An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1658


Filed: 7 November 2006


I.D. and S.D.,
        Minor Children.

                        Franklin County
                        No. 02 J 13

    Appeal by Respondent from an order terminating Respondent's parental rights entered 19 April 2005 by Judge Garey M. Ballance in District Court, Franklin County. Heard in the Court of Appeals 21 September 2006.

    Janet K. Ledbetter for Respondent-Appellant.

    Batton & Guin Attorneys at Law, by David R. Guin, for Petitioner-Appellee Franklin County Department of Social Services.

    Alexandra S. Gruber for Petitioner-Appellee Guardian ad Litem.

    McGEE, Judge.

    I.D. and S.D. (the children) are fraternal twins who were born prematurely to A.D. (Respondent) on 17 August 2001. As a result of their premature birth, the children have experienced significant medical problems and have required frequent medical care. Each child required eye surgery as a result of detached retinas. The eye surgery did not repair S.D.'s problem, and she is legally blind. I.D. also underwent hernia surgery. Additionally, the children were required to wear heart monitors for several years to alert their caretakers to heart and breathing problems. Thechildren had numerous medical appointments with a variety of medical professionals and were prescribed various medications throughout their infancy and early childhood.
    The Franklin County Department of Social Services (DSS) filed a juvenile petition on 18 January 2002, alleging I.D. and S.D. were neglected and dependent. DSS obtained non-secure custody of the children by order entered 23 January 2002. The children were adjudicated neglected and dependent in an order entered 21 May 2002.
    The trial court found that Respondent failed to keep scheduled medical appointments for the children and failed to give them required prescription medications. The trial court also found that Respondent failed to have the children wear their heart monitors, even though Respondent had been trained in the proper use of the heart monitors and had been informed as to their importance. Further, at the time the petition was filed, Respondent was incarcerated and had left the children in the care of an individual who was not trained in the proper use of the monitors and who was unwilling to transport the children to their medical appointments. The trial court ordered Respondent to submit to random drug testing and comply with the family services case plan established by DSS. On 29 May 2002, Respondent refused to sign a case plan developed by DSS, which required, inter alia, that Respondent attend parenting classes. Respondent denied she needed to participate in parenting classes. At that time, the permanent plan for the children was reunification with Respondent.    Respondent underwent a psychological evaluation after DSS referred her to Carolina C.A.R.E. for a consultative evaluation. After undergoing a clinical interview and more than six hours of psychological testing, Dr. Robert Aiello (Dr. Aiello) diagnosed Respondent with antisocial personality disorder. Dr. Aiello's diagnosis was based upon: (1) Respondent's "irritability [and] verbally aggressive behaviors" toward those attempting to work with her, (2) Respondent's "possible disregard for the safety of [the] children," and (3) Respondent's inability "to accept responsibility for any contribution she had to the problems resulting in her . . . involvement" with DSS. Dr. Aiello recommended individual counseling services for Respondent. However, Dr. Aiello cautioned that "patients experiencing antisocial personality functioning are not often highly responsive to psychological forms of treatment and therapeutic services." Dr. Aiello also indicated Respondent was at risk for substance abuse because of her history of drug-related criminal behaviors, including past convictions for drug sales. Respondent began weekly therapy sessions with Dr. Rebecca Ansted (Dr. Ansted) on 8 August 2002 at the Franklin County Mental Health Clinic.
    Pursuant to N.C. Gen. Stat. § 7B-906, a review hearing was held on 27 June 2002. At that time, the trial court ordered DSS to continue to pursue reunification with Respondent. Additional review hearings were held 26 September 2002 and 30 January 2003. The trial court ordered DSS to continue pursuing reunification with Respondent. Pursuant to N.C. Gen. Stat. § 7B-907, a permanencyplanning hearing was held on 27 March 2003. At that hearing, Respondent requested that custody of the children be returned to her. The trial court found Respondent "had not appropriately educated herself regarding the children's medical and emotional needs." The trial court also found that even though the children had been in DSS custody for more than twelve months, it was not in their best interests to pursue termination of Respondent's parental rights at that time. Thus, the permanency plan continued to be reunification with Respondent.
    In March 2003, Respondent stated she was no longer willing to see Dr. Ansted. Dr. Ansted indicated Respondent was not "responsive to therapeutic counseling and [Respondent] does not see herself as having any problems." Further, Dr. Ansted stated that Respondent "accepts no blame or remorse for her treatment of the children in the past or currently" and that "her anger with DSS continues to get in her way and prevents her from effectively using the resources given her to participate in [the] children's treatment and growth."
    Respondent was permitted unsupervised visits with the children pursuant to an order resulting from a review hearing held on 26 June 2003. However, the unsupervised visits were suspended on 31 July 2003, and the trial court ordered Respondent to continue mental health treatment and submit to an additional psychological evaluation. The permanency plan remained reunification.
    Respondent was charged on 31 July 2003 with obtaining property by false pretenses for stealing money from the custodial trustaccount established for juveniles, including the children in question, in DSS custody. Respondent later pled guilty to the charge. Respondent was again incarcerated on 23 September 2003 for several felony charges, and sentenced to sixty days in jail pursuant to a probation violation on 29 September 2003.
    DSS filed a motion to terminate Respondent's parental rights on 30 October 2003 based upon (1) neglect, pursuant to N.C. Gen. Stat. § 7B-101(15); and (2) willfully leaving the children in foster care for more than twelve months without showing reasonable progress in correcting those conditions which led to the removal of the children.   (See footnote 1)  In an order entered 26 November 2003, the trial court ordered that the permanent plan for the children be adoption. Respondent did not appeal. However, she denied neglecting the children and denied willfully leaving them in foster care for more than twelve months.
    The termination hearing was initially scheduled for 19 December 2003, but was continued at the request of Respondent, through counsel, because Respondent was incarcerated at the time. The termination hearing was again continued on 26 February 2004 after Respondent moved to replace her counsel "based on the fact that [Respondent's] parental rights [had] not been explained to [her.]" Respondent's attorney joined Respondent's motion, and the trial court permitted Respondent's counsel to withdraw.    The termination hearing was again set for 29 April 2004. Respondent moved for the appointment of substitute counsel, and the hearing was again continued to permit her newly-appointed counsel to prepare. The matter next came on for hearing on 1 July 2004, and the trial court again found just cause to continue the hearing. The trial court found that Respondent remained incarcerated and all parties consented to the continuation.
    DSS filed an amended motion for termination of parental rights on 16 July 2004 based upon Respondent's: (1) neglect, pursuant to N.C. Gen. Stat. § 7B-101(15); (2) willfully leaving the children in foster care for more than twelve months without showing reasonable progress; and (3) dependency, pursuant to N.C. Gen. Stat. § 7B- 101(9). Respondent again denied DSS' allegations.
    The matter came on for hearing 29 July 2004 and 26 August 2004. Each time the trial court continued the matter for just cause, with the consent of all parties. At a hearing on 25 October 2004, the trial court determined that the allegations of the amended motion required the appointment of a guardian ad litem for Respondent, and appointed Respondent's counsel to act as Respondent's guardian ad litem. The trial court ordered counsel, as guardian ad litem, to submit a report regarding Respondent's competence to appear at trial and Respondent's ability to assist her counsel. Respondent's counsel submitted a report on 27 October 2004, concluding that Respondent understood the allegations in the motion to terminate her parental rights and that Respondent had actively participated in the preparation of her case. However, thematter was again continued on 27 October 2004 with the consent of all parties.
    Respondent's counsel moved for the appointment of an independent guardian ad litem for Respondent on 3 December 2004, which the trial court granted in an order dated 6 December 2004. When the matter next came on for hearing on 15 December 2004, the trial court continued the hearing, again with the consent of all parties. The order does not explain why the continuance was necessary. Respondent's second guardian ad litem filed a report with the trial court on 17 December 2004 recommending that the proceedings be delayed because the guardian ad litem felt Respondent lacked "sufficient contact with reality." Specifically, the guardian ad litem noted that Respondent believed the current proceedings were part of a conspiracy by DSS and the children's foster parents, and that Respondent's incarceration was part of the conspiracy.
    Respondent filed a written complaint with the trial court against her attorney on 22 December 2004 for "allowing evidence to be [suppressed], not subpoenaing witnesses, not filing a dismissal for termination of parental rights on [her] behalf and not asking important questions of witnesses."
    The termination hearing was held on 2, 3, 4 February and 2 March 2005. The trial court terminated Respondent's parental rights, finding the children neglected and dependent, and further finding that Respondent had willfully left the children in foster care for more than twelve months without reasonable progress underthe circumstances. The trial court also concluded that termination of Respondent's parental rights was in the best interests of the children. Respondent appeals.


    Respondent first argues that the trial court's failure to conduct a permanency planning hearing prior to filing a motion to terminate parental rights warrants a new termination hearing. Respondent contends that N.C. Gen. Stat. § 7B-907(a) requires that a permanency planning hearing be held prior to the filing of a motion to terminate parental rights. We disagree.
    N.C. Gen. Stat. § 7B-907(a) (2005) provides, in pertinent part:
        In any case where custody is removed from a parent, guardian, custodian, or caretaker, the judge shall conduct a review hearing designated as a permanency planning hearing within 12 months after the date of the initial order removing custody, and the hearing may be combined, if appropriate, with a review hearing required by G.S. 7B-906.

Nothing in the quoted language supports Respondent's argument. In fact, the quoted portion of the statute does not even reference a termination proceeding. Further, Article 11 of the juvenile code, which governs termination proceedings, does not require that a permanency planning hearing be held prior to filing a motion to terminate parental rights. See N.C. Gen. Stat. § 7B-1100 et seq. (2005). Notably, this Court has also stated that "[a]n adjudicatory hearing on abuse and neglect allegations is not a condition precedent to a termination hearing." In re Faircloth, 153 N.C. App. 565, 571, 571 S.E.2d 65, 69 (2002). Finally, therecord reveals that the trial court held hearings on 30 January 2003 and 27 March 2003 "pursuant to N.C. Gen. Stat. § 7B-906 and permanency planning hearing pursuant to N.C. Gen. Stat. § 7B- 907[.]" Thus, there were two permanency planning hearings held prior to the filing of the motion to terminate parental rights.

    Respondent next argues that the trial court erred by failing to hold the termination hearing within ninety days of the date the motion to terminate was filed pursuant to N.C. Gen. Stat. § 7B- 1109.
    N.C. Gen. Stat. § 7B-1109(a) (2005) provides that "the hearing on the termination of parental rights shall be conducted . . . no later than 90 days from the filing of the petition or motion" unless ordered by the trial court pursuant to subsection (d). N.C. Gen. Stat. § 7B-1109(d) (2005) requires good cause to continue the termination hearing for up to ninety days, and provides that "[c]ontinuances that extend beyond 90 days after the initial petition shall be granted only in extraordinary circumstances when necessary for the proper administration of justice[.]" The statute also mandates that the trial court "issue a written order stating the grounds for granting the continuance." Id. However, violations of statutory time requirements require reversal only upon a showing of prejudice. In re S.W., __ N.C. App. __, __, 625 S.E.2d 594, 596 (2006), disc. review denied, 360 N.C. 534, __ S.E.2d __ (2006); In re D.J.D., 171 N.C. App. 230, 242, 615 S.E.2d 26, 35 (2005).    While the delays presented in this case are certainly not ideal, they do not provide a basis for reversal of the termination order. First, each continuance granted by the trial court was made with the consent of all parties. When Respondent was not incarcerated, she was present at the hearings held, and Respondent's counsel was present at every hearing. The record shows no objection by Respondent to the continuances, though she moved the trial court to change her counsel and to dismiss the proceedings against her. Second, Respondent herself was the reason for several of the continuances ordered by the trial court. The 19 December 2003 hearing was continued after Respondent moved for a continuance as a result of her incarceration. At the 26 February 2004 hearing, Respondent moved to relieve her counsel. Respondent then requested an out-of-county attorney, or a change in venue, on 5 April 2004 because Respondent felt she had not been "treated or represented fairly by Franklin County and its attorneys at law." At the 29 April 2004 hearing, the trial court appointed substitute counsel for Respondent, and continued the matter until 1 July 2004 "to allow [Respondent's] new counsel time to prepare[.]" When the
hearing was held on 1 July 2004, Respondent was again incarcerated, and all parties consented to a continuance. Additional continuances resulted from the need to appoint a guardian ad litem for Respondent.
    While we find the scheduling of the termination proceedings erroneous, we find no prejudice. This Court has previously noted the "distinction between the failure of the trial court to reducean order to writing, which [affects] the respondent's time to appeal, and a delay in scheduling a matter for hearing." D.J.D., 171 N.C. App. at 243, 615 S.E.2d at 35. This Court further found that since the respondent in D.J.D. had contributed to the delays involved by moving to continue the termination hearing, the respondent had failed to demonstrate prejudice. Id. Although the delays in the present case are longer than those present in D.J.D., we apply the same rationale. As a result of Respondent's contribution to the delays, coupled with her consent to each continuance granted, Respondent has failed to show prejudice as a result of the delays. Thus, we overrule this assignment of error.

    Finally, Respondent argues the trial court erred when it failed to consider the children's grandmother as a suitable relative for placement. Respondent points to N.C. Gen. Stat. § 7B- 903(a)(2)c (2005), which requires that the trial court place a juvenile with a willing and able relative unless the trial court finds placement with the relative is not in the best interests of the child. Respondent relies on In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005). Respondent's reliance on N.C.G.S. § 7B- 903(a)(2)c and L.L. is misplaced. This assignment of error is overruled.
    A termination of parental rights case consists of an adjudication phase and a disposition phase. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). In the adjudication phase, a petitioner must prove that one or more of thestatutory grounds set out in N.C. Gen. Stat. § 7B-1111(a) exists by clear, cogent, and convincing evidence. Id. If a petitioner meets this burden as to one or more of the grounds, then the trial court must consider whether termination is in the best interests of the child. Id. "During the adjudicatory phase, the trial court does not consider whether there is a relative who can take custody of the minor child, but focuses on whether there is evidence to support termination on the grounds alleged in the petition." In re J.A.A., __ N.C. App. __, __, 623 S.E.2d 45, 51 (2005). Notably though, the trial court is free to consider the existence of a fit relative in the disposition phase as a reason why termination would not be in the best interests of the child. Id. Further, "[t]he decision to terminate parental rights is vested within the sound discretion of the trial [court] and will not be overturned on appeal absent a showing that the [trial court's] actions were manifestly unsupported by reason." Id.
    Thus, placement with a relative is not at issue in an appeal of an order terminating parental rights, except to the extent the trial court considered it in the disposition phase. Respondent's argument that the trial court erroneously failed to consider placement with the children's maternal grandmother is not properly made in an appeal of an order terminating parental rights. See J.A.A., __ N.C. App. at __, 623 S.E.2d at 51. Respondent did not appeal any prior orders entered in this matter, including the order changing the permanency plan from reunification to adoption. Respondent's primary authority, In re L.L., was an appeal of acustody order, not an appeal of an order terminating parental rights, and is therefore not controlling. Further, Respondent has not excepted to any of the trial court's findings of fact, and therefore they are conclusive on appeal. In re Caldwell, 75 N.C. App. 299, 301, 330 S.E.2d 513, 515 (1985). Additionally, the trial court's conclusions of law are binding on this Court because Respondent has failed to "assign error to each conclusion [Respondent] believes is not supported by the evidence" as is required by the Rules of Appellate Procedure. J.A.A., __ N.C. App. at __, 623 S.E.2d at 50. "'Failure to do so constitutes an acceptance of the conclusion and a waiver of the right to challenge said conclusion as unsupported by the facts.'" Id. (quoting Fran's Pecans, Inc. v. Greene, 134 N.C. App. 110, 112, 516 S.E.2d 647, 649 (1999)).
    Respondent failed to set forth an argument in support of her remaining assignments of error, and we therefore deem them abandoned pursuant to N.C.R. App. P. 28(b)(6).
    Judges WYNN and McCULLOUGH concur.
    Report per Rule 30(e).

Footnote: 1
    The motion also sought to terminate the parental rights of the children's putative father, Michael Y, who denied paternity. Michael Y. testified that he signed a relinquishment of parental rights to the children.

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