An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .



                               NO. COA14-209
                      NORTH CAROLINA COURT OF APPEALS

                           Filed:      15 July 2014


IN THE MATTER OF:                        Rutherford County
                                         No. 11 JT 039
E.L.H.,
     A Minor Child.


                         _________________________


IN THE MATTER OF:                        Rutherford County
                                         No. 11 JT 040
R.N.H.,
     A Minor Child.


      Appeal by respondent from orders entered 2 December 2013 by

Judge   Laura    A.    Powell   in   Rutherford     County    District     Court.

Heard in the Court of Appeals 30 June 2014.


      Merri Burwell Oxley, for petitioner-appellee.

      Michael E. Casterline, for respondent-appellant.

      K&L Gates LLP, by Leah D’Aurora Richardson, for Guardian ad
      Litem.


      MARTIN, Chief Judge.


      Respondent      appeals   from    orders    terminating     her   parental

rights to her minor children E.L.H. and R.N.H.                    We affirm in
                                               -2-

part and remand in part.

       On 6 April 2011, the Rutherford County Department of Social

Services (“DSS”) filed petitions alleging that E.L.H., age four,

and R.N.H., age two, were neglected and dependent juveniles.

The     court        entered    orders         adjudicating         them     as    dependent

juveniles on          17 June 2011.            In its     adjudication         orders,      the

court found that DSS became involved with the family after it

received        a     report,     which        was     subsequently         substantiated,

concerning          domestic      violence        between          respondent       and     her

boyfriend.          The report also raised concerns about drug usage and

about respondent’s untreated mental health issues.                                 Respondent

was    subsequently          arrested     on    charges       of    driving       without    an

operator’s license and two counts of misdemeanor child abuse.

Due to her incarceration, the children were placed in kinship

care    with        respondent’s       sister    until    6 April          2011,    when    the

children’s maternal relatives notified DSS that they could no

longer keep the children.                 Respondent was asked to provide an

alternative placement but no family members were willing to take

the children.          The address of the children’s father was unknown.

       After a permanency planning hearing on 13 June 2013, the

court    entered        an     order    in     which     it    found       that,    in     late

January 2013,          respondent        sold        marijuana       on      two    separate

occasions in her home.                  These transactions were recorded by
                                            -3-

audio    and    video.        A    convicted      felon   who    possessed     a   stolen

firearm was in the residence with respondent for one of these

transactions and “actually participated in said sale.”                             After

determining that returning the minor children to respondent’s

home “would be contrary to the welfare” of the children, the

court changed the permanent plan to adoption and ordered DSS to

pursue termination of respondent’s parental rights.

       DSS     filed   petitions       to    terminate       respondent’s       parental

rights to both minor children on 1 August 2013.                          After hearing

the     matter,    the     court      entered       orders      on    2 December      2013

terminating respondent’s parental rights to both minor children

on the grounds that she willfully left the children in foster

care    for    more    than       twelve    months    without        making   reasonable

progress in correcting the conditions that led to the removal of

the children pursuant to N.C.G.S. § 7B-1111(a)(2).                            The court

concluded that termination of respondent’s parental rights was

in the best interests of each child.                      Respondent appeals from

these orders.

                           _________________________

       Respondent        first      contends       the    trial       court   erred     by

terminating her parental rights to the minor children based on

the court’s conclusion that she willfully left the children in

foster care for more than twelve months without showing that she
                                                 -4-

had made reasonable progress in correcting the conditions which

led    to     their      removal.        She     asserts      that,     in     reaching     this

conclusion,           the     trial      court         “ignored”        evidence      of      her

“considerable efforts to improve her own mental health,” as well

as     “the    improvements          she    made       in    the    areas      of    household

stability and parenting.”

       “Termination of parental rights is a two-step procedure.”

In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 5, disc.

review denied, 358 N.C. 543, 599 S.E.2d 42 (2004).                                 “During the

initial adjudication phase of the trial, the petitioner seeking

termination must show by clear, cogent, and convincing evidence

that    grounds       exist     to     terminate       parental     rights.”          Id.      “A

finding of any one of those grounds is sufficient to support

termination         of      parental    rights.”            Id.     “If      the    petitioner

succeeds       in     establishing         the    existence        of    any    one    of    the

statutory       grounds       listed       in    [N.C.G.S.]        § 7B–1111,       the     trial

court moves to the second, or dispositional, stage, where it

determines whether it is in the best interests of the child to

terminate the parental rights.”                        Id. (internal quotation marks

omitted).

       “The standard of 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
                                         -5-

turn, support the conclusions of law.”                   Id. at 221, 591 S.E.2d

at 6 (internal quotation marks omitted).                        “We then consider,

based on the grounds found for termination, whether the trial

court abused its discretion in finding termination to be in the

best interest of the child.”            Id. at 222, 591 S.E.2d at 6.

       N.C.G.S. § 7B-1111(a)(2) provides, in relevant part, that

the trial court may terminate parental rights upon a finding

that “[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.”

N.C. Gen. Stat. § 7B-1111(a)(2) (2013).                       To sustain         a    trial

court’s      decision      to   terminate          parental     rights     under       this

statutory     ground,      we   must    “determine       that      there   was       clear,

cogent, and convincing evidence that (1) respondents ‘willfully’

left the juvenile in foster care for more than twelve months,

and    (2) that     each   respondent        had    failed    to    make   ‘reasonable

progress’      in    correcting        the    conditions        that     led     to    the

juvenile’s removal from the home.”                   In re Baker, 158 N.C. App.

491, 494, 581 S.E.2d 144, 146 (2003).                  “Willfulness may be found

under this statute where the parent, recognizing her inability

to care for the child, voluntarily leaves the child in foster
                                        -6-

care.”     In re Oghenekevebe, 123 N.C. App. 434, 440, 473 S.E.2d

393, 398 (1996).           Additionally, “[w]illfulness 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).                    Further, “[w]illfulness

may be found where[,] even though a parent has made some attempt

to regain custody of the child, the parent has failed to show

reasonable      progress    or    a   positive      response      to    the    diligent

efforts of DSS.”         In re Clark, 159 N.C. App. 75, 84, 582 S.E.2d

657, 662 (2003) (internal quotation marks omitted).

       In the present case, respondent does not dispute that, at

the time this matter was heard by the trial court, the minor

children had been in foster care for 939 days, which represented

one-third of E.L.H.’s life and one-half of R.N.H’s life to date.

Respondent contends only that the court erred by determining

that she had left the children in foster care for more than

twelve    months    “without      showing,     to   the    satisfaction         of    the

[c]ourt, that reasonable progress under the circumstances ha[d]

been made in correcting those conditions that led to the removal

of the juvenile[s].”             However, the trial court’s unchallenged

findings    of    fact    reflect     that    the   court    removed          the   minor

children    from    respondent’s      home     in   2011    “due       to   reports    of
                                       -7-

domestic violence in the home,” and due to “concerns about the

respondent mother’s drug usage and mental health status.”              The

court    also    found    that,   in     late   January 2013,   respondent

participated in two separate illegal drug sales at her home, was

subsequently arrested for two counts of possession with intent

to sell and deliver marijuana, and later pled guilty to these

charges.    The court further found that, on 5 February 2013,

respondent “was involved in an illegal gun sale in which she

assisted” “a convicted felon and known gang member,” who was

present during the sale, by frisking an informant who arrived to

purchase the gun.        The court also found the following as to each

child:

           21.    By her own testimony, the respondent
                  mother did not think there was anything
                  wrong with a convicted felon selling a
                  firearm from her residence.

           22.    The respondent mother also thinks her
                  association with drug dealers and a
                  convicted felon selling firearms is
                  acceptable and even believes she has
                  the   blessing of   her  therapist  to
                  continue to associate with such people
                  and thought this association was good
                  for her.

           23.    The respondent mother’s judgment is
                  clearly impaired, not by substances but
                  by her mental illness.

           24.    The [c]ourt is not aware of any other
                  services that could be offered to the
                  respondent mother that would modify her
                                           -8-

                     behavior such that it would be safe to
                     return the [minor children] to the
                     respondent mother’s care.

              25.    That the respondent mother’s home where
                     she sold illegal controlled substances
                     and where a convicted felon was present
                     with a stolen firearm is not a safe
                     environment for the [minor children].

              26.    That the [minor children have] been in
                     foster care for the last 30 months.

Although respondent directs this Court’s attention to evidence

that    she       complied    with      DSS’s     recommendations       to     complete

parenting classes, obtain appropriate housing, and participate

in substance abuse and mental health assessments and follow-up

treatment, as we recognized above, “[w]illfulness may be found

where[,] even though a parent has made some attempt to regain

custody of the child, the parent has failed to show reasonable

progress or a positive response to the diligent efforts of DSS.”

See    In    re    Clark,    159 N.C.      App.    at    84,      582 S.E.2d    at    662

(emphases      added)      (internal      quotation      marks     omitted).         Thus,

because the unchallenged findings——which are binding on appeal,

see Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731

(1991) (“Where no exception is taken to a finding of fact by the

trial       court,   the     finding     is     presumed     to    be   supported      by

competent      evidence      and   is    binding    on     appeal.”)——support         the

trial   court’s       conclusion        that    respondent     willfully       left   the
                                  -9-

minor children in foster care without making reasonable progress

in correcting the conditions which led to their removal from the

home, we overrule this issue on appeal.

      Respondent next contends the trial court erred by failing

to make written findings concerning the bond between respondent

and the minor children when determining whether terminating her

parental rights to E.L.H. and R.N.H. would be in each child’s

best interest.

      In determining whether termination of parental rights is in

the best interest of a child, the trial court is required to

“consider” and “make written findings regarding the following

that are relevant,” N.C. Gen. Stat. § 7B-1110(a) (2013):

          (1)    The age of the juvenile.

          (2)    The likelihood    of    adoption   of   the
                 juvenile.

          (3)    Whether the termination of parental
                 rights will aid in the accomplishment
                 of the permanent plan for the juvenile.

          (4)    The bond   between     the   juvenile   and
                 parent.

          (5)    The quality of the relationship between
                 the juvenile and the proposed adoptive
                 parent, guardian, custodian, or other
                 permanent placement.

          (6)    Any relevant consideration.

Id.   While N.C.G.S. § 7B-1110(a) “requires the trial court to
                                           -10-

‘consider’ all six of the listed factors,” In re D.H., __ N.C.

App. __, __, 753 S.E.2d 732, 735 (2014), “the court must enter

written    findings        in   its    order   concerning      only     those     factors

‘that are relevant.’”              Id. at __, 753 S.E.2d at 735 (emphases

added).     Where issues with respect to one or more factors——for

example, concerning “the quality of the bond between [a minor

child]    and    respondent[——]were            raised    during     [a]    termination

hearing, but the trial court did not make any written findings

regarding these factors,” see In re J.L.H., __ N.C. App. __, __,

741 S.E.2d 333, 338 (2012), this Court has determined that the

trial court erred and has remanded the matter to the trial court

“for entry of appropriate findings pursuant to [N.C.G.S.] § 7B-

1110(a),”    id.      at    __,   741 S.E.2d      at    338,    where      “the    record

contain[ed] evidence from which the court could make findings as

to this factor.”           Id. at __, 741 S.E.2d at 338.

    Here,       the    reports        submitted   by    DSS    to   the    trial   court

indicate    that,      prior      to    respondent’s     arrest,      respondent      was

granted limited, unsupervised, weekly visitation with the minor

children, which visits “went well,” and that both children “were

eager to live with” respondent.                 The guardian ad litem’s report

submitted       in    connection        with   the     24 April     2013    permanency

planning hearing for both children indicates that E.L.H. “has

expressed somewhat of an interest in returning to his mother,”
                                         -11-

and that R.N.H. “is too young to be sure what he wants.”                            The

guardian     ad    litem       recommended   that   respondent      be    allowed    to

“have many unsupervised visits with her children, as dictated by

the [c]ourt, until their return to her is proven the absolute

right thing for them.”

     During        the     dispositional        portion     of     the    termination

proceedings, a DSS social worker testified that the children

“are bonded with the mother.”                The social worker also testified

that, after reunification efforts ceased, the children inquired

about the welfare of their mother but did not appear to have

issues concerning the cessation of their visitations with her.

Respondent also testified with respect to the efforts she made

to have the children returned to her care.                       She testified that

she “put [the minor children] before [her] so much so that [she]

ha[s] done lots of things that [she] did not want to do in their

best interest for them and for only them.”                       She also declared

that she “love[s] them so much,” and that she “would never harm

them”   or    “allow       them    to   be   abused    either.”          She    further

testified that, before the minor children were taken away from

her, she kept a diary concerning E.L.H. every day, from the

child’s birth until he was eight months old.                       In light of the

evidence presented to the trial court regarding the bond between

respondent        and    the    minor   children,     and   in    light    of   recent
                                           -12-

decisions     from     this       Court,   we     conclude         that     the    foregoing

evidence      placed       the    statutory      factor       of    the     bond    between

respondent and the minor children into issue.                               Therefore, we

hold that the trial court erred by failing to make a finding of

fact    concerning         the    bond   between       respondent          and    the    minor

children.          Thus,    we    affirm   the    adjudicatory            portion       of   the

court’s orders determining that E.L.H. and R.N.H. are dependent

and that respondent willfully left the minor children in foster

care    for   more     than       twelve   months      without        showing,      to       the

satisfaction of the trial court, that reasonable progress has

been made in correcting those conditions that led to the removal

of   the    minor     children.          With    respect      to     the    dispositional

portion of the court’s orders, we remand this matter to the

trial      court    with     instruction        that    the        court    make    further

findings      of    fact     in    accordance      with       N.C.G.S.       § 7B-1110(a)

concerning the bond between respondent and each child in order

to determine whether termination of respondent’s parental rights

is in the best interest of the children.

       Affirmed in part and remanded in part.

       Judges ELMORE and HUNTER, JR. concur.

       Report per Rule 30(e).
