Appeal by respondent from order entered 23 August 2006 by
Judge P. Gwynett Hilburn in Pitt County District Court. Heard in
the Court of Appeals 30 April 2007.
Anthony Hal Morris for petitioner-appellee.
Annick Lenoir-Peek for respondent-appellant.
Respondent mother appeals from an order of the district court
terminating her parental rights as to the minor child A.H.
(See footnote 1)
We hold that the trial court's findings of fact supportits conclusion of law that grounds existed under N.C. Gen. Stat. §
7B-1111(a)(6) (2005) to terminate respondent's parental rights.
Because respondent has not further challenged the trial court's
decision that termination is in Abby's best interests, we affirm.
Petitioner, the Pitt County Department of Social Services
("DSS"), first became involved with respondent in October 2002 when
Abby was burned on her wrist by an iron while respondent was
holding her. Respondent did not take Abby to a doctor until
directed to do so by DSS the next day. Respondent also had left
Abby unattended on several occasions.
On 18 October 2002, respondent began residing at a substance
abuse facility for mothers with young children. On 26 December
2002, respondent left the program and resided with her Narcotics
Anonymous sponsor until moving into a housing unit for recovering
substance abusers. On 14 February 2003, respondent suffered a
relapse and, shortly thereafter, was arrested on drug possession
charges. Respondent left Abby temporarily with her Narcotics
Anonymous sponsor, but DSS obtained custody of Abby on 18 March
2003 due to respondent's incarceration.
On 26 March 2003, respondent was released from incarceration
and went to reside with her Narcotics Anonymous sponsor until that
sponsor notified DSS that respondent could no longer stay there
because she was again using drugs. From April through September
2003, respondent was in and out of detox programs; missed substanceabuse treatment appointments; entered and, against medical advice,
left a long-term treatment facility after only two weeks; and
repeatedly relapsed into drug use.
On 16 September 2003, respondent was declared civilly
incompetent in a special proceeding before the Clerk of Pitt County
Superior Court. She left Pitt County before a guardian could be
appointed. In an order entered on 5 November 2003, Abby was
adjudicated a dependent juvenile, and her custody was continued
On 30 January 2004, respondent visited with Abby for the
child's birthday and brought her gifts. This visit was
respondent's only contact with Abby for all of 2004. While the
record is generally sparse as to respondent's whereabouts and
activities during 2004, the record does reflect that respondent was
enrolled in a drug treatment program in Mecklenburg County in March
2004. After completing the program, respondent remained drug free
for three to four months. DSS, however, lost contact with
respondent after she again relapsed.
On 16 February 2005, respondent and her mother appeared in
court pursuant to a subpoena issued by DSS. Respondent's mother
agreed to take guardianship of respondent and to complete the
required paperwork, but the paperwork was never filed with the
clerk's office. Also on 16 February 2005, respondent had another
visit with Abby, but when the child did not acknowledge respondent
as her mother, respondent became upset. At that time, respondent
told a social worker that she had been drug free for three weeks. During the spring of 2005, respondent continued to move from
location to location and use drugs. At one point, respondent left
a message for a DSS social worker informing her that she was in a
Black Mountain, North Carolina substance abuse treatment facility
and would be there for six months. Respondent, however, left the
program on 20 July 2005, although she told DSS on 17 August 2005
that she was receiving outpatient treatment. On 15 September 2005,
the trial court relieved DSS of further reunification efforts and
changed Abby's permanent plan to adoption. DSS filed a petition to
terminate respondent's parental rights on 12 October 2005. As of
that date, respondent was incarcerated in Edgecombe County.
In November 2005, respondent contacted a DSS social worker and
told her that she was in a half-way house in Wilson, North
Carolina. On 9 December 2005, respondent reported that she was in
another detox program in Pitt County. Although she left a phone
number for the social worker, that number was not a working number.
On 14 December 2005, DSS learned that respondent had left the detox
program against staff advice. By 29 December 2005, however,
respondent had returned to the program. The staff told the DSS
social worker that respondent needed intensive treatment.
On 30 December 2005, respondent went to the Walter B. Jones
Alcohol and Drug Treatment Center for 30 days of treatment. On 12
January 2006, DSS learned that respondent had left the facility
against medical advice, but subsequently DSS was informed that she
had been readmitted. On 31 January 2006, respondent notified DSS
that she was going to reside in a home for women who are recoveringaddicts. She moved to a half-way house in April 2006 and obtained
employment at a Burger King Restaurant. Respondent's competency
was restored in a special proceeding on 26 April 2006. The trial
court found that since 30 December 2005, respondent "has made
positive steps in recent months by remaining drug free, sober,
voluntarily remaining in a halfway house and attending Narcotics
The termination of parental rights proceeding was conducted on
8 June 2006 and 6 July 2006 with the trial court entering an order
terminating respondent's parental rights on 23 August 2006.
Despite acknowledging the recent positive developments in
respondent's life, the court found that "[t]he relapses which have
occurred throughout this case cannot be overlooked" and determined
that these improvements are "not sufficient for the Court to
consider return of [Abby] to Respondent."
The court concluded that termination of respondent's parental
rights was warranted on the following grounds: (1) that respondent
neglected Abby; (2) that respondent willfully left Abby in foster
care for more than 12 months without showing reasonable progress in
correcting the conditions that led to Abby's removal; (3) that
respondent willfully failed to pay a reasonable portion of the cost
of Abby's care for the six-month period preceding the filing of the
petition; (4) that respondent was incapable of providing for Abby's
proper care and supervision, such that Abby was a dependent
juvenile; and (5) that respondent willfully abandoned Abby for at
least six months immediately preceding the filing of the petition. Upon finding further that termination was in Abby's best interests,
the court declared respondent's parental rights terminated.
Respondent timely appealed to this Court.
(See footnote 2)
Under the North Carolina Juvenile Code, a termination of
parental rights proceeding involves two distinct phases: an
adjudicatory stage and a dispositional stage. In re Fletcher
N.C. App. 228, 233, 558 S.E.2d 498, 501 (2002). "First, in the
adjudicatory stage, the trial court must determine whether the
evidence clearly and convincingly establishes at least one ground
for the termination of parental rights listed in N.C. Gen. Stat. §
After the petitioner has proven at least one ground
for termination, "the trial court proceeds to the dispositional
phase and must consider whether termination is in the best
interests of the child." In re Shermer
, 156 N.C. App. 281, 285,
576 S.E.2d 403, 406 (2003); see also
N.C. Gen. Stat. § 7B-1110(a)
(2005) ("the court shall determine whether terminating the parent's
rights is in the juvenile's best interest").
On appeal, this Court reviews whether "the court's findings of
fact are based upon clear, cogent and convincing evidence and
[whether] the findings support the conclusions of law." In re
, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996). We
review the trial court's dispositional decision to terminateparental rights for abuse of discretion. In re Nesbitt
, 147 N.C.
App. 349, 352, 555 S.E.2d 659, 662 (2001).
Although respondent assigned error to many of the trial
court's findings of fact, claiming that they were unsupported by
competent evidence, those assignments of error were not brought
forward in her brief.
(See footnote 3)
They are, therefore, deemed abandoned.
N.C.R. App. P. 28(b)(6). Because those findings of fact are not
challenged on appeal, we presume them to be supported by competent
evidence, and, accordingly, "our review in this case is limited to
determining whether the trial court's findings of fact support its
conclusions of law." In re P.M.
, 169 N.C. App. 423, 424, 610
S.E.2d 403, 405 (2005).
We conclude that the trial court's unchallenged findings of
fact are sufficient to support its determination that grounds
existed to terminate respondent's parental rights under N.C. Gen.
Stat. § 7B-1111(a)(6). Accordingly, we do not address respondent's
arguments as to the other grounds relied upon by the trial court.
In re B.S.D.S.
, 163 N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004)
("Having concluded that at least one ground for termination of
parental rights existed, we need not address the additional
ground[s] . . . found by the trial court.").
 As an initial matter, we must address respondent's
argument that DSS failed to state in its petition that it sought to
terminate her parental rights under N.C. Gen. Stat. § 7B-1111(a)(6)and, therefore, that she was not on notice of this ground being at
issue in the proceeding. As this Court recognized in In re
, 156 N.C. App. 533, 539, 577 S.E.2d 421, 426 (2003), a
petition will not be held inadequate simply because it fails to
allege the precise statutory provision ultimately found by the
trial court. Rather, the adequacy of the petition must be measured
according to N.C. Gen. Stat. § 7B-1104(6) (2005), which requires
that the petition state "[f]acts that are sufficient to warrant a
determination that one or more of the grounds for terminating
parental rights exist."
Section 7B-1111(a)(6) authorizes termination if the trial
That 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.
Although the petition did not specifically refer to N.C. Gen. Stat.
§ 7B-1111(a)(6), it did allege as grounds:
The mother 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(15) and
there is a reasonable probability that such
incapability will continue in the foreseeable
future as a result of substance abuse, mental
retardation and mental illness and the motherhas lacked an appropriate alternative child
This language directly parallels that of N.C. Gen. Stat. § 7B-
1111(a)(6) and is "sufficient to put a respondent on notice
regarding the acts, omissions, or conditions," Humphrey
, 156 N.C.
App. at 539, 577 S.E.2d at 426, that a trial court must find prior
to terminating parental rights under § 7B-1111(a)(6). Respondent,
therefore, had sufficient notice with respect to this ground for
 Turning to the court's conclusion that grounds existed
under § 7B-1111(a)(6) for termination of her parental rights,
respondent asserts only that "[b]ecause Respondent-Mother had
become legally competent and was maintaining her sobriety, the
court erred in finding and concluding that her rights should be
terminated on the ground of incapacity." Respondent cites no
authority to support her argument as to this ground apart from
quoting the statutory provision.
N.C. Gen. Stat. § 7B-1111(a)(6) does not require that a parent
be adjudicated civilly incompetent. An incompetent adult is "an
adult or emancipated minor who lacks sufficient capacity to manage
the adult's own affairs or to make or communicate important
decisions concerning the adult's person, family, or property . . .
." N.C. Gen. Stat. § 35A-1101(7) (2005). Thus, when respondent
was adjudicated competent in April 2006, it established only that
she had regained her capacity to manage her own affairs, including
making decisions regarding her person, family, and property. The
restoration of her competency did not necessarily mean that she hadthe capacity to provide proper care and supervision for her child.
See In re T.W.
, 173 N.C. App. 153, 160, 617 S.E.2d 702, 706 (2005)
("[W]hile respondent may be competent for some purposes, including
her ability to assist counsel and maintain employment, it does not
necessarily follow that she is not debilitated by her mental
illness when it comes to parenting her children.").
 We likewise conclude that the respondent's seven months of
sobriety beginning in January 2006 did not preclude the trial court
from finding that grounds for termination existed under N.C. Gen.
Stat. § 7B-1111(a)(6). Respondent does not dispute that she lacked
the capacity to care for her daughter prior to 31 December 2005,
but contends that her conduct over the seven months immediately
prior to the termination hearing establishes that she no longer is
incapable of parenting her daughter.
Although the trial court made specific findings regarding
respondent's recent positive steps, it weighed the three years of
repeated relapses against the seven months of sobriety and
reasoned: "The relapses which have occurred throughout this case
cannot be overlooked." The trial court was entitled to find, based
on the three-year history of relapses, that there was a reasonable
probability that the incapacity resulting from respondent's very
serious substance abuse disorder would continue in the future. See
In re V.L.B.
, 168 N.C. App. 679, 685, 608 S.E.2d 787, 791 (holding
that trial court did not err in considering year-old psychological
evaluations in assessing severity and chronic nature of
respondents' mental health conditions and "by concluding, based onrespondents' history, that they did not have the ability to provide
a safe and appropriate home for the minor child"), disc. review
, 359 N.C. 633, 614 S.E.2d 924 (2005); Smith v. Alleghany
County Dep't of Soc. Servs.
, 114 N.C. App. 727, 732, 443 S.E.2d
101, 104 (holding that trial court adequately considered mother's
improved psychological condition and living conditions at the time
of hearing even though it found, because of recency of improvement,
that probability of repetition of neglect was great), disc. review
, 337 N.C. 696, 448 S.E.2d 533 (1994). Cf. B.S.D.S.
N.C. App. at 546, 594 S.E.2d at 93 (where mother made some progress
immediately prior to termination hearing, but such progress was
preceded by a "prolonged inability to improve her situation, . . .
there was sufficient evidence to support the trial court's finding
of [mother's] lack of progress"); In re Oghenekevebe
, 123 N.C. App.
434, 437, 473 S.E.2d 393, 397 (1996) (DSS proved lack of reasonable
progress where parent "fail[ed] to show any progress in her therapy
until her parental rights were in jeopardy").
In short, we uphold the trial court's decision that grounds
existed to terminate respondent's parental rights under N.C. Gen.
Stat. § 7B-1111(a)(6). As respondent raises no objection in her
brief to the conclusion that the termination of parental rights was
in Abby's best interests, we affirm the order of the trial court.
Judges STEELMAN and LEVINSON concur.