An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-351
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 19 August 2014


IN THE MATTER OF:

W.J.B.                                        Rutherford County
                                              No. 12 JT 007




      Appeal by respondent-mother from order entered 10 January

2014 by Judge       Laura A. Powell         in Rutherford County          District

Court.    Heard in the Court of Appeals 28 July 2014.


      Merri Burwell Oxley, for Rutherford County Department of
      Social Services, petitioner-appellee.

      Parker Poe Adams & Bernstein, LLP, by Andrew A. Bennington,
      for guardian ad litem.

      Levine & Stewart, by James E. Tanner, III, for respondent-
      mother appellant.


      DILLON, Judge.


      Respondent-mother        appeals    from    the    trial    court’s     order

terminating her parental rights to the minor child, Walter.1                      We

affirm the trial court’s order.



1
      A pseudonym.
                                            -2-
    Rutherford       County      Department        of     Social       Services    (“DSS”)

became   involved     with      this    family      in     December       2011    when   it

received a report that Walter, who was eleven years old at the

time, had brought a knife to school and talked about killing

another child at school.             Walter has Lennox-Gastaut syndrome, a

severe form of epilepsy, autism, and attention deficit disorder.

He has an I.Q. of 44, has difficulty communicating with others,

lacks appropriate social skills, and often reacts aggressively

or violently toward others.

    On      18     December       2011,        during          DSS’s     investigation,

respondent-mother was arrested for possession of methamphetamine

and drug paraphernalia.           DSS substantiated the case on 3 January

2012 and Walter was placed in kinship care with his maternal

grandparents.       The       placement      was   not     successful       because      the

grandparents      could   not     manage      Walter’s         behaviors.         Walter’s

father     is    deceased      and     no     other       suitable       caregiver       was

identified.         On    10      January         2012,        respondent-mother         was

incarcerated and charged with more criminal offenses.                               On 17

January 2012, DSS filed a juvenile petition alleging Walter was

a neglected and dependent juvenile.                       On that same date, DSS

obtained    custody      of    Walter       pursuant      to    a   nonsecure      custody

order.
                                       -3-
       The petition came on for hearing on 20 February 2012.                 The

trial court adjudicated Walter neglected and dependent.                      The

trial    court        ordered    respondent-mother     to     cooperate      with

developing an Out-of-Home Family Services Agreement, which may

include substance abuse assessment and treatment as recommended,

random hair and urine drug screens, mental health assessment and

treatment as recommended, specialized parenting skills training,

and intensive home services for the family.

       On 8 May 2012, the trial court conducted the initial 90-day

review hearing.         At the time of the hearing, respondent-mother

had not met with DSS to establish her case plan and had not

started any services.           By the time of the next review hearing on

25 October 2012, respondent-mother had agreed to have mental

health and substance abuse assessments, but had not completed

the    assessments.        Respondent-mother     had   also   agreed    to   take

parenting classes.         On 2 January 2013, the trial court conducted

a permanency planning hearing.               Respondent-mother had started

services through Parkway Behavioral, but was last seen on 8

November      2012.      Respondent-mother     maintained     monthly    contact

with    her    probation    officer,    but    had   not    started    parenting

classes.      The trial court concluded that the permanent plan of
                                          -4-
reunification        with     respondent-mother       was      in        Walter’s     best

interest.

      After a permanency planning hearing held on 9 April 2013,

the     trial    court      ceased    reunification     efforts,           changed     the

permanent plan to adoption, and ordered DSS to file a petition

to terminate respondent-mother’s parental rights.                           On 26 June

2013,    DSS    filed    a   petition     to     terminate    respondent-mother’s

parental rights and alleged the grounds of neglect, willfully

leaving the minor child in foster care for more than twelve

months     without       making      reasonable     progress        to     correct    the

conditions which led to removal of the child from the home,

willfully failing to pay a reasonable portion of the cost of

care for the minor child, and willfully abandoning the minor

child.     See N.C. Gen. Stat. § 7B-1111(a)(1), (2), (3), and (7)

(2013).

      The trial court conducted a termination of parental rights

hearing    on    1   November     2013.     The    trial     court       found   grounds

existed     to       terminate       respondent-mother’s        parental            rights

pursuant to N.C. Gen. Stat. § 7B-1111(a)(2).                        The trial court

determined       that    termination      of     respondent-mother’s             parental

rights was in the best interest of the minor child, and entered

an order terminating her rights.                Respondent-mother appeals.
                                     -5-
      ___________________________________________________________

      Respondent-mother      contends      the    trial       court   improperly

determined that grounds existed to terminate her parental rights

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

argues evidence that she failed to comply with her case plan is

not   the   same   as   evidence   that    she   made    no   progress   on   the

conditions that led to Walter’s removal.                We are not persuaded

and find the trial court properly concluded grounds existed to

terminate respondent-mother’s parental rights.

      “The standard for review in termination of parental rights

cases is 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 Clark, 72 N.C.

App. 118, 124, 323 S.E.2d 754, 758 (1984).

      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.
                               -6-
N.C. Gen. Stat. § 7B-1111(a)(2).        “Willfulness is established

when 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).     “A finding of willfulness is

not precluded even if the respondent has made some efforts to

regain custody of the children.”     In re Nolen, 117 N.C. App.

693, 699, 453 S.E.2d 220, 224 (1995).

    Respondent-mother   only   challenges    finding   of   fact   13.

However, as to the remaining findings in the present case, the

trial court found:

         11. The minor child has been in the custody
         of DSS since January 17, 2012.

         12. The minor child was adjudicated a
         neglected and dependent child in an order
         entered on February 20, 2012.       When the
         respondent mother was release[d] from jail a
         case plan was worked out with her.        The
         Respondent Mother was to comply with her Out
         of Home Case Services Plan that included:
         obtaining a mental health assessment and a
         substance abuse assessment and follow up
         with   any   recommendations   made  in   the
         assessments, submit to random drug screens,
         attend   and   complete   parenting  classes,
         obtain employment, pay child support and
         obtain appropriate and stable housing for
         her and the minor child.         A visitation
         schedule was also worked out with the
         Respondent Mother.

              . . . .
                     -7-


14.   The   Respondent  Mother   obtained   a
substance abuse assessment on November 8,
2012 in which treatment was recommended.
She did not show for three scheduled classes
and has not completed her treatment.      DSS
has been unable to find the Respondent
Mother for a random drug screen.

15. The Respondent Mother pled guilty to
Larceny from the Person and [Possession of]
Methamphetamine on September 3, 2013 and she
received an 8-19 month sentence in the North
Carolina Department of Adult Correction.
The date of offense for the charges was July
28,   2013.     The   Respondent  Mother  is
presently incarcerated on those charges.

16. The Respondent Mother said she completed
parenting classes on May 13, 2013 but DSS
has   not    received   a   certificate   of
completion. The classes are offered twice a
week.    DSS was relieved of reunification
efforts pursuant to a permanency planning
order dated April 19, 2013.

17. The Respondent Mother has not obtained
employment and she has not obtained suitable
housing.

18. The Respondent Mother was ordered on
August 1, 2013 to pay child support in the
amount of $217.00 a month. She has not made
any child support payments.

19.   A   weekly  visitation schedule  was
arranged for the Respondent Mother and the
minor child.     On December 21, 2012 the
Respondent Mother asked that the visits be
every other week.

20. The Respondent Mother last visited with
the minor child on January 10, 2013.    She
did not contact DSS about seeing the minor
                                       -8-
            child from January 18, 2013 until April 9,
            2013   when  the   Court relieved  DSS  of
            reunification and visitation efforts with
            the Respondent Mother.

            21. The Respondent Mother has made very
            little effort to work her case plan and
            continues to have substance abuse problems.

            22. The minor child has been in the custody
            of DSS for 22 months.

Since respondent-mother has not challenged any of these findings

as lacking evidentiary support, they are deemed to be supported

by competent evidence and are binding on appeal.                        In re M.D.,

200 N.C. App. 35, 43, 682 S.E.2d 780, 785 (2009).

       Respondent-mother contends she had made progress, including

completing   parenting       classes    and    remaining        clean   for    over   a

year.       However,    at     the     time    respondent-mother           completed

parenting classes, Walter had been in DSS custody for over a

year.    Moreover, respondent-mother’s circumstances at the time

of the termination hearing were much the same as when Walter

came into custody.       Respondent-mother was incarcerated, did not

have    stable   housing     or    employment,      and     continued         to   have

substance    abuse     issues.         We     conclude     the     trial       court’s

unchallenged     findings     of     fact     support     its     conclusion       that

respondent-mother’s failure to correct the conditions which led

to the removal of Walter was willful.                   Accordingly, the trial
                                       -9-
court   did     not   err   in   determining       that    grounds    existed   to

terminate respondent-mother’s parental rights pursuant to N.C.

Gen.    Stat.    §    7B-1111(a)(2).         The   trial    court’s    order    is

affirmed.

       AFFIRMED.

       Judge Robert C. HUNTER and Judge DAVIS concur.

       Report per Rule 30(e).
