An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1378
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 17 June 2014




IN THE MATTER OF:                             Durham County
                                              No. 07 JT 34
Z.P.-S.



      Appeal by Respondent-mother from order entered 30 September

2013 by Judge Nancy E. Gordon in Durham County District Court.

Heard in the Court of Appeals 19 May 2014.


      Assistant County Attorney Robin K. Martinek for Petitioner
      Durham County Department of Social Services.

      Edward Eldred for Respondent-mother.

      Poyner & Spruill, LLP, by Andrew Erteschik                      and   Carrie
      Virginia McMillan, for Guardian ad Litem.


      STEPHENS, Judge.


      Respondent-mother        appeals    from     the   trial    court’s     order

terminating     her    parental     rights    to   Z.P.-S.     (“Zabia”).1        We

affirm.


1
  The parties stipulated to the use of the pseudonym “Zabia” to
protect the identity of the juvenile and for ease of reading.
                                      -2-
    On 7 February 2007, the Durham County Department of Social

Services (“DSS”) filed a juvenile petition alleging that six-

month-old Zabia was a neglected and dependent juvenile.                      At the

time, Respondent-mother was a minor.               The petition alleged that

Respondent-mother had mental health issues, used illegal drugs,

lacked stable housing, and had an unstable relationship with

Zabia’s father, including incidents of domestic violence.                         At

the time of the petition, Zabia’s maternal grandmother was the

primary provider of care for Zabia, but Respondent-mother had

shared that responsibility in the past.                    The petition further

alleged that while Zabia was safe in the grandmother’s home,

conflict      between     Respondent-mother              and   the     grandmother

interfered     with     Zabia’s    care.           DSS     requested    that     the

grandmother be given custody of Zabia.

    By     order   entered    on    14      June    2007,      the   trial     court

adjudicated     Zabia    dependent.          The     court     found    that    the

adjudication of dependency was a compromise, that the parties

stipulated to the findings, and that “[w]hile there is evidence

of neglect and of risk of neglect to the child, considering

[Respondent-]mother’s minority and her mental problems, there is

not clear and convincing evidence of neglect by [Respondent-



See N.C.R. App. P. 3.1(b).
                                       -3-
]mother.”     In the dispositional portion of the order, the trial

court placed Zabia in the custody of the grandmother and ordered

Respondent-mother      to   comply    with    certain     directives.        A   few

months later, the court modified its disposition by awarding DSS

custody of Zabia, but maintaining Zabia’s placement with the

grandmother.      On   14   July     2009,    the   court    entered    an   order

awarding guardianship to the grandmother.

      On 19 May 2011, DSS filed a petition alleging that Zabia

was   a   neglected    juvenile.        The    petition     alleged     that     the

grandmother    suffered     from     depression,    was     not    consistent    in

attending group therapy, and was taking double doses of                          her

sleep medication.      As a result, Zabia frequently missed daycare

and speech therapy, which she needed for treatment of a speech

impairment.    The trial court entered an order on 3 October 2011

adjudicating Zabia neglected based on a finding that she did not

receive necessary      medical or remedial care.                  The court also

found that Respondent-mother’s housing continued to be unstable

and that she had another child.              The trial court kept Zabia in

the guardianship of the grandmother, subject to a protection

plan.

      On 30 March 2012, the trial court entered a permanency

planning order    terminating the grandmother’s guardianship and
                                         -4-
placing    Zabia   in     DSS    custody,     based      upon    findings      that   the

grandmother      was     struggling      with    depression,           had   difficulty

regulating her medication, and had tested positive for cocaine

in a random drug test.             Due to the grandmother’s issues, Zabia

had numerous absences from school and speech therapy.                          The court

also found that Respondent-mother expressed a desire to have

Zabia placed in her home, but DSS was not able to complete a

home study prior to the hearing.                Respondent-mother cancelled a

home visit from DSS, did not want a DSS social worker to come to

her home or talk to her son, and refused to provide information

regarding her mental health services.                    The trial court ordered

Respondent-mother        to     cooperate     with    DSS’s     home    study    if   she

wished to pursue reunification with Zabia.

      On   6     May     2013,    DSS    filed       a   petition       to     terminate

Respondent-mother’s parental rights to Zabia which alleged as

grounds    for   termination:           (1)   neglect;        (2)    failure    to    make

reasonable progress; and (3) willful failure to pay a reasonable

portion of the cost of care for the juvenile.                           See N.C. Gen.

Stat. § 7B-1111(a)(1), (2), (3) (2013).                       Following a hearing,

the   trial      court    entered       an    order      on     30    September       2013

terminating Respondent-mother’s parental rights based upon the

conclusion that she willfully left Zabia in foster care for more
                                 -5-
than twelve months without making reasonable progress to correct

the conditions that led to removal.       The court concluded that it

was in Zabia’s best interest to terminate Respondent-mother’s

parental   rights.    Respondent-mother      gave   timely    notice    of

appeal.2

                         Standard of Review

     A trial court may terminate parental rights upon a finding

of any one of the grounds enumerated in our General Statutes.

N.C. Gen. Stat. § 7B-1111(a).     Here, the trial court terminated

Respondent-mother’s   parental   rights    pursuant   to     section   7B-

1111(a)(2), to wit, that the parent willfully left the juvenile

in foster care for more than twelve months, and the parent has

not made reasonable progress to correct the conditions which led

to the removal of the juvenile.        In re O.C., 171 N.C. App. 457,

464-65, 615 S.E.2d 391, 396, disc. review denied, 360 N.C. 64,

623 S.E.2d 587 (2005).

           [T]o find grounds to terminate a parent’s
           rights under [section] 7B-1111(a)(2), the
           trial   court  must   perform  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,

2
  The trial court also terminated the parental rights of Zabia’s
father, but he does not appeal.
                                       -6-
            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.

Id.

       On appeal, we review the trial court’s order to determine

“whether the trial court’s findings of fact were based on clear,

cogent, and convincing evidence, and whether those findings of

fact    support   a   conclusion      that    parental    termination      should

occur.”     In re Oghenekevebe, 123 N.C. App. 434, 435-36, 473

S.E.2d 393, 395 (1996) (citation omitted).               Any findings of fact

not    challenged     on   appeal    are   presumed    supported     by    clear,

cogent, and convincing evidence and are binding.                   In re M.D.,

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

                                    Discussion

       Respondent-mother     argues     (1)   that    certain   of   the    trial

court’s findings of fact are not supported by clear, cogent, and

convincing evidence; and (2) that the court’s conclusion of law

that she left Zabia in foster care for twelve months without

making reasonable progress to correct the conditions that led to

Zabia’s removal is not supported by its findings of fact.                      We

disagree.

I. Challenged findings of fact
                                              -7-
      Respondent-mother specifically challenges finding of fact

numbers     19(d),    32,    65,        and        67     as     lacking    the       necessary

evidentiary      support.         We    address         each     challenged       finding      in

turn.

      Finding    of   fact    number          19    details       Zabia’s      2007     initial

adjudication of dependency.               In subsection (d), the trial court

found that Zabia “was found to have been neglected, though it

was further found that due to [Respondent-m]other’s minority and

mental health issues, that she could not be held responsible for

the neglect of [Zabia].”                This finding is erroneous.                      In the

2007 adjudication order, the court found that, “[w]hile there is

evidence    of    neglect     and        of        risk     of    neglect        to    [Zabia],

considering      [Respondent-]mother’s                    minority       and     her        mental

problems, there is not clear and convincing evidence of neglect

by   [Respondent- ]mother.”              (Emphasis             added).      We    agree       with

Respondent-mother that finding number 19(d) is not supported by

competent     evidence       in        that    it         mischaracterizes            the     2007

adjudication order.          We conclude, however, that finding of fact

number 19(d) is not necessary to support the court’s ultimate

determination      regarding           Respondent-mother’s               failure       to     make

reasonable progress as a ground for termination of her parental

rights.     Rather, finding of fact number 19 simply details part
                                            -8-
of the procedural history of the case.                      Accordingly, any error

in the challenged portion of finding of fact 19 is harmless.

See In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240–41

(2006)       (“When      []ample    other     findings         of     fact    support       an

adjudication of neglect, erroneous findings unnecessary to the

determination do not constitute reversible error.”).

       Respondent-mother           next    takes    issue      with    the     portion     of

finding of fact 32 which states that, “[p]rior to her discharge

from     her        mental    health      treatment,      [Respondent-m]other              was

inconsistent in attending therapy; she did not see her providers

in   May      2012,     she    participated        in   June    2012,        but    did   not

participate in July 2012.”                Respondent-mother contends that this

finding        is     not     supported      by     the     evidence         because      she

participated in a telephone call to her therapist on 25 July

2012.      However, the case management records describe this phone

call    as     a    “crisis    contact”     rather      than    a   scheduled        therapy

session.       Those records further document that, at the conclusion

of   the      crisis     call,     the    staff    offered      Respondent-mother            a

therapy        appointment       which      she    declined,        citing         her    work

schedule.           Indeed, at the hearing, the trial court expressed

concerns       that    Respondent-mother’s          therapists        were     “frequently

used    for     crisis       management[]    and    not   for       actual     therapeutic
                                          -9-
purposes.”        Respondent-mother does not dispute that she often

missed therapy appointments and did not attend any scheduled

therapy sessions in July 2012.             We conclude that this portion of

finding of fact 32 is supported by clear, cogent, and convincing

evidence.

      Respondent-mother also challenges the portion of finding of

fact number 65 which states that “[Respondent-m]other’s excuses

for     missing     visitation      were        not    consistent        with        making

reasonable progress.”            The undisputed evidence established that

Respondent-mother did not attend visits with Zabia at Genesis

House in Durham, giving no reason for missing visits between

October 2012 and March 2013 except that she felt the social

workers there looked down on her.                     Respondent-mother’s excuse

for missing visits after March 2013 was that she lacked gas

money.     The evidence, however, showed that Respondent-mother was

living in Durham at a location served by public transportation

which     could    have    taken    her    to     the      site     of       the    visits.

Respondent-mother         notes    that    visitation           issues       were   not     a

condition which led to Zabia’s removal in 2007, and we agree.

However,     Respondent-mother’s          “instability”           was    a     factor      in

Zabia’s     removal,       and     Respondent-mother’s            inconsistency            in

attending    visitation      is     pertinent         to   an    evaluation         of    her
                                          -10-
stability      as    a   parent.        Accordingly,          we    conclude       that       the

challenged portion of finding of fact 65 is supported by clear,

cogent, and convincing evidence.

       In    finding      of   fact      67,    the     trial        court       found       that

“[Respondent-m]other has consistently shown a lack of progress

with court ordered services and a lack of cooperation with court

orders and Durham DSS.”                This is one of the court’s ultimate

findings, linking its other findings of fact to the conclusion

that    Respondent-mother’s            parental    rights          could    be    terminated

based on section 7B-1111(a)(2).                 Respondent-mother counters that

she made “great progress” as shown by the trial placement of

Zabia   with    Respondent-mother          ordered       in    December          2007    and    a

statement      in     that     order     that     Respondent-mother               “has       been

compliant      with      the   court    order,     and    she       continues       to       make

[p]rogress in all areas.”

       As    noted    supra,    in     engaging    in    the       second    part       of    the

analysis required to terminate a parent’s rights under section

7B-1111(a)(2), the trial court must determine 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. at 465,
                                        -11-
615 S.E.2d at 396.       In undertaking this determination, “there is

no specified time frame that limits the admission of relevant

evidence pertaining to a parent’s reasonable progress or lack

thereof.”    Id. (citation, internal quotation marks, and emphasis

omitted).     Thus, while the court was not limited to considering

Respondent-mother’s        progress        during        the      twelve     months

immediately preceding the filing of the petition in May 2013, it

also was not required to give greater weight to any progress

made many years before the petition was filed than to the more

recent years of the case.

    Findings     of     fact     22-31     detail      numerous     programs      and

services that the court ordered Respondent-mother to engage in

or attend     beginning in November 2011.                The findings further

detail her inconsistency in complying or complete failure to

comply with those orders.           These findings of fact demonstrate

Respondent-mother’s lack of progress, and, as discussed below,

amply support both ultimate finding of fact 67 and the trial

court’s conclusion of law pursuant to section 7B-1111(a)(2).

II. Conclusion of law regarding lack of reasonable progress

    In      asserting    error     in    the     trial    court’s     conclusion,

Respondent-mother       concedes    that       Zabia   was     removed     from   her

custody for the requisite amount of time.                 However, Respondent-
                                        -12-
mother disputes the trial court’s conclusion that she willfully

failed to make reasonable progress in correcting the conditions

that led to Zabia’s removal.                  Specifically, Respondent-mother

contends that her efforts to correct the conditions which led to

Zabia’s     removal    in     2007,    such     as   Respondent-mother’s        age,

domestic    violence    with     the     father,     and   drug    use,   are   not

addressed by       the trial court’s findings, which                focus on her

actions    after     2011.      We     find    Respondent-mother’s        arguments

unavailing.

    It is well-established that, under section 7B-1111(a)(2),

“willfulness does not require a showing of fault by the parent.”

In re Oghenekevebe, 123 N.C. App. at 439, 473 S.E.2d at 398

(citation omitted).          Further, “[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) (citation omitted).

    Although Zabia was originally removed from the home, in

part, due to Respondent-mother’s age, domestic violence with the

father, and drug use, other factors which led to the removal

included:     (1) Respondent-mother’s failure to address her mental

health     issues;     (2)     her     unstable      housing      and   employment

situations; and (3) her conflict with the grandmother, who was
                                           -13-
significantly involved in caring for Zabia.                        In an order entered

on 14 June 2007, the court listed the conditions which led to

Zabia’s       removal    and       adjudication       of   Zabia     as     a     dependent

juvenile       as   “mental         illness,       past      substance      use,        [and]

instability.”       In order to address these issues, the trial court

ordered Respondent-mother to be substance-free, have a substance

abuse evaluation and follow any resulting recommendations, have

a mental health evaluation and follow any recommendations, and

“maintain[] stability and develop a plan of care” for Zabia.                               In

a    review    order     entered      in   September       2007,     the    trial       court

ordered a trial placement of Zabia with Respondent-mother under

the    supervision       of    a    therapeutic       foster     parent     and       ordered

Respondent-mother         to       complete    a    parenting        program,         receive

needed    mental    health         services,    pursue       her    GED,    and       undergo

random    substance      abuse      screens.        Following       the    October       2011

adjudication of Zabia as a neglected juvenile, Respondent-mother

was ordered to maintain stable housing and employment, re-engage

in    mental    health    treatment,         attend    and     complete     a     parenting

program,       submit    to     substance      abuse       evaluation,          and    follow

recommendations         for     treatment.            In   May     and     August       2012,

Respondent-mother         was      ordered    to    re-engage       in    mental       health

treatment, complete a parenting program, maintain stable housing
                                           -14-
and employment, sign a release to permit DSS to monitor that

treatment, and stay in contact with DSS.

       The undisputed findings of fact show that Respondent-mother

failed to comply with her mental health treatment and address

her mental health needs.            She refused to sign a release for DSS,

stopped attending therapy in early September 2012, claimed that

she did not need therapy, was discharged from her mental health

provider for failing to attend sessions and maintain contact,

was inconsistent in attendance prior to her discharge, claimed

to     have   never      taken      any     medication        despite        having    been

prescribed      medication          in     connection         with     mental         health

treatment, and failed to incorporate a parenting component into

her mental health treatment.

       Additionally,         Respondent-mother               failed         to     maintain

consistent     contact       with    DSS,        and   she    failed    to       facilitate

communication between DSS and her mental health provider, which

prevented     DSS     from   being        able    to   assess    her    stability         and

ability to care for Zabia.                 These findings of fact demonstrate

that    Respondent-mother’s              attempts      to    make     progress        toward

regaining custody of Zabia fell short of reasonable efforts.

Accordingly,        we   hold    that      the    trial      court    did    not    err    in
                                       -15-
concluding       that   termination     of    Respondent-mother’s         parental

rights was justified pursuant to section 7B-1111(a)(2).

    DSS     argues      that   the    trial   court    erred    in     failing    to

conclude   that     grounds    also    existed    to   terminate       Respondent-

mother’s rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) and

(a)(3).    However, if this Court determines that the findings of

fact support one ground for termination, we need not review the

other grounds.          In re Humphrey, 156 N.C. App. 533, 540, 577

S.E.2d    421,    426-27   (2003).       Having   affirmed          termination   of

Respondent-mother’s        parental      rights    based       on     section     7B-

1111(a)(2), we do not address DSS’s arguments as to the other

grounds.

    AFFIRMED.

    Judges BRYANT and DILLON concur.

    Report per Rule 30(e).
