An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 19 December 2006
IN THE MATTER OF: A.A.W.,
No. 03 J 156
Appeal by respondent-appellant from order entered 4 October
2005 by Judge Burford A. Cherry in Burke County District Court.
Heard in the Court of Appeals 19 October 2006.
Stephen M. Schoeberle for petitioner-appellee Burke County
Department of Social Services.
Mary R. McKay for petitioner-appellee Guardian ad Litem.
Charlotte Gail Blake for respondent-appellant.
Respondent-mother (respondent) appeals from an order
terminating her parental rights to the minor child, A.A.W. For the
reasons discussed herein, we affirm.
On 18 July 2003, A.A.W. was born to fifteen year old
respondent and sixteen year old father. On 18 August 2003, Burke
County Department of Social Services (DSS) filed a juvenile
petition alleging that A.A.W. was an abused, neglected and
dependent juvenile. The petition alleged the following: A.A.W.
was abused because she was born with cocaine, marijuana and
amphetamines in her system, neglected because respondent did not
tell her parents [she was pregnant] and did not seek any prenatalcare, causing A.A.W. to be born prematurely, and dependent
because the [respondent] is 15 years old and intended to remain
in [high]school while [the father,] who is 16 years old, provided
On 21 August 2003, A.A.W. was placed in nonsecure custody with
DSS. In an order entered 28 January 2004, the trial court
adjudicated A.A.W. neglected pursuant to N.C. Gen. Stat. . 7B-
101(15). The trial court ordered that the custody of A.A.W. should
continue with DSS and specifically approved A.A.W.'s foster care
On 17 February 2005, the trial court conducted a permanency
planning hearing, which resulted in an order making adoption the
permanent plan for A.A.W. Father gave notice of appeal from this
order on 21 February 2005. Respondent gave notice of appeal on 28
On 28 July 2005, DSS filed a motion to terminate respondent
and father's parental rights, and alleged as grounds for
termination those set forth in N.C. Gen. Stat. .. 7B-1111(a)(1),
(a)(2) and (a)(3).
(See footnote 1)
On 22 September 2005, the trial court entered an order
appointing a guardian ad litem to represent respondent at the
termination hearing, which was held on 29 September 2005. On 4October 2005, the trial court entered an order terminating the
parental rights of respondent and father.
On 5 October 2005, DSS filed a motion to dismiss the parents'
appeal from the trial court's order entered 17 February 2005,
making adoption the permanent plan for A.A.W. On 1 November 2005,
this Court granted the motion.
On 14 October 2005, respondent gave notice of appeal from the
trial court's order terminating her parental rights. Father did
I: Permanency Planning Review Order
In her first argument, respondent contends that the trial
court erred in entering orders prior to the termination order,
including the permanency planning review order, containing
findings of fact based on incompetent evidence. We disagree.
Respondent mother relies upon In re D.L., A.L.,
166 N.C. App.
574, 603 S.E.2d 376 (2004), to support her argument that the DSS
and guardian ad litem
reports were not sufficient, competent
evidence upon which to base the findings of fact in the court's
earlier orders, including the permanency planning review order
entered on 22 February 2005. In re D.L.
The only evidence offered by DSS was a
summary prepared on 11 September 2002. By
stating a single evidentiary fact and adopting
DSS and guardian ad litem
reports, the trial
court's findings are not 'specific ultimate
facts . . . sufficient for this Court to
determine that the judgment is adequately
supported by competent evidence.'
at 582, 603 S.E.2d at 382; (quoting In re Harton
, 156 N.C. App.
655, 660, 577 S.E.2d 334, 337 (2003)). In the case of In re D.L.
,respondents appealed directly from the permanency planning review
order, alleging that the court based its findings upon incompetent
evidence. In the instant case, respondent appeals from an order
terminating respondent's parental rights, but asserts that the
trial court based its findings upon incompetent evidence, not in
the termination order, but rather, in orders previously entered,
including the permanency planning review order.
In the case of In re O.C. & O.B.
, 171 N.C. App. 457, 615
S.E.2d 391 (2005), this Court held that the question of whether the
trial court should have appointed a guardian ad litem
mother in a prior proceeding was not before the court. The Court
concluded that [o]nly the order on termination of parental rights
is before this Court; the order on adjudication is not. Id.
462, 615 S.E.2d at 394.
The Court further concluded that
[m]otions in the cause and original petitions for termination of
parental rights may be sustained irrespective of earlier juvenile
court activity. Id.
at 463-464, 615 S.E.2d at 395. (citing In re
, 359 N.C. 539, 553, 614 S.E.2d 489, 497 (2005)
(See footnote 2)
controlling at the time of the filing of this petition was that
[e]ach termination order relies upon an independent finding that
clear, cogent, and convincing evidence supports at least one of the
grounds for termination under N.C.G.S. § 7B-1111. . . . Simplyput, a termination order rests on its own merits. R.T.W.
614 S.E.2d at 497.
In the instant case, we decline to review the competency of
the evidence supporting findings of fact in the permanency planning
review order. Respondent previously appealed from this permanency
planning review order, and her appeal was dismissed. The only
order before this Court is the order terminating respondent's
parental rights. We dismiss this assignment of error.
II: Adjudication: Sufficiency of Evidence
In respondent's second argument, she contends that the trial
court erred in ordering the termination of her parental rights
because the trial court's findings of fact are not supported by
clear, cogent and convincing evidence. We disagree.
A termination of parental rights proceeding is conducted in
two phases: (1) adjudication and (2) disposition. See In re
Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). In
the adjudication phase, the petitioner has the burden of proving by
clear, cogent, and convincing evidence that one or more of the
statutory grounds for termination under N.C. Gen. Stat. §
7B-1111(a) exists. Id. A finding of any one of the separately
enumerated grounds is sufficient to support a termination. In re
Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984). If a
conclusion that grounds exist under any section of the statute is
supported by findings of fact based on clear, cogent, and
convincing evidence, the order terminating parental rights must be
affirmed. In re Ballard , 63 N.C. App. 580, 586, 306 S.E.2d 150,154 (1983), rev'd on other grounds, 311 N.C. 708, 319 S.E.2d 227
(1984). If there is competent evidence to support the trial
court's findings of fact and conclusions of law, the same are
binding on appeal even in the presence of evidence to the contrary.
Williams v. Insurance Co., 288 N.C. 338, 342, 218 S.E.2d 368, 371
(1975) (citation omitted).
The following findings of fact in the trial court's order are
unchallenged on appeal and are binding upon this Court:
4. The minor child was adjudicated to be
neglected by the consent of the parties on
January 22, 2004. The Court ordered the
parents to enter into service agreements with
the Department in order to address their
deficiencies, but they have failed to
adequately address those deficiencies. . . .
6. The parents previously were ordered to
obtain independent housing. They currently do
not have independent housing, although they
did have independent housing for a few weeks
in Burke County and approximately 5-6 months
in South Carolina prior to their separation.
[Respondent] currently is back residing with
her father. [Father] stays at various
residences, either with his mother or friends.
. . .
8. The parents previously were ordered to
attend a minimum of 2 NA/AA meetings per week,
report for random drug testing as requested,
and have no positive drug tests. They have
not attended any NA/AA meetings or had any
drug tests since their move to South Carolina.
They both admit to having smoked marijuana
while in South Carolina such that they would
have tested positive. [Respondent] states that
she found evidence of cocaine or
methamphetamine use by [father] in their home
in South Carolina, although [father] denies
9. [Respondent] previously was ordered to
obtain her diploma, obtain her GED or obtain
employment. She currently has none of those. She does not have a driver's license. She is
dependent on her father for shelter, food,
clothing and transportation. . . .
12. While in South Carolina, the parents used
[respondent's] mother's address as their
mailing address, although they lived
approximately 15 miles away from
[respondent's] mother. They failed to provide
the Department or the guardian ad litem
program with their physical address or their
telephone number, and they failed to maintain
contact with either the Department or the
guardian ad litem program.
Because these findings are conclusive on appeal, we must
determine whether they support the trial court's conclusions of
law. See, e.g., In re McDonald, 72 N.C. App. 234, 242, 324 S.E.2d
847, 852 (1985). We hold that the uncontested findings of fact
adequately support the conclusion of law that grounds for
termination existed under N.C. Gen. Stat. . 7B-1111(a)(2).
This assignment of error is without merit.
III: Guardian ad litem
In her third argument, respondent contends that the trial
court denied her statutory right to a guardian ad litem
termination proceedings. We disagree.
Minor parents may be held responsible for caring for their
children, and the failure to do so may result in a termination of
their parental rights. In re J.G.B.
, __ N.C. App. __, __, 628
S.E.2d 450, 457 (2006) (citing N.C. Gen. Stat. . 7B-1101.1 (2005)).
Nonetheless, a minor parent must be appointed a guardian ad litem
to represent his or her interests during termination proceedings.
The statute governing this appeal provided that a
guardian ad litem
shall be appointed in accordance with theprovisions of G.S. 1A-1, Rule 17, to represent a parent . . .
[w]here the parent is under the age of 18 years.
(See footnote 3)
N.C. Gen. Stat.
. 7B-1101 (2003); see also
N.C. Gen. Stat. . 7B-602(b) (2003); 2005
N.C. Sess. Laws ch. 398, . 14. N.C. Gen. Stat. . 1A-1, Rule 17(e)
(2003) set forth the legal duties of the guardian ad litem
Any guardian ad litem appointed for any party
pursuant to any of the provisions of this rule
shall file and serve such pleadings as may be
required within the times specified by these
rules[.] . . . After the appointment of a
guardian ad litem under any provision of this
rule and after the service and filing of such
pleadings as may be required by such guardian
ad litem, the court may proceed to final
judgment, order or decree against any party so
represented as effectually and in the same
manner as if said party had been under no
Id.; see also In re Shepard
, 162 N.C. App. 215, 227, 591 S.E.2d 1,
9 (2004). Consistent with the aforementioned statute, the North
Carolina Supreme Court in the case of In re Montgomery
, 311 N.C.
101, 115, 316 S.E.2d 246, 255 (1984), stated that the guardian ad
is a procedural safeguard. This Court thereafter
suggest[ed,] the role of the [guardian ad litem
] was that of
guardian of procedural due process for th[e] parent, to assist in
explaining and executing her rights. Shepard
at 227, 591 S.E.2d
at 9 (citing Montgomery
at 115, 316 S.E.2d at 255).
In the instant case, respondent was seventeen years old at the
time of the termination hearing. Respondent was married,
emancipated, and represented by an attorney. After DSS filed the
motion to terminate respondent's parental rights, the trial courtappointed a guardian ad litem
to represent respondent pursuant to
N.C. Gen. Stat. .. 7B-602(b) and 7B-1101 (2003). On 20 September
2005, nine days before the termination hearing, DSS served the
guardian ad litem
with notice and the motion to terminate
respondent's parental rights
. At that time, he
agreed to serve as
guardian ad litem
for respondent, and he
was officially appointed
as guardian ad litem
on 22 September 2005, seven days before the
termination hearing. The guardian ad litem
respondent at the hearing on 29 September 2005. Respondent
contends in her brief that the belated appointment of the
guardian ad litem
was tantamount to den[ying] the mother her
right, guaranteed by statute, to a guardian ad litem
citing In re
B.M., M.M. An.M., & Al.M.
, 168 N.C. App. 350, 607 S.E.2d 698 (2005),
We first observe that this Court has remanded orders
terminating parental rights when the trial court wholly failed to
appoint a guardian ad litem
where such appointment was statutorily
required. See, e.g., In re Estes
, 157 N.C. App. 513, 579 S.E.2d
496 (2003). Furthermore, this Court has remanded orders because a
guardian ad litem
was not timely appointed where grounds for
termination were based on N.C. Gen. Stat. . 7B-1111(a)(6).
(See footnote 4)
See,e.g., In re D.S.C.
, 168 N.C. App. 168, 607 S.E.2d 43 (2005). The
case cited by respondent, B.M.
, 168 N.C. App. 350, 607 S.E.2d 698,
falls into the former category of opinions.
However, the instant
case is distinguishable from these decisions. Here, the trial
court did not fail to appoint a guardian ad litem
. The court
appointed a guardian ad litem
on 22 September 2005 to represent
respondent. Moreover, In re B.M.
and In re D.S.C.
inapplicable, because in the instant case, the grounds for
termination were not based on respondent's incapability as
defined by N.C. Gen. Stat. . 7B-1111(a)(6). Respondent does not
contend, nor does the record reflect, that grounds for termination
based on incapability existed here at all. See B.M.,
App. 350, 607 S.E.2d 698; In re J.D.
, 164 N.C. App. 176, 605 S.E.2d
643, disc. review denied
, 358 N.C. 732, 601 S.E.2d 531 (2004).
We conclude that the requirement of N.C. Gen. Stat. . 7B-1101
(2003), that respondent be appointed a guardian ad litem
she was under the age of eighteen, was met. Respondent was
appointed a guardian ad litem
. Respondent does not argue that the
guardian ad litem
failed to perform his legal duties, set forth by
N.C. Gen. Stat. . 1A-1, Rule 17(e) (2003). Neither does respondent
argue that the guardian ad litem
failed to be a guardian of
procedural due process[.] Shepard
at 227, 591 S.E.2d at 9 (2004)
(citation omitted). Furthermore, respondent does not argue that
she was, in any way, prejudiced by the delay in appointing aguardian ad litem
. Respondent cites no authority, either statutory
or common law, to support the proposition that she was
denied the right to a guardian ad litem
to represent her interests.
We find respondent's argument without merit and affirm the
Judges GEER and STEPHENS concur.
Report per Rule 30(e).
The motion for termination of respondent's parental rights
was filed by DSS on 28 July 2005, which precedes 1 October 2005,
the date giving effect to the rewritten statutes governing
appeals of termination of parental rights proceedings.
Therefore, the prior statute governs this appeal.
Our General Assembly recently amended N.C. Gen. Stat. §
7B-1003 (2005) to provide that, pending disposition of an appeal,
the trial court no longer continues to exercise jurisdiction over
termination proceedings. See In re A.B.
__ N.C. App. __, __ n2,
635 S.E.2d 11, 14 n2 (2006);
N.C. Gen. Stat. . 7B-1003 (2005).
Where grounds for termination are based on incapability of
the parent, N.C. Gen. Stat. . 7B-1111(a)(6), the proper time for
appointment of a guardian ad litem
under N.C. Gen. Stat. . 7B-
1101, is on the filing of the petition for termination by DSS.
Incapable is defined by N.C. Gen. Stat. . 7B-1111(a)(6), as
unable or unavailable to parent the juvenile due to substance
abuse, mental retardation, mental illness, organic brain
syndrome, or other cause or condition[.]
N.C. Gen. Stat. .7B-1111(a)(6); see also In re D.S.C.
, 168 N.C. App. 168, 607
S.E.2d 43 (2005).
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