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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-227


Filed: 19 June 2007


    E.F.M., E.L.M.,                Surry County
    T.J.M.                        No. 05 J 81-83

    Appeal by respondent from judgments entered 17 November 2006 by Judge Mark H. Badgett in Surry County District Court. Heard in the Court of Appeals 4 June 2007.

    H. Lee Merritt, Jr. for Surry County Department of Social Services, petitioner-appellee.

    Kilpatrick Stockton L.L.P., by Adam H. Charnes and N. Dean Powell, Jr., for Guardian ad Litem.

    Leslie R. Nydick for respondent-appellant.

    MARTIN, Chief Judge.

     Respondent appeals from judgments terminating her parental rights as the mother of E.F.M., E.L.M., and T.J.M. We affirm.
    The Surry County Department of Social Services (DSS) filed juvenile petitions on 29 July 2005 alleging that E.F.M., E.L.M., and T.J.M. were neglected and dependent because of respondent's chronic housing instability and respondent's inability “to support her children or provide for their basic needs.” DSS took non-secure custody of respondent's children that same day. By orders filed 15 September 2005, the trial court adjudicated the minor children neglected and dependent based upon the facts alleged in thejuvenile petitions. The trial court ordered respondent to follow DSS's recommendations and comply with the family services agreement.
    In May of 2006, DSS filed petitions to terminate the parental rights of respondent as to each child alleging that she had: (1) neglected the minor children, N.C. Gen. Stat. § 7B-1111(a)(1) (2006), and (2) willfully failed to pay a reasonable portion of the cost of care for the children, N.C. Gen. Stat. §7B-1111(a)(3) (2006).
    In its separate orders filed 17 November 2006, the trial court concluded that based upon clear, cogent, and convincing evidence, sufficient grounds existed for terminating the parental rights of respondent in that the minor children were neglected and that respondent failed to pay support for the minor children . Respondent appeals.
    Respondent contends the trial court's conclusion that she neglected her minor children is not supported by sufficient competent evidence or findings of fact. We hold the evidence was sufficient to support the trial court's findings which, in turn, were sufficient to support the order terminating parental rights.
    A termination of parental rights proceeding is conducted in two phases: (1) the adjudication phase which is governed by N.C.G.S. § 7B-1109 and (2) the disposition phase which is governed by N.C.G.S. § 7B-1110. See In re Brim, 139 N.C. App. 733, 741, 535 S.E.2d 367, 371 (2000). During the adjudication stage, petitioner has the burden of proof by clear, cogent, and convincing evidenceof the existence of one or more of the statutory grounds for termination set forth in N.C.G.S. § 7B-1111. See N.C. Gen. Stat. § 7B-1109(e)-(f) (2006). 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), disc. review denied and appeal dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001).
    If petitioner meets its burden of proof that grounds for termination exist, the trial court then moves to the disposition phase and must consider whether termination is in the best interest of the child. See N.C. Gen. Stat. § 7B-1110(a) (2006). The trial court has discretion, if it finds by clear, cogent, and convincing evidence that at least one of the statutory grounds exists, to terminate parental rights upon a finding that it would be in the best interests of the child. In re Blackburn, 142 N.C. App. 607, 613, 543 S.E.2d 906, 910 (2001). The trial court's decision to terminate parental rights is reviewed under an abuse of discretion standard. In re Brim , 139 N.C. App. at 744, 535 S.E.2d at 373.
    In this case, the trial court terminated respondent's parental rights under 7B-1111(a)(1) based upon a finding that the minor child was a “neglected juvenile” within the meaning of N.C.G.S. § 7B-101. Section 7B-101(15) defines “neglected juvenile” as follows:
        A juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not providednecessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law . . . .

N.C. Gen. Stat. § 7B-101(15) (2006). To prove neglect in a termination case, there must be clear and convincing evidence that (1) the juvenile is neglected within the meaning of N.C.G.S. 7B-101(15), and (2) “the juvenile has sustained 'some physical, mental, or emotional impairment . . . or [there is] a substantial risk of such impairment'” as a consequence of the neglect. In re Reyes, 136 N.C. App. 812, 814-15, 526 S.E.2d 499, 501 (2000) (quoting In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993)).
    “A finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding.” In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997). “Termination of parental rights for neglect may not be based solely on past conditions which no longer exist.” Id. “[A] prior adjudication of neglect may be admitted and considered by the trial court in ruling upon a later petition to terminate parental rights on the ground of neglect.” In re Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984). If the child has been removed from the parents' custody before the termination hearing and the petitioner presents evidence of prior neglect, including an adjudication of such neglect, then “[t]he trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of arepetition of neglect.” Id. at 715, 319 S.E.2d at 232. Thus, where “there is no evidence of neglect at the time of the termination proceeding . . . parental rights may nonetheless be terminated if there is a showing of a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to [his or] her parents.” In re Reyes, 136 N.C. App. 812, 814-15, 526 S.E.2d 499, 501 (2000).
    In support of its conclusion that respondent's parental rights should be terminated pursuant to N.C.G.S. § 7B-1111(a)(1), the trial court entered the following pertinent findings of fact as to each child:
        13. [DSS] has worked with the respondent- mother extensively since January 2002. [DSS] has provided the respondent-mother with services to help with housing, employment skills, Medicaid benefits, and proper care for her minor children.

        14. Respondent-mother has a history of housing instability for herself and the minor children. The respondent-mother has had more than thirty (30) different residences since her oldest child, T.M., was born in August 1999. In July 2005, the respondent-mother did not have a permanent residence and was residing in a tent in Cana, Virginia. The minor child, at that time, had been placed in the care of a non-relative who was no longer willing or able to provide care for the child. Since July 2005, the respondent-mother has resided at numerous locations with her boyfriend. . . . From January 2006 until August 2006, the respondent-mother and her boyfriend resided in Claudeville, Virginia . . . .

        15. Respondent-mother entered into a family services case plan with [DSS] on August 26, 2005. Respondent-mother, pursuant to theplan, agreed to maintain stable housing and employment in order to be in a position to have the minor child returned to her care. Respondent-mother has failed to maintain stable housing and, further, has failed to be gainfully employed on a regular basis. Respondent-mother was employed through Ablest temporary services from late November 2005 until mid-January 2006. Respondent-mother has not been employed since mid-January 2006. Prior to the respondent-mother's injury to her foot in June 2006, she was capable of being employed on a regular basis. Respondent- mother has had difficulty in finding employment in the past. She does not have a driver's license even though she is eligible to obtain a driver's license. Respondent- mother has not taken the steps necessary to obtain her license even though she has been encouraged to do so.

        16. In June 2006, respondent-mother injured her foot and ankle and, as such, since that time she has not been physically able to be employed. Based upon the testimony of the respondent-mother, the court finds that she has not been diligent in her efforts to seek medical treatment for her injury.

        17. Respondent-mother has been diagnosed with a bi-polar disorder. Respondent-mother has received treatment and counseling for the mental disorder in the past. In the family services case plan, respondent-mother agreed to obtain an evaluation for her condition and to follow the recommended treatment. Respondent-mother did not seek treatment for her condition until August 2006. In September 2006, respondent-mother was evaluated and has attended several counseling sessions since that date.

        18. Respondent-mother, pursuant to the family services case plan, was encouraged to maintain a close bond and visit with the minor child on a regular basis. Respondent-mother visited with her children weekly from August 2005 until November 2005. Respondent-mother did not visit with the children at all between November 28, 2005, and December 28, 2005. Since January 2006, respondent-mother has had the opportunity to visit with the minorchildren at least on a monthly basis. She has missed the scheduled visits for February, April, and July 2006.

        . . .

        20. The minor child was adjudicated a neglected child by order of this court on September 1, 2005. Since that time, respondent-mother has not been diligent in her efforts to correct the conditions which resulted in the minor child's being adjudicated a neglected child. There is a strong likelihood of future neglect on the part of the respondent-mother in regard to her minor children.

    Respondent does not challenge any of the above findings and they are presumed to be correct and supported by competent evidence. In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982). In addition, a review of the record and transcript shows that each of the trial court's findings is based upon competent evidence, including orders entered in the case and testimony from DSS social worker Wendy Harmon, guardian ad litem volunteer Christopher Mooney and respondent herself. The prior adjudication established the existence of prior neglect. Respondent's failure to obtain appropriate housing, her failure to obtain appropriate employment, and her lack of diligence in pursuing mental health treatment support the court's determination that there was a probability that neglect would be repeated in the future. The trial court thus properly considered both evidence of past neglect by respondent, as well as evidence of conditions since that time showing a likelihood of neglect in the future. We, therefore, hold that the trial court's findings of fact were based on clear,cogent, and convincing evidence. We further hold that these findings support the court's conclusion that grounds justifying termination existed under N.C.G.S. § 7B-1111(a)(1). As only one ground is necessary to support the termination, we need not address whether evidence existed to support termination based on N.C.G.S. § 7B-1111(a)(3).
    Respondent also contends the trial court erred by not appointing her a guardian ad litem “knowing that respondent's mental health issues and the [neglect] allegations were intertwined.” Here, the trial court appointed a guardian ad litem and attorney advocate to represent respondent in the termination proceedings a month after DSS filed its petitions to terminate. Respondent, however, argues that she should have been appointed a guardian ad litem during the “critical, early stages of the proceedings[.]”
    In In re O.C., 171 N.C. App. 457, 462, 615 S.E.2d 391, 394 (2005), this Court rejected respondent's argument that the trial court's “failure to appoint a GAL for the dependency adjudication proceedings occurring 19 months earlier” was grounds for reversing a termination of parental rights order. This Court reasoned that the issue of whether the trial court should have appointed a guardian ad litem for the mother in a prior dependency proceeding was not an issue before the court. Id. As in In re O.C., the issue of appointing a guardian ad litem prior to the termination proceedings in this case is not before this Court. Therefore, this assignment of error is overruled.     In conclusion, we find no prejudicial error in the proceeding to terminate respondent's parental rights. The order entered by the trial court is affirmed.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

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