An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-1098


Filed: 18 July 2006


T.D.M.                    Wayne County
                            No. 04J123

    Appeal by respondent from order entered 1 March 2005 by Judge Rose Vaughn Williams in Wayne County District Court. Heard in the Court of Appeals 22 March 2006.

    Richard E. Jester for respondent-appellant.

    Manning Fulton & Skinner, P.A., by Leanor D.B. Hodge, for guardian ad litem-appellee.

    ELMORE, Judge.

    Nadine Garrett (respondent) appeals from an order terminating parental rights to her minor son, T.D.M. On 22 April 2003 the Wayne County Department of Social Services (Wayne County DSS) filed a Juvenile Petition alleging that T.D.M. was a neglected and dependent juvenile. The Juvenile Petition was supported by allegations that: respondent was hospitalized at Cherry Hospital through commitment; respondent put two of her children outside the home without shoes or coats; respondent hit her daughter in the face with a shoe until her nose bled; and respondent was hearing voices and said that the children were demons. The petition also stated that respondent was diagnosed with a psychotic disorder. All four of respondent's children were in the care of relativeswhen the Wayne County DSS became involved, and respondent agreed that the children could remain there.
    In an order entered 22 May 2003, T.D.M. was adjudicated a neglected and dependent juvenile. Pursuant to this order, respondent was directed to have a psychological evaluation, submit to random drug testing, continue the mental health counseling she was currently receiving, and keep the Wayne County DSS informed of any changes in her residence. Also, respondent was ordered to have no visitation with the juvenile unless specifically allowed by the court.
    The Wayne County DSS filed a petition to terminate respondent's parental rights on 25 May 2004, alleging that respondent neglected and abandoned T.D.M. Respondent's attorney filed a motion to continue the matter in order to appoint respondent a guardian ad litem. The court entered an order on 17 December 2004 granting the motion for a continuance and ordering that a guardian ad litem be appointed for respondent. The matter was continued until 8 February 2005.
    On 8 February 2005 the petition for termination of parental rights was heard before Judge Rose V. Williams in Wayne County District Court. Respondent was not present, but she was represented at the hearing by Kimberly Conner and by guardian ad litem, Sarah Heekin. Ms. Connor, respondent's attorney, made a motion for a continuance. The court denied the motion to continue. At the close of the evidence presented, Ms. Connor moved to dismiss the petition on the grounds that the Wayne County DSS did not proveneglect and continuing neglect by clear, cogent and convincing evidence. In an order entered 1 March 2005, the trial court concluded that grounds existed to terminate the parental rights of respondent to T.D.M. Respondent filed notice of appeal to this Court on 11 March 2005.
    First, respondent contends that the trial court erred in not appointing a guardian ad litem for her at an earlier time in the proceedings, given her history of mental illness. N.C. Gen. Stat. § 7B-1101 (2003), the statute in effect at the time the termination proceedings herein began, provides in pertinent part:
        In addition to the right to appointed counsel set forth above, a guardian ad litem shall be appointed in accordance with the provisions of G.S. 1A-1, Rule 17, to represent a parent in the following cases:

        (1) 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). Section 7B-1111 states as follows:
        That the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 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 thejuvenile and the parent lacks an appropriate alternative child care arrangement.

N.C. Gen. Stat. § 7B-1111(a)(6) (2003).
    Respondent concedes that the petition to terminate parental rights did not allege dependency under Section 7B-1111(a)(6). Indeed, the petition alleged that the grounds to terminate parental rights are that “the parents have neglected and abandoned the juvenile.” But respondent asserts that “the history of the case” demonstrates respondent's mental health issues. Therefore, respondent argues, the trial court was required to appoint a guardian ad litem. A review of our case law reveals that respondent's position is untenable. In In re O.C. & O.B., 171 N.C. App. 457, 462, 615 S.E.2d 391, 394, disc. review denied, 360 N.C. 64, 623 S.E.2d 587 (2005), this Court held that where the motion to terminate parental rights did not cite to Section 7B-1111(a)(6) or allege that the respondent is “incapable” to care for the minor child, the trial court did not err in failing to appoint a guardian ad litem for the hearing on the motion to terminate parental rights.
    Here, as in In re O.C., the petition to terminate parental rights does not state that respondent is incapable of caring for T.D.M. Also, the petition does not refer to N.C. Gen. Stat. § 7B- 1111(a)(6). As the language of the petition alone did not trigger the requirement to appoint a guardian ad litem pursuant to Section 7B-1101, the trial court did not err in failing to appoint one prior to granting respondent's attorney's motion to appoint a guardian ad litem in December of 2004. Cf. In re B.M., M.M., An.M. & Al.M., 168 N.C. App. 350, 357, 607 S.E.2d 698, 703 (2005) (where motion for termination of parental rights tracks the language of Section 7B-1111(a)(6) and uses term “incapable,” motion triggers requirement of appointment of guardian ad litem). Respondent's contention is without merit.     Next, respondent asserts that the guardian ad litem appointed for her was ineffective. Respondent's attorney made a motion to continue and a request for the appointment of a guardian ad litem, and the trial court granted these requests in an order entered 17 December 2004. From this date through 8 February 2005, one and one-half months later, respondent's guardian ad litem had time to prepare for the termination hearing. Respondent does not point to any evidence that the guardian ad litem lacked sufficient time for preparation. Respondent's counsel made another motion for a continuance on 8 February 2005, but the trial court denied this motion. Respondent was not present at the hearing, but respondent's counsel did not state a reason why the matter should be continued further. The record reveals, and respondent does not dispute, that respondent was given notice of the hearing.
    To the extent that respondent challenges the trial court's denial of the motion for a continuance on 8 February 2005, we note that the court's decision on a motion for a continuance is ordinarily reviewed for an abuse of discretion. See In re D.Q.W., T.A.W., Q.K.T., & J.K.M.T., 167 N.C. App. 38, 40, 604 S.E.2d 675, 676 (2004). Where the motion raises constitutional rights, then it is reviewed de novo by the appellate court. Id. at 41, 604 S.E.2dat 677. As mentioned supra, respondent's counsel did not raise any basis for the motion to continue. As there was no constitutional right asserted, we must uphold the trial court's ruling unless it is manifestly unsupported by reason. See State v. Rogers, 352 N.C. 119, 124, 529 S.E.2d 671, 675 (2000). As respondent cannot show, based upon the record, that her guardian ad litem was ineffective, her assignment of error is overruled. See State v. Blakeney, 352 N.C. 287, 304, 531 S.E.2d 799, 812 (2000) (appellate court may not assume error where none appears in the record).
    Next, respondent argues that the trial court erred in taking judicial notice of orders in the underlying case file. Respondent acknowledges that it is proper for the court to take judicial notice of earlier proceedings in the same case. See In re Isenhour, 101 N.C. App. 550, 553, 400 S.E.2d 71, 73 (1991). However, respondent asserts that the trial court relied on hearsay statements in the reports and that this action violated the requirement that the court make findings according to a clear, cogent and convincing evidence standard. See N.C. Gen. Stat. § 7B- 1109(f) (2003) (all findings of fact from hearing on termination of parental rights shall be based on clear, cogent and convincing evidence).
    The trial court's order of termination of parental rights states that the findings of fact are made from clear, cogent and convincing evidence. Respondent does not explain how the court violated Section 7B-1109 by considering reports from earlier proceedings in the case. Essentially, respondent contends thatwhen a court considers orders containing statements from persons who testified at earlier proceedings, the court cannot possibly support its findings by clear, cogent and convincing evidence. And yet, respondent cites no authority for this contention. As long as the court determines that the petitioner, the Wayne County DSS here, has presented clear, cogent and convincing evidence of a statutory ground for termination and enters findings of fact accordingly, the court has complied with Section 7B-1109. Respondent's assignment of error is overruled.
    Finally, respondent argues that the trial court's findings were not based upon adequate admissible evidence. We must determine, then, whether these challenged findings were supported by competent evidence. Respondent assigns error to the following findings of fact:
        12. That the mother, Nadine Yvonne Garrett, has neglected the juvenile.

        13. That the mother was ordered by the Court to have a psychological assessment, as substance assessment and was allowed visitation with the juvenile and has not had either the psychological assessment or the substance abuse assessment.

        14. That the mother has had the opportunity to visit the juvenile and has failed regularly to visit the juvenile.

        15. That on one occasion, when the juvenile saw the mother, he said “Who was that woman?” The juvenile did not call the mother, “Mother.”

        16. That the mother has failed to comply with previous orders of this Court.

        18. That the mother has not provided any support, care or nurturing to this juvenilesince the juvenile was placed in the home of Nathan and Burnetta Barnes.

        20. That the grounds exist to terminate the parental rights of the mother of the juvenile in that she has neglected and abandoned the juvenile and continues to neglect the juvenile.

        21. That the mother's failure to take actions to have the juvenile returned to her custody are likely to continue.

Respondent concedes in her brief that there was evidence to support the findings regarding respondent's failure to visit T.D.M. (finding number 14); respondent's failure to comply with previous court orders (finding number 16); and the evidence of respondent's lack of support, care, or nurture of T.D.M. in his current placement (finding number 18). Also, although respondent refers to findings of fact 20 and 21 in the argument section of her brief, respondent makes no argument with respect to her challenge to these findings. Accordingly, plaintiff has abandoned her assignments of error regarding findings of fact 14, 16, 18, 20, and 21. See N.C.R. App. P. 28(b)(6).
    Respondent has properly preserved her challenges to findings of fact 12, 13, and 15. After a review of the record, we determine there is sufficient evidence to support these findings. In finding number 13, the court stated that respondent has not had a psychological or substance abuse assessment as ordered by the court. Darlene Grantham (Ms. Grantham), an employee of the Wayne County DSS, testified that respondent has not provided a copy of any psychological assessment or substance abuse evaluation. Respondent presented no evidence at the hearing of a psychologicalevaluation or drug testing. Neither does she assert on appeal that she has in fact received these evaluations. Thus, her claim that the court erred in finding that she has not completed either evaluation ordered by the court is without merit.
    Respondent also challenges the evidence supporting finding number 15, that T.D.M. on one occasion failed to recognize respondent as his mother. Burnetta Barnes (Ms. Barnes) testified that T.D.M. currently lives in her home. Ms. Barnes stated that the last time T.D.M. saw respondent, he asked “Who was that woman?” Respondent does not contest the accuracy of this event, but instead asserts that it must be explained in context. Since respondent does not have custody of T.D.M., she cannot control what he knows her as. As there is competent evidence to support the finding, respondent's argument is overruled.
    In finding number 12, the court stated that respondent has neglected the juvenile. If there is no evidence presented of neglect at the termination of parental rights hearing, parental rights may be terminated if there is a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the child is returned to the parent. In re Reyes, 136 N.C. App. 812, 814-15, 526 S.E.2d 499, 501 (2000). Here, Ms. Grantham testified that respondent has had no contact with the Wayne County DSS to schedule a supervised visit with T.D.M. for at least the past six months. Ms. Grantham stated that respondent could obtain a supervised visit with T.D.M by contacting her social worker at the Wayne County DSS. Thistestimony contradicts respondent's assertion that there was no evidence presented of current neglect or the current situation of respondent.
    The trial court entered findings that respondent did not visit T.D.M. regularly; has not completed psychological and substance abuse evaluations as ordered by the court; and has failed to provide any support or nurturing since T.D.M. was placed in the home of Ms. Barnes. These findings support the trial court's determination that sufficient grounds exist to terminate respondent's parental rights. See, e.g., In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982) (in addition to failure to provide physical necessities, neglect may be shown by “a parent's complete failure to provide the personal contact, love, and affection that inheres in the parental relationship”).
    We affirm the trial court's order terminating respondent's parental rights to T.D.M.
    Judges STEELMAN and JACKSON concur.
    Report per Rule 30(e).

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