An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1583


Filed: 17 January 2006

                        New Hanover County            
                            No. 02 J 403

    Respondents appeal from order entered 18 March 2004 by Judge John W. Smith in New Hanover County District Court. Heard in the Court of Appeals 18 August 2005.

    Julia Talbutt, for petitioner New Hanover County Department of Social Services.

    Regina Floyd-Davis, for Guardian ad Litem-appellee.

    Peter Wood, for respondent-appellant father.

    Lisa Skinner Lefler, for respondent-appellant mother.

    HUDSON, Judge.
    In May 2003, New Hanover County Department of Social Services (DSS) filed a petition to terminate the parental rights of respondent mother and respondent father as to their three biological children. A hearing was held on this matter in district court on 21 July 2003. The court entered an order terminating the parental rights of both parents on 18 March 2004. Both parents signed relinquishment of their parental rights as to the older two children, but appeal the termination of parental rights of the youngest child, D.K. For the reasons set forth below, we dismiss respondent mother's appeal and affirm the decision of the trial court as to respondent father.
    D.K. was born in September 2001 and went directly from thehospital into foster care. He was adjudicated a dependent child at risk of neglect on 17 January 2002. Later in January 2002, DSS placed D.K. with respondent mother; the two older children were already living with her at the time. As conditions of this placement, the child's maternal grandmother was required to reside in the home with respondent mother and the children were not to be exposed, without the trial court's permission, to respondent father, who had committed domestic violence against respondent mother.
    As a result of his premature birth, recurrent respiratory problems, and weight-gain issues, D.K. requires special services, such as a parent aide, early childhood intervention, and physical and occupational therapy. While D.K. was in his mother's care, respondent mother was inconsistent about keeping D.K.'s appointments and the physical and occupational therapists reported having trouble contacting her. Respondent father was also seen entering the home while the children were placed with respondent mother. In July 2002, DSS placed D.K. in foster care again. Thereafter, the maternal grandmother left respondent mother's home and respondent mother lost her housing. Although respondent mother went to a domestic violence shelter at least twice, she quickly returned to living with or near respondent father. Respondent mother visited with D.K. regularly while he was in foster care, but respondent father did not participate in regular visitation with any of his children.
    Respondent mother first argues that the trial court erred infailing to appoint a guardian ad litem for her. In support of this argument, she cites N.C. Gen. Stat. § 7B-602(b)(1). Although this statute has since been amended, the version effective when the TPR petition was filed required appointment of a guardian ad litem for the parent
        [w]here 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). However, N.C. Gen. Stat. § 7B-602 governs the appointment of counsel at the time of the original petition for abuse, neglect, or dependency. Here, respondent mother is appealing from the TPR, not from the initial adjudication, and thus N.C. Gen. Stat. § 7B-602(b)(1) is not applicable. At the time the TPR petition was filed, N.C. Gen. Stat. § 7B-1101 required that the court appoint a guardian ad litem where petitioners sought to terminate the parent's rights for alleged “incapability to provide proper care and supervision . . . [as a] result of substance abuse, mental retardation, mental illness, organic brain syndrome, or another similar cause or condition.” N.C. Gen. Stat. § 7B-1101 (2003). But respondent mother does not cite or argue N.C. Gen. Stat. § 7B-1101, and more importantly, she did not include the TPR petition in the record on appeal.
    It is well-established that the appellant bears the duty of ensuring that the record on appeal is complete. Tucker v. GeneralTel. Co. of the Southeast, 50 N.C. App. 112, 118, 272 S.E.2d 911, 915 (1980). Rule 9 of the Rules of Appellate Procedure requires that copies of the pleadings be included in the record on appeal. N.C. R. App. P. 9(1)(d) (2004). The pleadings are an essential part of the record which advise the Court as to the nature of the action or proceeding. Allen v. Allen, 235 N.C. 554, 555, 70 S.E.2d 505, 506 (1952). Our Courts have held that the absence of pleadings or the complaint from the record necessitate dismissal. Williams v. Asheville Contracting Co., 259 N.C. 232, 234, 130 S.E.2d 340, 341 (1963); Griffin v. Barnes, 242 N.C. 306, 307, 87 S.E.2d 560, 561 (1955). In a TPR case, the relevant pleading is the petition for termination of parental rights. In re Triscari Children, 109 N.C. App. 285, 287, 426 S.E.2d 435, 436 (1993). “The North Carolina Rules of Appellate Procedure are mandatory and failure to follow these rules will subject an appeal to dismissal.” Viar v. N.C. DOT, 359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005) (internal citation and quotations omitted). We conclude that without the TPR petition in the record, we cannot address respondent mother's appeal and thus we dismiss her appeal.
    We turn now to the appeal of respondent father, who first argues that the trial court erred in failing to conduct a hearing to determine if he was entitled to substitute court-appointed counsel. A parent in a TPR proceeding is entitled to appointed counsel. N.C. Gen. Stat. § 7A-451(a)(14) (2003). This right includes the right to effective assistance of counsel. In re Oghenekevebe, 123 N.C. App. 434, 436, 473 S.E.2d 393, 396 (1996). Here, the court appointed counsel for respondent as required, but respondent was dissatisfied with the appointed counsel. At the TPR hearing, the following exchange took place between respondent father, his attorney (Mr. Owens), and the court:
        THE COURT: Okay, [Respondent], Mr. Owens when we began the trial said that he was not sure whether you wanted him to represent you or not. And I at that time ordered that he was representing you. Do you want Mr. Owens to represent you or do you want to represent yourself?
        [RESPONDENT]: I mean, I ain't got no choice. I mean, I want a fair trial, but I want-if my lawyer don't know what's going on and he doesn't get no papers, and I don't get no papers, I didn't get no-
        THE COURT: This is a simple question. Do you want Mr. Owens to represent you or do you want to represent yourself?
        [RESPONDENT]: I guess I'll have Mr. Owens represent me.

        MR. OWENS: Your honor, he has represented to me that he is very disappointed with my services, your Honor. I do not feel that I could adequately represent him at this time.
        THE COURT: Well, I appreciate that, but. . . this is the day of trial, and it's not going to be continued, and you've been appointed by the Court. He says he wants you to represent him.

        MR. OWENS: If that is true, I'll be happy to represent him, your Honor. I don't know if that is actually-
        THE COURT: He just said that.
        MR. OWENS: _-a true statement.
        THE COURT: Do you want to represent yourself or do you want Mr. Owens to represent you?
        [RESPONDENT]: I guess I have to have Mr. Owensrepresent me.
        THE COURT: Okay. Do you have any questions Mr. Owens?
    The right to appointed counsel does not include the right to appointed counsel of one's choosing. State v. Robinson, 290 N.C. 56, 65-66, 224 S.E.2d 174, 179 (1976). “[I]n the absence of some substantial reason for the appointment of replacement counsel, an indigent must accept counsel appointed by the court unless he wishes to waive counsel and represent himself.” In re S.L.L., 167 N.C. App. 362, 364, 605 S.E.2d 498, 499 (2004). This holds true in the context of a TPR hearing as well as in a criminal case. Id. “Mere dissatisfaction with one's counsel is not a substantial reason for the appointment of replacement counsel.” Id. Whether or not to appoint replacement counsel rests within the discretion of the trial court. Robinson, 290 N.C. at 66, 224 S.E.2d at 180. Respondent has not asserted ineffective assistance of counsel, but rather, has only expressed “mere dissatisfaction” with his counsel. Furthermore, the trial court heard respondent on the matter and respondent fails to cite any authority which would have required the trial court to make any further inquiry. We conclude that the trial court did not abuse its discretion and thus overrule this assignment of error.
    Respondent father also argues that several of the court's findings of fact were not supported by competent evidence and that the findings do not support the conclusion of law that there were grounds to terminate his parental rights. We disagree.
    In reviewing a TPR order, this Court must determine “whetherthe findings of fact are supported by clear and convincing evidence,” and “whether the legal conclusions are supported by the findings of fact.” In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000). Our review of the record and transcript reveals ample clear and convincing evidence to support each of the contested findings of fact. Prior orders of the court, testimony from social workers, testimony from respondent mother, and testimony from respondent father, support the findings. These findings show, in relevant part: respondent's failure to comply with court-ordered services required for visitation with D.K.; respondent's drug use; respondent's failure to visit with and support D.K.; respondent's failure to maintain communication with DSS; respondent's violation of the court order that he not have unsupervised contact with the children in respondent mother's home; respondent father's domestic violence relationship with respondent mother; respondent father's unwillingness to cooperate with DSS and his misrepresentation of material facts to DSS; and that respondent father has never provided a home or financial or emotional support for any of his children and has not participated in reunification plans. We conclude that these findings, as well as those unchallenged on appeal, support the trial court's conclusion that grounds existed to terminate respondent's parental rights of D.K. for neglect.
    The court may terminate parental rights upon finding that the parent has neglected the juvenile, if the court finds the juvenile to be neglected with the meaning of N.C. Gen. Stat. § 7B-101. N.C.Gen. Stat. § 7B-1111(a)(1) (2003). A neglected juvenile is defined as
        [a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.

N.C. Gen. Stat. § 7B-101(15) (2003). Respondent correctly asserts that “termination of parental rights for neglect may not be based solely on conditions which existed in the distant past but no longer exist.” In re Ballard, 311 N.C. 708, 714, 319 S.E.2d 227, 231-32 (1984). “The trial court must [] consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect.” Id. at 715, 319 S.E.2d at 232 (citation omitted). The court must consider “the fitness of the parent to care for the child at the time of the termination proceeding. Id. (emphasis in original). Respondent contends that because he never had custody of D.K., he never neglected him, and that there is nothing upon which to base the probability of future neglect. This argument lacks merit. The trial court's findings reveal sufficient consideration of respondent's fitness to parent at the time of the TPR proceeding; we overrule this assignment of error.    Finally, respondent father contends that the trial court abused its discretion in concluding that termination of his parental rights was in the best interest of D.K. After the trial court finds at least one statutory ground for termination of parental rights, it must then exercise its discretion to determine whether termination is in the best interest of the child. N.C. Gen. Stat. § 7B-1110 (2003); In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). We review the trial court's decision whether to terminate parental rights for abuse of discretion. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002). Here, given the trial court's findings and conclusions of respondent's past neglect and high probability of future neglect, as well as its determination that D.K. was in a foster home with committed foster parents who wished to adopt, we cannot conclude that the trial court abused its discretion in terminating respondent father's parental rights.
    Dismissed as to respondent mother.
    Affirmed as to respondent father.
    Judges STEELMAN and JACKSON concur.
    Report per Rule 30(e).

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