An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1501

NORTH CAROLINA COURT OF APPEALS

Filed: 18 October 2005

IN THE MATTER OF:

S.N.M., D.G.F.,             Mecklenburg County    
    D.C.F., and S.U.M.,            Nos. 03 J 856, 857, 858, 859
        Minor Children                                 

    Appeal by respondent mother from order entered 14 April 2004 by Judge Louis A. Trosch, Jr. in Mecklenburg County District Court. Heard in the Court of Appeals 20 September 2005.

    Katharine Chester for respondent-appellant.

    James Edward Yeager, Associate County Attorney for Mecklenburg County Department of Social Services, and Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Susan H. Hargrove and Ellen M. Jernigan, for the Guardian ad Litem.

    

    MARTIN, Chief Judge.

    Respondent-mother (respondent) appeals the termination of her parental rights to her four children, S.N.M., D.G.F., D.C.F., and S.U.M. For the reasons stated below, we affirm the order of the trial court.
    Respondent's four children were placed in non-secure custody on 9 July 2002 pursuant to a petition by the Mecklenburg County Department of Social Services (DSS) alleging that they were neglected and dependent. The petition alleged the following: (1) respondent tested positive for marijuana and cocaine at the time of giving birth to her youngest child, S.U.M.; (2) respondent rarelyvisited S.U.M., who was in the hospital due to respiratory problems related to a premature birth, and she had not cooperated with the hospital in addressing the medical needs of S.U.M.; (3) respondent had been recommended for substance abuse treatment in the past, which she refused; (4) respondent admitted to smoking marijuana on a daily basis; (5) respondent was facing eviction due to failure to pay rent; and (6) respondent was not employed. An initial hearing was scheduled for 12 July 2002; respondent did not attend. The children were adjudicated neglected on 29 August 2002, and respondent was ordered to begin substance abuse treatment and report to Drug Court.
    At a dispositional hearing held on 18 October 2002, a case plan was put in place requiring respondent to (1) receive a substance abuse assessment and follow through with all recommendations, (2) secure and maintain stable housing and adequate employment, (3) learn the care-giving needs of her youngest child, (4) attend parenting classes, and (5) attend domestic violence counseling. The primary goal for permanence was the reunification of the children with respondent. The permanent plan and substantially the same case plan remained in effect until August 2003, when DSS gave notice that it would file a petition to terminate respondent's parental rights.
    On 9 March 2004, the trial court terminated respondent's parental rights in open court. The order was signed on 22 March 2004, and an amended order was signed on 14 April 2004 to correct a clerical error in the original order. The court found thatrespondent had totally or partially failed to follow each requirement of her case plan. With respect to her substance abuse treatment, respondent attended drug court and completed a substance abuse assessment. However, she failed to attend her required classes, which resulted in two periods of incarceration. Upon her release, she refused to attend residential treatment as ordered. On 3 November 2003, respondent gave birth to a fifth child, who was born positive for marijuana. After that time, she began substance abuse treatment, but she failed to provide the trial court with evidence of her progress. The trial court found, therefore, that respondent was at “the same point where she was approximately one year ago” in addressing her substance abuse issues.
    The trial court also found that respondent's housing conditions had not changed since her children were taken into DSS custody. Respondent admitted at the termination hearing that her apartment was inappropriate for the children because it was too small. The trial court noted that respondent could not obtain a larger apartment through the housing authority until custody of the children was returned to her. However, the children would not be returned to respondent until she “participate[d] fully with [her] case plan.” Therefore, “her failure to participate fully and make progress in her case plan has an impact [on] her ability to obtain housing.” As to her employment, the court found that respondent had held various jobs during her involvement with the court, and during the previous two weeks she had been employed at Kentucky Fried Chicken working twenty-six hours or less per week.     The trial court found respondent had partially completed the requirements that she learn the care-giving needs of her youngest child and attend parenting classes. Respondent completed a CPR training course and a parenting class for children ages five to twelve. She had begun a parenting class for children from birth to age four, but the court found that she did not begin any of her parenting classes until after the petition to terminate her parental rights was filed. The court determined respondent had “not demonstrated in her participation in parenting classes any improved ability to care for the children.”
    With respect to the issue of domestic violence, the trial court found respondent had “numerous opportunities” to complete domestic violence treatment. An assessment was set up for her with the Women's Commission in January 2003, but respondent did not contact the Commission until May 2003. She had an assessment on 12 June 2003 and was assigned to begin group sessions on 29 July 2003. She arrived late for the first session and was not allowed to enter. She failed to appear for the subsequent sessions. She was placed on a waiting list for group sessions on 23 September 2003, and on 7 October 2003 was notified that she could begin sessions again the following week. She failed to attend. In November, respondent contacted the Women's Commission office and was offered individual counseling while waiting for another place to open in group sessions. Five individual counseling sessions were scheduled for her, but she attended only one. The trial court concluded thatthe issue of domestic violence “remain[ed] un-addressed” by respondent.
    Based on its findings of fact, the trial court made the following relevant conclusions of law:
        2.    The respondent parents have willfully neglected these juveniles as that term is defined in NCGS §7B-101(15) in that they have failed to provide proper care, supervision and discipline for the juveniles as more specifically alleged in paragraphs above.

        3.     The respondent parents have each willfully left the juvenile in foster care or placement outside the home for more than twelve (12) months without showing to the satisfaction of the Court that reasonable progress has been made in correcting those conditions which led to the removal of the juvenile.

        4.    The children have been placed in the custody of Mecklenburg County Department of Social Services and the respondent parents, for a continuous period of more than six (6) months next preceding the filing of the petition, have 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.

        5.    The best interests of the above-named juveniles would be served by the termination of parental rights of all respondent parents with respect to these juveniles.

From this order, respondent appeals.

_____________________________________

    In an appeal from an order terminating parental rights, this Court is required to determine (1) whether the trial court'sfindings of fact were supported by clear, cogent and convincing evidence, (2) whether its conclusion that grounds existed to terminate parental rights was supported by those findings of fact, and (3) if grounds for termination were properly established, whether it was an abuse of discretion for the trial judge to terminate the respondent's parental rights. In re McMillon, 143 N.C. App. 402, 408-09, 546 S.E.2d 169, 174, disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001).
    On appeal, respondent makes the following arguments: (1) the trial court erred in terminating her parental rights because it failed to appoint a guardian ad litem for her when she was entitled to one as a matter of law; (2) the trial court's decision should be reversed because it failed to hold a bifurcated hearing; (3) the trial court erred in terminating the parental rights of respondent when the petitioner failed to file adequate petitions; (4) the petitioner failed to carry its burden of proving that respondent neglected the children or that she did not make reasonable progress in correcting the conditions which led to removal, and DSS failed to make reasonable efforts at reunification; (5) petitioner failed to carry its burden of proving respondent willfully left the children in foster care; (6) petitioner failed to carry its burden of proving respondent willfully failed to support her children; and (7) the trial court erred in concluding that termination of parental rights was in the best interests of the children.
    Respondent first argues that the trial court erroneously failed to appoint a guardian ad litem for her where she wasentitled to one as a matter of law. A guardian ad litem must be appointed for a parent:
        (1) Where it is alleged that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101 in that the parent is incapable as the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other similar cause or condition of providing for the proper care and supervision of the juvenile[.]

N.C. Gen. Stat. § 7B-602(b)(1) (2003). This “does not require the appointment of a guardian ad litem in every case where dependency is alleged, nor does it require the appointment of a guardian ad litem in every case where substance abuse or some other cognitive limitation is alleged.” In re H.W., 163 N.C. App. 438, 447, 594 S.E.2d 211, 216, disc. review denied, 358 N.C. 543, 599 S.E.2d 46 (2004). Appointment of a guardian ad litem under section 7B- 602(b)(1) is required when “(1) the petition specifically alleges dependency; and (2) the majority of the dependency allegations tend to show that a parent or guardian is incapable as the result of some debilitating condition listed in the statute of providing for the proper care and supervision of his or her child.” Id.
    In this case, neither requirement of N.C. Gen. Stat. § 7B- 602(b)(1) is met. First, the termination petitions allege the juveniles are neglected under N.C. Gen. Stat § 7B-101(15) but not dependent under section 7B-101(9) as required. N.C. Gen. Stat § 7B-101(9), (15) (2003). Second, the petitions do not allege respondent is incapable of caring for her children as a result of her substance abuse. The allegations of neglect note that respondent failed to “complete substance abuse treatment,” but theyalso raise her inability to maintain adequate housing and employment, her failure to obtain domestic violence treatment, and her failure to complete parenting classes. The petitions further allege that respondent “willfully left the juvenile[s] in foster care for more than (12) twelve months,” see N.C. Gen. Stat. 7B- 1111(2) (2003), and left the juveniles in the custody of DSS for a continuous period of more than six months without paying “a reasonable portion of the cost of care for said child[ren] although physically and financially able to do so.” See N.C. Gen. Stat. 7B- 1111(3) (2003). Because the petitions do not allege dependency or tend to show respondent is incapable of caring for her children as a result of her substance abuse, the trial court did not err in failing to appoint respondent a guardian ad litem. This argument is overruled.
    Respondent's second argument is that the trial court's decision should be reversed because it failed to hold a bifurcated hearing. The trial court is required to conduct termination hearings in two separate stages. First, in the adjudicatory phase, the court considers whether grounds for termination exist. Second, in the dispositional stage, the court considers whether termination is in the child's best interest. In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 5-6, disc. review denied, 358 N.C. 543, 599 S.E.2d 42 (2004). However, “[s]o long as the court applies the different evidentiary standards at each of the two stages, there is no requirement that the stages be conducted at two separatehearings.” Id. The trial court's failure to bifurcate the hearing, therefore, was not error per se.
    Respondent argues the trial court “impermissibly combined the two phases” and heard evidence as to what was in the children's best interest during the adjudicatory phase. During the hearing, a social worker with Mecklenburg County Youth and Family Services (YFS) testified she believed it was in the children's best interest to terminate parental rights. We do not believe the trial court impermissibly considered this testimony when deciding whether there were grounds for termination for two reasons.
    First, at the conclusion of the hearing, the trial court found “clear and convincing evidence,” N.C. Gen. Stat. § 7B-1111(b) (2003), that grounds for termination existed, citing respondent's housing problems, domestic violence issues, substance abuse issues, and lack of parenting skills. Having made that finding, the trial court subsequently found it was in the children's best interest to terminate parental rights, noting that the children had “spent the majority or large parts of their lives in custody” and that “adoptive placements have been located where they will be well provided for.” It appears, therefore, that the trial court divided its consideration of the termination petitions into two separate and distinct phases, deciding first that grounds for termination existed and second that termination was in the children's best interest, as required under our case law.
    
Secondly, where the trial court sits in the role of fact- finder and “incompetent evidence is admitted, if competent evidenceof the same import is also considered, the court is presumed to have considered only that evidence which is competent.” Consolidated Systems v. Granville Steel Corp., 63 N.C. App. 485, 487, 305 S.E.2d 57, 59 (1983). Because there was competent evidence before the trial court that grounds existed to terminate respondent's parental rights, we presume the court considered only that evidence when deciding that grounds for termination existed. This argument is overruled.
    Defendant's next argument is that the trial court's ruling should be reversed because the petitioner failed to file adequate petitions. Under N.C. Gen. Stat. § 7B-1104, a petition to terminate parental rights must allege “[f]acts that are sufficient to warrant a determination that one or more of the grounds for terminating parental rights exist.” N.C. Gen. Stat. § 7B-1104(6) (2003). “While there is no requirement that the factual allegations be exhaustive or extensive, they must put a party on notice as to what acts, omissions or conditions are at issue.” In re Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002). Thus, a “bare recitation . . . [of] statutory grounds for termination does not . . . state 'facts which are sufficient to warrant a determination' that grounds exist to warrant termination.” In re Quevedo, 106 N.C. App. 574, 579, 419 S.E.2d 158, 160 (1992) (internal citations omitted) (emphasis in original).
    In Quevedo, the petition stated only the following statutory grounds for termination:         A. Said parent . . . has neglected the child within the meaning of G.S. 7A-517(21).

        B. Said parent has wilfully abandoned the child for at least six (6) consecutive months immediately preceding the filing of this petition.

Id., 106 N.C. App. at 578-79, 419 S.E.2d 158, 160. In the case before us, however, in addition to stating the statutory grounds for termination, the petitions make the following factual allegations:
        Following the adjudication of the minor child, the respondent mother . . . was given the opportunity to participate in a case plan with Youth and Family Services to address the issues which led to the child being in foster care. The respondent mother did not comply with the provisions of the case plan to which she agreed such that the Agency could recommend reunification. As a result, the minor child has had to remain in foster care. Specifically, the respondent mother did not complete substance abuse treatment, domestic violence treatment, parenting classes or obtain and maintain appropriate housing and employment.

We conclude that these factual allegations were sufficient to “put [respondent] on notice as to what acts, omissions or conditions [were] at issue.” Hardesty, 150 N.C. App. at 384, 563 S.E.2d at 82. Respondent had notice that the failure to follow her case plan could result in the termination of her parental rights. Therefore, this argument is overruled.
    Respondent also argues that DSS failed to make reasonable efforts to reunify her with her children. Reasonable efforts are defined as:
        The diligent use of preventive or reunification services by a department ofsocial services when a juvenile's remaining at home or returning home is consistent with achieving a safe, permanent home for the juvenile within a reasonable period of time. If a court of competent jurisdiction determines that the juvenile is not to be returned home, then reasonable efforts means the diligent and timely use of permanency planning services by a department of social services to develop and implement a permanent plan for the juvenile.

N.C. Gen. Stat. § 7B-101(18) (2003). North Carolina General Statute § 7B-507 requires the trial court to make findings as to whether DSS “has made reasonable efforts to prevent or eliminate the need for placement of the juvenile, unless the court has previously determined under subsection (b) of this section that such efforts are not required or shall cease.” N.C. Gen. Stat. § 7B-507(a)(2) (2003). Subsection (b) allows DSS to cease reunification efforts where “[s]uch efforts clearly would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time.” N.C. Gen. Stat. § 7B-507(b)(1) (2003).
    In this case, the trial court ordered that reunification efforts cease by order dated 20 August 2003. At that hearing and at six previous review hearings, the trial court made findings, pursuant to N.C. Gen. Stat. § 7B-507(a)(2), that DSS had made reasonable efforts to prevent or eliminate the need for placement of the juveniles in foster care. DSS submitted three “Reasonable Efforts” reports documenting its efforts to reunify respondent with her children from 12 July 2002 to 17 April 2003. These efforts included: coordinating and supervising visits between respondentand her children, meeting with respondent to discuss her case plan, encouraging respondent to complete her treatment with Drug Court and the Women's Commission, and frequent correspondence with respondent, the children's schools, and the children's foster parents. We conclude there was clear and convincing evidence to support the trial court's findings that DSS made reasonable efforts towards the reunification of respondent and her children. This argument is overruled.
    Respondent makes several arguments that petitioner failed to meet its burden of proof under N.C. Gen. Stat. § 7B-1111. This statute provides nine statutory grounds for the termination of parental rights and requires the petitioner to prove the existence of at least one of those grounds. We will first address respondent's contention that petitioner failed to prove she willfully left the children in foster care. N.C. Gen. Stat. § 7B- 1111(a)(2) states that a court may terminate parental rights upon a finding that:
        The parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the children on account of their poverty.

N.C. Gen. Stat. § 7B-1111(a)(2) (2003). “Willfulness is established when the respondent had the ability to show reasonable progress, but was unwilling to make the effort.” In re McMillon, 143 N.C.App. 402, 410, 546 S.E.2d 169, 175, disc. review denied, 354 N.C. 218, 554 S.E.2d 341-42 (2001).
     The termination hearing took place on 9 March 2004, almost two years after the children's removal from the home on 9 July 2002; therefore, the children lived outside the home for more than the twelve months required by the statute. The trial court was also required to find respondent had the ability to show reasonable progress in correcting the conditions which led to removal, but that she had failed to do so. Id. The evidence in the record indicates that respondent had several opportunities to complete domestic violence treatment, but because of her repeated failures to appear at counseling sessions, the trial court found that “this issue remains unresolved.” With respect to her substance abuse treatment, the evidence tended to show respondent suffered a relapse and failed to comply with the requirements of her treatment through Drug Court, resulting twice in incarceration during the time her children were in foster care. The court therefore found respondent was at “the same point where she was approximately one year ago.” Regarding respondent's housing, the court found she was “in the same position as when the children came into custody.” We conclude, based on the evidence before us, that the trial court's findings of fact were supported by clear and convincing evidence. In turn, these findings support the trial court's conclusion of law that respondent failed to demonstrate reasonable progress in correcting the conditions which led to the children's removal andtherefore willfully left the children in foster care for more than twelve months. This argument is overruled.
    Having found that grounds for termination were established pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), we need not address whether grounds for termination existed under N.C. Gen. Stat. § 7B- 1111(a)(1) or (a)(3). See In re Stewart Children, 82 N.C. App. 651, 655, 347 S.E.2d 495, 498 (1986)(if one statutory ground for termination is established, this Court need not address assignments of error challenging other grounds).
    Finally, respondent argues the trial court erred in concluding that termination of parental rights was in the best interests of the children. The standard of review for determining whether termination was in the best interest of the children is whether there was any abuse of discretion by the trial court. In re Shepard, 162 N.C. App. 215, 221-222, 591 S.E.2d 1, 6 (2004). Based on our review of the record and the trial court's findings regarding the children's best interests, we hold the court did not abuse its discretion in finding it to be in the best interests of the children to terminate respondent's parental rights.
    Affirmed.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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