An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-588


Filed: 2 January 2007

                            Wake County
J.M.N.-W.,                    No. 05 J 374
    Minor child.

    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.

    GEER, Judge.

    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 affirm.


    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 United States.
    Based on these findings of fact, the court concluded that the following grounds existed for termination of respondents' parental rights:
        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 future.

        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. Respondent 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 (2005).
    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 Rights.

        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 telephone number.]
This letter was never filed with the trial court as an answer, but, rather, was merely entered into evidence at the termination hearing.
    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 overruled.

    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, overruled.

    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 re Clark, 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 medication.
    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 effort." McMillon, 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., 163 N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004). Since respondent 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).

Footnote: 1
    For privacy purposes, pseudonyms will be used throughout the opinion.
Footnote: 2
    We note that the trial court also found grounds for termination existed under N.C. Gen. Stat. § 7B-1111(a)(3) (willful failure to pay for a reasonable portion of the child's foster care) and (a)(7) (voluntary abandonment). WCHS concedes on appeal, however, that these grounds should not have been included in the order. Accordingly, we do not address them.
Footnote: 3
    Respondent mother did, however, bring forward in her brief her assignments of error to the court's findings of fact reciting in general terms each ground for termination of parental rights that was found.

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