An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1271

NORTH CAROLINA COURT OF APPEALS

Filed: 6 June 2006

IN THE MATTER OF:                             Durham County
B.H., Minor Child                             No. 02 J 203    
                             

    Appeal by respondent-mother from order entered 18 March 2005 by Judge James T. Hill in Durham County District Court. Heard in the Court of Appeals 29 May 2006.

    The Turrentine Group, PLLC, by Karlene Scott-Turrentine, for respondent-mother appellant.

    Assistant County Attorney Cathy L. Moore, for Durham County Department of Social Services, petitioner-appellee; and     Poyner & Spruill, LLP, by Bryn D. Wilson, for Guardian ad Litem, appellee.

    McCULLOUGH, Judge.

    By order entered 18 March 2005, Judge James T. Hill terminated the parental rights of respondent-mother to her son, B.H. On an appeal by respondent-mother, we affirm.
    Respondent is the biological mother of B.H., who has lived most of his life with his maternal aunt (D.H.). B.H.'s maternal grandmother was also involved with his care for a period of time. B.H. thinks of his aunt as his mother, and he thinks of respondent as an aunt or a close family friend.
    The Durham County Department of Social Services (“DSS”) became involved with B.H. in September 2002, due to his irregular school attendance. DSS learned that B.H. had been living in the primary care of his aunt. On 11 September 2002, DSS filed a juvenilepetition alleging neglect. Thereafter, DSS agreed to a temporary court-ordered placement plan which provided for B.H. to continue to reside with his aunt, for B.H. to attend school in compliance with compulsory attendance laws; for B.H. to receive his medication as prescribed; for B.H. to have a mental health evaluation; and for B.H. not to stay with respondent or his maternal grandmother for extended periods of time during the school week.
    An adjudication hearing was held on 21 November 2002. The trial court found that B.H. had behavior problems, had been diagnosed with attention deficit hyperactivity disorder, and appeared to be obese and depressed. The trial court further found that his aunt had been incarcerated for a period of time during the pendency of the proceeding and was facing a probation revocation proceeding which could result in her receiving an active prison sentence. Finally, the trial court found that B.H. had not been receiving his prescribed medication on a consistent basis while in his aunt's care; that his aunt had left B.H. for extended periods of time in the care of respondent-mother or the maternal grandmother; and when B.H. was in the care of respondent-mother or the maternal grandmother, that he did not receive his medication or attend school on a regular basis. The trial court adjudicated B.H. neglected and ordered that B.H. be placed in the legal custody of DSS with B.H.'s continued placement with his aunt subject to a court-ordered protection plan.
    On 9 January 2003, B.H. was removed from his aunt's care and placed in a foster care home due to an ongoing investigation of hisaunt relating to her care of another child living in her home, her failure to provide adequate supervision, and failure to ensure that B.H. took his medication and participated in therapy. While in foster care, B.H. had regular telephone contact with his aunt and maternal grandmother, as well as weekly unsupervised visits with them. The matter was reviewed at a hearing on 11 February 2003. The trial court ordered that B.H. remain in the custody of DSS, and that respondent-mother take necessary action to correct the conditions which led to the removal of B.H. Specifically, the trial court ordered respondent to
        receive a mental health evaluation and follow all recommendations; receive a substance abuse evaluation and treatment; complete a parenting program; obtain and maintain suitable housing; maintain a way to support herself and her child; participate in appointments and meetings for [B.H.] as a way to demonstrate a commitment and ability to ensure that his mental health and educational need[s] are met; participate in [B.H.'s] mental health treatment when requested; and pay a reasonable portion of the cost of her child's care.

    Beginning in March 2003, B.H. changed placements several times. Although his aunt was the only person who had expressed a desire to be reunified with B.H., she was no longer consistently visiting with B.H. by August 2003. In November 2003, DSS eliminated respondent from B.H.'s current and concurrent plans due to her lack of involvement and continued non-compliance.
    In or around April 2004, B.H. began to exhibit improvements in his behavior after his aunt and respondent-mother practically stopped having contact with him. At that time, respondent-motherwas incarcerated and was not in compliance with any of the court's previous orders. Further, the aunt was removed from consideration as a placement for B.H. because she attempted to commit suicide, had some health problems, and failed to comply with the court's orders. By order entered 25 May 2004, DSS was relieved of efforts to prevent or eliminate the need for B.H. to be placed outside the home and was ordered to proceed with termination of parental rights.
    On or about 29 September 2004, DSS filed a motion to terminate respondent-mother's parental rights. The termination hearing was continued to and held on 9 February 2005. B.H. was fourteen years old at the time of the termination hearing. DSS' evidence at the hearing tended to show the following: Respondent-mother had rarely attended court proceedings involving B.H., and she had not participated in appointments or meetings for B.H., including his schooling and mental health treatment despite B.H.'s mental health and significant weight problems. Although respondent-mother was under a court order to provide financial support for B.H. after he was removed from his aunt's home and although respondent was paid for work she did while in prison, respondent failed to provide any financial support for B.H. In January 2005, respondent, for the first time, expressed an interest in raising B.H.
    
By order entered 18 March 2005, the trial court determined that several statutory grounds existed to terminate respondent- mother's parental rights to B.H. and that it was in B.H.'s best interests to terminate respondent's parental rights. Accordingly,the trial court entered an order terminating respondent-mother's parental rights as to B.H. Respondent-mother now appeals.
    
Respondent presents two arguments on appeal. First, respondent-mother argues the trial court erred in failing to appoint a guardian ad litem to represent her. Second, respondent argues the trial court erred in determining termination of her parental rights was in B.H.'s best interests.

I. Appointment of Guardian Ad Litem
    Respondent-mother first contends the trial court erred by failing to appoint a guardian ad litem to represent her at the termination of the parental rights hearing due to her history of substance abuse and alleged mental illness. Respondent mistakenly relies upon N.C. Gen. Stat. § 7B-602(b)(1) (2003) to support her position. As this Court explained in In re O.C., 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); N.C. Gen. Stat. § 7B-602(b)(1) governs the circumstances in which a parent must be appointed a guardian ad litem in the context of a petition alleging the status of the child for dependency proceedings, and N.C. Gen. Stat. § 7B-1101 governs the circumstances in which a parent must be appointed a guardian ad litem within the context of a proceeding to terminate parental rights. Here, only the order terminating respondent's parental rights is before this Court for review and, thus, N.C. Gen. Stat. § 7B-1101 governs whether respondent was entitled to the appointment of a guardian ad litem.
    At the time the motion to terminate respondent's parentalrights was filed, N.C. Gen. Stat. § 7B-1101 provided in relevant part:
        [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.

                (2)    Where the parent is under the age of 18 years.

N.C. Gen. Stat. § 7B-1101(1)&(2) (2003) (emphasis added). Section 7B-1111(a)(6) of the North Carolina General Statutes provided the court may terminate the parental rights upon finding
                (6)    [t]hat 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 the juvenile and the parent lacks an appropriate alternative child care arrangement.

N.C. Gen. Stat. § 7B-1111(a)(6) (2003).
    This Court has previously held a guardian ad litem is required to be appointed for a parent when an allegation of dependency is premised on mental retardation, illness, or other disability. In reJ.D., 164 N.C. App. 176, 605 S.E.2d 643, disc. review denied, 358 N.C. 732, 601 S.E.2d 531 (2004); In re Estes, 157 N.C. App. 513, 579 S.E.2d 496, disc. review denied, 357 N.C. 459, 585 S.E.2d 390 (2003). However, this Court has also held that, although a petition or a termination order may not specifically reference N.C. Gen. Stat. § 7B-1111(a)(6), when the trial court allows evidence to be presented regarding the parent's mental illness and substance abuse and the adverse effects on the parent's ability to care for their children, the parent may be entitled to have a guardian ad litem appointed. In re T.W., ___ N.C. App. ___, ___, 617 S.E.2d 702, 706 (2005); In re B.M., 168 N.C. App. 350, 358-59, 607 S.E.2d 698, 704 (2005).
    Here, the motion to terminate respondent's parental rights neither alleged respondent was incapable of caring for B.H. due to mental illness, nor cited N.C. Gen. Stat. § 7B-1111(a)(6) as a ground for termination. Rather, the motion alleged grounds for termination based upon the following: (1) neglect; (2) willfully leaving B.H. in foster care for more than twelve months without making reasonable progress to correct the conditions leading to B.H.'s removal; (3) failing to pay a reasonable portion of the cost of care for B.H.; and (4) willfully abandoning B.H. None of the allegations in the motion tended to show respondent was incapable of providing care for B.H. based upon a mental condition.
    Respondent argues, however, her mental health/substance abuse evaluation on 7 May 2003 revealed she had a history of alcohol and drug abuse and recommended anger management for her. Theevaluation also stated respondent reported being depressed. As such, respondent argues the evidence tended to show she was incapable of properly caring for B.H. because of her substance abuse and mental illness. We disagree. While the trial court did allow evidence to be presented regarding respondent's drug history, her alleged mental illness and drug history and B.H.'s neglect were not “so intertwined at times as to make separation of the two virtually, if not, impossible.” In re J.D., 164 N.C. App. at 182, 605 S.E.2d at 646. Indeed, at the time of the termination hearing, respondent had been drug-free for five months and she had been attending Alcoholics Anonymous and Narcotics Anonymous classes for five months.
    At no point during the hearing did respondent request a guardian ad litem, nor is there any evidence that the trial court considered any alleged mental illness as a factor in deciding to terminate respondent's parental rights. Cf. In re T.W., ___ N.C. App. at ___, 617 S.E.2d at 706 (Respondent specifically petitioned the trial court for appointment of guardian ad litem based upon her mental illness, and the trial court erred in not appointing one when it considered her mental illness as a factor in deciding to terminate her parental rights.). Therefore, we conclude the trial court did not err by failing to appoint a guardian ad litem for respondent. See In re O.C., 171 N.C. App. 457, 615 S.E.2d 391.
II.     Termination of Respondent's Parental Rights
    Respondent's remaining arguments relate to her contention that the trial court abused its discretion in terminating her parentalrights because it was not in B.H.'s best interests to do so. The termination of parental rights involves a two-stage process: the adjudicatory stage and the dispositional stage. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). During the adjudicatory stage, the petitioner (DSS in this case) has the burden of proving by clear, cogent, and convincing evidence that a statutory ground for termination exists under N.C. Gen. Stat. § 7B-1111. See Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908. Once a petitioner has met its burden of proving at least one of the statutory grounds to terminate parental rights exists, the trial court then moves to the disposition phase and must consider whether termination is in the best interests of the child. See id. The trial court is required to order termination in the dispositional stage, unless it finds the best interests of the child would be to preserve the parent's rights. N.C. Gen. Stat. § 7B-1110(a); In re Blackburn, 142 N.C. App. at 613, 543 S.E.2d at 910. The trial court's decision to terminate parental rights is reviewed by an abuse of discretion standard. In re Brim, 139 N.C. App. 733, 745, 535 S.E.2d 367, 374 (2000).
    Respondent makes three arguments in support of her contention that the trial court abused its discretion in determining it was in B.H.'s best interests to terminate her parental rights. First, respondent argues the trial court erred by taking judicial notice of the orders, court summaries, and guardian ad litem reports which were part of the record. We disagree. “A trial court may take judicial notice of earlier proceedings in the same cause.” In reIsenhour, 101 N.C. App. 550, 553, 400 S.E.2d 71, 73 (1991). Further, “in a termination of parental rights proceeding, prior adjudications of abuse or neglect are admissible, but they are not determinative of the ultimate issue.” In re J.B., ___ N.C. App. ___, ___, 616 S.E.2d 264, 273 (2005) (citations omitted). Thus, this assignment of error is without merit.
    Respondent next argues that although she has not been a good mother to B.H., the trial court “ignor[ed] the fact that Respondent-mother (by DSS' own evidence) ha[s] [now] done all she was required to do or able to do” to comply with the requirements set out by DSS. In light of these recent improvements, respondent argues it was not in B.H.'s best interests to terminate her parental rights. However, the trial court expressly found “[a]ny progress that [respondent] has taken was after the filing of the motion to terminate and in light of the circumstances of her relationship with the child, her criminal history and the length of her substance abuse, her progress is not sufficient.” This finding does not support respondent's contention the trial court ignored any progress respondent may have made. Because respondent has not assigned error to any of the trial court's findings of fact, they are conclusive on appeal. See In re J.D.S., 170 N.C. App. 244, 250, 612 S.E.2d 350, 354 (holding the trial court's findings of fact were binding on this Court where no assignments of error were made to particular findings), cert. denied, 360 N.C. 64, 623 S.E.2d 584 (2005).
    Further, one of the underlying principles guiding the trialcourt in the dispositional stage is the recognition of the necessity for any child to have a permanent plan of care at the earliest possible age, while at the same time recognizing the need to protect all children from the unnecessary severance of a relationship with biological parents or legal guardians. N.C. Gen. Stat. § 7B-1100(2) (2005). In this case, the trial court heard DSS' evidence of respondent's history of repeated incarcerations, lack of involvement in B.H.'s life, failure to establish a stable home environment, failure to work and earn money while not incarcerated, and history of substance abuse. Based upon this evidence, we conclude the trial court did not abuse its discretion in determining it was in B.H.'s best interests to terminate respondent's parental rights.
    Finally, respondent argues the trial court abused its discretion in determining it was in B.H.'s best interests to terminate her parental rights when DSS had no option for B.H. other than to return him to a group home, and the trial court “[took] judicial notice that adoption of a fourteen-year-old boy is difficult.” However, it is not necessary for a child to be deemed “adoptable” in order to terminate parental rights. See In re Norris, 65 N.C. App. 269, 310 S.E.2d 25 (1983), cert. denied, 310 N.C. 744, 315 S.E.2d 703 (1984). Further, in the instant case, the trial court found that B.H. “is not opposed to adoption if he could have time to meet the family” and B.H. “is in need of a stable structured environment with age appropriate boundaries and expectations in a family.” Further, B.H. expressed he had nofeelings one way or the other about respondent's parental rights being terminated. Under these circumstances, we conclude the trial court did not abuse its discretion in determining it was in B.H.'s best interests to terminate respondent's rights, although DSS did not have prospective adoptive parents for him at the time of the hearing.
    
Affirmed.
    Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).

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