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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 7 August 2007
IN THE MATTER OF: Guilford County
A.H., No. 04 J 320
A FEMALE CHILD born on or
[about] May 6, 2004 in
High Point, Guilford County,
Appeal by respondent-mother from an order entered 1 December
by Judge Lawrence C. McSwain in Guilford County District
Court. Heard in the Court of Appeals 9 July 2007.
Mercedes O. Chut for Guilford County Department of Social
Services petitioner appellee.
Leslie R. Nydick for respondent_mother appellant.
Respondent-mother appeals from a district court order
terminating her parental rights to her minor child A.H. We affirm.
On 7 May 2004, the Guilford County Department of Social
Services (DSS) filed a petition alleging that A.H.
neglected and dependent juvenile. The allegations in the petition
included the following: At the time respondent-mother gave birth
6 May 2004, she: (1) had questionable pre-natal care, (2) displayed
signs of drug use by constantly fidgeting, and (3) admitted that
she and A.H.'s father were abusive to each other but stated, It's
OK, because I hit him too. Additionally, respondent-motheradmitted to an incident in which she stabbed A.H.'s father.
Respondent-mother was diagnosed as Willie M in 1997, and has an
extensive mental health history associated with violence and
assaultive and impulsive behaviors. She has been diagnosed with
bipolar disorder and conduct disorder. She has been charged with
several criminal offenses including destruction of property,
disorderly conduct, communicating threats and assault. In addition,
she has an extensive history of cocaine and marijuana abuse. She
has been in and out of jail several times. A.H.'s father is
employed and cannot care for the child on a full-time basis, and he
is exploring family placements and will inform DSS of any potential
placements. A.H. was adjudicated a dependent juvenile.
On 7 October 2004, the trial court held a review hearing.
Respondent-mother did not appear at the hearing due to her being
incarcerated. The court stated that the case plan for respondent-
mother required her to complete a parenting assessment, address her
substance abuse issues and maintain a drug-free lifestyle, complete
a domestic violence class, and secure appropriate and adequate
housing for herself and A.H.
A permanency planning review hearing was held on 6 January
2005. The court found as fact that the respondent-mother was
incarcerated for the third time since the court's October 2004
review hearing. The current charges against respondent-mother were
communicating threats and assault, and there was a pending charge
for assault on a government official. The trial court continuedcustody with DSS and ordered respondent-mother to comply with her
Another permanency planning review hearing was held on 31
March 2005. The trial court found that respondent-mother has been
with Dorothea [Dix] Mental Hospital, then on to incarceration
subject to a 12 month sentence. This was respondent-mother's
fourth incarceration since the October 2004 review hearing.
Additionally, respondent-mother's counsel and her guardian ad litem
reported that they had never met her and requested to withdraw from
the case. The trial court concluded that respondent-mother had
failed to make progress under her case plan, that returning A.H. to
her would be inconsistent with the child's best interests, and
ordered DSS to proceed with termination of respondent-mother's
On 25 May 2005, DSS filed a petition to terminate respondent-
mother's parental rights. DSS alleged that respondent-mother had
neglected A.H. and had willfully left A.H. in foster care for more
than twelve months without showing that reasonable progress under
the circumstances had been made in correcting those conditions that
led to the removal of A.H. Hearings were held on the petition to
terminate respondent-mother's parental rights on 17 September 2006.
The trial court concluded that grounds existed pursuant to N.C.
Gen. Stat. § 7B-1111(a)(1) and (2) to terminate respondent-mother's
parental rights. The trial court further concluded that it was in
the juvenile's best interest that respondent-mother's parental
rights be terminated. Respondent-mother appeals.
Respondent-mother contends that she did not receive adequate
notice of the hearing on the petition to terminate her parental
rights. She argues that DSS was required to provide notice in
accordance with N.C. Gen. Stat. § 7B-1106.1 (2005). We disagree.
N.C. Gen. Stat. § 7B-1106.1 states, in pertinent part, that
[u]pon the filing of a motion pursuant to G.S. 7B-1102, the movant
shall prepare a notice directed to . . . [t]he parents of the
juvenile. Id. (emphasis added). N.C. Gen. Stat. § 7B-1102
(2005), in turn, provides that the motion and the notice required
by G.S. 7B-1106.1 shall be served in accordance with G.S. 1A-1,
Rule 5(b) . . .[.] Id. (emphasis added). Here, however, DSS did
not file a motion in the cause. Instead, DSS filed a petition to
terminate parental rights and served it by summons. Accordingly,
we disagree with respondent-mother.
Next, respondent-mother contends that the trial court erred by
denying her motion for a continuance so she could be present at the
termination hearing. We disagree.
N.C. Gen. Stat. § 7B-803 (2005) provides that:
The court may, for good cause, continue
the hearing for as long as is reasonably
required to receive additional evidence,
reports, or assessments that the court has
requested, or other information needed in the
best interests of the juvenile and to allow
for a reasonable time for the parties to
conduct expeditious discovery. Otherwise,
continuances shall be granted only inextraordinary circumstances when necessary for
the proper administration of justice or in the
best interests of the juvenile.
Id. The standard of review for the denial of a motion to continue
is abuse of discretion. In re D.Q.W., T.A.W., Q.K.T., & J.K.M.T.,
167 N.C. App. 38, 40, 604 S.E.2d 675, 676 (2004). Continuances
are generally disfavored, and the burden of demonstrating
sufficient grounds for continuation is placed upon the party
seeking the continuation. In re J.B., 172 N.C. App. 1, 10, 616
S.E.2d 264, 270 (2005).
Here, respondent-mother's attorney requested the continuance
when respondent-mother was not present at the hearing because she
had another court date. Respondent-mother contends that the
trial court's refusal to continue the hearing deprived her of her
right to be present at the trial, and violated her fundamental
right . . . to make decisions concerning the care, custody, and
control of [her] children. However, since October 2004,
respondent-mother had been incarcerated a minimum of three
different times. She did not or could not appear for review
hearings on 7 October 2004, 6 January 2005, 31 March 2005, 22
September 2005, or 23 March 2006. She was represented at the
termination hearing by counsel, thus her legal interests were
represented. Moreover, there is no evidence in the transcript
substitute showing how respondent-mother was materially prejudiced
by denial of the motion. See In re D.Q.W., 167 N.C. App. at 41,
604 S.E.2d at 677 (no prejudice where respondent did not explain
why his counsel had inadequate time to prepare for the hearing;what specifically his counsel hoped to accomplish during the
continuance; or how preparation would have been more complete had
the continuance motion been granted). Accordingly, we disagree
Respondent-mother contends that the trial court erred by
finding that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111
to terminate her parental rights. We disagree.
N.C. Gen. Stat. § 7B-1111 (2005) sets out the statutory
grounds for terminating parental rights. Id.
A finding of any one
of the separately enumerated grounds is sufficient to support a
termination. Owenby v. Young,
357 N.C. 142, 145, 579 S.E.2d 264,
267 (2003). 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 D.J.D., D.M.D., S.J.D., J.M.D.
N.C. App. 230, 238, 615 S.E.2d 26, 32 (2005)
, the trial court made the following findings of fact:
2. The Court finds that A.H. was
adjudicated dependent on or about July 15,
2004. The conditions which led to the
adjudication of dependency and DSS custody of
the child are as follows: On 7 May 2004, DSS
received a report alleging that the mother had
given birth on May 6, 2004, and that she had
questionable per-natal [sic] care, had a
history of mental health problems, had no
stable housing or any means to support herself
or the juvenile. Upon investigation, the
mother and father admitted domestic violence
between themselves. Further the Court
substantiate[d] the substance abuse, the
mother's mental health history[,] . . . aswell as the fact that previously, a sibling of
the juvenile had been remove[d] from the home
of these parents and not returned.
3. The court finds that after the
adjudication, the respondent mother entered
into a service agreement on July 20, 2004 in
which she agreed to complete the following in
order to re-unify with the juvenile:
a) Obtain and maintain independent and
b) Complete a parenting assessment and
c) Obtain an Alcohol and Drug Services
assessment and follow any
d) Enroll in and participate in domestic
e) Address mental health issues and take
medication as prescribed.
4. The Court finds that the respondent-
mother did not comply with any of the terms of
this service agreement. As of the date of
this hearing, she still had obtained an intake
appointment but had not complied with the ADS
assessment requirement and therefore was
unable to verify that she had followed
treatment recommendations. Further, she
missed several appointments for a parenting
assessment and is no longer eligible to
receive a parenting assessment due to her
failure to attend her appointments. She also
has failed to obtain a psychological
evaluation. Further she had not enrolled in
or successfully completed any domestic
violence classes. With regard to independent
and stable housing, she currently is residing
with her father. Prior to her incarceration,
she was also residing with the father.
Overall the respondent-mother has not made
significant effort to correct or improve the
conditions which led to DSS custody of the
child and therefore the Respondent-mother
continue[s] to neglect A.H.
5. The Court finds that the respondent-
mother was incarcerated from March 28, 2005 to
March 24, 2006 and that while in prison, she
did not avail herself of opportunities to work
towards reunification with A.H. . . . [and]
that since her release she had made no further
progress towards complying with her case plan
and in fact has had little contact with the
Social Worker who has [sic] initiated the
contacts that have been made except for one
appointment the [respondent-]mother made and
kept with [the Social Worker] last Friday
(where she was informed of the time, date and
location of this hearing) and that she has not
responded to attempts to get her to renew her
Based on these findings, the trial court concluded that
pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) (2005), respondent-
mother had willfully left A.H. in foster care placement for more
than twelve months without showing reasonable progress under the
circumstances in correcting those conditions which led to the
removal of the child.
This Court has stated that:
[T]o find grounds to terminate a parent's
rights under G.S. § 7B-1111(a)(2), the trial
court must perform a two part analysis. The
trial court must determine by clear, cogent
and convincing evidence that a child has been
willfully left by the parent in foster care or
placement outside the home for over twelve
months, and, further, that as of the time of
the hearing, as demonstrated by clear, cogent
and convincing evidence, the parent has not
made reasonable progress under the
circumstances to correct the conditions which
led to the removal of the child.
In re O.C. & O.B.
, 171 N.C. App. 457, 464-65, 615 S.E.2d 391, 396
(citation omitted), disc. review denied
, 360 N.C. 64, 623 S.E.2d
587 (2005). Respondent-mother contends that she did not willfullyleave A.H. in foster care, arguing that her incarceration prevented
her from visiting with the child and making progress on her case
plan. [A] respondent's incarceration, standing alone, neither
precludes nor requires finding the respondent willfully left a
child in foster care. In re Harris
, 87 N.C. App. 179, 184, 360
S.E.2d 485, 488 (1987).
Here, the record shows that respondent-mother had the ability
to make some progress, but chose not to do so. A DSS report states
that, while in prison, respondent-mother could have taken parenting
classes or completed a G.E.D. program; however, she completed
neither. Additionally, there is evidence that following her
release from incarceration in March 2006, respondent-mother
substantially failed to comply with the case plan. The record does
show that respondent-mother telephoned the social worker to arrange
visitation; however, she did not submit to new drug tests which
were required. She also failed to report to DSS for scheduled
appointments on 13 April, 5 May, 18 May, 30 May, and 7 July 2006.
See In re McMillon
, 143 N.C. App. 402, 410, 546 S.E.2d 169, 175,
disc. review denied
, 354 N.C. 218, 554 S.E.2d 341 (2001)
Willfulness is established when the respondent had the ability to
show reasonable progress, but was unwilling to make the effort.).
Accordingly, we disagree with respondent-mother.
Since grounds exist pursuant to
N.C. Gen. Stat. § 7B-
to support the trial court's order, the remaining ground
found by the trial court to support termination need not be
357 N.C. at 145, 579 S.E.2d at 267. Accordingly,we affirm.
Judges WYNN and CALABRIA
Report per Rule 30(e).
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