In re C.A.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1468

NORTH CAROLINA COURT OF APPEALS

Filed: 19 August 2014

IN THE MATTER OF:

C.A. and B.A. Wake County

Nos. 12 JT 137, 138

Appeal by Respondent-Father from order entered 3 June 2013

by Judge Margaret P. Eagles in District Court, Wake County.

Appeal by Respondent-Father and Respondent-Mother from order

entered 17 October 2013 by Judge Margaret P. Eagles in District

Court, Wake County. Heard in the Court of Appeals 22 July 2014.

Office of the Wake County Attorney, by Roger A. Askew, for

Petitioner-Appellee Wake County Human Services.

Levine & Stewart, by James E. Tanner III, for Respondent-

Appellant Father.

Robert W. Ewing for Respondent-Appellant Mother.

Ellis & Winters LLP, by James M. Weiss, for Guardian ad

Litem.

McGEE, Judge.

Respondent-Father and Respondent-Mother (together,

“Respondents”) appeal from an order terminating their parental

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rights as to the minor children C.A. (“Cathy”) and B.A.

(“Beth”).1 Respondent-Father separately appeals from an order

entered 3 June 2013 ceasing reunification efforts with his

daughter Cathy. We affirm.

Wake County Human Services (“WCHS”) filed a juvenile

petition on 22 May 2012, alleging Cathy and Beth (“the

children”) to be abused and neglected juveniles. Cathy, just

two months old, had been diagnosed as suffering from a fracture

in her foot and multiple fractured ribs, which doctors

determined were caused by non-accidental means. WCHS obtained

non-secure custody of the children and placed them, pursuant to

a safety plan, in the care of Cathy’s paternal grandmother

(“Cathy’s grandmother”).

The parties entered a memorandum of understanding on 25 May

2012, documenting the history of Respondent-Mother’s involvement

with WCHS, the injuries to Cathy, the services recommended for

and agreed to by Respondents, and the services to be provided to

the children. The parties also entered into stipulations of fact

regarding Cathy’s injuries; Respondent-Mother’s prior history

with WCHS, including that Respondent-Mother relinquished her

1

Pseudonyms are used throughout to protect the identity of the

children and for ease of reading. Respondent-Father is the

biological father of Cathy and is not related to Beth. Beth’s

father is not a party to this appeal.

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parental rights to three older children; and Respondent-Mother’s

history of substance abuse and “instability.” After a hearing

on 18 July 2012, and based in part on the stipulated facts, the

trial court entered an order on 7 August 2012, adjudicating the

children to be neglected juveniles and Cathy to also be an

abused juvenile. The trial court continued custody of the

children with WCHS and sanctioned their placement with Cathy’s

grandmother. The trial court directed WCHS to continue to make

reasonable efforts to eliminate the need for placement of the

children outside of their home, and ordered Respondents to

comply with detailed case plans set forth in the order.

WCHS removed the children from the home of Cathy’s

grandmother in January 2013 and placed them in a licensed foster

home. Cathy’s grandmother sought to keep Cathy, who was her

biological granddaughter, but stated she did not want to keep

Beth in her home. Cathy’s grandmother was not willing to

participate in Beth’s recommended in-home mental health therapy,

and she also needed monthly respite from Cathy and Beth.

Cathy’s grandmother filed a motion to intervene and a complaint

for custody of Cathy on 27 March 2013.

Respondent-Mother was incarcerated on charges of child

abuse of Cathy, larcency, and aiding and abetting larcency.

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Therefore, Respondent-Mother’s ability to work on her case plan

was delayed until February 2013. Shortly after starting work on

her case plan, Respondent-Mother began missing parenting classes

and failed a drug screen for marijuana. The failed drug screen

constituted a violation of Respondent-Mother’s conditions of

probation, and she was incarcerated for twenty-four hours on 15

March 2013.

Respondent-Father did not understand why he had to

participate in services ordered by the trial court, and

indicated that he wanted Cathy’s grandmother to be Cathy’s

caretaker. Respondent-Father did not consistently visit with

Cathy following Cathy’s removal from her grandmother’s home, and

he also missed an appointment for a substance abuse evaluation.

Respondent-Father moved into his girlfriend’s home, and he

admitted the girlfriend’s home was not suitable for Cathy.

Due to Respondents’ inability to make progress on their

case plans, the trial court entered an order on 3 June 2013

ceasing reunification efforts and setting the permanent plan for

the children as adoption. That same day, the trial court

entered an order denying Cathy’s grandmother’s motion to

intervene. Respondent-Father filed notice of intent to preserve

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his right to appeal from the order ceasing reunification

efforts.

WCHS filed a motion to terminate Respondent-Father’s

parental rights as to Cathy, and Respondent-Mother’s parental

rights as to both Cathy and Beth on 9 July 2013. WCHS alleged

grounds to terminate Respondent-Mother’s parental rights based

on neglect, failure to make reasonable progress to correct the

conditions that led to the removal of the children from her

care, and dependency. See N.C. Gen. Stat. § 7B-1111(a)(1), (2),

(6) (2013). WCHS alleged grounds to terminate Respondent-

Father’s parental rights as to Cathy based on neglect, failure

to legitimate the child, and failure to make reasonable progress

to correct the conditions that led to the removal of Cathy from

his care. See N.C. Gen. Stat. § 7B-1111(a)(1), (2), (5) (2013).

After a hearing on 10 September 2013, the trial court

entered an order on 17 October 2013 terminating Respondents’

parental rights. The trial court concluded that: (1) grounds

existed to terminate Respondent-Mother’s parental rights under

N.C. Gen. Stat. § 7B-1111(a)(1), (2) and (6); (2) that grounds

existed to terminate Respondent-Father’s parental rights under

N.C. Gen. Stat. § 7B-1111(a)(1) and (2); and (3) that

termination of Respondents’ parental rights was in the

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children’s best interests. Respondents filed timely notices of

appeal from the trial court’s termination order.

I.

We first address Respondent-Father’s argument that the

trial court abused its discretion when it set adoption as the

permanent plan for the children in its 3 June 2013 order that

also ceased reunification efforts. Respondent-Father contends

the trial court should have awarded custody or guardianship of

Cathy to Cathy’s grandmother. We find no abuse of discretion in

the trial court’s decision.

In setting a permanent plan for children, the trial court’s

goal is to “develop a plan to achieve a safe, permanent home for

the juvenile within a reasonable period of time.” N.C. Gen.

Stat. § 7B-907(a) (2011).2 To accomplish this, the trial court

may,

appoint a guardian of the person for the

juvenile pursuant to G.S. 7B-600 or make any

disposition authorized by G.S. 7B-903

including the authority to place the child

in the custody of either parent or any

2

The North Carolina General Assembly repealed N.C. Gen. Stat. §

7B-907 and replaced it with N.C. Gen. Stat. § 7B-906.1 for

juvenile actions filed or pending on or after 1 October 2013.

See 2013 N.C. Sess. Laws 129, § 25, 41 (June 19, 2013). Because

the trial court entered its permanency planning order, that is

presently before this Court, in May 2013, we review its order

under N.C. Gen. Stat. § 7B-907.

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relative found by the court to be suitable

and found by the court to be in the best

interest of the juvenile.

N.C. Gen. Stat. § 7B-907(c) (2011). N.C. Gen. Stat. § 7B-903

prioritizes placements of juveniles with a family member:

In placing a juvenile in out-of-home care

under this section, the court shall first

consider whether a relative of the juvenile

is willing and able to provide proper care

and supervision of the juvenile in a safe

home. If the court finds that the relative

is willing and able to provide proper care

and supervision in a safe home, then the

court shall order placement of the juvenile

with the relative unless the court finds

that the placement is contrary to the best

interests of the juvenile.

N.C. Gen. Stat. § 7B-903(a)(2)(c) (2013). We review a trial

court’s determination regarding the best interests of a child

for an abuse of discretion. In re Pittman, 149 N.C. App. 756,

766, 561 S.E.2d 560, 567, appeal dismissed and disc. review

denied, 356 N.C. 163, 568 S.E.2d 608, 609 (2002), cert. denied

sub nom. Harris-Pittman v. Nash County Dep’t of Soc. Servs., 538

U.S. 982, 155 L. Ed. 2d 673 (2003). An abuse of discretion

occurs when the trial court’s challenged actions are “manifestly

unsupported by reason.” In re R.B.B., 187 N.C. App. 639, 648,

654 S.E.2d 514, 521 (2007), disc. review denied, 362 N.C. 235,

659 S.E.2d 738 (2008).

[W]hen a trial judge sits as both judge and

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juror, as he or she does in a non-jury

proceeding, it is that judge’s duty to weigh

and consider all competent evidence, and

pass upon the credibility of the witnesses,

the weight to be given their testimony and

the reasonable inferences to be drawn

therefrom[.]

In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435

(1984) (quotation marks omitted). This Court will not

substitute its judgment on the weight of the evidence for that

of the trial court.

The trial court granted custody of Cathy and Beth to WCHS

and sanctioned the placement of the children with Cathy’s

grandmother, but the children were removed from the home of

Cathy’s grandmother in January 2013 and placed in a licensed

foster home. [R p. 78 FOF#8] In an order from a placement

review hearing held 3 April 2013, the trial court sanctioned the

children’s placement in the foster home and made several

findings of fact as to why Cathy’s placement with her

grandmother was not in Cathy’s best interests:

Although [Cathy’s grandmother] is able and

willing to provide care and supervision of

[Cathy] on a permanent basis, for the

following reasons it is not in [Cathy’s]

best interests to be placed in [her

grandmother’s] home:

a. [Cathy’s grandmother] wants to keep her

biological granddaughter, [Cathy], but has

been vocal that she did not want to keep

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[Beth] in her home;

b. [Cathy’s grandmother] was not willing

to participate in the recommended in-home

mental health therapy for [Beth];

c. [Cathy’s grandmother] indicated that

she needed monthly respite from the

children, which has been provided for both

children since 2012. Providing respite on

this frequent a basis is not usual protocol

for relative or foster care placements;

d. The two children have a very strong

attachment to each other and it is in

[Cathy’s] best interest to be in the same

placement with [Beth]. [Respondent-Mother]

has expressed that she wants the children to

be placed together, and WCHS has set a clear

goal to have the children placed together,

which is supported by the GAL.

e. [Beth], who has some behavior issues

was removed from [Respondent-Mother’s] home

before the age of two [and] then lived for

several months with [Cathy’s grandmother],

who indicated that she was having difficulty

in dealing with some of the child’s

behaviors. [Beth] has shown marked

improvements with her behavior in the two

months since placed in the foster home.

In its 3 June 2013 permanency planning order, the trial court,

after hearing testimony on the placement of the children with

Cathy’s grandmother, re-adopted these findings and concluded

that there had been no new developments or changes to this

issue. The trial court set the permanent plan for Cathy as

adoption and continued custody of Cathy with WCHS.

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Respondent-Father argues that the trial court’s ultimate

conclusion not to place Cathy with her grandmother is an abuse

of discretion because it arbitrarily chose preservation of

Cathy’s relationship with Beth over that with her grandmother.

Respondent-Father also contends that the trial court’s findings

(b) and (e) relate only to Beth’s relationship with Cathy’s

grandmother and have no bearing on Cathy’s best interests.

Additionally, Respondent-Father argues that, at the time of the

hearing, Cathy was only ten months old and could not have had a

strong attachment to Beth, and that Respondent-Mother’s desire

to keep the children together should not outweigh Respondent-

Father’s wish that Cathy live with her grandmother.

Evidence at the permanency planning hearing established

that Cathy was deeply attached to Beth, and the goal of both

WCHS and the children’s guardian ad litem was to keep the

children together. The trial court is permitted to conclude that

maintaining the bond and relationship between Cathy and Beth

outweighs that of the bond between Cathy’s grandmother and

Cathy. Moreover, the inability of Cathy’s grandmother to

provide for the care of both children without respite, and her

unwillingness to provide the care needed by Beth, are certainly

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relevant to any decision the trial court made regarding the

permanent plan for both children.

While the trial court could have given greater weight to

Respondent-Father’s wishes or to the bond between Cathy and her

grandmother, its decision not to do so does not amount to a

manifest abuse of discretion. We hold the trial court’s

conclusion not to place Cathy with her grandmother, nor to adopt

a permanent plan for Cathy of guardianship, nor to grant custody

to Cathy’s grandmother, does not amount to an abuse of

discretion. Accordingly, we affirm the trial court’s order

ceasing reunification efforts between Respondent-Father and

Cathy.

II.

Next, we address Respondent-Father’s argument that the

trial court erred in concluding that grounds existed to

terminate his parental rights pursuant to N.C. Gen. Stat. § 7B-

1111(a)(2). This Court reviews orders terminating parental

rights for “whether the findings of fact are supported by clear,

cogent and convincing evidence and whether these findings, in

turn, support the conclusions of law.” In re Shepard, 162 N.C.

App. 215, 221-22, 591 S.E.2d 1, 6 (citations and quotation marks

omitted), disc. review denied sub nom. In re D.S., 358 N.C.

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543, 599 S.E.2d 42 (2004). A trial court’s findings of fact

that an appellant does not specifically dispute on appeal “are

deemed to be supported by sufficient evidence and are binding on

appeal.” In re M.D., 200 N.C. App. 35, 43, 682 S.E.2d 780, 785

(2009). However, “[t]he trial court’s conclusions of law are

fully reviewable de novo by the appellate court.” In re S.N.,

194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008) (quotation

marks omitted), aff’d per curiam, 363 N.C. 368, 677 S.E.2d 455

(2009).

A trial court may terminate parental rights where

[t]he parent has willfully left the juvenile

in foster care or placement outside the home

for more than 12 months without showing to

the satisfaction of the court that

reasonable progress under the circumstances

has been made in correcting those conditions

which led to the removal of the juvenile.

Provided, however, that no parental rights

shall be terminated for the sole reason that

the parents are unable to care for the

juvenile on account of their poverty.

N.C. Gen. Stat. § 7B-1111(a)(2) (2013). “Willfulness” under §

7B-1111(a)(2) may be proven by showing “the respondent had the

ability to show reasonable progress, but was unwilling to make

the effort.” 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).

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In the case before the Court, the trial court made numerous

findings of fact regarding Respondent-Father’s willful failure

to make reasonable progress to correct the conditions that led

to the removal of Cathy from the home. The trial court found

that, in the initial adjudication and disposition order,

Respondent-Father was ordered to: (1) consistently visit with

Cathy; (2) obtain and maintain housing and employment sufficient

for himself and Cathy; (3) complete a substance abuse evaluation

and follow through with all recommendations; (4) complete a

mental health evaluation and follow through with all

recommendations; (5) complete a domestic violence treatment

program and demonstrate learned skills; (6) complete a positive

parenting class and demonstrate learned skills; (7) resolve all

criminal matters and refrain from further criminal activity; and

(8) maintain regular contact with his social worker. The trial

court found that Respondent-Father had not consistently visited

with Cathy, having only visited seven times out of the last

twenty-eight possible visitations and only four times in the

past nine months. The trial court further found that

Respondent-Father, since the adjudication hearing, had lived

with his girlfriend in a home that he had stated to the social

worker would not be suitable for Cathy. The trial court also

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found that, although Respondent-Father claimed he had

employment, he had not provided pay stubs to verify his

employment and had not provided any financial assistance for

Cathy. Respondent-Father had also not completed a parenting

class, mental health assessment, substance abuse assessment, or

domestic violence program, as ordered. Additionally, since the

adjudication hearing, Respondent-Father had been charged with

possession of illegal substances. The charge was pending at the

time of the termination hearing, and Respondent-Father testified

that the charges would be dismissed if he completed a substance

abuse class.

Respondent-Father concedes that he did very little of what

the trial court ordered in its dispositional order and he does

not challenge any of the trial court’s findings of fact. The

findings are thus binding on this Court. Rather, Respondent-

Father argues he should not be required to comply with the case

plan set forth by the trial court in the initial adjudication

and disposition order because it does not address the conditions

that led to the removal of Cathy from the home.

Respondent-Father, however, agreed in the 25 May 2012

memorandum of understanding that he was willing to follow the

recommendations of WCHS to obtain a substance abuse and mental

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health assessment and to maintain stable housing and employment.

Moreover, Respondent-Father did not appeal from the trial

court’s adjudication and disposition order and, thus, is

estopped from challenging the findings and conclusions made

therein in this appeal. See In re Wheeler, 87 N.C. App. 189,

194, 360 S.E.2d 458, 461 (1987) (“The doctrine of collateral

estoppel operates to preclude parties from retrying fully

litigated issues that were decided in any prior determination

and were necessary to the prior determination.”) (citation and

quotation marks omitted)). Accordingly, the trial court did not

err in measuring Respondent-Father’s progress based upon the

case plan outlined in the trial court’s initial adjudication and

disposition order.

We hold the trial court’s findings of fact fully support

its conclusion that Respondent-Father willfully left Cathy in

foster care for more than twelve months without making

reasonable progress toward correcting the conditions that led to

Cathy’s removal from the home. Despite agreeing to a case plan

with WCHS and being repeatedly ordered to meet the conditions

set forth in the initial adjudication and disposition order,

Respondent-Father refused to comply with those requirements and

instead insisted that Cathy be placed with her grandmother.

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Accordingly, we hold the trial court did not err in concluding

grounds existed to terminate Respondent-Father’s parental rights

as to Cathy pursuant to N.C. Gen. Stat. § 7B-1111(a)(2).

Because the trial court did not err in terminating Respondent-

Father’s parental rights pursuant to N.C. Gen. Stat. § 7B-

1111(a)(2), we need not address Respondent-Father’s arguments

regarding the ground of neglect. In re P.L.P., 173 N.C. App. 1,

8, 618 S.E.2d 241, 246 (2005), aff’d per curiam, 360 N.C. 360,

625 S.E.2d 779 (2006).

III.

In Respondent-Mother’s appeal, she first argues the trial

court abused its discretion when it failed to conduct, sua

sponte, a hearing into whether a guardian ad litem (GAL) should

have been appointed to represent her interests in this matter.

Respondent-Mother contends that her history of serious mental

health problems put the trial court on notice that she was

either incompetent or that she had a diminished capacity and

could not adequately act in her own interest. We disagree.

“A trial judge has a duty to properly inquire into the

competency of a litigant in a civil trial or proceeding when

circumstances are brought to the judge’s attention, which raise

a substantial question as to whether the litigant is non compos

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mentis.” In re J.A.A., 175 N.C. App. 66, 72, 623 S.E.2d 45, 49

(2005). “‘Whether the circumstances . . . are sufficient to

raise a substantial question as to the party’s competency is a

matter to be initially determined in the sound discretion of the

trial judge.’” Id. (quoting Rutledge v. Rutledge, 10 N.C. App.

427, 432, 179 S.E.2d 163, 166 (1971)). “A ruling committed to a

trial court’s discretion is to be accorded great deference and

will be upset only upon a showing that it was so arbitrary that

it could not have been the result of a reasoned decision.”

White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).

At the time of the termination hearing, N.C. Gen. Stat. §

7B-1101.1(c) authorized the appointment of a GAL, “if the court

determines that there is a reasonable basis to believe that the

parent is incompetent or has diminished capacity and cannot

adequately act in his or her own interest.” N.C. Gen. Stat. §

7B-1101.1(c) (2011). However, our General Assembly amended

N.C.G.S. § 7B-1101.1(c), applicable to all cases pending on or

filed after 1 October 2013, such that a trial court may now only

appoint a GAL “for a parent who is incompetent in accordance

with G.S. 1A-1, Rule 17.” N.C. Gen. Stat. § 7B-1101.1(c)

(2013); 2013 N.C. Sess. Laws 129, §§ 32, 41. Accordingly,

because the trial court could no longer appoint a GAL for

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Respondent-Mother based on diminished capacity, Respondent-

Mother’s argument in this regard is moot. Cf. Davis v. Zoning

Board of Adjustment of Union County, 41 N.C. App. 579, 582, 255

S.E. 2d 444, 446 (1979) (holding that “all questions raised have

been rendered moot by the amendments to the Union County Zoning

Ordinance”).

Under the amended version of N.C. Gen. Stat. § 7B-

1101.1(c), Respondent-Mother would be entitled to the

appointment of a GAL on remand only if she were found to be

incompetent. An incompetent adult is defined as one “who lacks

sufficient capacity to manage the adult’s own affairs or to make

or communicate important decisions concerning the adult’s

person, family, or property whether the lack of capacity is due

to mental illness, mental retardation, epilepsy, cerebral palsy,

autism, inebriety, senility, disease, injury, or similar cause

or condition.” N.C. Gen. Stat. § 35A-1101(7) (2013). While

Respondent-Mother’s mental health and substance abuse issues

certainly negatively affected her personal life and ability to

parent the children, we see no evidence in the record suggesting

her problems resulted in a lack of capacity to manage her own

affairs or to make or communicate important decisions.

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Respondent-Mother attended a child planning conference at

the beginning of the case and entered into a voluntary

memorandum of understanding with WCHS regarding the issues of

placement of the children, visitation with the children, and

services for herself and the children. Respondent-Mother also

signed stipulations to evidentiary facts to be used in the trial

court’s initial adjudication and disposition order. Respondent-

Mother testified on her own behalf at the termination hearing

and in the May 2013 permanency planning hearing. Nothing in

Respondent-Mother’s testimony suggests she was not competent to

participate in either hearing. Moreover, the record establishes

that Respondent-Mother knew what was expected of her in order

for her to be reunited with her children; that she participated

in some substance abuse treatment, mental health assessments and

treatment, and parenting classes; however, she was unwilling to

complete the necessary treatment and classes. Based on the

foregoing, we hold the fact that the trial court did not inquire

into Respondent-Mother’s competency sua sponte does not amount

to an abuse of discretion, and we overrule this argument.

Respondent-Mother also argues the trial court erred in

concluding that grounds existed to terminate her parental rights

based on dependency pursuant to N.C. Gen. Stat. § 7B-1111(a)(6).

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Respondent-Mother has not, however, challenged the trial court’s

conclusions that grounds also existed to terminate her parental

rights based on neglect and failure to make reasonable progress

to correct the conditions that led to the removal of the

children from her home pursuant to N.C. Gen. Stat. § 7B-

1111(a)(1) and (2). The unchallenged grounds are sufficient to

support the trial court’s order terminating Respondent-Mother’s

parental rights, and we need not consider her arguments relating

solely to the ground of dependency. In re J.M.W., 179 N.C. App.

788, 791-92, 635 S.E.2d 916, 918-19 (2006). Accordingly, we

affirm the trial court’s order as to the termination of

Respondent-Mother’s parental rights as to the children.

For the reasons stated herein, we affirm the trial court’s

3 June 2013 order ceasing reunification efforts and setting the

children’s permanent plan as that of adoption, and the trial

court’s 17 October 2013 order terminating Respondents’ parental

rights.

Affirmed.

Judges STEELMAN and ERVIN concur.

Report per Rule 30(e).