An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                         -2-


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.
                                         -3-


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.
                                       -4-


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
                                              -5-


       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).
                                  -6-


“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
                      -7-


(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
                                   -8-


           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
                                            -9-


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
                                           -10-


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).
