An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-27

NORTH CAROLINA COURT OF APPEALS

Filed: 3 January 2006

IN THE MATTER OF:
    I.D.C.,
                        Buncombe County    
    Minor Child.                No. 03 J 248

    Appeal by respondent mother from judgment entered 8 July 2004 by Judge Patricia K. Young in Buncombe County District Court. Heard in the Court of Appeals 14 November 2005.

    Katharine Chester for respondent-appellant.

    Charlotte W. Nallan for the Buncombe County Department of Social Services.

    Michael N. Tousey for the Guardian ad Litem.

    MARTIN, Chief Judge.

    Respondent-mother (respondent) appeals the termination of her parental rights to her minor son, I.D.C. For the reasons stated below, we affirm the order of the trial court.
    On 18 April 2002, the Buncombe County Department of Social Services (DSS) filed a petition alleging I.D.C. was a neglected juvenile in that he did not receive proper care, supervision or discipline from respondent, he was not provided necessary medical and remedial care, and he lived in an environment injurious to his welfare. DSS did not file a non-secure custody order at the time because I.D.C. had been voluntarily placed with his maternal grandmother. However, because of her unresolved mental healthissues, I.D.C. was removed from his grandmother's care and placed in foster care in August, 2002.
    At an adjudication and dispositional hearing held 30 June 2002, respondent “denied, but did not contest” that I.D.C. was a neglected child based on the allegations in the petition. At the hearing, the trial court found by clear, cogent, and convincing evidence that on one occasion, respondent's husband choked her in the presence of I.D.C., and on another occasion, he “endangered her for a period of three days, during which time he 'held her hostage,' beat her, cut her, tried to suffocate her, hit her in the head and tried to push her off the porch.” Respondent told a DSS social worker that she had no housing options other than living with her abusive husband. However, when the social worker suggested she go to a battered women's shelter, she refused. A few weeks later, respondent left a threatening message on the social worker's voice mail demanding the return of I.D.C. Respondent later admitted to the social worker that she was not taking her medication and still lived with her abusive husband. Shortly thereafter, respondent called her maternal aunt and asked for help “get[ting] out of there” because she and her husband had just had a fight.
    The trial court concluded as a matter of law that the conditions which led to I.D.C.'s removal from the home still existed and that it would be in the child's best interest to be placed in DSS custody. It also concluded DSS had made reasonable efforts to reunify the family and prevent or eliminate the need forplacement with DSS. The court therefore ordered that respondent (1) receive domestic violence counseling, (2) receive mental health counseling through Blue Ridge Center, (3) participate in job training, (4) complete parenting classes, (5) secure and maintain stable housing separate and apart from her abuser,(6) contribute financially to the upkeep of her child, (7) be consistent in her supervised visits with I.D.C., and (8) obtain a medical evaluation.
    Between 22 November 2002 and 29 August 2003, six permanency planning and review hearings were held in the trial court. On 15 October 2003, DSS filed a petition for the termination of respondent's parental rights, which was amended on 24 October 2003 to include the putative biological father. The termination hearing began the week of 12 January 2004 and was scheduled to continue 20 February 2004. However, due to a heavy calendar, the case was not heard again until 19 May 2004, and the court reconvened and delivered its decision on 30 June 2004.
    At the termination hearing, the evidence before the trial court tended to show that respondent continued to be involved in abusive relationships. Respondent left her husband and became involved with another man who had a criminal record of numerous assault charges. During their relationship, respondent visited the emergency room twice and was believed to have been assaulted both times. On or about 4 June 2003, respondent resumed her relationship with her husband. However, after he held her at gunpoint on one occasion, she “escaped” while he was sleeping. On or about 31 July 2003, respondent threatened her mother with a boxcutter. As a result, a restraining order was issued prohibiting respondent from being near her mother for one year.
    Jane Robinson, a domestic violence counselor, testified she first met respondent in December of 2002. Respondent attended a few counseling sessions with Mrs. Robinson through February, 2003, but her attendance was inconsistent. Mrs. Robinson testified that she had no contact with respondent after 10 February 2003, at which time respondent was in the beginning to middle phase of her domestic violence treatment. The trial court made the following finding regarding respondent's progress with respect to domestic violence:
        The respondent mother has not demonstrated that she has made effective changes and that the minor child would be safe if returned to her custody. The respondent mother's life has continued to be chaotic including a number of incidences where people have assaulted her or she has been assaultive. The respondent mother has not effectively participated in services to address and alleviate the issues of safety for the minor child and to protect the minor child from domestic violence.

    As part of her case plan, respondent was required to participate in counseling through the Blue Ridge Center. Between June and November of 2002, the trial court found respondent “made reasonable progress in her therapy” at the Center. Joell Steininger, a licensed clinical social worker, wrote on 21 November 2002 that respondent had successfully completed her classes at Blue Ridge Center and was “using her skills regularly, which she described as helpful.” The plan at that time was to close her case in thirty days.     By March, 2003, however, respondent was experiencing the same problems she had experienced prior to her classes at the Center, including depression, nervousness, and tension. Respondent missed appointments with Ms. Steininger in April, June, and August of 2003. Respondent did meet with Ms. Steininger in May when Ms. Steininger referred her to a psychiatrist for medication and recommended she attend a depression recovery group. Respondent failed to follow these recommendations. Ms. Steininger closed respondent's case on 22 August 2003 because respondent was noncompliant with treatment. The trial court therefore found that although respondent “made some progress in her mental health issues and anger management temporarily, she was unable to maintain those skills[.]”
    Respondent's case plan also required her to receive job training, which she began through an agency called Vocational Rehabilitation. Her training included a psychological assessment conducted by Dr. John Clement, a licensed psychologist. Dr. Clement diagnosed respondent with anxiety disorder and borderline intellectual functioning. He found her IQ to be seventy-four, which is in the fourth percentile. He testified that her low cognitive functioning could result in poor judgment, which could be a cause for concern with respect to her parenting abilities. He believed she might have some difficulty “learn[ing] and adapt[ing] to the demands of parenthood.”
    As to respondent's employability, Dr. Clement stated that there was “no indication that she is not employable, yet there aremany indications that she would likely have difficulty at work.” However, he felt she should be able to maintain some level of employment and her functioning would improve with the aid of a job coach. Respondent, however, quit her vocational rehabilitation on 20 June 2003 and was unable to maintain stable employment. The trial court found respondent “failed to maintain employment without reasonable justification or making reasonable efforts to participate in services to address job skills.”
    Respondent was also required to attend parenting classes. The trial court found respondent received intensive in-home services and parenting classes from a counselor with the Blue Ridge Center. However, respondent's social worker felt, and the trial court found, that respondent could not effectively demonstrate the skills she had been taught. The trial court also found respondent's limited cognitive function could affect her ability to change her behavior.
    Finally, respondent had been ordered to maintain stable housing and contribute financially to the upkeep of her child. The trial court found respondent “moved into her own apartment at Deaverview Apartments, and since on or about February 2003 sought housing through Section 8 housing.” The trial court also found that although respondent was employed only intermittently at numerous different jobs, she did earn compensation for employment and had the ability to pay some portion of the child's care. Respondent had been ordered to pay a minimum amount of $95.00 permonth, but during the seventeen months I.D.C. was in the custody of DSS, she only made three payments totaling $190.00.
    As a result of these findings of fact, the trial court made the following relevant conclusions of law:
        2.    That pursuant to N.C.G.S. 7B-1111(a)(1) the respondent mother neglected the minor child when the minor child was placed into the custody of the Department, and she has continued to neglect the minor child since the minor child has been placed in the custody of the Department, and there is a reasonable probability of a repetition of neglect if the minor child was returned to the care, custody and control of the respondent mother.

        3.    That pursuant to N.C.G.S. 7B-1111(a)(2) the respondent mother has willfully left the minor child in foster care or in placement outside of 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 the conditions that led to the removal of the minor child from the care, custody and control of the respondent mother.

        4.    That pursuant to N.C.G.S. 7B-1111(a)(3) the minor child has been placed in the continuous custody of the Department since June 30, 2002, and the respondent mother, for a continuous period of more than six (6) months next preceding the filing of the petition to terminate her parental rights, has failed to pay a reasonable portion of the cost of care for the minor child although physically and financially able to do so.

Having determined that grounds existed to terminate respondent's parental rights, the trial court further concluded it was in I.D.C.'s best interest to terminate parental rights and proceed with adoption. 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's findings of fact were supported by clear, cogent and convincing evidence, (2) whether those findings of fact supported its conclusion that grounds existed to terminate parental rights, 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).
    Respondent argues the trial court erred in terminating her parental rights for the following reasons: (1) the trial court failed to appoint a guardian ad litem for respondent when she was entitled to one as a matter of law; (2) petitioner failed to produce clear, cogent, and convincing evidence that respondent was neglecting the child at the time of the hearing; (3) petitioner failed to produce clear, cogent, and convincing evidence that respondent willfully failed to make reasonable efforts at correcting the conditions which led to removal during the twelve months placement outside the home; (4) petitioner failed to produce clear, cogent, and convincing evidence that respondent willfully failed to support her child when physically and financially able to do so; and (5) many of the trial court's findings of fact are notsupported by clear, cogent, and convincing evidence, and its conclusions of law are not supported by the findings of fact.
    Respondent first argues the trial court erroneously failed to appoint a guardian ad litem for her where she was entitled 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) (recent legislative amendments to this statute apply to petitions filed on or after 1 October 2005; therefore, we do not address them here). This statute “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) (2003) 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) (2003) is met. The termination petition alleges the juvenile is neglected under N.C. Gen. Stat § 7B-1111(a)(1) but not dependent under section 7B-101(9) as required. Although we have sometimes inferred dependency where it was not specifically alleged but a respondent's “mental instability and her incapacity to raise her minor children were central factors in the court's decision to terminate her parental rights,” In re T.W., __ N.C. App. __, __, 617 S.E.2d 702, 706 (2005), we see no reason to do so here. The majority of the allegations in the petition allege other failures by respondent, including the failure to resolve issues of domestic violence, failure to attend appointments and classes, non- compliance with treatment, and failure to pay a reasonable portion of the cost of care for the minor child. Although respondent was diagnosed as having borderline intellectual functioning, she does not suffer from “mental retardation” or any other “condition” which would render her incapable of caring for I.D.C. as required by the statute. Therefore, the allegations do not tend to show respondent was “incapable” of parenting I.D.C. but that she was reluctant to adhere to her required case plan. 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 termination of parental rights and requires the petitioner to prove the existence of at least one of those grounds. N.C. Gen. Stat. § 7B-1111 (2003). We will first address respondent's contention that petitioner failedto prove she willfully left I.D.C. in foster care and did not make reasonable progress in correcting the conditions which led to his removal. 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 juvenile 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.” McMillon, 143 N.C. App. at 410, 546 S.E.2d at 175.
    I.D.C. lived in a foster home from 14 August 2002 through the time termination proceedings began on 12 January 2004. For approximately four months prior to his placement in a foster home, he lived with his maternal grandmother. Therefore, I.D.C. lived outside respondent's 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 before the trial court tended to show respondent repeatedly became involved in abusive relationships, including recurring relationships with her abusive husband and a relationship with another man who appeared to haveassaulted her on at least two occasions. Although domestic violence counseling was available to respondent, she was inconsistent in keeping her appointments and did not complete her treatment. Her domestic violence counselor testified that she was in the beginning to middle phase of her domestic violence treatment when she stopped attending and that she did not adequately address her issues of domestic violence. The trial court therefore found respondent had “not made reasonable progress between the initial juvenile petition and the time of the termination of parental rights hearing, and she failed to effectively participate in services designed to address [domestic violence] concerns.”     With respect to her job training, although Dr. Clement found respondent did not have limitations that would prevent her from availing herself of services such as ongoing counseling and a job coach, the trial court found respondent “quit her vocational rehabilitation placement at the Goodwill Center on June 20, 2003, 'to do her own thing.'” Respondent was therefore discharged from the Goodwill Center, and she failed to contact her vocation rehabilitation counselor at any time thereafter. The trial court found respondent worked nine different jobs between 2001 and 2003. She stayed at four of these jobs for less than one month and none for more than a few months. The trial court therefore made the following finding regarding her employment:
        The respondent mother['s] current circumstances have not changed. [Respondent] is unable to financially care for the minor child or provide a stable residence, she has not maintained consistent employment, and she has failed to maintain employment withoutreasonable justification or making reasonable efforts to participate in services to address job skills. The respondent mother's only explanation for losing her job or quitting was that people were unfair to her.

    The trial court also found that although respondent initially made progress with her mental health issues and anger management, she was unable to maintain those skills. Respondent did complete her required parenting classes; however, her social worker testified she was not able to demonstrate effectively the skills she had been taught. We conclude, based on the evidence before us, that the trial court's findings of fact regarding respondent's progress with her case plan 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 I.D.C.'s removal and therefore willfully left him 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's findings of fact were not supported by clear, cogent, and convincing evidence, and its conclusions of law were not supported by those findings. Inthis case, the trial court made one hundred and seven findings of fact. First, respondent argues that Finding No. 105 is internally contradictory. Finding No. 105 states that respondent made a $50.00 child support payment to DSS on 2 June 2003 and also states that respondent made no payments “[w]ithin the six months preceding the filing of the termination of parental rights petition.” Respondent is correct that 2 June 2003 falls within the six months preceding the filing of the termination petition. However, Finding No. 105 also states that respondent “did not pay a reasonable portion of the child's care, and is in arrearage of her child support obligations.” Respondent was required to pay “a minimum wage amount of $95.00 per month,” but only made one $50.00 payment during the six months prior to the termination hearing. We conclude there is competent evidence in the record to support the trial court's finding of fact, and subsequent conclusion of law, that respondent did not pay a reasonable portion of I.D.C.'s care within that six month period as required by N.C. Gen. Stat. § 7B- 1111(a)(3). Respondent, therefore, was not prejudiced by the trial court's error.
    Respondent also argues Finding No. 80 implies she did not maintain stable housing. However, Finding No. 80 simply states respondent “moved into her own apartment at Deaverview Apartments, and since on or about February 2003 sought housing through Section 8 housing.” We read no implication into this statement that respondent failed to maintain stable housing pursuant to her case plan. Other findings of fact did imply respondent failed tomaintain housing “separate and apart from her abuser,” which was also required, but we see no reason to determine that Finding No. 80 was not supported by clear and convincing evidence. Respondent argues separately that the trial court's findings of fact do not support its conclusion that she failed to address and make reasonable progress on her issues of domestic violence. However, upon careful review of the record before us, we conclude there was ample competent evidence of respondent's repeated failure to address her issues of domestic violence.
    Finally, respondent argues that many of the trial court's findings of fact were “too remote in time to be relevant.” Respondent correctly states that the question for the trial court is whether neglect exists at the time of the termination hearing, and although prior evidence of neglect may be considered, termination may not be based on past conditions that no longer exist. In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997); In re Ballard, 311 N.C. 708, 713-15, 319 S.E.2d 227, 231-32 (1984). However, as previously discussed, there was abundant evidence before the trial court that respondent failed to make reasonable progress under the circumstances in correcting the conditions which led to the removal of I.D.C. Thus, the trial court could consider evidence of earlier neglect in light of respondent's failure to change those conditions by the time of the termination hearing.
    Upon careful review of the record, we conclude the trial court's findings of fact were supported by clear, cogent, and convincing evidence, and those findings of fact support itsconclusions of law. In re McMillon, 143 N.C. App. at 408, 546 S.E.2d at 174; see also N.C. Gen. Stat. § 7B-1111(b) (2003). The order terminating respondent's parental rights is
    Affirmed.
    Judges MCGEE and ELMORE concur.
    Report per Rule 30(e).

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