IN RE: J.C.S

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-685 NORTH CAROLINA COURT OF APPEALS Filed: 31 December 2014 IN THE MATTER OF: J.C.S. Nash County No. 12 JT 102 Appeal by respondent mother from order entered 31 March 2014 by Judge William C. Farris in Nash County District Court. Heard in the Court of Appeals 24 November 2014. Staff Attorney Jayne B. Norwood for petitioner-appellee Nash County Department of Social Services. Windy H. Rose for respondent-appellant mother. Ellis & Winters, LLP, by James M. Weiss, for guardian ad litem. DIETZ, Judge. Respondent mother appeals terminating her parental rights. court’s detailed findings from the trial court’s order As explained below, the trial concerning Respondent’s failure to address her serious alcohol abuse problem are supported by clear and convincing evidence. Those findings, in turn, support the -2court’s conclusion reasonable progress that Respondent toward willfully reunification, failed thus termination of Respondent’s parental rights. to make supporting In addition, the trial court did not abuse its discretion by declining to appoint Respondent a guardian ad litem as there was no indication that Respondent lacked capacity or was incompetent. Accordingly, we affirm the trial court’s order. Facts and Procedural Background On 11 Services June (DSS) hospitalized seizure. 2012, received after she the a Nash County report suffered Department that from Respondent an alcohol of Social had been withdrawal Until that time, Respondent was drinking two to three 40-ounce bottles of malt liquor to the point of intoxication on a daily basis. Respondent lived in a motel room with J.C.S., her then eight-month-old child, who went hungry most days and was significantly underweight. J.C.S. is the fourth child that Respondent failed to parent. Respondent entered into a voluntary placement agreement with DSS and agreed to enter a long-term inpatient treatment facility. Respondent appeared to improve for a few weeks, but later admitted to drinking. When questioned about why she was drinking, Respondent explained that she was “testing herself.” -3On 9 August 2012, Respondent declined to visit J.C.S. and admitted she had relapsed. On 5 September 2012, DSS filed a petition alleging the juvenile was neglected and dependent, and J.C.S. was placed in non-secure custody. A guardian Respondent on 20 September 2012. ad litem was appointed for In an order entered 4 December 2012, the trial court adjudicated the juvenile dependent and ordered Respondent treatment, to to continue continue to take in intensive psychiatric outpatient medication as directed, to obtain and maintain stable housing and employment, and to attend and complete a parenting class and demonstrate what she had learned in the class. In a 21 February 2013 permanency planning order, the trial court set a permanent plan of reunification for the juvenile, but expressed concern that Respondent had an ongoing relationship with the juvenile’s father that caused her to be exposed to alcohol. During this time, Respondent relapsed into alcohol abuse and, as a result, was terminated from her alcohol abuse program on 18 February 2013. exiting treatment. She had at least two more relapses after On 10 July 2013, the trial court entered an order changing the permanent plan to adoption and ordering DSS to cease reunification efforts with Respondent. On 13 September -42013, DSS filed a motion to terminate Respondent’s parental rights. DSS alleged four grounds to terminate her parental rights: (1) neglect; (2) willful failure to make reasonable progress; (3) willful failure to pay a reasonable portion of the cost of care; and (4) dependency. N.C. Gen. Stat. §§ 7B- 1111(a)(1)-(3), (6) (2013). After a hearing on 9 and 10 January 2014, the trial court entered an order terminating Respondent’s parental rights and those of J.C.S.’s father. The trial court concluded that grounds existed to terminate Respondent’s parental rights based on willful failure to make reasonable progress and based on dependency, and that termination of Respondent’s parental rights was in the juvenile’s best interests. Respondent timely appealed. Analysis I. Grounds for Termination of Parental Rights Respondent concluding rights. first that For argues grounds the that existed reasons the to discussed trial court terminate below, we her erred by parental reject this argument and hold that grounds for termination existed based on Respondent’s willful failure to make reasonable progress toward reunification. -5At a termination of parental rights hearing, the burden is on the petitioner to prove by clear and convincing evidence that at least one ground for termination exists. N.C. Gen. Stat. § 7B-1109(f) (2013); In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, limited to 908 (2001). determining Review whether in clear the and appellate courts convincing is evidence exists to support the findings of fact, 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). “When the trial court is the trier of fact, the court is empowered to assign weight to the evidence presented at the trial as it deems appropriate.” In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 397 (1996). “[F]indings of fact made by the trial court . . . are conclusive on appeal if there is evidence to support them.” In re H.S.F., 182 N.C. App. 739, 742, 645 S.E.2d 383, 384 (2007) (citation and internal quotation marks omitted). “‘[W]here no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent S.D.J., 192 evidence N.C. App. and 478, is binding 486, 665 on appeal[.]’” S.E.2d 818, 824 In re (2008) (quoting Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)). -6The trial court terminated Respondent’s parental rights on two alternative grounds, the first of which was willful failure to make reasonable progress toward correcting the conditions that led to the juvenile’s removal from the home. Stat. § 7B-1111(a)(2). N.C. Gen. In terminating parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), the trial court must conduct 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., 171 N.C. App. 457, 464-65, 615 S.E.2d 391, 396 (2005). Respondent argues that the trial court erred in the second part of this analysis because the court failed to acknowledge that she “made substantial progress in correcting the conditions that led to her child’s removal, such as completing an alcohol rehabilitation program” and “testing negative for alcohol aside from two times.” We disagree. -7To be sure, as Respondent contends on appeal, the record indicates that she made some efforts to address her alcoholism. But that is not enough. reasonable progress. children. efforts “Extremely limited progress is not This standard operates as a safeguard for If parents were not required to show both positive and positive results, a parent could forestall termination proceedings indefinitely by making sporadic efforts for that purpose.” In re J.W., 173 N.C. App. 450, 465, 619 S.E.2d 534, 545 (2005), aff’d per curiam, 360 N.C. 361, 625 S.E.2d 780 (2006) (citations, brackets, and quotation marks omitted). Here, despite some progress, Respondent continued to suffer from serious alcohol abuse problems. court made Respondent’s relapses abuse detailed, history into alcohol treatment, employment, of and In its order, the trial uncontested alcohol abuse, inability inconsistent abuse, refusal to findings attempts of maintain involvement describing at sobriety, inpatient substance stable with housing the or juvenile during available visitations, often as a result of substance abuse. The court requests to re-enter expressly an found inpatient that alcohol Respondent abuse declined program and -8refused to stop drinking. Respondent also testified at the termination hearing that she was “an alcoholic.” These findings support the trial court’s conclusion that Respondent “has not addressed the substance abuse that led to the removal of her child” and therefore had not made “reasonable progress” to correct the conditions that led to the removal. Accordingly, we reject Respondent’s termination of parental rights. of willful failure argument and affirm the Because we affirm on the basis to make reasonable progress, we need not reach the trial court’s alternative ground for termination. 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). II. Appointment of a Guardian ad Litem Respondent next argues that the trial court abused its discretion by failing to appoint her a guardian ad litem. We disagree. “On motion of any party or on the court’s own motion, the court may appoint a guardian ad litem for a parent incompetent in accordance with G.S. 1A-1, Rule 17.” Stat. § 7B-1101.1(c) (2013).1 1 who is N.C. Gen. “A trial judge has a duty to The statute was amended, effective for cases pending as of 1 October 2013, to remove language referencing a parent’s “diminished capacity.” 2013 N.C. Sess. Laws 129. -9properly inquire into the competency of a litigant in a civil trial or judge’s proceeding attention, when which circumstances raise a are brought substantial to question the as to whether the litigant is non compos mentis.” In re J.A.A. & S.A.A., 45, 175 N.C. App. 66, 72, 623 S.E.2d 49 (2005). “Whether to conduct such an inquiry is in the sound discretion of the trial judge.” In re A.R.D., 204 N.C. App. 500, 504, 694 S.E.2d 508, 511, aff’d per curiam, 364 N.C. 596, 704 S.E.2d 510 (2010) (citation omitted). An incompetent adult “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.” Gen. Stat. § 35A-1101(7) (2013). The trial court is N.C. not required to appoint a guardian ad litem in every termination of parental rights case where a cognitive limitation is alleged. Rather, the trial court should appoint guardians in cases where parents “would be unable to aid in their termination of parental rights proceeding.” N.C. App. at 71, 623 S.E.2d at 48. defense at the In re J.A.A., 175 -10Here, the trial court acted within its discretion by not appointing Respondent a guardian ad litem during the termination phase. a As Respondent acknowledges, she was initially appointed guardian ad litem substance abuse. withdrew, Respondent from 20 September 2012 because of her At a hearing held after the guardian ad litem guardian ad litem. suffered on testified that she no longer needed a The court then found Respondent no longer diminished capacity, the prior standard for appointment of a guardian ad litem, and declined to appoint her a new one. Finally, although the termination motion relied in part on allegations record of suggests Respondent’s substance Respondent’s abuse, substance nothing abuse in the rendered her incompetent, or incapable of aiding in her own case, at the termination hearing. In fact, Respondent testified in a cogent manner at the termination hearing. Accordingly, we hold the trial court did not abuse its discretion in declining to appoint Respondent a guardian ad litem. We therefore affirm the order terminating Respondent’s parental rights. Affirmed. Judges STROUD and DILLON concur. Report per Rule 30(e).

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