An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1474
                       NORTH CAROLINA COURT OF APPEALS

                                Filed:    3 June 2014


IN THE MATTER OF:                              Johnston County
H.B., H.C., N.D., B.D.                         Nos. 11 JT 166-69


      Appeal by respondent from orders entered 23 October 2013 by

Judge Paul A. Holcombe, III, in Johnston County District Court.

Heard in the Court of Appeals 28 April 2014.


      Holland & O’Connor, P.L.L.C., by Jennifer S. O’Connor, for
      petitioner-appellee Johnston County Department of Social
      Services.

      Marie H. Mobley for guardian ad litem.

      Mercedes O. Chut for respondent-appellant mother.


      McCULLOUGH, Judge.


      Respondent      appeals    from    orders    terminating     her    parental

rights as to the minor children H.B. (born in 2001), H.C. (born

in   2003),    N.D.    (born     in   2008),      and   B.D.   (born     in   2009)

(collectively “the juveniles”).1           We affirm.

                                I.      Background

1
 The court also terminated the parental rights of H.B.’s
biological father, B.C., and H.C.’s biological father, M.H. The
father of N.D. and B.D. (hereafter “Mr. D.”) relinquished his
parental rights on or about 14 August 2013.
                                               -2-
      The Johnston County Department of Social Services (“DSS”)

filed     juvenile         petitions          on      2        December      2011,      seeking

adjudications of neglect and dependency as to each child.2                                    The

petitions       alleged      that   respondent’s                husband    (“Mr.     D.”)    had

returned       to   the    home   from    prison          in    July    2011,    having      been

convicted of sexually abusing his step-daughter, H.C., when she

was six years old.            Respondent had allowed Mr. D. to return to

the     home    without      engaging          in     sex       offender     treatment,        in

violation of her 2010 case plan.                      The petitions further alleged

a series of domestic violence incidents between respondent and

Mr. D. in the juveniles’ presence between October and December

2011.     When DSS attempted to take the juveniles into non-secure

custody,       respondent      nearly         drove       her     car     into   one    of   the

vehicles containing her children.                         She then grabbed one social

worker by the neck and arm and punched a second social worker in

the face, all in front of the juveniles.

      The district court adjudicated the juveniles neglected and

dependent on 7 March 2012.                It ceased reunification efforts as

to respondent on 14 September 2012, and changed the juveniles’

permanent plan to adoption by order signed 9 January 2013.

      DSS      filed      petitions      to    terminate          respondent’s         parental

2
 DSS filed an amended petition as to H.B. on 4 January 2012,
adding information about her biological father.
                                         -3-
rights   on     6     February     2013,       alleging        three   grounds      for

termination:        (1) neglect; (2) lack of reasonable progress to

correct the conditions that led to the juveniles’ out-of-home

placement during the twelve months that immediately preceded the

petition’s filing; and (3) failure to pay a reasonable portion

of the juveniles’ cost of care during the six months immediately

preceding     the     petition’s       filing.         N.C.    Gen.    Stat.    §   7B-

1111(a)(1)-(3) (2013).           After a hearing on 25 September 2013,

the   court     entered    orders       terminating       respondent’s         parental

rights on 23 October 2013.             The court adjudicated the existence

of each of the three grounds for termination alleged by DSS and

concluded that        terminating respondent’s parental rights would

serve the juveniles’ best interests.                     Respondent filed timely

notice of appeal from these orders.

                                 II.    Discussion

      On appeal, respondent argues that the trial court erred by

(A)   failing    to    conduct    an    inquiry     as    to    whether   respondent

needed   a    guardian    ad   litem     and     (B)   erroneously      choosing    to

terminate her parental rights at the dispositional stage of the

proceedings.

                    A. Appointment of a Guardian Ad Litem

      Respondent first claims the district court violated N.C.
                                            -4-
Gen.    Stat.       §   7B-1101.1(c)    (2011)3    by   failing   to   inquire    sua

sponte into the need to appoint a guardian ad litem (“GAL”) for

respondent in the termination proceedings.                    At the time of the

termination hearing, N.C. Gen. Stat. § 7B-1101.1(c) authorized

the appointment of a GAL on motion of a party, or the court’s

own motion, “if the court determines that there is a reasonable

basis     to    believe       that    the    parent     is   incompetent    or    has

diminished capacity and cannot adequately act in his or her own

interest.”          N.C. Gen. Stat. § 7B-1101.1(c) (2011).              Whether to

inquire into a parent’s need for a GAL is a decision left to the

district court’s sound discretion, based on the circumstances

known to the court.             In re J.A.A. & S.A.A., 175 N.C. App. 66,

72, 623 S.E.2d 45, 49 (2005).

       North    Carolina      defines       “[i]ncompetent    adult”   as   one   who

“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, . . . similar

cause or condition.”            N.C. Gen. Stat. § 35A-1101(7) (2013).              By

contrast,

3
 Respondent     notes that N.C. Gen. Stat. § 7B-1101.1(c) was amended
effective 1      October 2013 by 2013 N.C. Sess. Laws 129, § 25 (June
19, 2013),      but cites the version in effect at the time of the
termination     hearing on 25 September 2013.
                                          -5-
              [t]he phrase “diminished capacity,” . . . is
              used primarily in the criminal law context
              and is defined as “[a]n impaired mental
              condition-short of insanity-that is caused
              by intoxication, trauma, or disease and that
              prevents a person from having the mental
              state necessary to be held responsible for a
              crime.” However, our Court has also defined
              “diminished   capacity”   in   the  juvenile
              context as a “lack of ‘ability to perform
              mentally.’”

In re M.H.B., 192 N.C. App. 258, 262, 664 S.E.2d 583, 585-86

(2008) (citations omitted).                “In other words, a person with

diminished      capacity      is   not    incompetent,         but    may   have    some

limitations      that    impair    their       ability    to   function.”          In   re

P.D.R., __ N.C. App. __, __, 737 S.E.2d 152, 158 (2012).

       On    motion     of   respondent’s       counsel,       the    district     court

appointed       GAL   Scott    Corl      “to     assist    the       [respondent]       in

representation in this matter” on 2 February 2012,                            prior to

entering the adjudications of neglect and dependency on 7 March

2012.       See N.C. Gen. Stat. § 7B-602(c) and (e) (2011).4                  On 7 May

2012, the court appointed respondent a new GAL, Aleta Ballard,

replacing Mr. Corl.            Respondent’s GAL attended proceedings in

this    cause     through      a   permanency        planning        review    hearing

scheduled for 15 June 2013.              No further attendance by the GAL is



4
 Effective 1 October 2013, N.C. Gen. Stat. § 7B-602(c) was
amended, and (e) was repealed by 2013 N.C. Sess. Laws 192, §§
17, 41 (June 19, 2013).
                                   -6-
reflected in the record on appeal; nor does the record indicate

why her participation stopped.

       By appointing a GAL merely to assist respondent, rather

than to serve in a substitutive capacity, the district court

exercised its then-existing authority under N.C. Gen. Stat. §

7B-602(c) and (e) to appoint a GAL for a parent with diminished

capacity.    See In re P.D.R., __ N.C. App. at __, 737 S.E.2d at

158.    We find nothing in the record to suggest respondent was

incompetent.5   Indeed, respondent acknowledges that the “[f]acts

in the record” are suggestive of diminished capacity, rather

than incompetency.     She contends, however, that the district

court’s 23 October 2013 orders include “numerous findings which

indicate the continuing presence of diminished capacity” at the

time of the termination hearing.          Because “[n]othing in the

record indicates that [her] need for a GAL had lessened[,]”

respondent   argues   that   the   “court’s   failure   to   conduct   an

inquiry on the need for a GAL is reversible error per se.”

       In 2013 N.C. Sess. Laws 129 (June 13, 2013), our General

Assembly enacted amendments to Article 11 of the Juvenile Code

5
 Respondent’s December 2011 psychological evaluation found “no
indication   .   .   .  of   delusions,  thought   disorder  or
hallucinations” and found respondent to be “alert and fully
oriented” and possessed of “well developed” language skills,
“logical and goal directed” thought processes, and good “powers
of attention and concentration[.]”
                                                -7-
which apply to all cases pending on or filed after 1 October

2013.       2013 N.C. Sess. Laws 129, §§ 32, 41.                       Section 32 of the

law    deleted    the       language      in    N.C.     Gen.    Stat.     §   7B-1101.1(c)

allowing the court to appoint a GAL for a parent with diminished

capacity.        Subsection (c) now provides as follows:                         “On motion

of any party or on the court's own motion, the court may appoint

a     guardian    ad    litem       for     a    parent     who       is   incompetent        in

accordance with G.S. 1A-1, Rule 17.”                            N.C. Gen. Stat. § 7B-

1101.1(c) (2013).           The session law also repealed N.C. Gen. Stat.

§ 7B-1101.1(e), which listed the forms of assistance a GAL could

provide to a parent.           2013 N.C. Sess. Laws 129, § 32.

       As    amended,        N.C.    Gen.        Stat.     §     7B-1101.1       no     longer

authorizes the appointment of a GAL of assistance for a parent

with diminished capacity.                 The statute now contemplates only the

appointment       of    a    GAL    of     substitution         for    a   parent     who     is

incompetent, consistent with N.C. R. Civ. P. 17.                                  N.C. Gen.

Stat. § 7B-1101.1(c).

       To the extent respondent challenges the district court’s

failure to inquire into her need for a GAL of assistance based

on the evidence of diminished capacity, we conclude her appeal

is moot.       Article 11 of the Juvenile Code no longer authorizes

the    appointment      of     a    GAL    of    assistance       for      a   parent    in   a
                                       -8-
termination proceeding.         Because the amendments enacted by 2013

N.C. Sess. Laws 192 apply to any future proceedings in this

cause, the district court would no longer have the authority to

conduct the inquiry sought by respondent under N.C. Gen. Stat. §

7B-1101.1(c), if the cause were remanded.                Cf. Davis v. Zoning

Board of Adjustment of Union County, 41 N.C. App. 579, 582, 255

S.E. 2d 444, 446 (1979) (finding that “all questions raised have

been rendered moot by the amendments to the Union County Zoning

Ordinance”).

      To the extent respondent faults the court for failing to

inquire into her competency, we find no abuse of discretion.

There is no indication that respondent was incompetent at any

time during these proceedings.           Nor did DSS allege dependency as

a ground for terminating her parental rights.                See In re S.R.,

207   N.C.     App.    102,     109,    698     S.E.2d    535,   540     (2010).

Accordingly, this assignment of error is overruled.

                      B. Termination of Parental Rights

      Respondent      next   claims    the    district   court   erred   at   the

dispositional stage of the proceedings by choosing to terminate

her parental rights.         We disagree.

      After adjudicating the existence of one or more grounds for

termination under N.C. Gen. Stat. § 7B-1111(a), the court must
                                      -9-
determine    at   disposition       “whether    terminating     the    parent’s

rights is in the juvenile’s best interest.”               N.C. Gen. Stat. §

7B-1110(a)   (2013).      Subsection         7B-1110(a)   provides      that   in

making this determination,

            In each case, the court shall consider the
            following criteria and make written findings
            regarding the following that are relevant:

            (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 the
                  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.

N.C. Gen. Stat. § 7B-1110(a).               “We review the trial court’s

determination that a termination of parental rights is in the

best interest of the juvenile for an abuse of discretion.”                     In

re S.R., 207 N.C. App. at 110, 698 S.E.2d at 541.                    “‘Abuse of

discretion   exists    when   the    challenged    actions     are    manifestly

unsupported by reason.’”        Id. (quoting Barnes v. Wells, 165 N.C.

App. 575, 580, 599 S.E.2d 585, 589 (2004)).
                                     -10-
      We reject as frivolous respondent’s claim that the district

court “completely bypass[ed] the dispositional phase” prescribed

by    N.C.   Gen.   Stat.   §   7B-1110     (2013).    A   proceeding   for

termination of parental rights consists of an adjudicatory stage

under N.C. Gen. Stat. § 7B-1109 (2013) and a dispositional stage

under N.C. Gen. Stat. § 7B-1110 (2013).           It is well established,

however, that

             [t]he trial court need not conduct a
             separate and distinct hearing for each stage
             . . . and may hear adjudicatory and
             dispositional     evidence      concurrently,
             provided that it applies the appropriate
             standard of proof at each stage.    Moreover,
             evidence heard or introduced throughout the
             adjudicatory   stage,   as    well   as   any
             additional evidence, may be considered by
             the court during the dispositional stage.

In re M.A.I.B.K., 184 N.C. App. 218, 224-25, 645 S.E.2d 881, 886

(2007) (internal citations and quotations omitted).

      Here, at the conclusion of the evidence on adjudication,

the court made clear that “[w]e are having a bifurcated hearing”

and   allowed   the   parties   to   present    additional   evidence   and

argument as to “the best interest inquiry” at disposition.              The

court granted DSS’s request to consider the evidence from the

adjudicatory stage of the hearing for purposes of disposition.

It also received a written report prepared by the juveniles’ GAL

addressing each of the factors prescribed by N.C. Gen. Stat. §
                                            -11-
7B-1110(a).             Respondent       declined     the    opportunity           to     offer

dispositional evidence.              After hearing the parties’ arguments,

the court proceeded “to consider and determine the best interest

of    the   juvenile[s]          under    7B-1110.”          It     announced       specific

findings      as    to     the    juveniles’        ages,        their     likelihood         of

adoption,     whether       termination       would        assist     in    accomplishing

their permanent plan, and the juveniles’ bond with respondent

and   their    current       caretakers.            See    N.C.     Gen.     Stat.       §    7B-

1110(a)(1)-(5).           Upon “considering all the particular issues,

including     its       previous     findings,”       the     court        concluded         that

termination        of    respondent’s      parental        rights    “is     in    the       best

interest    of      these    children[.]”           The     court’s        written      orders

reiterate these findings and conclusions in compliance with the

statute.           Respondent’s      suggestion           that    the      court        somehow

circumvented the dispositional stage of the hearing is patently

false.

       Respondent        also    challenges    the        court’s    finding       that       the

juveniles are adoptable.                 See N.C. Gen. Stat. § 7B-1110(a)(2).

Specifically, she claims there is “no evidence” to support the

following finding as to H.C.:

              The Court finds that a possible adoptive
              placement has been located for the juvenile
              and there is a likelihood that the juvenile
              will be adopted.  The Court recognizes that
                                         -12-
              the juvenile has had some issues that
              warrant   her   placement    in therapeutic
              [foster] care[;] however these issues are
              not such that they would prevent the
              juvenile from being adopted.

We review dispositional findings only to determine if they “are

supported     by     competent    evidence,”       in   which    case    “they    are

conclusive on appeal.”           In re Weiler, 158 N.C. App. 473, 477,

581 S.E.2d 134, 137 (2003) (citations omitted).

       The    GAL    reported     to     the    court    that    each    juvenile’s

“likelihood of adoption is high.”                The DSS caseworker, Elizabeth

Gore, testified that H.C. was in a level 2 therapeutic foster

home    due    to    the   mental      health    and    behavioral      issues    she

experienced as a victim of sexual abuse.                      Ms. Gore deemed it

“very likely” that H.C. and her siblings would be adopted and

averred that, “including [H.C.], the current [foster] homes are

interested      in    providing        permanency,      if    available.”        This

evidence fully supports the court’s finding.

       Respondent also challenges the finding that five-year-old

N.D.   “has    flourished       since    being    in    the   same   home   as    her

siblings.”      The GAL reported that N.D. and B.D. were “adjusting

well” to their foster home.              Likewise, Ms. Gore described their

relationship with the foster parents as follows:

              It’s really strong.  Even though [N.D.] and
              [B.D] have only been placed since July 20th,
                                     -13-
            they had been visiting with the family since
            March, so a relationship has developed over
            time with that [and] with the visits as
            well, but they have a close relationship.
            They have a bond. They refer to the foster
            parents as Mom and Dad.

Respondent’s exception is overruled.

    Finally, respondent challenges the findings that H.B. and

H.C. “ha[ve] not asked about [respondent]” since their contact

with her ceased in December 2012.             Respondent points to the

following testimony by Ms. Gore on this issue:

            Q. When was the last time the children had a
               visit with [respondent]?

            A. It was November of 2012.

            Q. And since that time, have the children
               displayed   any   negative   behaviors  or
               inquired about [respondent] as a result of
               the visits being terminated?

            A. The older children will ask            questions.
               The younger children do not.

Assuming arguendo that these findings are not supported by the

evidence, we conclude the error is harmless.              See generally In

re Estate of Mullins, 182 N.C. App. 667, 670-71, 643 S.E.2d 599,

601 (2007) (“In a non-jury trial, where there are sufficient

findings of fact based on competent evidence to support the

trial   court's   conclusions   of    law,   the    judgment    will   not    be

disturbed   because   of   other     erroneous     findings    which   do    not
                                    -14-
affect the conclusions.”) (internal citation and quotation marks

omitted).     The court’s findings under N.C. Gen. Stat. § 7B-

1110(a)(4)    acknowledged       that      “a     bond     did     exist   with

[respondent]” for both H.B. and H.C. but noted that each child

had “made progress since ceasing contact with [her.]”                  In light

of   the   girls’   strong   bond     with      their    prospective   adoptive

parents, the fact that H.B. and H.C. had asked Ms. Gore about

respondent    would   not    affect     an      assessment    of   their   best

interests.

      Having reviewed each of respondent’s arguments related to

disposition, we hold that the district court did not abuse its

discretion    in    concluding   that        termination     of    respondent’s

parental rights was in the best interests of the juveniles.                 The

court’s orders are hereby affirmed.

      Affirmed.

      Judges HUNTER, Robert C., and GEER concur.

      Report per Rule 30(e).
