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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1049

NORTH CAROLINA COURT OF APPEALS

Filed: 1 May 2007

IN THE MATTER OF:

S.L.H.,
        A Minor Child.

                        Lenoir County
                        No. 05 JT 83

    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.


    McGEE, Judge.

    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's Appeal

I.

    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.
II.

    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 Blackburn, 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 percentile. (Approximately 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 alternative placements.

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 convincing evidence.
    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's incapacity.
    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 contrary.
    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.
III.

    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 Respondent-Mother stated:
        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 adjudication proceedings 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 direct appeal, 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.

Id. at 462-63, 615 S.E.2d at 395. Our Court followed In re O.C. & O.B. 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.'" Id. 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 L.A.B., 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's Appeal

I.

    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 (5).
II.
    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.
    Affirmed.
    Judges ELMORE and STEPHENS concur.
    Report per Rule 30(e).

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