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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF J.M.W., E.S.J.W.
NO. COA 05-1672
Filed: 17 October 2006
1. Termination of Parental Rights--unchallenged grounds_order upheld
An order terminating respondent's parental rights was upheld on appeal where respondent
did not challenge two of the grounds found by the trial court for terminating her parental rights.
2. Termination of Parental Rights--failure to appoint guardian ad litem for parent--
mental illness not a central factor in findings
The trial court did not err in a termination of parental rights case by failing to appoint
respondent mother a guardian ad litem based on her alleged mental illness, because: (1) the trial
court is not required to appoint a guardian ad litem in every case where substance abuse or some
other cognitive limitation is alleged; (2) the question of whether a guardian ad litem is required is
controlled by the substance of the trial court's reasoning instead of specific citations to or
allegations of dependency; and (3) taken as a whole, the trial court's order indicates that the
substance of the trial court's reasoning was based on respondent's knowledge of the effect her
arrests and incarcerations had on her children, and that her mental illness was not a central factor
in the trial court's findings, conclusions, or decisions, nor was her neglect or failure to pay child
support due to her condition. N.C.G.S. §§ 7B-602, 7B-1101.
3. Appeal and Error--preservation of issues--failure to appeal from order
Although respondent mother contends the trial court erred in a termination of parental
rights case by failing to require DSS to make reasonable efforts to protect the children in their
home placement with respondent by filing for and following through with the necessary domestic
violence restraining order, this assignment of error is dismissed because respondent mother did
not appeal the pertinent order changing the case plan from reunification to relative placement.
Appeal by respondent mother from order entered 18 November
2005 by Judge Sarah C. Seaton in District Court, Onslow County.
Heard in the Court of Appeals 21 September 2006.
Onslow County Department of Social Services, by Cindy Goddard
Strope, for petitioner-appellee.
Womble Carlyle Sandridge & Rice, PLLC, by Stuart A. Brock, for
petitioner-appellee Guardian Ad Litem.
The Turrentine Group, PLLC, by Karlene Scott-Turrentine, for
A single ground under North Carolina General Statutes § 7B-
1111 is sufficient to support an order terminating parental
(See footnote 1)
Here, because Respondent did not challenge two of the
grounds for terminating her parental rights, we uphold the
termination order. Further, where mental illness was referred to
by the trial court in its findings of fact, but not substantially
relied upon for its conclusions of law or its decision to terminate
parental rights, we hold the trial court was not required to
appoint a guardian ad litem for the respondent-mother.
(See footnote 2)
On 21 December 2001, the Onslow County Department of Social
Services (DSS) filed a juvenile petition alleging the two minor
children at issue in this case were dependent because Respondent-
mother was arrested and no other caretakers were available. The
children were adjudicated dependent on 14 March 2002, and were in
the custody of DSS and foster care from December 2001 until 5 April
2002, when they were returned to their mother following her release
from jail. At that time, the court ordered Respondent-mother to
complete a number of services, including substance abuse and
psychological evaluations, parenting classes, domestic violence
counseling, and securing and maintaining full-time employment.
The children were then observed to be comfortable in the home
with their mother and interaction between the children and [the
mother] [wa]s seen to be positive. Nevertheless, on 14 August2002, the children were removed from Respondent-mother's home and
placed in the temporary custody of her neighbors, after incidents
of domestic violence occurred. However, on 24 October 2002, the
neighbors asked DSS to pick up the children, complaining about
Respondent-mother's behavior. DSS filed another order for
nonsecure custody on 28 October 2002, charging that Respondent-
mother was not a suitable placement for the juveniles due to her
inability to protect the children and her failure to take her
medication. The children were again adjudicated dependent on 10
February 2003, and full custody was ordered to remain with DSS.
In March 2003, the children witnessed their mother being
arrested due to a violation regarding her house arrest, and she
then began serving a sentence of approximately nine months, with
additional federal charges pending. The court entered an order on
23 June 2003, changing the case plan from reunification to custody
with a relative and ordering a homestudy of a maternal aunt to
determine her suitability as a placement. DSS custody was
continued in a 2 September 2003 hearing, at which an additional
homestudy of a paternal cousin was ordered and all contact between
Respondent-mother and the children was directed to cease until her
release from prison. In October 2003, Respondent-mother pled
guilty to federal charges and was sentenced to twenty-four months
in prison, followed by three years of supervision.
After a brief, three-month placement with a maternal aunt in
Ohio, the two minor children were found to have been mistreated and
were returned to the physical custody of DSS and the foster homethey had left in December 2003. DSS filed a petition to terminate
Respondent-mother's parental rights on 25 August 2004, alleging
that she had (1) neglected the children; (2) willfully left the
children in foster care for more than twelve months without
reasonable progress; (3) failed to provide child support; and, (4)
willfully abandoned the children for at least the six months prior
to the filing of the petition. On 22 November 2004, the court
ordered that the case plan be changed from relative placement to
the termination of parental rights and adoption in order to best
achieve a safe, permanent home for the children.
On 18 March 2005, the court entered an order terminating the
parental rights of Respondent-mother on the grounds that she had
(1) neglected the children by committing repeated criminal acts and
failing to provide the children with proper care, supervision, and
discipline, and that there was a reasonable likelihood she would
neglect the children further in the future; (2) willfully left the
children in foster care for more than twelve months without showing
reasonable progress toward correcting the conditions that had led
to their removal from the home; (3) willfully abandoned the
children for at least six months prior to the filing of the
termination petition, due to her knowledge that when she commits a
criminal act resulting in incarceration, the children have nowhere
to go except foster care; and (4) willfully failed to pay child
support for at least six months prior to the filing of the
termination petition, despite the ability to pay an amount more
than zero. Respondent-mother appeals the termination of her parental
rights, arguing that (I) the trial court abused its discretion and
committed reversible error in its conclusions that she had
willfully left the children in foster care for twelve months
without reasonable progress, willfully abandoned the children for
six months, and willfully failed to pay child support; (II) the
trial court failed to appoint her a guardian ad litem, in light of
her diagnosis with depressive disorder; and, (III) the trial court
failed to require DSS to file for and follow through on a domestic
violence restraining order to protect the children and Respondent-
A trial court may terminate parental rights on the basis of
several grounds, and [a] finding of any one of the . . .
separately enumerated grounds is sufficient to support a
termination. In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900,
903 (1984); see also In re J.A.A., 175 N.C. App. 66, 72, 623 S.E.2d
45, 50 (2005) (The trial court can terminate a respondent's
parental rights upon the finding of one of the grounds enumerated
in N.C. Gen. Stat. § 7B-1111(a).). In a termination proceeding,
this Court should affirm the trial court where the court's
findings of fact are based upon clear, cogent and convincing
evidence and the findings support the conclusions of law. In re
Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996).
Moreover, findings of fact are conclusive on appeal if they are
supported by ample, competent evidence, even if there is evidenceto the contrary. In re Williamson, 91 N.C. App. 668, 674, 373
S.E.2d 317, 320 (1988). If unchallenged on appeal, findings of
fact are deemed supported by competent evidence and are binding
upon this Court. In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d
337, 340 (2003). So long as the findings of fact support a
conclusion based on [the statute], the order terminating parental
rights must be affirmed. In re Oghenekevebe, 123 N.C. App. 434,
436, 473 S.E.2d 393, 395-96 (1996). Moreover, [a]ssignments of
error not set out in the appellant's brief, or in support of which
no reason or argument is stated or authority cited, will be taken
as abandoned. N.C. R. App. P. 28 (b)(6).
 Here, although Respondent-mother assigned as error the
court's finding as fact and concluding as law that she had
willfully left the children in foster care for twelve months
without reasonable progress, willfully abandoned the children for
six months, and willfully failed to pay child support, her brief
presented arguments only as to the first two conclusions, thereby
abandoning the third. In addition, Respondent-mother did not offer
any argument contesting the trial court's conclusion that she had
neglected the children by committing repeated criminal acts and
that there was a reasonable likelihood that she would neglect them
in the future. Respondent-mother also did not allege that the
trial court erred in deciding that termination would be in the best
interests of the children.
Since the unchallenged grounds are sufficient to support the
trial court's order of termination, we affirm without examiningRespondent-mother's arguments as to the other grounds.
 Respondent-mother further assigns as error the trial
court's failure to appoint her a guardian ad litem, arguing that
her mental illness necessitated such action under North Carolina
General Statutes §§ 7B-602 and 7B-1101 (2003).
(See footnote 3)
The relevant portions of those statutes compel the appointment
of a guardian ad litem for a parent in a termination case 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), as well as where
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.
N.C. Gen. Stat. 7B-1101(1) (2003). The necessary findings for
termination under section 7B-1111(a)(6) are that the parent is
incapable of providing for the proper care and supervision of the
juvenile, . . . and that there is a reasonable probability that
such incapability will continue for the foreseeable future . . . as
a result of . . . mental illness, . .. N.C. Gen. Stat. § 7B-1111(a)(6) (2003).
This Court has previously held that section 7B-602(b)(1) did
not require the trial court to appoint a guardian ad litem unless
(1) the petition specifically alleges
dependency; and (2) the majority of the
tend to show that a
parent or guardian is incapable as a result of
some debilitating condition listed in the
statute of providing for the proper care and
supervision of his or her child.
In re H.W.
, 163 N.C. App. 438, 447, 594 S.E.2d 211, 216 (emphasis
added), disc. review denied
, 358 N.C. 543, 599 S.E.2d 46 (2004).
However, the trial court is not required to appoint a guardian ad
litem in every case where substance abuse or some other cognitive
limitation is alleged. In re J.A.A.
, 175 N.C. App. at 71, 623
S.E.2d at 48 (internal quotations and citation omitted). The
causal connection between the mental illness and the incapacity to
provide proper care must be clear. See In re Estes
, 157 N.C. App.
513, 518, 579 S.E.2d 496, 499, disc. review denied
, 357 N.C. 459,
585 S.E.2d 390 (2003) (requiring the appointment of a guardian ad
litem where the allegations tend to show incapacity because of
mental illness); In re T.W.
, 173 N.C. App. 153, 159-60, 617 S.E.2d
702, 705-06 (2005) (noting that the trial court's duty to appoint
a guardian ad litem was triggered when the respondent's mental
instability and her incapacity to raise her minor children were
central factors in the court's decision); In re J.D.
, 164 N.C.
App. 176, 182, 605 S.E.2d 643, 646 (in a neglect case, the
appointment of a guardian ad litem was still required because
was some evidence that tended to show that respondent's mentalhealth issues and the child's neglect were so intertwined at times
as to make separation of the two virtually, if not, impossible.),
disc. review denied
, 358 N.C. 732, 601 S.E.2d 531 (2004).
Indeed, the question of whether the appointment of a guardian
ad litem is required is controlled by the substance of the trial
court's reasoning, not specific citations to or allegations of
dependency. In re L.W.
, 175 N.C. App. 387, 392, 623 S.E.2d 626,
629, disc. review denied
, 360 N.C. 534, 633 S.E.2d 818 (2006).
In the instant case, the DSS petition to terminate parental
rights contained no allegations that the children were dependent
due to mental health, pursuant to section 7B-1111(a)(6), but
instead that they were neglected or abandoned. DSS did not argue
that Respondent-mother was incapable of providing proper care for
her children, but rather that she had willfully failed to do so.
Likewise, the trial court's order of termination concluded
that Respondent-mother had neglected the children [by committing]
repeated criminal acts, thereby creating situations in which the
juveniles were deprived of their mother's care, supervision, and
Moreover, the court found that she had willfully
failed to pay child support . . . despite having the ability to pay
some amount greater than zero.
Although the trial court's order
included reference to Respondent-mother's suicide attempt in
December 2004 and her depressive disorder, finding that it was
part of the reason for her criminal history and part of the reason
for her being the victim of domestic violence historically,
court also concluded that Respondent-mother's abandonment was basedon her knowledge that when she commits criminal acts resulting in
her incarceration . . . her children have nowhere to go except
The trial court further noted that, during the most
stable time period of Respondent-mother's life, she was still
unable to provide care for the children
and that she is still not
in a position to be independent.
Out of forty findings of fact,
only two referred to Respondent-mother's mental illness.
We conclude that, taken as a whole, the trial court's order
indicates that the substance of her reasoning was based on
Respondent-mother's knowledge of the effect her arrests and
incarcerations had on her children, and that her mental illness was
not a central factor in the trial court's findings, conclusions, or
decision, nor was her neglect or failure to pay child support due
to her condition. The appointment of a guardian ad litem was
therefore not compelled under section 7B-602(b)(1), and we find no
 Lastly, Respondent-mother assigns as error the trial
court's failure to require DSS to make reasonable efforts to
protect the children in their home placement with Respondent-mother
by filing for and following through with the necessary domestic
violence restraining order. However, Respondent-mother cites no
authority in her brief by which this issue would properly be before
this Court, given that Respondent-mother did not appeal the 23 June
2003 order changing the case plan from reunification to relative
Because the order was not appealed, it is valid andbinding in every respect. See Hayden v. Hayden
, 178 N.C. 259, 263,
100 S.E. 515, 517 (1919). We therefore dismiss this assignment of
Affirmed in part, dismissed in part.
Judges McGEE and McCULLOUGH concur.
In re Pierce
, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903
In re J.A.A.
, 175 N.C. App. 66, 72, 623 S.E.2d 45, 50
We note that these statutes were amended in 2005; because
DSS filed the termination petition in this case prior to the
amended statutes' effective date of October 1, 2005, the earlier
versions control here.
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