The opinion
An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-293
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
IN THE MATTER OF:
T.M. Durham County
No. 10 J 273
Appeal by respondent-mother from amended order entered 12
December 2013 by Judge William A. Marsh, III, in Durham County
District Court. Heard in the Court of Appeals 8 July 2014.
Assistant County Attorney Bettyna Belly Abney for appellee
Durham County Department of Social Services.
Parker Poe Adams & Bernstein LLP, by J. Caleb Thomas, for
guardian ad litem.
Hunt Law Group, P.C., by James A. Hunt, for respondent-
appellant mother.
STEELMAN, Judge.
Where mother does not challenge certain of the trial
court’s findings of fact, they are binding on appeal. Where
these unchallenged findings support the trial court’s conclusion
that a history of neglect and a probability of a repetition of
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neglect exist, the trial court did not err in terminating
mother’s parental rights.
I. Factual and Procedural Background
T.M. was born in October 2010. In November 2010, the
Durham County Department of Social Services (DSS) obtained non-
secure custody of the infant child and filed a juvenile petition
alleging neglect and dependency. The petition specifically
claimed that D.D. (mother) was unable to care for her daughter
due to a developmental disability, bipolar and post-traumatic
stress disorders, and poor impulse control, and that T.M. had
been diagnosed with failure to thrive “directly related to
mother failing to adequately feed the child.” The district
court adjudicated T.M. a dependent juvenile on 28 February 2011,
finding that mother “is unable to care for the child” and that
“[t]he child is failing to thrive.” The court also found that
mother “has poor impulse control and does not understand when
she has placed [T.M.] in danger.”
The district court relieved DSS of further reunification
efforts on 17 January 2013. On 25 May 2013, DSS filed a motion
to terminate mother’s parental rights based upon neglect, lack
of reasonable progress in correcting the conditions that led to
T.M.’s removal from her home, and dependency under N.C. Gen.
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Stat. § 7B-1111(a)(1), (2), and (6) (2013).1 After a hearing on
7 November 2013, the court adjudicated the existence of each of
the grounds for termination alleged by DSS. The court further
concluded that termination of mother’s parental rights was in
T.M.’s best interests.
Mother appeals.
II. Arguments
On appeal, mother challenges each of the three grounds for
termination adjudicated by the district court, arguing that they
are unsupported by the court’s findings of fact or by the
evidence. Specifically, mother contends (1) that the trial
court erred in concluding that she had willfully left her child
in foster care, (2) that the trial court erred in finding that
T.M. was neglected and that a probability of a repetition of
neglect existed, and (3) that the trial court erred in
concluding that mother’s parental rights should be terminated
where the trial court heard no evidence as to whether mother
lacked an alternative child care arrangement. We disagree.
A. Standard of Review
In reviewing an adjudication under N.C. Gen. Stat. § 7B-
1
T.M.’s father relinquished his parental rights after the
petition was filed.
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1109(e) (2013), this Court must determine whether the district
court’s findings of fact are supported by clear and convincing
evidence, and whether the findings, in turn, support the court’s
conclusions of law. In re Gleisner, 141 N.C. App. 475, 480, 539
S.E.2d 362, 365 (2000). Any findings unchallenged by the
appellant are deemed to be supported by the evidence and are
binding. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729,
731 (1991). We review conclusions of law de novo. In re
J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006).
In order to constitute grounds for termination of parental
rights under N.C. Gen. Stat. § 7B-1111(a)(1), “[n]eglect must
exist at the time of the termination hearing[.]” In re C.W., 182
N.C. App. 214, 220, 641 S.E.2d 725, 729 (2007). Where a
juvenile has been placed outside of the parent’s home for a
significant period of time, “a trial court may find that grounds
for termination exist upon a showing of a ‘history of neglect by
the parent and the probability of a repetition of neglect.’” In
re L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d 236, 242 (2005)
(quoting In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403,
407 (2003)).
B. Neglect
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In her second argument, mother contends that the trial
court erred in finding that a history of neglect and a
probability of a repetition of neglect existed. Mother contends
that this finding was not supported by clear, cogent and
convincing evidence. We disagree.
In making its adjudication under N.C. Gen. Stat. § 7B-
1111(a)(1), the district court expressly found and concluded
that mother “has neglected the child . . . and there is a
probability of a repetition of neglect.”2 The court thus applied
the appropriate standard required by our case law.
Our Juvenile Code defines a neglected juvenile as one who,
inter alia, “does not receive proper care, supervision, or
discipline from the juvenile’s parent[.]” N.C. Gen. Stat. § 7B-
101(15) (2013) (emphasis added). At the time DSS assumed
custody of T.M. in November 2010, she was failing to thrive due
to lack of proper care from mother. Mother was also alleged and
found to have poor impulse control and an inability to
2
Although the district court cast these statements as conclusions
of law, the court’s labeling of a determination as a finding or
conclusion is “inconsequential.” In re R.A.H., 182 N.C. App.
52, 60, 641 S.E.2d 404, 409 (2007). They are perhaps best
characterized as ultimate findings of fact, inasmuch as they
“are the final facts required to establish the plaintiff's cause
of action or the defendant's defense[.]” Woodard v. Mordecai,
234 N.C. 463, 470, 67 S.E.2d 639, 644 (1951).
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“understand when she has placed [T.M.] in danger.” Although the
court adjudicated T.M. as dependent on 28 February 2011, its
adjudicatory findings clearly demonstrated T.M.’s status as a
neglected juvenile as defined by statute, as well as mother’s
responsibility for the conditions in the home. By recounting
these facts in findings 6 and 7 of the termination order, the
court established the history of neglect required by In re
L.O.K., 174 N.C. App. at 435, 621 S.E.2d at 242.
We believe the following additional findings of fact are
sufficient to show a probability of repetition of neglect if
T.M. was returned to mother’s care:
5. The child has been in the custody of
[DSS] since November 29, 2010. . . .
. . .
9. The mother, . . . age 22 years old, has
an extensive history of mental health
interventions and was enrolled in B&D
Behavioral Health Sciences (hereinafter
“B&D”) program in 2011 . . . . Dr. Amelia
Davis of B&D is the mother’s psychiatry and
medi[c]ation manager. . . .
10. According to Dr. Davis, the mother
presents with deficits in cognitive
functioning with evidence of developmental
delays, difficulty processing information,
limited understanding and insight, and a
history of poor self care skills and
hygiene. . . . The mother currently has an
Axis I diagnosis of Bipolar II disorder
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(primarily depressive), along with an Axis
II Mental Retardation, severity unspecified.
. . . The mother has been provided with
several opportunities to comply with
multiple pharmacological treatments and has
been on five (5) different medication
combination protocols due to lack of
compliance, side effects, and losing
medications. The mother’s psychiatric
disposition includes lack of insight, poor
judgments, lower cognition, and non-
compliance with treatment plans, all of
which make sustainable improvement difficult
and unlikely.
11. . . . Dr. Davis reports that it is
difficult to ascertain if total symptom
management can be attained with medication
due to the inability to ensure compliance,
the lack of insight and judgments that are
displayed by the mother, and her failure to
comply with best practice protocols of
pharmacological therapy combined with
outpatient therapy.
. . .
13. The mother has a history of smoking
cannabis . . . [and] admitted that the last
time she smoked marijuana was a month ago.
14. To date, the mother has failed to
acquire and sustain independent living
skills and continues to struggle managing
day to day activities. . . . The mother was
recently discharged from Taco Ball after two
weeks of employment. The mother is
insistent at desiring reunification with her
daughter but demonstrates limited insight
into recommendations such as parenting
classes, abstention from illicit substances,
and maintaining stable housing. To date,
the mother has not completed the Level 3
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parenting program as recommended by Durham
DSS.
15. The mother has a history of
homelessness. In July 2013, the mother was
terminated from the RHD Housing Program due
to violating housing rules. . . .
. . .
17. [T.M.] is 3 years old. . . .
. . .
19. [Mother] has scheduled visits with
[T.M.] every Monday night but has not
visited her since August 5, 2013. . . .
Prior to August 5, 2013, visits between the
mother and the child were sporadic.
20. The bond between the child and mother,
. . . has been weakened by the length of
time that the child has been in foster care
without daily contact with the parent and by
the parent’s failure to visit consistently.
Since mother does not challenge the evidentiary support for
these findings, they are binding on appeal. See Koufman, 330
N.C. at 97, 408 S.E.2d at 731.
The evidence likewise supports the court’s finding of a
probability of a repetition of neglect under N.C. Gen. Stat. §
7B-1111(a)(1). In addition to providing diagnoses of Bipolar II
disorder and mental retardation, Dr. Davis testified that
mother’s treatment team has “noted a lot of poor judgments, lack
of insight, . . . some cognitive concerns, [and] non-compliance
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with treatment plans within the recent couple of weeks.”
Mother’s most recent global adaptive functioning evaluation
produced a score of 38, which “means that there just needs to be
some pretty consistent psychiatric interventions and without
immediate psychiatric intervention, a person could potentially
qualify for hospitalization.” Dr. Davis described mother’s
compliance with treatment as inconsistent and characterized her
failure to take her medication as “a pretty significant
issue[.]” Mother’s case plan, which included maintaining
“stable housing, being able to provide self-care, [and] being
able to comply with treatment[,]” proved “challenging” for her.
As a result, she “ha[s]n’t been able to get that far” in
developing parenting skills.
Dr. Davis opined that mother was currently unable to care
for a child. She explained that mother would need to display a
“consistent ability to care for [her]self,” and to meet her
medication and “treatment targets for a period of six months to
a year . . ., with the understanding that [she] would probably
require some assistance.” Moreover, mother’s cognitive
limitations are expected to persist throughout her life and have
a “pretty significant” effect on her ability to take care of
herself. When asked about “the likelihood that [mother]’s
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ability to function would improve substantially in the
foreseeable future[,]” Dr. Davis replied, “The likelihood is
low.” Moreover, the testimony offered by mother’s DSS social
workers was consistent with Dr. Davis’s observations regarding
her lack of compliance with mental health treatment, housing
instability, and lack of capacity to parent a child.
We hold that the evidence supported the trial court’s
findings of fact, which in turn support the trial court’s
conclusions of law that T.M. was a neglected juvenile and that
there was a probability that mother would repeat that neglect,
as required by N.C. Gen. Stat. § 7B-1111(a)(1). Having upheld
the adjudication of neglect, we need not address the additional
grounds for termination found by the district court under N.C.
Gen. Stat. 7B-1111(a)(2) and (6). 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). The order terminating mother’s
parental rights is affirmed.
AFFIRMED.
Judges McGEE and ERVIN concur.
Report per Rule 30(e).