Appeal by Respondents from order entered 18 January 2006 by
Judge Beth Heath in District Court, Lenoir County. Heard in the
Court of Appeals 27 March 2007.
Griffin & Griffin, by Robert W. Griffin, for Petitioner-
Appellee Lenoir County Department of Social Services.
Jeffrey L. Miller for Respondent-Appellant Mother.
Lisa Skinner Lefler for Respondent-Appellant Father.
The Lenoir County Department of Social Services (DSS) filed a
juvenile petition on 2 February 2004 alleging that S.L.H. was a
dependent juvenile. S.L.H.'s mother (Respondent-Mother) and father
(Respondent-Father) (collectively Respondents) admitted the factual
allegations of the dependency petition and admitted that S.L.H. was
dependent. The trial court adjudicated S.L.H. a dependent juvenile
in a consent juvenile adjudication order dated 2 March 2004.
The trial court entered a consent juvenile disposition order
dated 2 March 2004, in which the trial court awarded custody of
S.L.H. to DSS. The trial court also ordered Respondent-Mother toget a psychological evaluation, enroll in and complete parenting
classes, enroll in and participate in the Early Childhood
Intervention and Parents as Teachers programs, call and check on
S.L.H. daily, attend all visitations, and seek employment or
acquire stable income. The trial court ordered Respondent-Father
to enroll in and successfully complete parenting classes, attend
all visitations, and seek employment or acquire stable income. No
Guardian ad Litem (GAL) was appointed for Respondent-Mother during
the dependency proceedings.
Respondent-Mother received a psychological evaluation by Chris
Boyle (Mr. Boyle) at Waynesborough Psychological Services. Mr.
Boyle filed a report regarding Respondent-Mother's psychological
evaluation in which he stated, inter alia, that Respondent-Mother
had "an intellectually deficient level of cognitive function,
significantly low reading ability and mental status examination
significant for anxiety." The report was filed with the trial
court on 23 August 2005.
DSS filed a petition to terminate the parental rights of
Respondents on 9 June 2005. DSS alleged grounds to terminate
Respondents' rights under N.C. Gen. Stat. § 7B-1111(a)(2), alleging
that Respondents willfully left S.L.H. in foster care for more than
twelve months without showing reasonable progress toward correcting
those conditions which led to the removal of S.L.H. DSS also
alleged grounds to terminate the parental rights of Respondent-
Father under N.C. Gen. Stat. § 7B-1111(a)(5), in that S.L.H.
was born out of wedlock and [Respondent-
Father] [had] not, prior to the filing of[the] petition, established paternity
judicially or by affidavit which [had] been
filed in a central registry maintained by the
Department of Health and Human Services; or
legitimated [S.L.H.] pursuant to G.S. 49-10;
or filed a petition for this specific purpose;
or legitimated [S.L.H.] by marriage to the
mother of [S.L.H.]; or provided substantial
financial support or consistent care with
respect to [S.L.H.] and [Respondent-Mother].
DSS amended the petition for termination of parental rights on
6 September 2005 to add an additional ground for terminating
Respondent-Mother's parental rights under N.C. Gen. Stat. § 7B-
1111(a)(6). The trial court appointed Sonya Davis as GAL for
Respondent-Mother on 8 September 2005.
The trial court held hearings on the termination petition on
29 November 2005 and 19 December 2005 and entered an order on 18
January 2006 terminating the parental rights of Respondents. The
trial court made numerous findings of fact and concluded that
grounds existed to terminate the parental rights of Respondent-
Father under N.C. Gen. Stat. § 7B-1111(a)(2) and (5). The trial
court found there were insufficient facts to warrant termination of
Respondent-Mother's parental rights under N.C. Gen. Stat. § 7B-
1111(a)(2). Specifically, the trial court found that
[Respondent-Mother] did not act willfully in
failing to make reasonable progress in
correcting those conditions which led to the
removal of [S.L.H.], because of her limited
mental capacity, which prevented her from
being able to do those things which she needed
to do to provide a proper home for [S.L.H.].
The court also finds that [Respondent-
Mother's] inaction as to some of the court
requirements [was] not willful, based on
difficulty in receiving services because of
their unavailability in the community.
However, the trial court did conclude that sufficient grounds
existed to terminate Respondent-Mother's parental rights to S.L.H.
under N.C. Gen. Stat. § 7B-1111(a)(6). The trial court also
concluded that termination of the parental rights of Respondents
was in the best interests of S.L.H. Respondents appeal.
Respondent-Mother first argues the trial court erred and
violated her constitutional rights to substantive and procedural
due process by terminating her parental rights. Respondent-Mother
argues that because she had a constitutional right to the care and
custody of S.L.H., and because she was capable of structured
visitation with S.L.H., the trial court was obligated to consider
less drastic measures than termination of her parental rights.
However, constitutional issues may not be raised for the first time
on appeal. State v. Lloyd
, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607
(2001). In the present case, Respondent-Mother did not raise this
issue before the trial court and, therefore, this issue is not
properly before us.
Respondent-Mother argues that several of the trial court's
findings of fact are not supported by clear, cogent, and convincing
evidence. Respondent-Mother also argues that several conclusions
of law are unsupported by the findings of fact.
N.C. Gen. Stat. § 7B-1111(a)(6) (2005) provides that a trial
court may terminate parental rights upon a finding [t]hat 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.
Termination of parental rights is a two-step process. In re
, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). At
the adjudication stage, the trial court determines whether there is
clear, cogent, and convincing evidence to support at least one of
the statutory grounds for termination of parental rights under N.C.
Gen. Stat. § 7B-1111(a). Id.
If a ground for termination is
proven, the trial court proceeds to the disposition stage where it
exercises its discretion in determining whether termination is in
the best interests of the child. Id.
The standard for appellate review of a trial court's
determination that grounds exist for termination of parental rights
is whether the trial court's findings of fact are supported by
clear, cogent, and convincing evidence, and whether its conclusions
of law are supported by those findings. In re McMillon
, 143 N.C.
App. 402, 408, 546 S.E.2d 169, 174, disc. review denied
, 354 N.C.
218, 554 S.E.2d 341 (2001). When reviewing a record on appeal, a
trial court's findings of fact are conclusive on appeal if
supported by sufficient clear, cogent, and convincing evidence,
even if there was conflicting evidence before the trial court. Inre Williamson
, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988).
Respondent-Mother argues that the trial court did not find
she suffered any incapacity that rendered her unable or unavailable
to parent S.L.H. Respondent-Mother argues that finding 11 is a
recitation of N.C. Gen. Stat. § 7B-1111(a)(6) and is therefore not
a finding of fact. While this finding is a recitation of the
applicable statute, there is nothing impermissible about a trial
court reciting the statute it applies. Respondent-Mother argues
that finding 12 is primarily a recitation of Mr. Boyle's testimony
and does not meet the requirements for a finding of incapacity. We
disagree. While the trial court did recite Mr. Boyle's testimony
regarding some evidentiary facts, the trial court found the
ultimate facts necessary to support its conclusions of law. The
trial court found the following:
Mr. Boyle found that [Respondent-Mother] has
an intellectually deficient level of cognitive
function, testing at 63 on a Full Scale IQ
test. Further, [Respondent-Mother] suffers
from a significantly low reading ability, the
age equivalent of 8 years, 8 months,
representing a level of functioning which
falls at the 2nd
98% of adults score higher than [Respondent-
Mother] with respect to reading.) Further,
measures of her cognitive function also test
at the 2nd
percentile. Further, her mental
status examination was significant for
anxiety. Overall, [Respondent-Mother] is ill-
equipped to meet the needs of [S.L.H.]. It
was Mr. Boyles' opinion that . . . the
challenges posed by parenting [S.L.H.] would
likely overwhelm [Respondent-Mother] as
[S.L.H.] ages. Her mental ability is unlikely
to improve significantly.
Respondent-Mother also argues that this finding was not sufficient
as a finding of incapacity because Mr. Boyle did not diagnoseRespondent-Mother with mental retardation. However, under N.C.G.S.
§ 7B-1111(a)(6), incapacity does not have to stem from mental
retardation; incapacity can also be the result of "any other cause
or condition that renders the parent unable or unavailable to
parent the juvenile[.]" Respondent-Mother further argues that Mr.
Boyle's opinions were based on the false premise that S.L.H. was a
special needs child. Although Mr. Boyle did make passing
references that S.L.H. was a special needs child, his testimony was
not limited to that situation. Mr. Boyle also testified that "as
[S.L.H.] ages and the challenges of parenting increase, . . . [Mr.
Boyle] would anticipate that [Respondent-Mother] would, very
likely, be overwhelmed." This was clear, cogent, and convincing
evidence to support the trial court's finding.
Respondent-Mother argues there was insufficient clear, cogent,
and convincing evidence that she lacked appropriate alternative
child care arrangements. The trial court found:
[Respondent-Mother] was unable to provide a
stable and proper home for [S.L.H.], and
lacked an appropriate alternative plan.
[Respondent-Mother] has been unable to develop
such a plan in the two years since [S.L.H.]
was born. When the social worker helped
[Respondent-Mother] develop an alternative
plan for placement with someone she and
[S.L.H.] could live with, [Respondent-Mother]
was unwilling to be placed or to provide other
Respondent-Mother contends that
[t]he evidence indicated a loving and
cooperative foster parent with a good
relationship with [Respondent-Mother] and
[S.L.H.] who could provide alternative child
care in a placement or guardianship setting
. . .; the home of [S.L.H.'s] maternalgrandmother and [Respondent-Mother's] siblings
with whom mother lived . . .; and, a relative
_ a cousin in Wake County.
However, there was no evidence that S.L.H.'s foster parents
wanted a permanent relationship with S.L.H. Additionally, as we
discuss below with respect to finding 13(F), S.L.H. could not live
with Respondent-Mother at the home of S.L.H.'s maternal grandmother
(the grandmother). Jennifer Stroud (Ms. Stroud), a social worker
with DSS, testified that there had been a relative of Respondent-
Father who had been willing to take S.L.H. However, Ms. Stroud
testified that "Wake County did a home study on that relative and
[the relative] came back and said that she was not willing to take
[S.L.H.] any longer." Furthermore, although DSS attempted to place
S.L.H. and Respondent-Mother in the home of a friend of Respondent-
Mother's, Ms. Stroud testified Respondent-Mother was not willing to
cooperate with that plan. Respondent-Mother conceded she was not
willing to live at her friend's house with S.L.H. Accordingly, the
challenged finding of fact was supported by clear, cogent, and
Respondent-Mother also challenges finding 13, which provides:
[Respondent-Mother] has demonstrated that she
does not understand how to parent a child and
follow through with needed services . . . as
shown by her actions in:
(A) Leaving [S.L.H.] at Pitt Memorial
Hospital when she was born prematurely,
terminating [Respondent-Mother's] stay at
the Ronald McDonald House, and not
complying with DSS and Pitt Memorial
Hospital recommendations for the care of
[S.L.H.] (The initial dependency
adjudication in File No. 04 JA 13.)
(B) Not completing parenting classes.
(Initially DSS sought to refer
[Respondent-Mother] to one-on-one
parenting classes, but when such classes
were unavailable, [Respondent-Mother]
enrolled in regular parenting classes.
She stopped attending the regular classes
and told the social worker the classes
were boring because she already knew how
to care for [S.L.H.])
(C) Not providing an appropriate home.
(D) Not obtaining and maintaining
employment in the sheltered setting.
(E) Not being able on her own to make
appointments and meet the appointments to
receive her psychological evaluation.
(However, the psychological evaluation
was finally completed in May 2005, after
reasonable efforts to remove the need for
placement had ceased.)
(F) Conceding that she needs someone to
help her raise [S.L.H.], but not
proposing any person who [was] willing
and able to assist her with this task.
With respect to finding 13(A), Respondent-Mother argues there
was no evidence that she failed to comply with DSS or hospital
recommendations. However, we do not address this finding because
it relates to the previous adjudication of dependency. Even
without this finding, there were sufficient findings to support the
trial court's determination to terminate Respondent-Mother's
parental rights under N.C.G.S. § 1111(a)(6).
Respondent-Mother argues that finding 13(B) was unsupported by
the evidence. This finding was supported because although Ms.
Stroud testified that one-on-one parenting classes were not
available, Respondent-Mother did attend regular parenting classes.
However, Respondent-Mother testified that she only went one or twotimes because the classes were boring. Ms. Stroud testified that
Respondent-Mother said she stopped attending because she already
knew how to care for S.L.H.
Respondent-Mother argues finding 13(C) was unsupported because
she had lived in group family homes and with the grandmother and
there was no evidence related to the fitness of any of those homes
or how the homes signified an incapacity. As we determine below
with regard to finding 13(F), the grandmother's home was not an
appropriate home, and Ms. Stroud testified that Respondent-Mother
never obtained appropriate housing. Respondent-Mother's inability
to provide an appropriate home for S.L.H. clearly related to
Respondent-Mother's inability to provide proper care and
supervision of S.L.H. Therefore, the finding was supported by
clear, cogent, and convincing evidence, and the finding supported
the trial court's conclusion related to the ground for termination.
Respondent-Mother argues finding 13(D) was not supported
because she received SSI and was disabled from employment.
Respondent-Mother further argues that lack of employment does not
establish incapacity. However, although Respondent-Mother
testified she received SSI, there was no evidence that she was
disabled from employment. Ms. Stroud testified that she helped
Respondent-Mother obtain a job, but Respondent-Mother left the job
within one or two days "after having a crying fit" and "disrupting
the work environment." Respondent-Mother also testified that on
her first day of work she had an altercation with her supervisor
and quit her job. Accordingly, this finding was supported byclear, cogent, and convincing evidence, and tended to establish
Respondent-Mother also argues that finding 13(E) was
unsupported because her poverty and lack of transportation and
services were the sole causes of any missed appointments.
Respondent-Mother also argues that "making and meeting appointments
is hardly a hallmark for finding the incapacity required by the
statute." Ms. Stroud testified that she made several appointments
for Respondent-Mother to get a psychological evaluation and
scheduled Medicaid transportation to transport Respondent-Mother to
those appointments. However, Respondent-Mother did not obtain a
psychological assessment until more than one year after she was
originally ordered to do so. Ultimately, the coordinator for the
group home where Respondent-Mother was living transported
Respondent-Mother to get a psychological evaluation. Therefore,
the trial court's finding of fact was supported by clear, cogent,
and convincing evidence. Respondent-Mother's inability to make and
meet appointments also supports the trial court's conclusion that
grounds existed to terminate Respondent-Mother's parental rights
under N.C.G.S. § 1111(a)(6).
Respondent-Mother argues finding 13(F) was unsupported because
she testified she could live at the grandmother's house and take
care of S.L.H with the grandmother's help. Respondent-Mother also
argues that "[n]o clear, cogent, or convincing evidence was
presented indicating the maternal grandmother's home (a home in
which two other minor children were being raised) was unsuitablefor care, placement, or visitation."
Although Respondent-Mother testified she would be able to live
with the grandmother, Ms. Stroud testified that the grandmother's
house had not been approved by DSS. Ms. Stroud testified that she
did go out and visit the [grandmother's] home.
There were several siblings also living in the
home with the [grandmother] and [Respondent-
Mother]. . . . [T]here [were] different
places in the house that actually needed to be
fixed. There was a spot on the wall where a
fire had started and there was, you know,
black on the wall.
Ms. Stroud also testified that the grandmother had not expressed a
willingness to have Respondent-Mother bring S.L.H. to her home to
live. Ms. Stroud further testified that the grandmother had said
there was lead paint in her house and Ms. Stroud also testified
there was not enough room in the grandmother's house for
Respondent-Mother to have overnight visits with S.L.H. Ms. Stroud
testified that Respondent-Mother never obtained housing suitable
for her and S.L.H. Respondent-Mother also testified that the
grandmother's house was not an appropriate house for S.L.H.
Therefore, this finding was supported by clear, cogent, and
convincing evidence, despite Respondent-Mother's testimony to the
Respondent-Mother also argues the trial court's finding that
S.L.H. "[was] entitled to permanence, not just a visiting
relationship with [Respondent-Mother]" was not supported by clear,
cogent, and convincing evidence. However, because the trial
court's other findings of fact support its conclusions of law, this
finding was unnecessary and we need not address whether it wassupported by the evidence.
We hold that the challenged findings of fact were supported by
clear, cogent, and convincing evidence. We further hold that the
trial court's findings of fact supported the challenged conclusions
of law related to the grounds for termination and the best
interests of S.L.H.
Respondent-Mother argues the trial court erred by terminating
her parental rights because the trial court incorporated reports
and orders from a separate juvenile dependency proceeding in which
no GAL had been appointed for Respondent-Mother. We first note
that to the extent this was error, it was invited by Respondent-
Mother. At the termination of parental rights hearing, counsel for
Judge, to kind of simplify things, there's
another Court file aside from the
. . . Termination of Parental Rights which is
04 J 13, that is a list of all the Court
summaries related to the initial petition. I
think for simplistic purposes, . . . both
sides are going to agree that those Court
summaries can be considered . . . as evidence
in this case[.]
Moreover, counsel for Respondent-Mother did not object when counsel
for DSS requested the admission of the prior court orders.
However, we hold that even assuming arguendo
that the trial
court erred by failing to appoint a GAL for Respondent-Mother
during the dependency proceedings, this failure did not affect the
termination proceedings. The consent order adjudicating S.L.H.
dependent is not before us. Furthermore, our Court has held thatthere is no legal relationship between a failure to appoint a GAL
during adjudication proceedings and the validity of a later order
terminating parental rights. In re O.C. & O.B.
, 171 N.C. App. 457,
462, 615 S.E.2d 391, 394-95, disc. review denied
, 360 N.C. 64, 623
S.E.2d 587 (2005). In In re O.C. & O.B.
, our Court held:
First, there is no statutory authority for the
proposition that the instant order is
reversible because of a GAL appointment
deficiency that may have occurred years
earlier. Our legislature has adopted two
separate juvenile GAL appointment provisions
concerning the appointment of a GAL for a
parent, one found in Article 6 of the Juvenile
Code concerning petitions alleging the status
of the child, G.S. § 7B-602(b), and a second,
equally specific provision in Article 11
concerning the appointment of a GAL for a
parent within the context of a motion or
petition for termination of parental rights,
G.S. § 7B-1101. Neither of these two
provisions, nor anything in our Juvenile Code,
evinces an intent on the part of the
legislature that a failure to appoint a GAL
during the earlier
impacts a later
order on termination of
parental rights. Secondly, there is no common
law authority to support such a proposition.
. . . While this Court has taken a per se
reversible error approach to failures of the
trial court to appoint a GAL when such
procedural deficiency concerned the orders on
, adoption of the respondent's
argument would represent an expansion of this
area of the law that we are unwilling to craft
absent a legislative mandate to do so.
at 462-63, 615 S.E.2d at 395. Our Court followed In re O.C. &
in In re L.A.B.
, ___ N.C. App. ___, 631 S.E.2d 61 (2006),
where our Court held that "[e]ven assuming arguendo
that the trial
court committed error by its failure to appoint a GAL for [the]
respondent mother for the initial adjudication hearing, this Court
has recently held that such an error does not 'bear a legalrelationship with the validity of the later order on termination.'"
at ___, 631 S.E.2d at 66 (quoting In re O.C. & O.B.
, 171 N.C.
App. at 462, 615 S.E.2d at 394-95).
Respondent-Mother seeks to distinguish these cases by arguing
that in the present case, unlike in In re O.C. & O.B.
and In re
, the trial court incorporated various reports and orders
from the previous dependency adjudication into the termination
order. However, as we have already noted, such an incorporation
was invited by Respondent-Mother. Furthermore, even apart from the
incorporated orders, there were sufficient findings of fact to
support termination of Respondent-Mother's parental rights.
Respondent-Father argues the trial court abused its discretion
by terminating his parental rights where the trial court's findings
of fact were not supported by clear, cogent, and convincing
evidence, and the findings did not support the trial court's
conclusions of law. However, although Respondent-Father assigned
error to several findings of fact and one conclusion of law, he
makes no argument that these findings were unsupported or that the
findings did not support the conclusion. Therefore, we deem these
assignments of error abandoned. See
N.C.R. App. P. 28(b)(6).
Accordingly, we uphold the grounds for termination of Respondent-
Father's parental rights under N.C. Gen. Stat. § 7B-1111(a)(2) and
Respondent-Father also argues that the trial court erred by
concluding that it was in S.L.H's best interests for Respondent-
Father's parental rights to be terminated. Respondent-Father
argues that because he did not have an opportunity to be a part of
S.L.H.'s life, it was not in S.L.H's best interests for his
parental rights to be terminated. However, the trial court found,
and Respondent-Father does not contest, that S.L.H. "has no
relationship at all with [Respondent-Father], and he has not even
seen [S.L.H.] since his last visit over ten months ago." The trial
court also found that while the trial court ordered Respondent-
Father to successfully complete parenting classes, attend all
scheduled visitations, and seek employment or acquire a stable
income, Respondent-Father did not comply with any of these orders.
Respondent-Father visited with S.L.H. on 22 December 2004 but then
missed his 27 January 2005 visit. While Respondent-Father did
attend an 8 February 2005 visit, he did not make contact with
S.L.H. after that visit. Moreover, Respondent-Father stated at the
termination of parental rights hearing that his parental rights
should be terminated. We hold these findings of fact support the
trial court's conclusion that termination of Respondent-Father's
parental rights was in the best interests of S.L.H.
Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).
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