An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-569


Filed: 1 June 2004

IN THE MATTER OF:                Mecklenburg County                     & nbsp;       
L.C. (DOB: 3/6/96)                No. 2001-J-1257, 1258    
A.N. (DOB: 8/27/00)

    Appeal by respondent from judgment entered 11 October 2002 by Judge Yvonne Mims Evans in Mecklenburg County District Court. Heard in the Court of Appeals 15 March 2004.

    John W. Totten, II, attorney for respondent-appellant.

    Mecklenberg County Attorney's Office by J. Edward Yeager, Jr., for petitioner-appellee.


    Respondent appeals an order of the trial court terminating her parental rights with respect to L.C. and A.N. For the reasons stated herein, we affirm the order of the trial court.
    The pertinent factual and procedural history is as follows: Respondent is the biological mother of four children, including L.C., born 6 March 1996, and A.N., born 27 August 2000. The Mecklenburg County Department of Social Services, Youth and Family Services Division (“YFS”) initially became involved with the family after A.N. tested positive at birth for cocaine.
    On 21 December 2000, YFS filed a petition seeking to have all four of respondent's children adjudicated neglected and dependent. The children were adjudicated dependent in a hearing on 19 February2001. On the issue of neglect, the trial court stated the following: “The Court holds any finding of neglect against the mother in abeyance and reserves the right to make such finding at a later time.”
    YFS filed the underlying termination of parental rights petitions on 5 December 2001, alleging that respondent neglected L.C. and A.N., that she willfully left them in foster care for more than 12 months, and that she failed to support them financially for more than 6 months. The trial court conducted a termination hearing in which respondent was represented by counsel. Respondent did not request that the trial court appoint a guardian ad litem for her. Upon a hearing of the evidence, the trial court entered the following pertinent findings of fact:
        9.    The principle [sic] issue that prevented reunification of [respondent] with her children was continuing substance abuse addiction.

        11.    Since YFS filed a petition and the children were place in foster care, the respondent mother has been under a continuing Court order to obtain     substance abuse treatment. In fact, the respondent mother participated in the Mecklenburg County Family Drug Treatment Court for an extended period of time. However, the respondent mother has never been able to maintain sobriety and has never completed any type of substance abuse treatment.

        12.    During the time that [respondent] was in Family Drug Treatment Court, she resided in a highly structured setting at Hopehaven. She did not complete that program and left there against advice of her counselors.
    Based on these findings, the trial court concluded as a matter of law that the respondent had neglected the children, that she willfully left them in foster care for more than 12 months, and that she willingly failed to provide financial support for more than 6 months. The trial court determined that it was in the best interest of the children to terminate respondent's parental rights and ordered termination of parental rights. It is from this order that respondent appeals.

    As an initial matter, we note that respondent's brief contains arguments supporting only one of the original two assignments of error on appeal. The omitted assignment of error is deemed abandoned pursuant to N.C. R. App. P. 28(b)(5) (2004). We therefore limit our review to the assignment of error addressed in respondent's brief.
    The remaining question presented on appeal is whether the trial court erred by failing to appoint a guardian ad litem for respondent at the termination hearing where the petition does not allege dependency, substance abuse, or mental illness. We conclude that the trial court did not err.
    Respondent contends that because the trial court heard testimony about her mental capacity, and may have taken this into consideration when making its decision, the trial court was required to appoint a guardian ad litem. We disagree.    The General Statutes of North Carolina § 7B-1101 (2003) provides that a guardian ad litem shall be appointed to represent a parent in a termination hearing
        [w]here it is alleged that a parent's rights should be terminated pursuant to G.S. 7B- 1111(6), and the incapability to provide proper care and supervision pursuant to that provision is the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or another similar cause or condition

(emphasis added). N.C. Gen. Stat. § 7B-1111(6) (2003) provides that the trial court may terminate a parent's rights upon a finding that
        the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependant juvenile within the meaning of N.C. Gen. Stat. § 7B- 101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other cause or condition that renders the parent unable or unavailable to parent the juvenile and the parent lacks an appropriate alternative child care arrangement.

See also In re Dhermy, ___ N.C. App. ___, ___, 588 S.E.2d 555, 558 (2003) . Failure to comply with § 7B-1101 “results in remand of the case to the trial court for appointment of a guardian ad litem, as well as a rehearing.” Id., (citing In re Richard v. Michna, 110 N.C. App. 817, 431 S.E.2d 485 (1993)).    
    In the case sub judice, petitioner based the termination of respondent's parental rights as to each minor child on the following three grounds:        6.    The respondent mother has neglected the said child as defined in G.S. Section 7B- 101(15) in that she has failed to provide proper care, supervision, and discipline for said child and has abandoned said child . . .

        7.    The respondent mother has willfully left the child in foster care for more than twelve (12) months without showing to the satisfaction of the Court that reasonable progress under the circumstances has been made within twelve (12) months in correcting those conditions which led to the removal of the child.

        8.    The child has been placed in the custody of Mecklenberg County Department of Social Services and the respondent mother, for a continuous period of more than six (6) months next preceding the filing of the petition, has willfully failed for such period to pay a reasonable portion of the cost of care for said child although physically and financially able to do so.

As such, these grounds mirror § 7B-1101, which authorizes termination of parental rights upon a finding that the parent neglected the child, willfully left the child in foster care, or failed to pay a reasonable portion of the cost of care. Thus, there is no allegation of dependency contained in the petition.
    The focus of § 7B-1111(6) is narrow and does not require the appointment of a guardian ad litem in all cases where evidence presented at the termination hearing tends to show substance abuse or mental illness. The statute only requires the trial court to appoint a guardian ad litem where it is alleged that the termination is based on dependency that is the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or other similar cause of condition. Thus, this case isdistinguishable from In re Estes, 157 N.C. App. 513, 579 S.E.2d 496 (2003), where dependency was alleged and “the majority of the allegations contained in the motion to terminate respondent's parental rights centered on respondent's 'irrational behavior and thought patterns.'” 157 N.C. App. at 516, 579 S.E.2d at 498.
    Because the petition to terminate parental rights did not allege that the children were dependent due to respondent's incapability to care for the children as a result of substance abuse, mental retardation, mental illness, organic brain syndrome, or other similar cause of condition, the trial court was not required to appoint a guardian ad litem.
    Judges LEVINSON and THORNBURG concur.
    Report per Rule 30(e).

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