IN THE MATTER OF:
A.J.
Mecklenburg County
No. 05 J 83
Mecklenburg County Attorney's Office, by J. Edward Yeager,
Jr., for Mecklenburg County Department of Social Services,
Youth and Family Services, petitioner-appellee.
Womble Carlyle Sandridge & Rice, PLLC, by Murray C. Greason,
III, for Guardian ad Litem.
Jon W. Myers, for respondent-mother-appellant.
JACKSON, Judge.
A Juvenile Petition alleging neglect and dependency was filed
2 December 2002, based upon the fact that Diann J. (“respondent”)
was presently in jail for assault with a deadly weapon, and that
her child, A.J., had been placed in a temporary placement by
respondent. The Mecklenburg County Department of Social Services
(“DSS”) initially placed A.J. in foster care on 27 November 2002.
The basis for the allegations of neglect and dependency stemmed
from several incidents in which respondent had failed to control
her anger and had assaulted several people, including A.J.'sfather. In December 2000, respondent's parental rights were
terminated for another child, based upon housing issues, acts of
violence by respondent, and respondent's anger management issues.
On 13 January 2003, A.J. was adjudicated neglected and
dependent as to respondent. In a case plan adopted by the trial
court, respondent was ordered to have a parenting capacity
evaluation, complete a mental health assessment and follow through
with all recommendations for therapy, and “refrain from all violent
acts and threats and learn appropriate ways of expressing her
anger.” Respondent was allowed visitations with A.J., however the
visitations were suspended on multiple occasions due to her
becoming angry and confrontational with DSS workers. Over the
course of the two years in which A.J. was in foster care with DSS,
respondent became very angry with, and threatened, multiple social
workers and therapists. When she disagreed with how her case was
being handled, or how one of her therapists testified at a review
hearing, she repeatedly left threatening messages on the
professionals' voice mail systems, or would verbally threaten them
in person.
Respondent's various therapists and psychologists state that
she does not suffer from any psychosis, but that her condition is
chronic and severe, in that she is unable to control her anger, she
lacks impulse control, and she regularly fails to accept
responsibility for these types of problems. Respondent's
therapists also reported that at all times she felt that her
behavior was justified and that she was being singled out. On 1February 2005, DSS filed a petition to terminate respondent's
parental rights as to A.J. In the petition, DSS alleged the
following grounds for termination of respondent's parental rights:
(1) neglect, in that respondent has failed to provide proper care,
supervision, and discipline for A.J. and has abandoned A.J.; (2)
respondent has willfully left A.J. in foster care for more than
twelve months without showing to the satisfaction of the trial
court that she has made reasonable progress in correcting the
conditions which lead to the removal of A.J.; (3) for a continuous
period of six months next preceding the filing of the petition,
respondent willfully has failed to pay a reasonable portion of the
cost of care for A.J. although physically and financially able to
do so; and (4) respondent's parental rights with respect to another
child have been terminated involuntarily by a trial court and
respondent lacks the ability or willingness to establish a safe
home for A.J. Following hearings on the petition, held 27 April
2005 and 28 June 2005, the trial court found that grounds to
terminate respondent's parental rights existed, and that it was in
A.J.'s best interest that respondent's rights be terminated. The
trial court terminated respondent's parental rights based upon
grounds (1), (2), and (4) as listed above. Respondent appeals from
the order entered 14 July 2005 terminating her parental rights to
A.J.
Respondent first contends the trial court erred in failing to
sua sponte appoint a guardian ad litem for her during her
termination of parental rights proceeding. North Carolina General Statutes, section 7B-1101, in effect at
the time of respondent's hearing, provides in part that:
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). Our courts have held that
although a petition to terminate a parent's rights may not
specifically seek to terminate based upon a finding of dependency
pursuant to section 7B-1111(a)(6), an individual may still be
entitled to the appointment of a guardian ad litem when the trial
court considers evidence of the parent's mental health issues.
When there was “some evidence that tended to show that respondent's
mental health issues and the child's neglect were so intertwined at
times as to make separation of the two virtually, if not,
impossible[,]” this Court has held that a guardian ad litem was
required to be appointed. In re J.D., 164 N.C. App. 176, 182, 605
S.E.2d 643, 646, disc. review denied, 358 N.C. 732, 601 S.E.2d 531
(2004); see also In re L.W., __ N.C. App. __, __, 623 S.E.2d 626,
629 (quoting In re T.W., L.W., E.H., 173 N.C. App. 153, 159-60, 617
S.E.2d 702, 706 (2005) (“reference to N.C. Gen. Stat. §
7B-1111(a)(6) in an order terminating parental rights is not
necessary to trigger a trial court's duty to appoint a guardian adlitem where 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' and where it was 'clear
that the trial court believed respondent was unable to care for or
parent the minor children due, in part, to her mental illness.'”)),
disc. review denied, appeal dismissed, 360 N.C. 534, 633 S.E.2d 818
(2006).
Respondent concedes that DSS did not seek to terminate her
parental rights based on an allegation of dependency and her
incapability of caring for A.J., nor did DSS argue dependency at
her termination of parental rights hearing. However, she contends
the evidence presented at the hearing regarding her anger
management and impulse control issues was sufficient to put the
trial court on notice that she should have been appointed a
guardian ad litem. We disagree. DSS' petition seeking to
terminate respondent's parental rights neither alleged dependency
nor tended to show that respondent was incapable of caring for A.J.
due to mental health issues. The sole statement in the petition
which relates in any way to respondent's behavior states, “The
respondent mother has not engaged in and completed therapy and has
not made such behavioral changes that she can appropriately care
for the minor child.” We hold this statement alone is insufficient
to invoke the requirements of section 7B-1101 and to require the
appointment of a guardian ad litem for respondent.
Further, the psychological evaluation of respondent states
that respondent is an “angry woman who . . . seemed to beexperiencing some depressive symptoms, but who was in touch with
reality and was not evidencing any symptoms of a major psychiatric
disorder.” The psychological tests performed indicated that
respondent does not have chronic difficulty with anger control, she
tends to alienate herself by externalizing blame onto others, and
she has difficulty accepting responsibility for her own actions.
While one of respondent's former psychologists categorized her
condition as “chronic and severe,” he did not categorize her as
mentally ill. Respondent's second psychologist testified that
respondent is an angry individual, who displays poor judgment and
poor emotional control. In his opinion, respondent does not have
any type of psychosis or organic brain damage, but she does have
chronic difficulty controlling her anger and has interpersonal
alienation impulse control difficulties.
Therefore, while much of the evidence at respondent's hearing
focused on her inability to control her behavior, this does not
rise to the level of evidence of a mental illness or an
incapability to provide care for A.J. due to “mental retardation,
mental illness, organic brain syndrome, or another similar cause or
condition.” Thus, the trial court was not required to appoint a
guardian ad litem for respondent, and did not err in failing to do
so. Respondent's assignment of error is overruled.
Respondent next contends the trial court erred in finding and
concluding that her parental rights should be terminated based upon
findings of 1) neglect; 2) willfully leaving A.J. in foster care
for more than twelve months without making reasonable progress incorrecting the circumstances which led to A.J.'s removal; and 3)
her parental rights with respect to another child had been
terminated involuntarily by a court of competent jurisdiction, and
she lacks the ability or willingness to establish a safe home for
A.J. As “[a] finding of any one of the separately enumerated
grounds under N.C. Gen. Stat. § 7B-1111 that is supported by clear,
cogent, and convincing evidence is sufficient to terminate[,]” we
therefore need not address each of the grounds for termination of
respondent's parental rights. In re Howell, 161 N.C. App. 650,
656, 589 S.E.2d 157, 160-61 (2003) (citing In re Taylor, 97 N.C.
App. 57, 64, 387 S.E.2d 230, 233-34 (1990)); see N.C. Gen. Stat. §
7B-1111(a) (2005).
“[T]he party petitioning for the termination must show by
clear, cogent, and convincing evidence that grounds authorizing the
termination of parental rights exist.” In re Young, 346 N.C. 244,
247, 485 S.E.2d 612, 614 (1997). “On appeal, the trial court's
decision to terminate parental rights is reviewed on an abuse of
discretion standard[.]” In re J.L.K., 165 N.C. App. 311, 317, 598
S.E.2d 387, 391 (citing In re Nesbitt, 147 N.C. App. 349, 352, 555
S.E.2d 659, 662 (2001)), disc. review denied, 359 N.C. 68, 604
S.E.2d 314 (2004). “The standard of review of a termination of
parental rights is whether the trial court's findings of fact are
supported by clear, cogent, and convincing evidence and whether the
findings of fact support its conclusions of law.” In re J.G.B.,
___ N.C. App. ___, ___, 628 S.E.2d 450, 454 (2006) (citing In re
Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc.review denied, 353 N.C. 374, 547 S.E.2d 9 (2001)). Findings of
fact not assigned as error or argued on appeal are deemed to be
supported by sufficient evidence, and are binding on appeal. N.C.
R. App. P. 28(b)(6) (2006); see also In re Clark, 159 N.C. App. 75,
83 n.5, 582 S.E.2d 657, 662 n.5 (2003) (citing In re Caldwell, 75
N.C. App. 299, 301, 330 S.E.2d 513, 515 (1985)). However, we
review a trial court's conclusions of law de novo. In re D.H., __
N.C. App. __, __, 629 S.E.2d 920, 922 (2006) (quoting Starco, Inc.
v. AMG Bonding and Ins. Services, 124 N.C. App. 332, 336, 477
S.E.2d 211, 215 (1996)).
Respondent's parental rights were terminated based upon a
finding that pursuant to North Carolina General Statutes, section
7B-1111(a)(2), she “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.” N.C. Gen. Stat. § 7B-
1111(a)(2) (2005). Although respondent did assign error to nine of
the trial court's nineteen findings of fact, she presents argument
on appeal challenging only finding of fact nineteen, thus
respondent's assignments of error not argued on appeal are deemed
abandoned, and the findings of fact for which no argument is
presented are deemed to be supported by competent evidence and are
are binding on appeal. N.C. R. App. P. 28(b)(6) (2006); J.G.B.,
___ N.C. App. at ___, 628 S.E.2d at 455. The trial court made the following findings of fact, which are
binding upon this Court:
6. The primary issue leading to [DSS]
involvement was the mother's unresolved
mental health issues, which included
anger management, erratic outburst and
lack of impulse control. That pattern of
behavior has continued throughout the
Department's involvement with the case.
7. On several occasions visits have been
suspended with the respondent mother due
to violent outbursts and erratic behavior
directed toward [DSS] social workers,
social work assistants and other
professionals involved in the case.
8. Ms. J[.] received therapy from Larry
Yarborough for approximately 14 months.
Therapy ended after she became outraged
at Mr. Yarborough, began cursing and
threatening him; although she apologized,
she continued leaving him violent voice
mails over the next 3-4 months following
her apology.
. . . .
11. The respondent mother also completed a
parenting capacity evaluation with Dr.
Burce Duthie of the Behavioral Health
Center. Although Dr. Duthie observed no
major deficits in Ms. J[.]'s parenting
abilities, he houd [sic] that she has a
personality structure which could put a
child in danger.
12. After Dr. Duthie testified to the results
of his parenting capacity evaluation he
received numerous harassing and
threatening telephone calls and messages
from Ms. J[.]
13. The respondent mother was also engaged in
parenting classes during the underlying
juvenile case. She completed parent
education courses through the Family
Center and was working with an in-home
parent educator, Reggie Chandler, until
April, 2004. At that time, therespondent mother became outraged because
the social worker assistant was late
bringing her child, she subsequently
began cursing and threatening various
officials with Youth and Family Services
and visits had to be suspended. Because
of her behavior, the opportunity to
continue participating in the in-home
parenting education program was
suspended.
. . . .
15. The respondent mother, however, has never
modified her behavior and demonstrated
such stability that the minor child could
be placed with her without placing the
child at risk. As a result, the minor
child has had to remain in foster care.
16. The respondent mother is also the
biological mother of another child. That
child was placed in the custody of Lee
County DSS in 1999 and her parental
rights were terminated to that child in
2000.
17. This sibling was placed in Lee County's
custody due to the mother's continuing
displays of anger and violent behavior in
the child's presence.
These findings of fact show the ongoing struggle which DSS and
respondent's therapists faced in attempting to work with
respondent. Respondent repeatedly became angry, and sometimes
violent, with the various workers, thereby impeding their ability
to provide her with services and maintaining the instability which
initially led to A.J.'s being taken into custody. Respondent's
behavior did not improve over the course of the two and a half
years in which her child was in the custody of DSS. In fact,
respondent and her therapist both testified that respondent had
learned various techniques for dealing with and controlling heranger, however she simply chose not to utilize them. Therefore, we
hold the abovementioned findings of fact, which are binding on this
Court, support the trial court's conclusion that respondent has
failed to make reasonable progress on correcting the conditions
which led to the removal of A.J. from her care. Respondent's
assignment of error therefore is overruled.
Respondent finally contends the trial court abused its
discretion in concluding that A.J.'s best interests would be served
by the termination of her parental rights.
“'A termination of parental rights proceeding is a two-stage
process.'” In re T.D.P., 164 N.C. App. 287, 288, 595 S.E.2d 735,
736 (2004) (quoting Howell, 161 N.C. App. at 656, 589 S.E.2d at
160), aff'd, 359 N.C. 405, 610 S.E.2d 199 (2005). First there is
an adjudicatory phase, which is followed by the disposition phase.
See N.C. Gen. Stat. §§ 7B-1109 to -1110 (2005). Once the trial
court has found that a ground for termination exists, the trial
court then moves to the disposition phase where it must consider
whether termination is in the best interests of the child. N.C.
Gen. Stat. § 7B-1110(a) (2005). A trial court may terminate
parental rights upon a finding that it would be in the best
interests of the child to do so. In re Blackburn, 142 N.C. App.
607, 613, 543 S.E.2d 906, 910 (2001). However, a trial court is
not required to terminate a parent's rights. When the trial court
determines that the best interests of the child require that the
parent's rights not be terminated, then the court must dismiss the
petition. N.C. Gen. Stat. § 7B-1110(b) (2005). We review thetrial court's decision regarding the child's best interests for an
abuse of discretion. Nesbitt, 147 N.C. App. at 352, 555 S.E.2d at
662.
Respondent specifically challenges the trial court's finding
of fact nineteen, which states the trial court finds that it is in
A.J.'s best interest that parental rights be terminated. In the
instant case, the trial court considered the progress respondent
had made in establishing a stable home and in maintaining steady
employment. The trial court recognized that respondent had never
tested positive for any illegal substances, had participated in
therapy, and completed parenting classes as ordered. However, the
trial court found, and we hold was not an abuse of the trial
court's discretion, that it was in A.J.'s best interests that
respondent's parental rights be terminated. The primary concern of
not only DSS, but also the multiple therapists involved with
respondent, always has been that respondent's inability to control
her anger and her erratic outbursts create an environment in which
A.J. not only is at risk of being harmed, but also one in which
respondent will have great difficulty working with the various
agencies and professionals involved in A.J.'s life, including the
school system, daycare providers, teachers, and physicians.
Respondent testified that she has learned the techniques to
control her anger and impulses, but that she fails to utilize those
techniques. As respondent has failed to address the behavioral
problems which led to A.J.'s being taken into care, we hold the
trial court's finding that it was in A.J.'s best interest that herparental rights be terminated was sufficiently supported by the
evidence presented. Thus, the trial court did not abuse it's
discretion in ordering the termination of respondent's parental
rights, and respondent's assignment of error is overruled.
Affirmed.
Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).
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