An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 respondentmother 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.
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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.
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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 
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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.
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___________________________________________________________

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.
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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.

. . . .
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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 
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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 
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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).