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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-301


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,
    North Carolina.

    Appeal by respondent-mother from an order entered 1 December 2006 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.

    McCULLOUGH, Judge.

    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. was a neglected and dependent juvenile. The allegations in the petition included the following: At the time respondent-mother gave birth on 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 case plan.
    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 parental rights.
    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 with respondent-mother.
    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., 171 N.C. App. 230, 238, 615 S.E.2d 26, 32 (2005).
    Here, 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 safe housing.

            b) Complete a parenting assessment and psychological evaluation.

            c) Obtain an Alcohol and Drug Services assessment and follow any recommendations.

            d) Enroll in and participate in domestic violence classes.

            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 Service Agreement.

    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 “willfully”leave 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- 1111(a)(2) to support the trial court's order, the remaining ground found by the trial court to support termination need not be reviewed. Owenby, 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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