDE BAR DISCIPLINE ROUNDUP

VERDICTS & SETTLEMENTS

VERDICTS & SETTLEMENTS

Attorney disbarred after withholding over $16M

Attorney reprimanded after official misconduct charge

Family settles for $8.2M after son injured in crash

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2 / NEWS

N O R T H C A R O L I N A L A W Y E R S W E E K LY I N ove m be r 7, 2022

BAR DISCIPLINE

ROUNDUP Attorney: George N. Miller Location: Wake County Bar Membership: Since 1986 Disciplinary Action: Reprimand Background: The defendant has been found guilty of professional misconduct. In 2011, O.V. hired the defendant to help him secure legal permanent resident status in the United States. The defendant failed to timely provide necessary documents in response to an audit notification by the U.S. Department of Labor. This failure resulte d in the denial of O.V.’s application for legalmpermanent resident status. When the Department of Labor refused to re-open the audit

period for O.V.’s application, the defendant f ile d an app eal. T he defendant subsequently withdrew the a p p e a l w i t h o u t i n f o r m i n g O.V. Throughout his representation of O.V. the defendant consistently failed to respond to O.V.’s reasonable requests for information and to keep O.V. updated on the status of his case.

The defendant has since accepted responsibility for his actions and was remorseful for them and the harm they caused. Additionally, the Committee noted that the defendant provided O.V. with a full refund of the fee he paid for the defendants services.

BAR DISCIPLINE

ROUNDUP Attorney: George D. Norris Location: Wake County Bar Membership: Since 2012 Disciplinary Action: Reprimand Background: The defendant was appointed to represent the complainant C.M.’s daughter P.E. on a criminal charge of Food Stamp and Medical Assistance Recipient Fraud. Before she was arrested, P.E. had a close relationship with and resided with E.F. E.F. was involved in P.E.’s case, at tending many appointments with the defendant, meeting with the defendant on P.E.’s behalf both with

a n d w i t h o u t P. E . , a n d r e l ay i n g messages between the defendant and P.E.. P.E. and E.F. discussed P.E.’s substance abuse and mental health issues with the defendant.

After P.E. was released, E.F. hired the defendant to file an emergency ex parte custody order on E.F.’s behalf.

While representing E.F., the defendant used confidential information obtained while representing P.E. to the detriment of P.E., in violation of Rules 1.7(a)(2), 1.9(a), and 1.9(c). By disclosing this information to the court, the defendant also violated Rule 1.6.

BAR DISCIPLINE

ROUNDUP Attorney: Meghan E. Ashworth Location: Wake County Bar Membership: Disciplinary Action: Disbarment Background: The defendant was found guilty of diverting and withholding $16,433.26 of legal fees that lawfully belonged to her prior law firm. The defendant e n g a g e d i n c o n d u c t i nv o l v i n g m is r e p r e s e nt at i o n t h at r e f l e c t s

adversely on her fitness as a lawyer in violation of Rule 8.4(c) of the North Carolina Rules of Professional Conduct. In the defendant’s affidavit tendering the surrender of her license, she acknowledged that the material facts upon what the grievances is predicated are true. The defendant has made restitution to the law firm. The de fendant s conduc t cons titutes grounds for discipline pursuant to N.C. Gen. Stat. §84-28(b)(2).

BAR DISCIPLINE

ROUNDUP Attorney: Michelle L. Vereckey Location: Wake County Bar membership: Since 2001 Disciplinary action: Reprimand Background: The defendant was found guilty of professional misconduct. The defendant initiated multiple wires pursuant to fraudulent wiring instructions without verifying the wiring instructions with the lender and

failed to note numerous “red flags” w h i c h s h o u l d h av e r a i s e d h e r suspicions about the fraud. By failing to verify the wiring instructions with the lending institutions prior to the disbursements, the defendant violated Rule 1.15(2)(a), Rule 1.15-2(k) and Rule 1.15-2(n). See 2015 FEO 6, Opinion #5 stating that an attorney fails to use reasonable security measures if they do not verify disbursement change in wiring instructions.

BAR DISCIPLINE

ROUNDUP Attorney: Gerald C. Parker Location: Wake County Disciplinary action: Reprimand Background: The defendant was found guilty of engaging in a conflict of interest in violation of Rule 1.7, and entered an improper business transaction with a client and knowingly acquired an ownership, possessory, security or other pecuniar y interest directly adverse to your client in violation of Rule 1.8(a). B.G. sought the defendants help to quickly obtain a loan. The defendant then instructed his wife to loan B.G. the money. The defendant simultaneously represented his wife

and B.G. during the loan closing, during which B.G. executed a promissory note and deed of trust that named the d e f e n d a n t a s t h e t r u s te e . T h e defendant did not obtain B.G .’s informed written consent concerning the defendant’s role in the transaction, and the defendant did not advise B.G. of the desirability of seeking independent counsel. The defendant admitted that he had personal and financial interests in the matter, which he sought to protect. After B.G. failed to repay the loan, the defendant assisted the substitute trustee in pursuing a foreclosure action against his former client.

BAR DISCIPLINE

ROUNDUP Attorney: James D. Byers Location: Wake County Bar Membership: Since 1994 Disciplinary Action: Reprimand Background: The defendant was found guilty of a pattern of delay, procrastination, forgetfulness, or carelessness indicating a reckless disregard of their professional duties in violation of Rule 1.3.

In April 2018, the defendant was retained by client W.S. to expunge criminal convictions in two separate counties that occurred before he turned 18 years old. In one county, the defendant failed to file a Motion for A p p r o p r i a te R e l i e f (M A R) u n t i l September 2019, and then captioned that MAR with the wrong criminal conviction files numbers sought to be expunged. In the second county, although the defendant was retained to file that MAR in April 2018, the

defendant failed to do so until May 2022 after being served with the grievance in this matter.

By failing to file one MAR for over one year, failing to address the corrected but unaddressed MAR for over two years, and failing to file the second county’s MAR for over three years the defendant, the defendant is in violation of Rule 1.3. By failing to adequately communicate with W.S. during this time the defendant failed to reasonably consult with his client about how his c l i e n t ’s o b j e c t i ve s w e r e to b e accomplished and failed to keep his client reasonably informed about the status of the matter in violation of Rule 1.4(a)(2) and (3).

While this disciplinary matter was pending, the defendant also threatened to “come after” W.S. after the resolution of this matter. By doing so, the defendant engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d).

Cooper ends suit challenging powerful NC rules panel RALEIGH, N.C. (AP) — North Carolina Gov. Roy Cooper has quietly ended his litigation challenging the constitutionality of a powerful state commission that scrutinizes state agency rules, days before it was heading to court.

Cooper’s private attorneys filed paperwork last Friday dismissing his August 2020 lawsuit against Republican legislative leaders. A hearing before three trial judges on the governor’s motion to have the composition of the 10-member Rules Review Commission struck down as unconstitutional was scheduled for Nov. 9.

Cooper’s lawsuit alleged that a governor “lacks no meaningful control over” the commission because all of its members are picked by legislative leaders — five each by the recommendation of the House speaker and Senate president pro tempore — even though it acts like an executive branch agency. The lawsuit didn’t focus on a specific action by the commission, which decides whether to

approve or reject temporary or permanent agency rules to carry out the details of state law. Rather, it examined broadly the commission’s actions in recent years and asked for a broad ruling throwing out the law.

The lawsuit was dismissed “without prejudice,” which means Cooper could sue over the issue again — something that Cooper spokesperson Mary Scott Winstead could occur.

Cooper’s office and the executive branch “will consider a future challenge to a specific decision by the Rules Review Commission that unlawfully blocks executive action, and the governor will continue to guard against legislative overreach that hurts the people of North Carolina,” Winstead said Tuesday.

Cooper has filed several lawsuits against Speaker Tim Moore and Senate leader Phil Berger that challenge legislative action, including laws that took effect just before he took office in early 2017. The results have been mixed for the competing parties.

NEWS / 3

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Novem ber 7, 2022

LAWYERS IN THE NEWS Attorney appointed to IDS commission

The North Carolina Office of Indigent Defense Services (NCIDS) announced that the North Carolina Association of Women Attorneys has appointed Goldsboro attorney Tonya Davis Barber to the Commission on Indigent Defense Services.

Barber’s term runs from Sept. 1, 2022, through Aug. 3, 2026.

“Tonya has demonstrated a commitment to appointed work,” said Commission Chair Dorothy Hairston Mitchell in an NCIDS news release. “We look forward to the contributions she will make to the work of the Commission.”

Barber graduated from North Carolina Central University School of Law in Durham, North Carolina in 2011. Prior to law school, Barber worked as a paralegal for 10 years.

During that time, Tonya Davis she completed her Barber criminal justice degree from Mount Olive College (now the University of Mount Olive). After passing the bar exam on the first attempt, she worked briefly with a bankruptcy attorney while growing her practice.

Soon after that, she prosecuted for the Eighth Judicial District (Greene, Lenoir, and Wayne counties) followed by an appointment as a Wayne County magistrate before

opening up Barber Law. Earlier this year she joined attorney Walter Webster to establish Barber Webster Law, PLLC. Barber is married with two children. Barber has served on many committees and boards in her community. She is the president of the Wayne County Bar Association and past president of the Eighth Judicial District Bar Association.

Currently, she serves on the Downtown Goldsboro Development Corporation Board of Directors.

The Commission on Indigent Defense Services and IDS staff are dedicated to ensuring that the defense community is provided with the proper training, education, and support needed to combat systemic issues that serve as barriers to their clients.

Managing partner admitted to IATL Ellis & Winters managing partner, Leslie Packer, was recently admitted to the International Academy of Trial Lawyers (IATL).

Packer practices civil litigation with a focus on products liability (including drugs and medical devices), medical malpractice, and high-end commercial litigation.

The International Academy of Trial Lawyers limits membership to 500 Fellows from the United States in addition to Fellows from nearly 40 countries across the globe. IATL seeks out, identifies, acknowledges, and honors those who have achieved

a career of excellence through demonstrated skill and ability in jury trials, trials before the court, and appellate practice. Members are engaged in civil practice on both the plaintiff’s and the defendant’s side of the courtroom, and the trial of criminal Leslie Packer cases.

The Academy invites only lawyers who have attained the highest level of advocacy. A comprehensive screening process identifies the most distinguished members of the trial bar by means of both peer and judicial review. Leslie has been evaluated by her colleagues and the judges in her jurisdiction and has been highly recommended as possessing these qualifications and characteristics.

Cranfill Sumner adds associate attorney Cranfill Sumner LLP announced that Cameron Ervin has joined the firm’s Raleigh office as an associate attorney. She focuses her practice in the firm’s White Collar, Government Investigations & Special Matters Practice Group.

While attending the University of North Carolina School of Law, she served on the Executive Boards of the North Carolina Journal of International Law and the Innocence Project, was a member of the Pro

Bono Board, and was recognized for her pro bono service. Additionally, she honed her legal research and writing skills at the North Carolina Court of Appeals while serving as a judicial extern in Judge Mark Davis and Judge Allegra Cameron Ervin Collins’ chambers.

She also worked in the General Counsel’s offices of both a North Carolina hospital and one of the world’s largest contract research organizations.

Prior to law school, she worked as a senior paralegal on healthcare fraud cases and Foreign Corrupt Practices Act cases for the Department of Justice’s Criminal Division Fraud Section. During her time at DOJ, she primarily supported the Miami Strike Force and was a member of the trial team for three trials in the United States District Court for the Southern District of Florida. As a paralegal, she was involved in cases ranging from the initial stages of an investigation through appeals.

She received her law degree from the University of North Carolina School of Law and received her bachelor’s degree from Davidson College.

Cranfill Sumner LLP attorneys serve business and professional clients across North Carolina and beyond from offices in Raleigh, Charlotte, and Wilmington.

Governor wants changes to how UNC governing boards chosen RALEIGH, N.C. (AP) — Gov. Roy Cooper last week announced a new commission tasked with making recommendations on changing how the boards guiding the University of North Carolina system and its 17 member schools are chosen, bidding to broaden their membership by political leanings, race and gender.

The Democratic governor essentially blamed the Republican-controlled legislature for contributing to problems within the governing structure of one of the country’s leading public university systems — with 240,000 students and UNCChapel Hill and N.C. State University as its flagship campuses.

“The UNC system is the envy of the nation for what we have built here,” Cooper said at an Executive Mansion news conference. “But there are signs of trouble that come when all of the appointed leaders are chosen by too few ... we have an appointed university leadership that doesn’t come close to reflecting our diversity.”

As a reminder of partisanship he blames for the system’s stumbling, Cooper stood beside commission co-chairs Tom Ross and Margaret Spellings, two recent UNC system presidents. Both got pushed out in different ways by previous editions of the UNC Board of Governors that were controlled by GOP-approved members.

“Our public universities, especially, must be places where every person feels welcome, heard and represented,” said Spellings, system president from 2016 to 2019

and a U.S. education secretary under President George W. Bush. “We must leave our unique self-interests — be they political, geographic or institutional — at the door and we must be what I call organized for success.”

For 50 years, the legislature has chosen the voting members of the system Board of Governors -- half elected by the House and the other half by the Senate. The board’s membership was dropped recently from 32 to 24.

Critics have complained that representation by racial minorities and women on the Board of Governors falls short.

“We know the way university leaders are chosen must expand to reflect more of who we are,” said Cooper, who earned undergraduate and law degrees from UNC-Chapel Hill. “The system needs reform.”

Legislative officials were immediately cool to the commission’s work, which Cooper wants completed before the General Assembly’s chief work session concludes next year. Lawmakers would have to approve significant changes for them to be implemented.

The legislature likely will remain in GOP hands for the next two years after next week’s elections.

“Governance of higher education is constitutionally placed with the General Assembly,” Neal Inman, chief of staff to House Speaker Tim Moore, wrote in an email. “There is no interest in changing the structure of the UNC system, regardless of whatever report this politicallymotivated commission produces.”

Republicans exercised their political might in the 2010s after they took control of both the state House and Senate by filling the board with like-minded members.

And weeks before Cooper was sworn in as governor in early 2017, the legislature passed a law eliminating Cooper’s ability to appoint some campus trustee board members and giving those choices to legislative leaders.

Cooper’s executive order creating the commission envisions at least 15 members.

The governor said potential solutions could be to create board slots that are designated for the

minority party at the General Assembly, or to give appointments to a broader swath of officials, such as community college leaders or the superintendent of public instruction.

A 2001 lawsuit led the Democratic-controlled legislature to remove board membership quotas for racial minorities, women and members of the General Assembly’s minority party.

If the commission recommends giving some appointment powers to the governor, Cooper said he’d ask that they wouldn’t take effect until after he leaves office in January 2025.

Huff Powell Bailey is interviewing candidates for two associate positions in its Raleigh office. The ideal candidates will have three or more years of litigation experience. Huff Powell Bailey is a litigation firm handling the defense of complex cases with significant damages exposure, including medical malpractice, long term care, products liability, and general liability claims and cases. Huff Powell Bailey is known for its commitment to trial work and the professional development of its lawyers to take difficult cases to trial in difficult venues.

Please forward resumes and/or inquiries to apurcell@huffpowellbailey.com.

4 / NEWS

N O R T H C A R O L I N A L A W Y E R S W E E K LY I N ove m be r 7, 2022

Family settles for $8.2M in crash that left father dead, son injured ■ BY HEATH HAMACHER AND HAVILAND STEWART hstewart@nclawyers weekly.com

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

The family of a man killed in an automobile crash that also left the man’s adult son seriously injured has settled its claims for $8.2 million, the family’s attorney reports.

Ralph Meekins of Teddy, Meekins, & Talbert in Shelby reports that the defendant driver and his employer have paid the settlement. Pursuant to a confidentiality agreement, many Will Meekins Ralph Meekins details of the case, including how the crash occurred and the names of the parties and defense counsel, have been withheld.

Meekins said that there were no medical expenses associated with the deceased man’s claims because the man, 57, died at the scene. His 24-year-old son had approximately $325,000 of admissible medical expenses related to his injuries, which included two broken legs.

Meekins said that during mediation he presented a

"Helping lawyers practice better, more efficiently, and more profitably."

■ PUBLISHER

Amount: $8.2 million

Liz Irwin

Injuries alleged: One plaintiff was killed and the other suffered two broken legs

lirwin@bridgetowermedia.com

Case name: Withheld

Jordan Yount

Court: Withheld Mediator/Judge: Withheld Date of settlement: 2022 Insurance carrier: Withheld Attorney for plaintiff: Ralph Meekins of Teddy, Meekins & Talbert in Shelby Attorney(s) for defendant: Withheld

■ EDITOR jyount@molawyersmedia.com\ EDITORIAL Heath Hamacher, Reporter hhamacher@nclawyersweekly.com Scott Baughman, Digital Media Manager sbaughman@mecktimes.com ■ ADVERTISING Sheila Batie-Jones, Advertising Account Executive

15-minute “day in the life of” video that he believes was instrumental in demonstrating the tremendous loss suffered by the family and that helped set the tone for the productive discussions that led to the settlement.

Meekins said that he was assisted by his son Will, a third-year law student at the University of North Carolina School of Law.

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©2022 BridgeTower Media. Material published

Our courts must address many new issues in cases arising from the COVID-19 pandemic, and North Carolina is fortunate to have this specialized training and resources for our judges.

From left to right, Judge Gale Adams, Judge Valerie Zachary, Chief Judge Donna Stroud, Judge Eric Morgan. Judge Greg Horne is not pictured. (Photo/Provided)

pacity to handle complex and novel scientific evidence. At the inception of the COVID pandemic, NCSI received funding for a COVID-19 Case and Evidentiary Support Initiative. Twelve jurisdictions were invited to participate, including North Carolina. Over the course of two years, the judges attended

training sessions and lectures delivered by medical experts from across the nation.

“The judges were given the scientific training they need to handle issues of virology, epidemiology, immunity formation, treatment modalities and outcomes, and vaccine clinical trials and distribution” as they arise

North Carolina Court of Appeals Chief Judge Donna Stroud

in North Carolina Lawyers Weekly is compiled at substantial expense and is for the sole and exclusive use of purchasers and subscribers.

The material may not be republished, resold, recorded, or used in any manner, in whole or in part, without the publisher’s explicit consent. Any infringement will be subject to legal redress.

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in the context of litigation, NCSI President Zel Fischer explained.

Judges must demonstrate proficiency in the scientific method and complete the program prior to certification. NCSI has planned a final workshop in March 2023.

Staff report

North Carolina Lawyers Weekly [ISSN10411747] [USPS 002-904] is published biweekly every other Monday with General Statewide Circulation for $410.36 per year by North Carolina Lawyers Weekly, 130 North McDowell Street, Unit B, Charlotte, NC 28204 Periodicals postage paid at Charlotte,

SHAREHOLDER / Has more than a decade of experience C o nt inu e d f r o m 1 ►

experience when it comes to managing a wide spectrum of workplace safety matters. This, combined with his demonstrated commitment to client satisfaction and his entrepreneurial spirit, make him an invaluable addition to the firm,” said Bob Sar, office managing shareholder of Ogletree Deak-

ins’ Raleigh office. “I am thrilled to welcome him to our team of attorneys in Raleigh and look forward to all he can achieve at Ogletree Deakins.”

In addition to his workplace safety practice, Rubin regularly speaks and presents on a wide range of OSHA related topics, including minimizing and eliminating exposure during inspections,

interviews and depositions, construction, and more. He is also a guest lecturer at Columbia University in the Construction Administration Master’s Program.

Rubin earned his J.D. from Seton Hall University and his B.A. from the University of Delaware.

Staff report

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VERDICTS & SETTLEMENTS / 5

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Novem ber 7, 2022

Construction worker settles for $2.4M after injury ■ BY HAVILAND STEWART hstewart@nclawyersweekly.com A 32-year-old worker who was seriously injured while working on a construction project when a dirt wall collapsed and buried him up to the middle of his chest was awarded $2.4 million in a settlement.

According to the plaintiff’s attorney, Ben Whitley, the plaintiff remained buried for about 10 minutes before he was extricated from the collapsed site. The plaintiff suffered a traumatic brain injury, a pulmonary contusion, intro-abdominal hemorrhage, a rib fracture, and other internal organ injuries, Whitley reported.

Plaintiff sued the entities involved in the ownership, management, and control of the subject construction project, alleging negligence, gross negligence, breach of contract and third-party beneficiary claims, and punitive damages claims.

Counsel for the defendants argued that the trench in question was dug by the plaintiff’s co-workers, rather than employees of the defendants. Defendants also argued that they had no knowledge that the trench was being dug without a trench box or other safety precautions in place.

After the injury, Whitley advised the plaintiff to complete a neuropsychological evaluation looking at general cognition, attention, memory, and motor skills. Whitley also hired a vocational expert to produce a vocational rehabilitation assessment and earning capacity analysis. After analyzing the neuropsychological evaluation, the vocational expert opined that the plaintiff would have a total loss of future earning capacity which would likely span throughout his remaining work-life expectancy.

At mediation, the case was settled for $2,400,000.

A 32-year-old who was injured while working on a construction project when a dirt wall collapsed on him was awarded $2.4 million in a settlement. (Photo/Pexels)

Is this a verdict or a settlement? Settlement

Type of case Construction injury; personal injury Amount: $2,400,000 Injuries alleged: traumatic brain injury, a pulmonary contusion, intro-abdominal hemorrhage, a rib fracture, and other internal organ injuries; loss of wages and earning capacity; pain and suffering; depression, anxiety, post-traumatic stress disorder, and chronic pain syndrome.

Court: Buncombe County Superior Court Date of settlement: July 14, 2022 Attorney(s) for plaintiff and their firm(s): Ben Whitley (Whitley Law Firm); Noah Abrams (Abrams & Abrams, P.A.) Was the opposing represented by counsel? Yes Were liability and/or damages contested? Yes Has the judgment been successfully collected? Yes

Board of Law Examiners of The State of North Carolina `

RESOLUTION APPRECIATION TOof THE MEMBERS THENorth BAR CANDIDATE COMMITTEES Board of LawOFExaminers The StateOF of Carolina

WHEREAS, The Board of Law Examiners of the State of North Carolina is required by statute to make such investigations as may be deemed necessary to satisfy it that applicants for admission toOF the APPRECIATION North Carolina Bar possess the qualifications of character andBAR fitnessCANDIDATE requisite for an attorney at law; and, RESOLUTION TO THE MEMBERS OF THE COMMITTEES WHEREAS, the Bar Candidate Committee has assisted the Board by interviewing those applicants to take the February WHEREAS, The Board of Law Examiners of the State of North Carolina is required by statute to make such investigations as may be deemed necessary to satisfy2022 it thatNorth Carolina Bar Examination, and, WHEREAS, the attorneys and laymen who served on the Bar candidate Committee did so freely and with great contribution of their time and efforts to the Board and Bar. applicants for admission to the North Carolina Bar possess the qualifications of character and fitness requisite for an attorney at law; and, NOW THEREFORE,BE by the Board of Law Examiners of the theJuly State of North WHEREAS, the Bar Candidate Committee have assistedITtheRESOLVED Board by interviewing those applicants to take 2022 North Carolina: Carolina Bar Examination, and, 1.

That the Board of Law Examiners of the State of North Carolina does hereby unanimously adopt a formal Resolution WHEREAS, the attorneys and laymen who served on the Bar Candidate Committee did so freely and with great contribution of their time and efforts to the Board of and Bar. Gratitude and Appreciation to all those persons who so freely gave of their time and efforts to serve on the Bar Candidate NOW THEREFORE, BE IT RESOLVED by the Board of Law Examiners of the State of North Carolina: andofinthe recognition of their services the Board of Lawadopt Examiners, North Carolina Bar and the State of North Carolina.

1. That the Board ofCommittees Law Examiners State of North Carolina does to hereby unanimously a formalthe Resolution of That each member the Bar Committee taken by the Board and that this Resolution Gratitude and Appreciation to all2.those persons who sooffreely gaveCandidate of their time and effortsbe to notified serve onofthethis Baraction Candidate included ofwith Minutes of the Board.

Committees and inbe recognition theirthe services to the Board of Law Examiners, the North Carolina Bar. and the State of North Carolina.

Adopted by the Boardbeofnotified Law Examiners ontaken the 22nd March 2. That each member of the Bar Candidate Committees of this action by theofBoard and2022. that this Resolution be included with the Minutes of the Board.

D. Clark Smith Jr., Chair Adopted by the Board of Law Examiners on 16th of August 2022.

DISTRICT 10 JULY 2022 BAR Reed N.2022 Fountain - Chair FEBRUARY CANDIDATE John N. Fountain Lisa LeFante BAR CANDIDATE COMMITTEES Atiya M. Mosley Nan E. Hannah Resolution List COMMITTEES Nancy L. Grace DISTRICT 1 John R. Szymankiewicz James R. Gilreath, Jr. - Chair Michelle A. Liguori L. Phillip Homthal, Ill Dana H. Hoffman Paddison EAST P, HudspethDISTRICT Kasiliki Celia Pistolis William Jason Waughtel Reed N. FountainBrian -Chair 0. Beverly Lauren E. Arizaga-Womble Justin G. Truesdale Kellie C. Gonzalez DISTRICT 2 Anna H. Ayscue Richard S.Nan JamesE.- Chair Hannah Chris T. G. Trusk Amanda G. Bramble Christy C. Dunn William P.Lisa Mayo, LeFante Jr. Jay P. Tobin DISTRICTJohn 3 R. Szymankiewicz Samuel W. Tripp, Ill David W. Silver - Chair Raebel H. Boyd StevensonSydney L, Weeks C. Plummer Brian E. Clemmons Donalt J. Samuel Eglington W. Tripp, Ill Kellie C. Gonzalez DISTRICT 5 Turner R. Albernaz Anna H. Ayscue H. W. Sandy Sanderson, Jr. - Chair D. Levine DISTRICTNancy 6 L. Grace Brittany Alexander M. Bowling Henry L. Kitchin, Jr. - Chair David J. Fussell Brian E. Clemmons Algernon L. Buller, Ill Robrt E. Duggins Lyanna G.Alexander Hunter M. Bowling Cherell M. Harris Miriam M. Thompson Eric J. Fisher Andrew M. Benton DISTRICT 8 Jordan L. Fieldstein J.- Fussell James C.David Marrow, Jr. Chair Andrew M. Benton Michael B.C.Peters Steven MasonJames R. Jolley Ricky R. Thompson R. Lee Strasburger, Jackson Wyatt Moore, Jr. Jr. John R. Keller C. Steven Mason DISTRICTDavid 9 R. Ortiz Kendra L. White Judge Annette W. Turik - Chair Mark M. Rothrock W. RobertPatrick Bizzell D. Wilson Robert W. Shaw Roy A. Dawson Jeffrey R. WhitleyPatrick D. Wilson Delaina D. Boyd S. Blake Leger S. Blake Leger Christie A. Hartinger Alexander M. Pearce

Resolution List

Charles George

William T. Bowers

Michael J. Crook

Meryl M.A. Murtagh Emily K. Mather Jonathan Greene Brian L. Cantley Jacob L. Bumm Lorna A. Knick Anna C. Conaway J. Patrick Mccrary Brian N. McCracken Cerretta G. Amos Brian T. Sullivan Carri Lee Preble Christy S. Joyce Lorna Knick K. Auriti Adam B.A.Snyder Petal Muntoe ReddickAlexanderChristina J. Koscianski Anna 0. Margius Callan Skinner W. Newton Trevor P. Presler BenjaminStacy T. Aydlett Brian N. McCracken Jenny B. Sneed David M. Welch Raquel Gonzalez Padron William T.Patricia Bowers Charles V.A. Archie Brett White A. Flood ChidiebereAT Madu Golzar YazdanshenasZachary S. Bethanie A. Maxwell Hannah Combs Buckheit David A. Burns Avery R. Miller Aria Q. Merle Christie A. Hartinger Bryan L. Cantley Elie J. Foy Deonte’ L. Thomas Robert J. Stewart J. Baker Matthew K. Lively K.Erich Christopher Poe, Jr. Hunter R. Holtzclaw Anna C. Conaway James M. Yates, Jr. Alexis N. Strombotne David A. Burns Tucker A.Kristin IdolW. Peebles Kelsey M. Mellan Theodore 0. Dardess Erin Becker Mary Coggins Kate Gladstone James M. Freeman M. Claire M. Ashton Slagle Allie Flowers Raquel Gonzalez Padron Carrah B. Franke Mark A. Finkelstein R.Sean Maria Hawkins Avery R. Miller W. Fernandes Crystal G. Grimes DISTRICT 11 Mario Meeks Taylor A.M. Emory Ashleigh C. S. PowellCarri L. Preble Michael E. Satterwhite - Chair Todd S. Skauge Mary E. Wilson W Paul J. Stainback Jonathan A. Greene M. Callan Skinner Victoria E. Barquin Lauren M. G. Toole Toney 0. Falkner Kevin Stanfield Jenny B. DISTRICT Sneed 13 JessicaJ. B. Heffner Phillip H. Liles Meryl M. Murtagh Megan N. Ellis J. Reece - Chair Victoria E. Jimenez ElizabethMichael A. Thomsen Stephanie Gumm Darren K. Chester Mary McCullers Reece Andrew J. Gibbons Brett White Brett A. Carpenter David W. Snipes DISTRICT 14 Dylan J. Castellino Dora Kripapuri Glenn B. Adams - Chair Grace S. Pennerat Golzar Yazdanshenas Sarah V. Fritsch Jordan L. Bernstein Alicia M. Flowers Stephanie L. Gumm Thomas Stephanie E. Goodbar Kayla N. McDaniel Deonte L.Cynthia P. Black Colin R.A.McGrath Taylor J. Sweet Sharpe Brett Carpenter Darren K.Victor Chester N. Cosmo Zinkow Stephanie C. Romano DISTRICT 15 Amy 0. Dardess AndreaL.M.Clay Liberatore Q. Shante’ Martin TheodoreCynthia A. Singletary - Chair Hannah M. L. Munn Ryan L. Bostic Andrew Nia Doaks Megan N. Ellis B. Wall Rachel P. Nichols Todd A. Jones Kyle G. Melvin Stephanie Carrah B.DISTRICT Franke16 Francis C. Pray,E.Ill Goodbar Alicia R. Lewis Riley W. M. Kimberly Brackett-Jones M. Williams - Chair Rachel P.Smith Nicholas James M.EricFreeman Savannah J. Story Lindsey E. Powell Joseph J. Garcia Riley SnipesWatkins JoanneW. WuM. Smith Marthew P. Blake David W. Nastasia Emily K. Mather Keith A. Boyette Stephens Savannah J. Story Lauren M.Libria G. R.Toole Cerretta G. Amos Peyton D. Mansure Xavier M. Bromell Joanne Wu Mary Wilson Alexander K. Auriti Felicia M. Haigh Bryan M. Sumner Benjamin T. Aydlett

Samuel G. (‘Bo’) Thompson, Jr.

Kevin E. Jones

Catherine L. Constantinou Timothy R. Snead Whitney S.Dora McCreaKripapuri Brandi J. Bullock Geri R. Ruzage William P. ColbertDISTRICT 22 Asia B. Dukes Matthew W. Smith- Chair Vince R. Eisinger,DISTRICT Jr. 24 Michelle Schalliol Freddie G.Georgia Cruz H. MalikBenjamin R. Edwards- Chair Chuanita A. McAllister Gregory T. Higgins T. Murphy DISTRICTRaShawnda 18 T. Matthew Creech Cyrus Q. Griswold - Chair Jassmin Mciver-Jones Jake Stewart Kim K. Steffan Martha R. Sacrinty Tanis K. Whittington Dana M. Graves DISTRICT 26 Crista L. Collazo Ariella M. ZulmanJeffrey J. Schwartz- Chair Phoebe W. Dee B. Nichols - Co-Chair Todd A. Jones Keith Blake M. Courlang Zachary D. Walton Jeffery L.Felicia Nieman M. Haigh Mark Andrew Taylor D. Michael Parker Hauser, Ill Matthew P. BlakeAdam Kristin C. Swafford Jennifer E. Braccia Keith A. Boyette Leslie A. Pedernales Gary R. Poole Beth Tillman E. Perkins Lindsey E. PowellKathleen Clara Logan Brian E. Russ Daron D. Peyton Satterfield D. Mansure Heryka R. Knoespel Charles Gordon AliciaBrown W. Lewis Bradley Smith Jason R. Jones L. Stephen Kushner, Jr. Samuel G. Thompson, Jason E. Spain Heather L.Jr. Taraska Joshua A.Mel Lee Black Richard F. Kronk Lynne M. Holtkamp Ellie E. Coludro Michael J. CrookDISTRICT 27 Mark Kleinschimidt Michelle W. HamiltonL. Bumm William W. Cameron, Ill- Chair Jacob Willis P. Whichard Linda Brisbin Christy Joyce DISTRICT 31 Brian T. Ziegler Angela Commodore M. Katie King- Chair Jacquelyn Adcock Amy W. Cagle Mark D. Boynton Saacks Andie Anderson William F.David W. Massengale DISTRICTRachel 20 MatthewsBenjamin R. McKaig Norris M. Grantham - Chair G. William Joyner, Ill Kenneth E.David RansomA. Coleman Michael A. Myers Mary JanePatricia RichardsonFlood Caroline H. Maass Marion Thompson Stephen R. Berlin DISTRICTM. 21 Ashton SlagleDustin T. Greene Judge Christopher W. Rhue - Chair Skyler D. Shields

J. Scott O’Neal

Alec Glenn S. Mark Henkle Alton L. Absher, Matthew K. IllLively Stuart H. Russell Melanie Ali Fenno Shekita E. Hartsell J.Mark Shaun Taylor Craig D. Cannon David George Egan D. Humphrey, Jr.

DISTRICTDISTRICT 33 WEST Brandy E. Koontz - Chair

Maya Engle - Chair CynthiaM. G. Ellis Spencer Newsome Deborah L. Dilman Malia M. Williams Laura H.34S. Budd DISTRICT Judge R. William Faith FoxF. Brooks - Chair Carmen E. James Ross R. Fulton DISTRICT 35 Stacy C. IV - Chair RichardEggers, F. Kronk Seth Banks P.Nancy Barrett Morris M. Rivenbark Brenda Lyerly Sheila G. Passenant DISTRICT 36 Thomas E. Powers,- Chair Ill Bruce W. Vanderbloemen HonorableF.Beverly Darwin RiceT. Beal DISTRICT 38 Tory StuartI.C.Summey Higdon - Chair DISTRICT Anne M.39 Tompkins Ralph W. Meekins - Chair Caleb Brown Ivana Hughes DISTRICTA. 40Copeland Shawn Carolyn C. Snipes - Chair Landon S. Eustache Candace A. Mance

D. Maxwell, Jr. AsDennis of: 4/2022

Bryant D. Webster DISTRICT 43 Mr. Fred H. Jones - Chair

As of:10/11/2022

6 / NEWS

N O R T H C A R O L I N A L A W Y E R S W E E K LY I N ove m be r 7, 2022

PIONEER / Sylvia X. Allen was a ‘62 Carolina Law graduate C o nt inu e d f r o m 1 ►

but was hospitalized after a near-fatal car accident. While hospitalized, her children read law books and case studies to her. Her determination to walk again and continue her studies briefly delayed her graduation by one year. For many years, she served her community as a prosecutor, assistant attorney general and as a member of numerous charitable and civic organizations.

Because of the gift from Peeler and Florence and to further solidify the legacy of Allen, Carolina Law commissioned artist, Robin Wellner, to create a portrait of Allen– Syliva X. a great example of Allen what it means to be a Carolina lawyer leader–to be prominently displayed in Van Hecke-Wettach Hall and inspire future generations of aspiring lawyers. Members of Allen’s family were involved in choosing Wellner and making sure that Allen’s persever-

As a mother of two and someone who also served as an assistant district attorney for 25 years, I am so humbled by Sylvia Allen. She was an incredible trailblazer. I hope the scholarship and portrait helps the next Sylvia Allen know what is possible with determination and perseverance.

Diana Florence

ance and determination were truly captured in the portrait.

“As a mother of two and someone who also served as an assistant district attorney for 25 years, I am so humbled by Sylvia Allen,” Florence said. “She was an incredible trailblazer. I hope the scholarship and portrait helps the next Sylvia Allen know what is possible with determination and perseverance.”

The portrait of Allen will hang in the law school alongside other distinguished Carolina Law alumni and faculty including Henry Frye ’59

(first Black student to complete all three years of study and graduate from Carolina Law in 1959 and the first Black chief justice of the North Carolina Supreme Court), Julius Chambers ’62 (famed civil rights lawyer and the first director of the UNC Center for Civil Rights) and Charles Daye, Henry Brandis Professor of Law Emeritus.

“The family is thrilled about this incredible recognition of our mother.

We have long admired her intellect, eloquence and big heart, as well as her courage, dogged determination

and insistence on justice,” said daughters and fellow attorneys S. Kathryn Allen and Elizabeth Allen, “It is a tremendous honor that her beloved law school and the broader UNC community is coming together to acknowledge her accomplishments. Education and a love of learning were important to our mother and she instilled these values in all of her children. We hope that her legacy and the endowed scholarship that bears her name inspire future generations of students to continue to learn and become trailblazing leaders like her.”

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Opinions

Domestic Relations Annulment – Prior Divorce Action – No Estoppel – Decedent’s Statements Plaintiff’s decedent filed a divorce action and then learned that the officiant at his wedding had been unqualified. The filing of the divorce action did not estop the decedent – judicially or equitably – from filing this subsequent action for an annulment.

We affirm the trial court’s judgment annulling the marriage between the decedent and defendant.

The decedent died while this action was pending, and his estate was substituted as plaintiff. The trial court allowed the decedent’s attorney to testify about statements the decedent had made. Since those statements were admitted to explain why the attorney began investigating the officiant’s credentials and ultimately filed the annulment action – despite having previously filed a divorce action, the decedent’s statements to the attorney were not offered to prove the truth of the matters asserted (where or by whom the marriage ceremony was held). Consequently, the attorney’s testimony was not hearsay.

By the time the annulment action was filed, the trial court had al-

ready made an interim distribution in the divorce action, distributing the decedent’s separate property to him. The trial court did not abuse its discretion in declining to judicially estop the annulment action. The interim distribution would not lead to inconsistent results regardless of whether the annulment was either granted or denied.

Furthermore, competent evidence supports the trial court’s finding that the decedent innocently and inadvertently asserted the existence of a marriage in the prior action. Given that trial courts are required to consider the innocence, mistake or inadvertence of a party in making inconsistent assertions even when elements sufficient to invoke judicial estoppel are met, we cannot conclude the trial court abused its discretion in declining to judicially estop the decedent’s annulment claim.

With respect to defendant’s assertion of equitable estoppel, competent evidence supports the trial court’s finding that the decedent did not directly and culpably participate in the conduct giving rise to the voidability of the marriage.

When the decedent asked defendant if the officiant was qualified to perform the ceremony, defendant told him the officiant “was a minister that could marry us.” Further, the

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N O R T H C A R O L I N A L A W Y E R S W E E K LY I N ove m be r 7, 2022

officiant was defendant’s friend and not the decedent’s, and the parties determined defendant would be responsible for finding the couple’s officiant. In light of the trial court’s finding and the supporting evidence, we cannot conclude the trial court erred in determining the decedent’s estate was not equitably estopped from seeking the annulment.

Affirmed.

Hill v. Durrett (Lawyers Weekly No. 012-331-22, 14 pp.) (Lucy Inman, J.) Appealed from Mecklenburg County District Court (Sean Smith, J.) William Sitton for plaintiff; Richard Johnson for defendant.

2022-NCCOA-532

Domestic Relations Parent & Child – Termination of Parental Rights – No Contact or Support Where the respondent-father had not had contact with “David” since 2012, shared no parental bond with David, had made only sporadic child support payments since 2010 with multiple years of non-payment, and was $60,456 in arrears, the trial court could conclude that respondent had neglected David since 2012 and had willfully abandoned David for at least six months preceding the filing of the 2021 petition.

We affirm the termination of respondent’s parental rights.

The petitioner-mother has been married to a Marine gunnery sergeant since 2013 and has two children with him. David, born in 2009, is close to his stepfather, who wishes to adopt him. The trial court did not abuse its discretion in determining that terminating respondent’s parental rights was in David’s best interest.

In re D.E.G. (Lawyers Weekly No. 012-332-22, 7 pp.) (John Arrowood, J.) Appealed from Onslow County District Court (Robert Gilmore, J.) Michael Spivey for respondent; no brief filed for petitioner or guardian ad litem. 2022-NCCOA-544

Domestic Relations Parent & Child – Termination of Parental Rights – Failure to Engage in Services Despite diagnoses of post-traumatic stress disorder, amphetamine use disorder, opioid use disorder and cannabis use disorder, the respondent-mother failed to participate in a parenting/psychological assessment, a substance abuse program or mental health services. In the ten See Page 9 ►

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OPINION DIGESTS / 9

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Novem ber 7, 2022

C o nt inu e d f r o m 8 ►

months after entering her case plan, respondent did not obtain employment or maintain stable housing.

Under these circumstances, the trial court could conclude that grounds existed to terminate respondent’s parental rights and that termination was in the best interest of respondent’s children.

In re D.L.B. (Lawyers Weekly No. 012-333-22, 8 pp.) (Jeffery Carpenter, J.) Appealed from Guilford County District Court (William Davis, J.) Mercedes Chut for petitioner; Richard Croutharmel for respondent; James Weiss for guardian ad litem. 2022-NCCOA-535

Domestic Relations

suffered from any actual prejudice from the denial of the motion. Thus, the trial court’s decision to deny the motion was not manifestly unsupported by reason, and the trial court did not err in denying the motion to continue.

We affirm the termination of respondent’s parental rights.

In re J.M.L. (Lawyers Weekly No. 012-334-22, 11 pp.) (Toby Hampson, J.) Appealed from Gaston County District Court (John Greenlee, J.) Elizabeth Myrick Boone for petitioner; Edward Eldred for respondent; Greg Crumpler for guardian ad litem. 2022-NCCOA-537

Domestic Relations Parent & Child – Termination of Parental Rights – Domestic Violence – Plan Progress

Parent & Child – Termination of Parental Rights – Continuance Denial Before terminating the respondent-mother’s parental rights, the trial court denied respondent’s motion to continue. In its order denying the motion to continue, the trial court found this was the second time respondent had requested a continuance for reported illness without providing verification. Moreover, DSS said respondent had not attended any of the prior hearings “[s]o it’s not customary for her to be present.” Nevertheless, respondent’s attorney was present at the hearing and had the opportunity to cross-examine the witnesses and present opposing evidence. Respondent has not demonstrated that she

Even though the respondentmother made progress on her case plan – including going to parenting classes, completing domestic violence education, and participating in therapy – since she also continued to allow her abuser to remain in her life and to protect him from arrest, the trial court could find a likelihood of a repetition of neglect.

We affirm the termination of respondent’s parental rights.

In re L.C. (Lawyers Weekly No. 012-335-22, 22 pp.) (Valerie Zachary, J.) Appealed from Mecklenburg County District Court (Regan Miller, J.) Kristina Graham for petitioner; Michelle FormyDuval Lynch for guardian ad litem; Thomas Diepen-

brock for respondent. 2022-NCCOA-539

Domestic Relations Parent & Child – Guardianship – Burden of Proof – Review Waiver – Insufficient Findings Even though the trial court concluded that there was “no compelling basis or reason for the Court to go against the recommendations of the PCDSS and the GAL,” the trial court did not impose an evidentiary burden on the respondent-father.

Instead, the court was indicating that two different proposed guardianship placements – with the paternal grandmother in Texas or with the maternal great-aunt in North Carolina – might be appropriate in isolation, but that under the circumstances – where “Nolan” had already been settled in his current placement with his great aunt and his older sibling for a significant period of time – the court could not identify a reason why it was in Nolan’s best interest to remove him from his long-term placement and send him to a new placement in another state.

We affirm the trial court’s guardianship order. However, we vacate and remand the trial court’s waiver of further review.

The trial court must make written findings of fact satisfying each of the enumerated criteria listed in G.S. § 7B–906.1(n), and its failure to do so constitutes reversible error. The trial court made findings

addressing only three of the five required criteria and failed to make the findings required by subsections (3) or (4). As a result, we vacate the portion of the trial court’s order waiving further review, and remand for the trial court to either make the findings required under subsections (3) and (4) or reinstate further review hearings.

In re N.G. (Lawyers Weekly No. 012-336-22, 14 pp.) (Richard Dietz, J.) Appealed from Pender County District Court (Russell Davis, J.) Stephen Schoeberle for petitioner; Lee Gilliam for respondent; Michelle FormyDuval Lynch for guardian ad litem. 2022-NCCOA-540

Domestic Relations Parent & Child – Guardianship – Constitutional – Insufficient Findings After baby “Piper” was born testing positive for amphetamines and methamphetamines, and after DSS was unable to maintain contact with the respondent-mother, the trial court concluded that it was in Piper’s best interests for her guardianship to be placed with relatives.

However, the trial court failed to make a finding that respondent was unfit or acted inconsistently with her constitutionally protected status before making that determination.

We vacate the trial court’s permanency planning review order and remand for further proceedings. On S e e P a g e 10 ►

View Available Dates Calendars & Bios Online for the State’s Premier Mediators NAME Hon. Sharon Barrett Sarah V. Corley Michael W. Drye Anne Duvoisin Jennifer S. Brearley LeAnn Nease Brown Melinda M. Evans Steve Dunn Wayne P. Huckel Jason B. James Raymond E. Owens Jr. Robert A. Beason Donald H. Beskind Joseph Chambliss Dailey J. Derr Rene Stemple Trehy Henry W. Gorham T. Alan Pittman Richard D. Conner Thomas C. Duncan William A. Eagles Lynn G. Gullick Jonathan R Harkavy Robert A. Brinson Michael A. Swann Scott C. Hart Ken McCotter Jr. M. Ann Anderson

BASED IN Asheville Asheville Asheville Blowing Rock Cary Chapel Hill Chapel Hill Charlotte Charlotte Charlotte Charlotte Durham Durham Durham Durham Durham Emerald Isle Fayetteville Greensboro Greensboro Greensboro Greensboro Greensboro High Point Lexington New Bern New Bern Pilot Mountain

† PHONE DATES (828) 768-5124 ncmediators.org/sharon-barrett  ncmediators.org/sarah-corley (828) 232-2800  ncmediators.org/michael-drye (828) 298-1484  ncmediators.org/anne-duvoisin (828) 295-7469  ncmediators.org/jennifer-brearley (704) 533-5025  ncmediators.org/leann-nease-brown (919) 968-1111  ncmediators.org/melinda-evans (919) 593-5167  ncmediators.org/steve-dunn (888) 305-3553  ncmediators.org/wayne-huckel (704) 333-0073  ncmediators.org/jason-james (704) 227-0124  ncmediators.org/raymond-owens (704) 295-4509  ncmediators.org/robert-beason (919) 419-9979  ncmediators.org/donald-beskind (919) 613-7085  ncmediators.org/joseph-chambliss (919) 414-1808  ncmediators.org/dailey-derr (919) 419-1265  ncmediators.org/rene-ellis (866) 517-0145  ncmediators.org/henry-gorham (919) 805-5003  ncmediators.org/alan-pittman (910) 486-0992  ncmediators.org/richard-conner (336) 691-9222  ncmediators.org/thomas-duncan (336) 274-7243  ncmediators.org/william-eagles (336) 433-9980  ncmediators.org/lynn-gullick (336) 686-4336  ncmediators.org/jonathan-harkavy (336) 370-4200  ncmediators.org/robert-brinson (336) 889-8733  ncmediators.org/michael-swann (336) 249-7777  ncmediators.org/scott-hart (252) 633-3131  ncmediators.org/charles-mccotter (252) 635-1005  ncmediators.org/ann-anderson (336) 368-9621 

PROFILE ONLINE AT

NAME Virginia G. Adams Collins Barwick Asa L. Bell Jr. Richard T. Boyette Jacqueline R. Clare Thomas M. Clare James L. Conner II Kate Deiter-Maradei Paul T. Flick Patricia L. Holland Joseph T. Howell J. Anderson Little Michael E. McDaniel Robert A. Meynardie Karen Britt Peeler James S. Schenck IV Reagan H. Weaver Barbara B. Weyher Scott M. Taylor Marshall A. Gallop Jr. Ralph W. Meekins S. Kent Smith Jessie M. Conley W. Lewis Sauls Sherman Lee Criner William A. Blancato Kenneth P. Carlson Jr. William H. Freeman Ellen R. Gelbin

BASED IN Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Res. Triangle Rocky Mount Shelby Southern Pines Statesville Whiteville Wilmington Winston-Salem Winston-Salem Winston-Salem Winston-Salem

PROFILE ONLINE AT ncmediators.org/virginia-adams ncmediators.org/collins-barwick ncmediators.org/asa-bell ncmediators.org/richard-boyette ncmediators.org/jackie-clare ncmediators.org/thomas-clare ncmediators.org/jim-conner ncmediators.org/kate-deiter ncmediators.org/paul-flick ncmediators.org/patricia-holland ncmediators.org/joseph-howell ncmediators.org/anderson-little ncmediators.org/michael-mcdaniel ncmediators.org/robert-meynardie ncmediators.org/karen-peeler ncmediators.org/james-schenck ncmediators.org/reagan-weaver ncmediators.org/bonnie-weyher ncmediators.org/scott-taylor ncmediators.org/marshall-gallop ncmediators.org/ralph-meekins ncmediators.org/kent-smith ncmediators.org/jessie-conley ncmediators.org/lewis-sauls ncmediators.org/sherman-criner ncmediators.org/william-blancato ncmediators.org/kenneth-carlson ncmediators.org/william-freeman ncmediators.org/ellen-gelbin

† PHONE DATES (919) 838-8873  (919) 480-8738  (919) 755-1068  (919) 863-8729  (919) 755-9979  (919) 805 5007  (919) 313-4571  (919) 400-4087  (919) 809-7346  (984) 232-8014  (919) 365-6000  (919) 967-6611  (919) 610-7043  (919) 747-7373  (919) 272-7413  (919) 789-9242  (919) 828-0363  (919) 835-0900  (919) 949-4227  (252) 937-2200  (704) 487-1234  (910) 693-3411  (704) 871-1989  (910) 642-6559  (910) 251-0004  (336) 793-4238  (336) 721-6843  (336) 722-8872  (336) 945-0214 

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10 / OPINION DIGESTS C o nt inu e d f r o m 9 ►

remand, the trial court, in its discretion, may enter a new order on the existing record or conduct any further proceedings the court deems necessary.

Concurrence

(Arrowood, J.) The trial court does not expressly address the factors laid out by G.S. § 7B-906.2, does not address how any of the findings should be weighed in favor or against reunification as provided by § 7B906.2, and fails to specifically address whether respondent “remains available to the court, the department, and the guardian ad litem for the juvenile.” § 7B-906.2(d)(3). The trial court failed to make statutorily required findings of fact related to whether respondent demonstrated the degree of failure towards reunification necessary to support ceasing reunification efforts.

I would remand for application of the proper standards to the current record.

In re P.A.B. (Lawyers Weekly No. 012-337-22, 18 pp.) (Fred Gore, J.) (John Arrowood, J., concurring) Appealed from Person County District Court (Benjamin Hunter, J.) Anne Wright for respondent; Katelyn Bailey Heath and Sidney Overby for guardian ad litem; Thomas Fitzgerald for petitioner. 2022-NCCOA-541

Domestic Relations Parent & Child – Termination of Parental Rights – Constitutional – Due Process – Support Obligation The respondent-father’s parental rights were terminated based, in part, on his willful failure to contribute anything to the cost of his child’s care. Respondent argues that termination on this ground violates due process because he was not informed by petitioner or the trial court of any obligation to make such contributions. However, ignorance of the law is no excuse, and a man’s ignorance of the fact that fatherhood carries with it financial duties does not excuse his failings as a parent; rather, it compounds them. No notice of one’s inherent duty to support one’s child is necessary. Respondent’s due process rights were not violated by any lack of notice.

We affirm the termination of respondent’s parental rights.

In re S.S. (Lawyers Weekly No. 012-338-22, 8 pp.) (Hunter Murphy, J.) Appealed from Mecklenburg County District Court (Faith Fickling-Alvarez, J.) Gretchen Caldwell for petitioner; Thomas Diepenbrock for respondent; Michelle FormyDuval Lynch for guardian ad litem.

2022-NCCOA-542

Domestic Relations Parent & Child – Permanency Planning – Texas Relatives By the time the trial court entered its permanency planning order, the Texas interstate compact placement of children study had expired for “Terry’s” paternal grandparents. However, G.S. § 7B-903(a1) requires that, before placing a child outside the home at the permanency planning stage, the trial court must first consider placing the child with his relatives unless the court finds

that such a placement is not in the child’s best interests. The trial court failed to give the required statutory priority for Terry’s placement in the home with his paternal grandmother and step-grandfather.

We vacate the permanency planning order and remand for further proceedings and findings in conformity with the familial priority mandates of the statute.

Our General Statutes do not specifically list a step-cousin as a legally recognized relative. The respondent-mother’s step-cousin and step-cousin-in-law have not shown that they are “individual[s] directly related to the juvenile by blood, marriage, or adoption,” G.S. § 7B101(18a), and they do not have a legally recognized statutory priority for consideration of permanency placement of Terry.

In re T.M. (Lawyers Weekly No. 012-339-22, 7 pp.) (John Tyson, J.) Appealed from Stokes County District Court (Thomas Langan, J.) Jennifer Oakley Michaud for petitioner; James Freeman for guardian ad litem; Jacky Brammer for respondent. 2022-NCCOA-543

Domestic Relations Parent & Child – Termination of Parental Rights – Lack of Bond The trial court’s challenged findings – that the respondent-father took no steps to foster a loving relationship with his daughter, “Jasmine,” and that there was no bond between Jasmine and respondent – were supported by the testimony of a DSS social worker (respondent had not fully complied with his court-ordered requirements to reunify with Jasmine; he had failed to maintain contact with the DSS worker regarding Jasmine’s wellbeing; when he did contact the social worker, he did not ask any questions about Jasmine; he has not visited nor contacted Jasmine since October 2019; Jasmine has no bond with respondent; and Jasmine doesn’t talk about him or bring him up at all) and Jasmine’s guardian ad litem (Jasmine didn’t have much contact with respondent before the case; she was mad that he got arrested again and put back in prison; and she feels like he hasn’t made an effort at all to be her father).

We affirm the termination of respondent’s parental rights.

In re J.T. (Lawyers Weekly No. 012-340-22, 9 pp.) (Jefferson Griffin, J.) Appealed from Forsyth County District Court (Theodore Kazakos, J.) Theresa Boucher for petitioner; Kimberly Connor Benton for respondent. 2022-NCCOA-538

Domestic Relations Parent & Child – Termination of Parental Rights – Future Neglect – Insufficient Showing – Substance Abuse & DVPO Where (1) both parents had substance abuse issues; (2) during much of “Fiona’s” life, the respondent-father was in a residential treatment program; (3) respondent’s paternity of Fiona was not established for some time; (3) the petitioner-mother did not seek child support until after she filed this action to terminate respondent’s parental rights; (4) a domestic violence protective order – based on an incident that occurred

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while petitioner was pregnant with Fiona – prevented respondent from having contact with Fiona; and (5) petitioner failed to present documentary evidence of the child support order or the DVPO or expert testimony supporting her belief that the domestic violence incident caused Fiona to be born prematurely, the evidence does not support the trial court’s findings or conclusion that there is a likelihood of future neglect.

We reverse the termination of respondent’s parental rights.

In re F.C.H. (Lawyers Weekly No. 012-341-22, 26 pp.) (Donna Stroud, C.J.) Appealed from Guilford County District Court (Angela Foster, J.) Jeffrey Miller for respondent; no briefs filed for petitioner or guardian ad litem. 2022-NCCOA-536

Domestic Relations Parent & Child – Termination of Parental Rights – Mental Health Recommendations – Visitation Even though the trial court erred in finding no evidence that the respondent-Mother had participated in a mental health assessment, the record does support the trial court’s finding that there was no evidence that Mother had complied with the recommendations of mental health professionals.

We affirm the termination of Mother’s parental rights.

Mother refused to communicate directly with the DSS social worker assigned to her case. Nonetheless, DSS gave Mother opportunities to have virtual visits with her children in 2021. Mother refused to engage in virtual visitations with her children at the scheduled 6:00 p.m. session because of her work schedule; instead, she asked that her children be taken out of school so they could visit with Mother when she was available. The record supports the trial court’s finding that Mother’s “work schedule constantly took priority over her visits with her children. . . .”

In re D.C. (Lawyers Weekly No. 012-342-22, 24 pp.) (April Wood, J.) Appealed from Durham County District Court (Doretta Walker, J.) Mary McCullers Reese for respondent; Keith Roberson for petitioner; Maggie Dickens Blair for guardian ad litem. 2022-NCCOA-533

Civil Practice Interlocutory Appeals – Pending Counterclaims – Hearing Aid Although the trial court granted summary judgment for the defendant-hearing aid sellers on plaintiff’s claim of breach of the warranty of merchantability, since defendants’ counterclaims for fraud, unfair trade practices and breach of contract remain pending, the summary judgment order is interlocutory. Plaintiff has provided no explanation of why the challenged order affects a substantial right, thus depriving this court of jurisdiction.

Appeal dismissed.

Smith v. Greenwald (Lawyers Weekly No. 012-343-22, 5 pp.) (Richard Dietz, J.) Appealed from Wake County District Court (Christine Walczyk, J.) Gregory Stott for plaintiff; Howard Jacobson for defendants. 2022-NCCOA-544

Criminal Practice Constitutional – Double Jeopardy – Course of Conduct – Different Elements Defendant’s conviction for attempted murder was reversed on appeal. He argues that the constitutional ban on double jeopardy protects him from prosecution for the acts underlying the attempted murder charge. However, United States v. Dixon, 509 U.S. 688 (1993), rejected the “sameconduct” analysis pressed by defendant.

Instead, we consider whether the offenses with which defendant is currently charged have the same elements as the prior attempted murder charge. None of the current charges – assault with a deadly weapon with intent to kill inflicting serious injury, assault inflicting serious bodily injury, assault by strangulation, or felony child abuse – requires the state to prove the same elements as attempted murder. Double jeopardy does not prohibit defendant’s prosecution for the current charges.

We find no error in the trial court’s denial of defendant’s motion to dismiss.

State v. Schalow (Lawyers Weekly No. 012-344-22, 14 pp.)

(Allegra Collins, J.) Appealed from Henderson County Superior Court (Robert Bell, J.) On remand from the N.C. Supreme Court. Joseph Hyde for the state; Daniel Shatz for defendant. 2022-NCCOA-546

Criminal Practice Strangulation – Physical Injury – Pain & Difficulty Eating Although physical injury is an element of assault by strangulation under G.S. § 14-32.4(b), the statute does not define “physical injury.” Dictionaries define injury as “hurt, damage or loss” and define physical as “of or relating to the body,” so a “physical injury” is hurt, damage or loss to one’s body.

“Physical injury” does not require the sort of severe or lasting injury that defendant contends is absent in this record. The victim testified that she experienced pain when she moved her neck, neck soreness and difficulty eating for two days after defendant admittedly strangled her. This evidence was sufficient to permit the jury to assess whether defendant’s actions inflicted “physical injury.”

We find no error in defendant’s conviction for assault by strangulation.

State v. Christenson (Lawyers Weekly No. 012-345-22, 6 pp.)

(Richard Dietz, J.) Appealed from Madison County Superior Court (Joseph Crosswhite, J.) Maria Bruner for the state; Max Ashworth for defendant. 2022-NCCOA-545

Civil Practice Appeals – Landlord/Tenant – Summary Ejectment – Substantial Compliance Nine days after a magistrate granted summary ejectment to the S e e P a g e 11 ►

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plaintiff-landlord, the defendanttenant filed a notice of appeal to district court; however, the tenant failed to sign and date the “Certificate of Service” attached to the back of the notice of appeal form. Yet, when considering the landlord’s motion to dismiss the appeal, the district court had before it an affidavit signed by the tenant’s mother, averring that – 28 days after the summary ejectment ruling – she had personally served a copy of the tenant’s notice of appeal on the law firm representing the landlord. Since there is also evidence in the record that the landlord had actual notice of the appeal, there was substantial compliance with N.C. R. Civ. P. 5 sufficient to confer authority upon the district court to act on the tenant’s appeal.

We reverse the district court’s order allowing the landlord’s motion to dismiss the tenant’s appeal.

Brookside Park Affordable, LLC v. Hart (Lawyers Weekly No. 012346-22, 3 pp.) (Chris Dillon, J.) Appealed from Moore County District Court (Regina Joe, J.) Jody Foyles for plaintiff; Celia Pistolis, Katherine Barkley, Shameka Jamison and Isaac Sturgill for defendant.

2022-NCCOA-564

Domestic Relations Parent & Child – Custody – Civil Practice – Venue – Prior Pending Action Doctrine Even though there was a prior action pending in Franklin County concerning custody of the parties’ eldest child, the parties’ two younger children were not even born when the Franklin County action was commenced. Children are considered individually, and the venue of the prior action does not control the venue for this action concerning the custody of the two younger children.

We affirm the trial court’s denial of the defendant-mother’s motion to transfer venue to Franklin County.

Alston v. Cooke (Lawyers Weekly No. 012-347-22, 8 pp.) (Jefferson Griffin, J.) Appealed from Vance County District Court (Amanda Stevenson, J.) No brief filed for plaintiff; Lawrence Edward Tickle for defendant. 2022-NCCOA-563

Municipal Zoning – Residential – Agriculture Restrictions – Potbellied Pigs Petitioner kept ten potbellied

OPINION DIGESTS / 11 pigs as pets, but the “Limited Agriculture” provision of the respondent-town’s zoning ordinance, which applies to petitioner’s residential property, prohibits the keeping of “livestock such as . . . swine. . . .” Although petitioner may treat her pigs as pets, the ordinance provision does not distinguish between commercial and non-commercial, domestic uses.

We affirm the superior court order upholding the board of adjustment’s (the Board’s) decision that keeping the potbellied pigs on petitioner’s residential property violated the town’s zoning ordinance.

The zoning ordinance also includes a Table of Permitted Uses, which provides that “Agricultural Production (Crops and Livestock)” is not permitted on residential property, like petitioner’s. The ordinance does not define “Agricultural Production.”

Petitioner contends there was no “production” going on at her home. However, construing and harmonizing the disputed provisions together, the Table “Agricultural Production (Crops and Livestock)” allows for crops and livestock only in certain zoned land and the “Limited Agriculture” provision of the ordinance plainly prohibits the keeping of

swine on residential land. Considering these provisions in pari materia, there is no room for judicial construction of the term “production.”

Petitioner argues that the town failed to present reasonable evidence that she was engaged in a nonconforming use at the time she bought her property in 2000.

The town was unable to produce the zoning map that was in effect in 2000. However, the town planning director testified that, based upon the minutes of the town records, the land had been annexed in 1988 and all annexed land had been designated single-family residential. This was substantial and competent evidence to support the Board’s determination that petitioner’s use violated the town’s zoning ordinance.

Affirmed.

Herron v. Town of Jamestown (Lawyers Weekly No. 012-348-22, 16 pp.) (Lucy Inman, J.) Appealed from Guilford County Superior Court (Stuart Albright, J.) Harvey Barbee for petitioner; Christopher Finan, Elizabeth Koonce and Zachary Green for respondent. 2022-NCCOA-566 S e e P a g e 12 ►

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Domestic Relations Parent & Child – Termination of Parental Rights – Unsafe Housing – Abusive Relationship Two years after the removal of her children from her care, the respondent-mother obtained her own housing. However, respondent made no progress on breaking her pattern of returning to her relationship with an abuser. Consequently, the trial court could find that respondent’s “home environment remains unsafe with regard to a likelihood of repetition of domestic abuse.” This and other findings support the trial court’s conclusion that there was a likelihood of a repetition of neglect.

We affirm the termination of respondent’s parental rights.

In re A.D-D. (Lawyers Weekly No. 012-349-22, 9 pp.) (Richard Dietz, J.) Appealed from Durham County District Court (Doretta Walker, J.) Derrick Hensley and Elizabeth Kennedy-Gurnee for petitioner; Peter Wood for respondent; Michelle FormyDuval Lynch for guardian ad litem. 2022-NCCOA-567

Domestic Relations Parent & Child – Notice of Appeal – GAL’s Signature – Neglect Adjudication Where the notice of appeal in this juvenile neglect case was signed, not by the respondent-Mother herself, but by her guardian ad litem, the appeal is not properly before us.

Appeal dismissed. Petition for writ of certiorari denied.

In both this case and In re L.B., 187 N.C. App. 326, 653 S.E.2d 240 (2007), the notice of appeal was signed by the respondent-parent’s guardian ad litem but not by the parent. We dismissed the appeal in In re L.B. for two reasons: (1) the parental GAL statute, G.S. § 7B-1101.1, “plainly indicate[d] the role of the GAL is to assist parents rather than replace their authority to undertake acts of legal import themselves”; and (2) “[n]owhere in section 7B-1002 is a parent’s GAL designated as a ‘proper party’ who may give written notice of appeal[.] . . . [B]y explicitly listing who may give written notice of appeal . . . , the General Assembly did not intend for those not listed to have the right to perfect an appeal.”

Since then, the General Assembly has amended the parental GAL statute to allow for substitutive – as opposed to simply assistive – parental GAL appointments in the event of incapacity under N.C. R. Civ. P. 17. However, G.S. §§ 1001(c) and -1002 continue to provide a limited enumerated list of parties who can sign a notice of appeal. The list includes a GAL appointed to represent a juvenile but conspicuously omits a GAL appointed to represent an adult parent.

To the extent that §§ 7B– 1101.1(c), -602(c), -1001(c), and - 1002 conflict, §§ 7B-1001(c) and 1002 control because they address the issue before us in a more minute and definite way.

The order adjudicating “Ellen” neglected makes reunification with Mother the primary plan and requires DSS to continue reasonable efforts toward reunification. It does

not appear that the failure to properly perfect the appeal was strictly the fault of the signing GAL and Mother’s trial counsel, as the record shows Mother was largely absent throughout the proceedings and never contacted her GAL prior to the entry of the adjudication and disposition order. On this record, we deny Mother’s petition for a writ of certiorari.

Appeal dismissed; petition denied.

In re E.B. (Lawyers Weekly No. 012-350-22, 12 pp.) (Lucy Inman, J.) (John Tyson & April Wood, JJ., concurring in the result only without separate opinion) Appealed from Ashe County District Court (Donna Shumate, J.) James Freeman for petitioner; Paul Freeman for guardian ad litem; Michael Spivey for respondent. 2022-NCCOA-569

Domestic Relations Parent & Child – Termination of Parental Rights – Dependency – Inappropriate Relative Placement The incarcerated respondentfather suggested his cousin – who runs a home child care center – as a relative placement for his son, “Edward.” Not only does the cousin have a history of assault charges and “many driving infractions” that make it unlikely for her to pass DSS’s background check, but the cousin also testified that she is at the upper limit of the number of children that can be in her home. While she testified that she hopes to expand, she also said that, currently, “the only way that I would be able to have him here first [is] if I was to take a child out and I wouldn’t want to do that.” Respondent lacked appropriate alternative childcare arrangements, leaving Edward dependent under G.S. § 7B-1111(a)(6).

We affirm the termination of respondent’s parental rights.

In re E.L.G. (Lawyers Weekly No. 012-351-22, 11 pp.) (Lucy Inman, J.) Appealed from Wake County District Court (Lori Christian, J.) Mary Boyce Wells for petitioner; Matthew Wunsche for guardian ad litem; Garron Michael for respondent.

2022-NCCOA-570

Domestic Relations Parent & Child – Neglect & Custody – Subject Matter Jurisdiction – Insufficient Findings The respondent-Mother’s two older children had only been placed with their godparents for three months – rather than the statutorily required six months – when the trial court converted this neglect case into a civil custody case. At that point, the trial court lacked subject matter jurisdiction to make such a conversion.

We vacate the trial court’s order granting the godparents custody of “Kevin” and “Romelia.” We reverse the trial court’s permanency planning orders and remand for further proceedings.

With respect to the trial court’s permanency planning orders, while health, safety, and permanence of the children are undoubtedly important considerations, as demonstrated by G.S. §§ 7B-906.2(b) and (c), the trial court’s inquiry must not stop there. Rather, the trial court must simultaneously evaluate the

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parents’ conduct and progress over time to draw conclusions about the “futil[ity] or inconsisten[cy]” of reunification between the parents and the children.

Despite several findings tending to show Mother’s progress, the trial court failed to make any findings regarding the adequacy of Mother’s “progress within a reasonable period of time under the plan” and how this affected reunification efforts and the health and safety of the children. § 7B-906.2(d)(1). The trial court failed to make sufficient findings before ceasing reunification efforts.

In re H.S. (Lawyers Weekly No. 012-352-22, 29 pp.) (Jeffery Carpenter, J.) Appealed from Wilson County District Court (Elizabeth FreshwaterSmith, J.) Benjamin Kull for respondent; Matthew Wunsche for guardian ad litem; Jennifer Bennington for petitioner. 2022-NCCOA-572

Domestic Relations Parent & Child – Attorneys – Ineffective Assistance Claim – Respondent’s Absence Although the respondent-mother was not present at the hearing on the petition to terminate her parental rights, she had previously instructed her counsel to oppose the petition, and counsel did so at the hearing. Respondent does not point to anything that would have changed about counsel’s actions had she been present – for example, she does not argue that she intended to testify or that she had any additional evidence that was not offered to the trial court because of her absence.

Because respondent has not shown that any errors by counsel led to a different result in the proceedings, she has not shown that she received ineffective assistance of counsel.

We affirm the termination of respondent’s parental rights.

In re M.M.H. (Lawyers Weekly No. 012-353-22, 6 pp.) (Richard Dietz, J.) Appealed from Surry County District Court (William Southern, J.) Blake Cheek for petitioner; Christopher Watford for respondent; James Freeman for guardian ad litem. 2022-NCCOA-573

Domestic Relations Parent & Child – Guardianship – Verification Even though “Zeke’s” foster father did not testify at the permanency planning hearing, his foster mother did testify that she was willing and able to serve as Zeke’s guardian. An affidavit indicated that both foster parents understood the legal significance of guardianship. Moreover, Zeke had been in his foster parents’ care for three years.

The trial court’s findings of fact and conclusions of law show that it considered the appropriate facts in making a guardianship verification, and the evidence, including testimony and court reports, supports those findings and conclusions.

We affirm the trial court’s order awarding guardianship of Zeke to his foster parents and waiving further review regarding “James” and “Allen.”

In re Z.R.F.D. (Lawyers Weekly No. 012-354-22, 32 pp.) (Fred Gore, J.) (Hunter Murphy, J., concurring in part & concurring in the result in part without separate opinion) Appealed from Haywood County Dis-

trict Court (Kristina Earwood, J.) Jacky Brammer and Sydney Batch for respondents; Jordan Israel for petitioner; Matthew Wunsche for guardian ad litem. 2022-NCCOA-575

Domestic Relations Parent & Child – Termination of Parental Rights – Dependency, Neglect & Lack of Progress Where respondent’s parental rights were terminated based on dependency, neglect and willfully leaving her children in foster care for more than 12 months without making reasonable progress to correct the conditions that led to their removal, but where respondent appeals only the finding of dependency, we affirm the trial court’s termination of respondent’s parental rights based on the court’s unchallenged findings of neglect and lack of progress.

In re A.R. (Lawyers Weekly No. 012-355-22, 4 pp.) (Richard Dietz, J.) Appealed from Mecklenburg County District Court (Roy Wiggins, J.) Keith Strickland Smith for petitioner; Jeffrey William Gillette for respondent; John Durnovich and Samuel Morris for guardian ad litem. 2022-NCCOA-568

Domestic Relations Parent & Child – Neglect Allegation DSS contends that several of the trial court’s evidentiary findings of fact—that the respondent-Mother and -Father have a history with child protective services prior to “Kelly’s” birth, with three older children having been removed from their care; that following Kelly’s birth, Mother allowed Father to be in the presence of one of Kelly’s siblings in violation of a court order, and during which time Mother and Father engaged in “a verbal and physical altercation in the presence of” that sibling; and that Mother and Father “lacked essential necessities for Kelly in May 2019”—sufficiently support a conclusion that Kelly is neglected as a matter of law. However, none of these findings of fact speak to the current circumstances that present a risk to Kelly.

We affirm the trial court’s rejection of DSS’s allegation that Kelly was neglected.

The undisputed—and thus, binding—findings of fact do not directly address the existence of some physical, mental, or emotional impairment of Kelly or a substantial risk of such impairment as a consequence of the failure to provide proper care, supervision, or discipline. The undisputed findings also fail to address whether Kelly resides in an environment which has resulted in harm or a substantial risk of harm to him, or whether Kelly would be at a substantial risk of harm if returned to his mother’s care. Accordingly, we cannot accept DSS’s argument that Kelly is neglected as a matter of law.

In re K.S. (Lawyers Weekly No. 012-356-22, 16 pp.) (Valerie Zachary, J.) Appealed from Cumberland County District Court (Luis Olivera, J.) On remand from the N.C. Supreme Court. James Dill for petitioner; Michelle FormyDuval Lynch for guardian ad litem; Thomas Diepenbrock for respondent.

2022-NCCOA-390