Appeal by respondent from order entered 13 January 2006 by
Judge Jennifer M. Green in Wake County District Court. Heard in
the Court of Appeals 19 October 2006.
Wake County Attorney's Office, by Lori G. Christian and
Corinne G. Russell, for petitioner-appellee.
Annick Lenoir-Peek for respondent-appellant.
Respondent mother, N.N., appeals from an order of the district
court terminating her parental rights with respect to her minor
child, J.M.N.-W. ("Jenna").
(See footnote 1)
On appeal, respondent mother argues
that the trial court erred by failing to appoint Jenna a guardian
ad litem. Because respondent mother never filed an answer to the
termination petition, we hold that the trial court was not required
to appoint Jenna a guardian ad litem pursuant to N.C. Gen. Stat. §
7B-1108 (2005). Further, we hold that the trial court made
sufficient findings of fact to support its conclusion that grounds
for termination of respondent mother's parental rights existedunder N.C. Gen. Stat. § 7B-1111(a)(2) (2005). Accordingly, we
On 23 February 2004, Wake County Human Services ("WCHS")
received a report that Jenna, a newborn, was ready for discharge
from Duke Medical Center, but the mother was in an active psychotic
state of mind and was expected to be hospitalized indefinitely. On
25 February 2004, WCHS filed a juvenile petition, alleging that
Jenna was a dependent juvenile _ allegations to which respondent
mother later stipulated. According to the petition, respondent
mother was schizophrenic. She had ceased taking her medication
during her pregnancy, causing her to decompensate rapidly. During
that period, respondent mother was having suicidal ideation and, at
the time of the petition, was residing in the Duke Psychiatric Ward
until she could be transferred to John Umstead Hospital, where she
was expected to stay for several weeks. Although Duke Medical
Center indicated that Jenna's father was J.P. ("James"), respondent
mother denied that he was in fact the father.
The trial court issued a non-secure custody order on 25
February 2004, placing Jenna into the custody of WCHS. On 21 July
2004, the trial court entered an adjudication order concluding that
Jenna was a dependent child in accordance with N.C. Gen. Stat. §
7B-101(9) (2005). Although respondent mother had suggested that
her 21-year-old brother, D.N. ("Daniel"), who was a full-time
student, could care for Jenna, Daniel seemed overwhelmed and
stressed when interviewed. Further, although the court noted thatDaniel had received a positive home study, it also found that he
did not have a plan for Jenna and had stated that he would need
assistance in providing food and supervision if he did assume her
care. No other relatives could take custody of Jenna.
The court's order specified what respondent mother needed to
do if she desired reunification with Jenna. The order provided
that respondent mother would have to (1) adhere to the
recommendations of a psychological assessment and actively
participate in her mental health treatment, (2) continue to take
all medications prescribed by her psychiatrist, (3) take parenting
classes, (4) visit Jenna when appropriate and follow a visitation
plan, (5) maintain stable housing and employment, (6) maintain
contact with the social worker, and (7) provide documentation of
her progress with each of the recommendations.
At the three-month review hearing, on 28 September 2004, WCHS
advised the court that Daniel planned to make efforts to rearrange
his schedule so that Jenna could be placed with him. Subsequently,
however, Daniel concluded that he no longer wished to be considered
as a placement option.
Following a permanency planning hearing on 22 March 2005, the
court found, in an order entered on 5 April 2005, that although
respondent mother had completed parenting classes, she had failed
to demonstrate during supervised visits with Jenna that she was
able to provide proper care and supervision for her daughter. The
court noted, in fact, that the mother's visitation had been
suspended because of her erratic behavior and the resulting risk toJenna. The court further found that respondent mother was not
taking all of her prescribed medications and had failed to provide
verification that she was actively engaged in therapy. Finally,
the court found "[t]hat reunification efforts with [Jenna's]
parents are futile or inconsistent with [Jenna's] need for a safe
home within a reasonable time, as evidenced by the following:
[Jenna's] mother has failed to provide verification that she is
actively engaged in therapy and is taking medication as prescribed;
that [Jenna's] mother has failed to demonstrate the ability to
provide proper care and supervision of [Jenna]; and, that the
father has failed to establish paternity or to develop a paternal
relationship with [Jenna]." Accordingly, the court changed the
permanent plan to termination of parental rights and adoption.
On 2 June 2005, WCHS filed a petition to terminate respondent
mother's parental rights as well as the parental rights of either
James or, if he was not the biological father, then the parental
rights of "the unknown father of the child." In response to the
petition, respondent mother mailed WCHS' attorney a letter stating
that she was "unable to attend the court hearing . . . because [she
was] currently with family in New Zealand." Respondent mother was
appointed counsel and a guardian ad litem and was given the
opportunity to attend the 15 December 2005 termination of parental
rights hearing via teleconference from New Zealand. While she
participated by teleconference from 11:15 a.m. until 1:00 p.m., the
mother did not answer the telephone when court reconvened after
lunch at 2:00, even though she had been advised that she would becalled at 2:00 p.m. Subsequently, at 3:00, the mother called her
attorney and asked to participate. When, however, telephone calls
were immediately made to the mother to include her in the hearing,
she again did not answer the telephone.
On 13 January 2006, the trial court entered an order
terminating the parental rights of respondent mother as well as
those of James and any "unknown father." With respect to
respondent mother, the trial court found that she suffers from both
schizophrenia and post-traumatic stress disorder and that, although
she had obtained a required psychological assessment, she had not
consistently taken her medication or engaged in mental health
treatment despite being ordered by the court to do so. As a result
of respondent mother's refusal to take her mental health
medication, she had been voluntarily committed to mental health
institutions in both the United States and New Zealand. In
addition, respondent mother had not visited Jenna in approximately
a year because her visitation was ceased due to the mother's
failure to maintain mental health treatment and continue to take
her prescribed medication.
The court further found that respondent mother had (1) failed
to maintain stable housing, (2) failed to provide verification of
stable employment, and (3) maintained only sporadic contact with
WCHS, including advising the agency that she was going to New
Zealand for only a few weeks when she ultimately stayed there from
June to November 2005. The court found that while in New Zealand,
respondent mother gave birth to another child who remained in thecustody of New Zealand authorities when the mother returned to the
Based on these findings of fact, the court concluded that the
following grounds existed for termination of respondents' parental
a. That the father of the child . . ., born
out of wedlock, has not prior to the filing of
the petition to terminate parental rights:
established paternity judicially or by
affidavit . . .; legitimated the child . . .;
nor provided substantial financial support or
consistent care with respect to the child and
the mother of the child.
b. That the parents are incapable of providing
for the proper care and supervision of the
child, such that the child is dependent within
the meaning of N.C.G.S. Section 7B-101(9), and
there is a reasonable probability that such
incapability will continue for the foreseeable
c. That the parents willfully left the child
in foster care or placement outside the home
for more than twelve (12) months without
showing to the satisfaction of the court that
reasonable progress under the circumstances
has been made in correcting the conditions
which led to the removal of the child. . . .
(See footnote 2)
The court further determined that it was in the best interests of
Jenna that respondents' parental rights be terminated.
mother timely appealed from this order.
Respondent mother first argues that the trial court erred by
failing to appoint Jenna a guardian ad litem. Following the filing
of a termination petition, "[a]ny respondent may file a written
answer . . . ." N.C. Gen. Stat. § 7B-1108(a). If the answer
"denies any material allegation of the petition . . ., the court
shall appoint a guardian ad litem for the juvenile . . . ." N.C.
Gen. Stat. § 7B-1108(b). "Where the trial court fails to appoint
a guardian ad litem in accordance with § 7B-1108(b), it is an error
constituting grounds for reversal of the trial court's order on
appeal." In re J.L.S.
, 168 N.C. App. 721, 723, 608 S.E.2d 823, 824
Respondent mother never, however, filed a formal answer that
would trigger the requirement for appointment of a guardian ad
litem for Jenna. According to respondent mother, the letter that
she sent from New Zealand to the Assistant Wake County Attorney and
copied to her attorney and guardian ad litem was sufficient to
constitute an answer. That letter stated in its entirety:
Thank you for the documents regarding summons
in proceeding for Termination of Parental
We are unable to attend the court hearing at
present because we are currently with family
in New Zealand.
We hearby [sic] request Counsel be appointed
by the Court and look forward to hearing from
you at your earliest convenience.
If you have any further questions, please do
not hesitate to contact myself or my lawyer
Allan Cooke: [listing a land line and a mobile
This letter was never filed with the trial court as an answer, but,
rather, was merely entered into evidence at the termination
This Court has previously held that such a document does not
constitute an answer. See In re Tyner
, 106 N.C. App. 480, 482, 417
S.E.2d 260, 261 (1992) (concluding that if a letter sent to the
respondent father's attorney "was filed after the [termination]
hearing or was presented as evidence during or after the hearing,
the letter was not an answer"). Moreover, we note that N.C. Gen.
Stat. § 7B-1108(a) specifically requires an answer to "admit or
deny the allegations of the petition."
Respondent mother's four-
sentence letter from New Zealand neither admits nor denies any of
the allegations in the petition, but, instead, merely states that
she would be "unable to attend the court hearing." We conclude,
therefore, that respondent mother's letter to WCHS was not
sufficient to require the trial court to appoint a guardian ad
litem for Jenna under N.C. Gen. Stat. § 7B-1108.
Respondent mother nevertheless contends that WCHS' subsequent
notice of a hearing to determine the issues raised by the petition
to terminate the respondent mother's parental rights demonstrated
that WCHS was aware that she "was denying at least some, if not
all, of the allegations." Even in the absence of an answer from a
respondent, however, a trial court must "order a hearing on [a
termination] petition . . . ." N.C. Gen. Stat. § 7B-1107 (2005).
See also In re Quevedo
, 106 N.C. App. 574, 586, 419 S.E.2d 158, 164
(trial courts are required to conduct hearings on petitions toterminate parental rights), appeal dismissed
, 332 N.C. 483, 424
S.E.2d 397 (1992). We cannot conclude, therefore, that respondent
mother's letter somehow became a de facto answer merely because
WCHS noticed a hearing that was required regardless whether an
answer was filed. Accordingly, this assignment of error is
We next address respondent mother's contention that the trial
court erred by including a restatement of the evidence at the
beginning of its order. She notes that the first two and one-half
pages of the order recite evidence presented at the hearing, argues
that she "is unsure as to the purpose of the first two and one-half
pages of the written order," and concludes that "[t]hey do not
belong in an order." She "does not necessarily argue that this
issue alone should constitute reversal of the Court's opinion," but
contends that the summary of evidence "show[s] that the written
order submitted by DSS and signed by the trial court does not
reflect the court's true findings of fact and therefore the entire
matter should at the very least be remanded for an order consistent
with the evidence and the court's ruling." Although respondent
mother's argument is not entirely clear, it appears that she is
contending that the trial court improperly delegated its fact
finding responsibility and failed to make specific ultimate
findings of facts.
We agree that the trial court must "find the ultimate facts
essential to support the conclusions of law." In re Harton
, 156N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003). Further, mere
recitation of evidence presented at trial does not constitute an
ultimate finding of fact. In re Gleisner
, 141 N.C. App. 475, 480,
539 S.E.2d 362, 365 (2000). See also Lee v. Lee
, 78 N.C. App. 632,
633-34, 337 S.E.2d 690, 691 (1985) (In actions tried without a
jury, a "court must make its own determination as to what pertinent
facts are established by the evidence rather than merely reciting
what the evidence may tend to show.")
In the present case, the trial court prefaced its order with
a substantial summary of the "[t]estimony [that] was elicited on
behalf of [p]etitioner." This summary was followed, however, by 53
paragraphs of specific factual findings, which, as we conclude
below, are sufficient to sustain the trial court's order. "There
is nothing impermissible about describing testimony, so long as the
court ultimately makes its own findings, resolving any material
disputes." In re C.L.C.
, 171 N.C. App. 438, 446, 615 S.E.2d 704,
708 (2005), aff'd per curiam in part and disc. review improvidently
allowed in part
, 360 N.C. 475, 628 S.E.2d 760 (2006).
We cannot see how the summary of the testimony is
impermissible given the 53 findings of facts; nor does that summary
support respondent mother's contention that the trial court
impermissibly delegated its fact-finding function to the petitioner
or that the order does not reflect the trial court's actual ruling.
As this Court has previously observed, the fact that petitioner
prepared a draft order for the court is not, without more,
improper. See In re J.B.
, 172 N.C. App. 1, 26, 616 S.E.2d 264, 279(2005) (finding no error when trial court directed that petitioner
draft the order). This assignment of error is, therefore,
We next consider respondent mother's argument that the trial
court erred by terminating her parental rights.
A termination of
parental rights proceeding is conducted in two phases: (1) an
adjudication phase that is governed by N.C. Gen. Stat. § 7B-1109
(2005) and (2) a disposition phase that is governed by N.C. Gen.
Stat. § 7B-1110 (2005). In re Blackburn
, 142 N.C. App. 607, 610,
543 S.E.2d 906, 908 (2001).
During the adjudication stage, petitioner has the burden of
proving by clear, cogent, and convincing evidence that one or more
of the statutory grounds for termination set forth in N.C. Gen.
Stat. § 7B-1111 exist. The standard of appellate review is whether
the trial court's findings of fact are supported by clear, cogent,
and convincing evidence and whether the findings of fact support
the conclusions of law. In re Huff
, 140 N.C. App. 288, 291, 536
S.E.2d 838, 840 (2000), appeal dismissed and disc. review denied
353 N.C. 374, 547 S.E.2d 9 (2001).
If petitioner meets its burden of proving that grounds for
termination exist, the trial court moves to the disposition phase
and must consider whether termination is in the best interests of
the child. N.C. Gen. Stat. § 7B-1110(a). The trial court has
discretion to terminate parental rights upon a finding that it
would be in the best interests of the child to do so. Blackburn
,142 N.C. App. at 613, 543 S.E.2d at 910. The trial court's
decision to terminate parental rights is reviewed under an abuse of
discretion standard. In re Nesbitt
, 147 N.C. App. 349, 352, 555
S.E.2d 659, 662 (2001).
Although respondent mother specifically assigned error to many
of the findings of fact forming the basis for the trial court's
conclusions of law, the mother did not bring those assignments of
error forward in her brief.
(See footnote 3)
The Appellate Rules provide that
"[a]ssignments of error not set out in the appellant's brief . . .
will be taken as abandoned." N.C.R. App. P. 28(b)(6). See also In
, 159 N.C. App. 75, 83 n.5, 582 S.E.2d 657, 662 n.5 (2003)
("To the extent . . . findings have not been assigned error they
are deemed supported by sufficient evidence and are treated as
conclusive on appeal.")
. Since respondent mother abandoned her
assignments of error regarding the findings of fact, those findings
are binding on appeal and our review 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).
Under N.C. Gen. Stat. § 7B-1111(a)(2), a trial court may
terminate a respondent's parental rights when "[t]he parent has
willfully left the juvenile in foster care or placement outside the
home for more than 12 months without showing to the satisfaction ofthe court that reasonable progress under the circumstances has been
made in correcting those conditions which led to the removal of the
juvenile." The conditions leading to Jenna's removal from her
mother's custody were the mother's hospitalization for a
substantial period of time after Jenna's birth as a result of the
rapid decompensation of the mother's schizophrenia and post-
traumatic stress disorder following her cessation of her
Here, the findings of fact binding on appeal establish that,
at the time of the termination of parental rights hearing,
respondent mother had not been consistently taking her prescribed
mental health medication, had not engaged in mental health therapy,
had been hospitalized in the United States and New Zealand as a
result of her refusal to take her mental health medication, had not
maintained stable housing, and had not provided evidence of stable
employment. These findings are sufficient to establish that
respondent mother failed to make reasonable progress under the
circumstances to correct the conditions that led to Jenna's
removal. See, e.g.
, In re McMillon
, 143 N.C. App. 402, 409-10, 546
S.E.2d 169, 174-75 (parent's failure to obtain required counseling,
attend parenting classes, have weekly visits with the child, and
comply with case plan demonstrated failure to make reasonable
progress), disc. review denied
, 354 N.C. 218, 554 S.E.2d 341
(2001); In re Nolen
, 117 N.C. App. 693, 699-700, 453 S.E.2d 220,
224-25 (1995) (parent's refusal to obtain treatment for alcoholismconstituted willful failure to correct conditions that had led to
removal of child from home).
Respondent mother argues on appeal, however, that she stopped
taking her medications when she became pregnant a second time and
that, as a result, her actions were not willful. Our courts have
held that "[w]illfulness is established when the respondent had the
ability to show reasonable progress, but was unwilling to make the
, 143 N.C. App. at 410, 546 S.E.2d at 175. Here,
the court found that "the mother has the ability to obtain and
maintain stability if she consistently takes her prescribed mental
health medication and participates in therapy; however, the mother
does not consistently take her medication as prescribed and has not
consistently engaged in much needed therapy." This finding,
binding on appeal, establishes willfulness. In any event,
respondent mother's argument never addresses her failure to obtain
therapy or stability.
As for the medication, although respondent mother had been
ordered to take her medication, she instead became pregnant _ which
she identifies as her "choice" _ and ceased her medication. In
arguing that this choice does not represent willfulness, she
asserts that "she has constitutionally protected rights to
procreate and her actions were logical under the circumstances."
She cites, however, no authority _ and we know of none _ that her
"right to procreate" overrides the right of her first child to a
permanent plan of care at the earliest possible age. We conclude
that the trial court's findings are sufficient to establish thatrespondent mother had the ability to make reasonable progress, but
was unwilling to do so _ the basis for a finding of willfulness.
Thus, the trial court's findings adequately demonstrate that
respondent mother willfully left Jenna in foster care for more than
12 months without showing reasonable progress under the
circumstances to correct the conditions that led to her removal.
"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." In re B.S.D.S.
N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004).
mother does not challenge the trial court's decision that
termination of parental rights was in Jenna's best interests, we
also do not address that issue, and we affirm the decision below.
Judges STEELMAN and STEPHENS concur.
Judge STEPHENS concurred prior to 31 December 2006.
Report per Rule 30(e).