IN RE: Z.C.M. and C.E.M. Alamance County
Nos. 04 J 134-35
Jamie L. Hamlett, for petitioner-appellee Alamance County
Department of Social Services.
Womble Carlyle Sandridge & Rice, P.L.L.C., by Stuart A. Brock, for petitioner-appellee Guardian ad Litem.
Richard E. Jester, for respondent-appellant.
On 19 June 2003, petitioner Alamance County Department of Social Services (DSS) filed petitions alleging C.E.M., then age three years, and Z.C.M., then less than one year, to be neglected and dependant juveniles. On 27 August 2003, the children were adjudicated neglected based on domestic violence between the parents in the presence of the children, various injuries to the children, the incarceration of both parents, and other issues. On 13 July 2004, DSS filed petitions to terminate the parental rights of both parents. As to respondent mother, the petitions alleged the following grounds: neglect with no change in the conditions which led to removal and the probability of repetition, willfully leaving the children in foster care for more than twelve monthswithout making reasonable progress in correcting the conditions that led to removal, and failure to pay reasonable support. The court found grounds existed to terminate parental rights following hearings in September 2004, but continued the best interest phase until March 2005. Following that hearing, the court terminated the parental rights of both the mother and father. Only respondent mother appeals. As discussed below, we affirm.
A trial court may terminate parental rights on the basis of any one of the grounds enumerated in N.C. Gen. Stat. § 7B-1111(a), and [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). On appeal we will affirm the trial court where the court's findings of fact are based upon clear, cogent and convincing evidence and the findings support the conclusions of law. In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996). Any facts unchallenged on appeal are binding upon this Court. In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003).
Respondent-mother first argues that the trial court erred in failing to appoint her a guardian ad litem pursuant to N.C. Gen. Stat. §§ 7B-602 and 7B-1101 (2003). We do not agree.
We begin by noting that both statutes were amended in 2005. However, because DSS filed the termination petition in this case prior to the amended statutes' effective date of 1 October 2005, the earlier versions control here. At the time of these proceedings N.C. Gen. Stat. § 7B-602 required the appointment of a guardian ad litem for a parent in a termination case where:
it is alleged that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101 in that the parent is incapable as the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other similar cause or condition of providing for the proper care and supervision of the juvenile . . .
N.C. Gen. Stat. § 7B-602(b)(1) (2003). In addition, appointment of a guardian ad litem was required where
it is alleged that a parent's rights should be terminated pursuant to G.S. 7B-1111(a)(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). We previously held that N.C. Gen. Stat. § 7B-602(b)(1) did not require the trial court to appoint a guardian ad litem unless the petition alleges dependency and the majority of the dependency allegations tend to show that a parent or guardian is incapable as a result of some debilitating condition listed in the statute of providing for the proper care and supervision of his or her child. In re H.W., 163 N.C. App. 438, 447, 594 S.E.2d 211, 216, disc. review denied, 358 N.C. 543, 599 S.E.2d 46 (2004). In neglect cases, a guardian ad litem must be appointed where 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, ifnot, impossible. 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).
Here, the petition for termination did not allege that
respondent mother was incapable as the result of substance abuse,
mental retardation, mental illness, organic brain syndrome, or any
other similar cause or condition of providing for the proper care
and supervision of the juvenile. . . . The court made no finding
or conclusion pursuant to N.C. Gen. Stat. § 7B-1101(a)(6) that the
mother was incapable of providing proper care for any of these
reasons. In addition, the court found grounds existed to terminate
respondent mother's parental rights pursuant to N.C. Gen. Stat. §
7B-1101(a)(1) (children were neglected with no change in the
conditions which led to removal and a probability of repetition of
the neglect) and (a)(2) (willfully leaving the children in foster
care for more than twelve months without making reasonable progress
in correcting the conditions that led to removal).
Respondent mother contends that her alleged mental illness played a significant role in the neglect alleged by DSS here. She cites finding 72 in the October 2004 order finding grounds to terminate:
72. The Respondent Mother has reported a
history of mental health issues and depression
throughout the time of services. The purpose
of the evaluation was to determine if she
required different services from those being
She also cites the following two findings from the March 2005 order terminating respondent mother's parental rights: 69. The Respondent Mother has temper tantrums in her new home, which include throwing herself on the floor and pulling her hair. These temper tantrums occur about every other day. Her father-in-law is considering moving out if these problems continue.
71. The Respondent Mother is not stable and does not have a stable home for herself or her children. She has a chaotic lifestyle and domestic discord and there is no evidence it will change.
These limited findings and the brief references to self-reported mental health issues do not indicate that respondent mother's alleged mental health issues and the children's neglect were so intertwined as to make separation of the two virtually impossible. This assignment of error is without merit.
Respondent mother next argues that the trial court erred in its findings of fact and conclusions of law.
Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned. N.C. R. App. P. 28 (b)(6). Here, respondent mother merely restates her position from her first argument. Respondent mother cites no authority and does not mention any specific facts or conclusions. Accordingly, we dismiss this assignment of error.
Affirmed in part, dismissed in part.
Judges WYNN and STEPHENS concur.
Report per Rule 30(e).
The judges participated and submitted this opinion for filing prior to 1 January 2007.
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