An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
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
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,
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
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
[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
(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
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
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
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
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
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
, 65 N.C. App. 269, 310 S.E.2d 25 (1983), cert. denied
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
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
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