Termination of Parental Rights--mental incapacity--evidence insufficient
The trial court erred by terminating respondent's parental rights pursuant to N.C.G.S. §
7A-289.32(7) where the court found that defendant had a profound mental incapacity
compounded by a bipolar disorder, that respondent was unable to protect her children from harm
from the Forest Cobb, that respondent was incapable of providing proper care and supervision,
and that respondent's incapacity to provide proper care and supervision arose from deficits in her
intellect and reasoning ability as reflected in the report of a psychologist. Respondent does not
exhibit any behavior indicative of bipolar disorder, respondent's guardian ad litem testified that
she had not uncovered evidence that would lead her to believe that respondent's mental condition
would prevent her from parenting or that she had abandoned her children, the psychologist's
testimony did not provide clear and convincing evidence to support the finding that respondent is
incapable of providing proper care to her children, and Mr. Cobb is now deceased.
New Hanover County Department of Social Services, by Julia
Talbutt, for petitioner-appellee.
James M. Maggard, P.C., by James M. Maggard, for respondent-
appellant.
WALKER, Judge.
On 27 July 1998, the New Hanover County Department of Social
Services (“DSS”) filed a petition to terminate the parental rights
of respondent mother Clarissa Cobb. The petition alleged three
bases to justify termination of respondent's parental rights: (1)
the minor children were neglected pursuant to N.C. Gen. Stat. § 7A-
289.32(2); (2) respondent willfully left the minor children in
foster care for more than twelve months pursuant to N.C. Gen. Stat.
§ 7A-289.32(3); and (3) respondent is incapable by virtue of mental
illness or mental limitations of providing for the proper care andsupervision of the minor children pursuant to N.C. Gen. Stat. § 7A-
289.32(7). The record reveals that the petition to terminate
respondent's parental rights pursuant to N.C. Gen. Stat. §§ 7A-
289.32(2) and (3) was not addressed.
Harvey Joseph Jones, father of Jonathan Patrick Lee Small,
consented to the termination of his parental rights. Forrest
Howard Cobb III, the father of Forrest Howard Cobb IV, died
sometime prior to 10 November 1998.
Forrest Cobb III appeared at the Public Health Department in
a drunk and disorderly condition with Forrest Cobb IV. Based upon
this incident, DSS sought non-secure custody of both children, and
on 5 March 1996, the children were placed in foster care and have
remained continuously in foster care since that date. On 4 April
1996, pursuant to a stipulation of the parties, the minor children
were adjudicated neglected and respondent was ordered to undergo a
psychological evaluation. The 4 April 1996 adjudication order was
based upon Mr. Cobb's alcohol abuse, domestic violence in the home,
and respondent's mental illness and inability to provide consistent
parenting. On 18 June 1996, respondent was diagnosed with a
personality disorder with passive and aggressive dependent
features. Respondent's I.Q. was determined to be 75, although the
full exam could not be administered due to respondent's vision
problems. Additionally, both children have been diagnosed with
Attention Deficit/Hyperactivity Disorder (ADHD). After several
periodic reviews, DSS petitioned for termination of parental rights
on 27 July 1998, which was granted on 3 March 1999. In the trial court's order terminating parental rights, the
trial court found:
7. That the Respondent has profound mental
incapacity. Respondent's tested IQ is 75.
Her ability in mathematics is below the first
percentile and her abilities in short-termmemory are below the fifth percentile as
compared to the adult population.
Respondent's incapabilities as they affect her
parenting abilities could with support from
appropriate community resources most likely be
overcome; however, Respondent's mental
incapacity is compounded by an Axis II mental
illness, bipolar disorder, which while
presently in remission, is incurable.
13. That Respondent lacked the insight,
ability and willingness to protect her
children from the harm the father of Forrest
Howard Cobb, IV posed to her children. The
deficits causing this failure have not been
cured. That Respondent's pattern of inability
to protect her children from harm when harm
when risk of harm [sic] comes through the door
and her inability to provide a stable,
nurturing environment has persisted and also
preceded the marriage of Respondent to Forrest
Howard Cobb, III, as evidenced by the problems
and neglect experienced by Respondent's older
children.
15. That Respondent is incapable by virtue of
her mental illness and her mental incapacity
of providing proper care and supervision of
these children because of the unique diagnosis
of Attention Deficit/Hyperactivity Disorder
and difficult [sic] to control. That there is
a reasonable probability that Respondent's
incapacity will continue throughout the
minority of Jonathan Patrick Lee Small and
Forrest Howard Cobb, IV.
16. That Respondent's incapacity to provide
proper care and supervision arises from the
deficits in her intellect and reasoning
abilities as reflected in the report of the
independent psychologist, Dr. Mark Davis, and
her diagnosis of mental illness which has been
made in fact by experts and established beyond
clear, cogent and convincing evidence.
Because of Respondent's inabilities, the
children cannot be returned to the Respondent
today nor in the reasonably foreseeable
future.
17. That the children are placed in a stable
home, committed to the adoption of the
children and providing an environment which
provides safety, structure and stability and
an opportunity for the children to mature into
responsible adults.
Based upon these and other findings, the trial court
concluded:
1. That the grounds for termination of the
Respondent's parental rights have been
established by clear, cogent and convincing
evidence; and
2. That the best interests of the minor
children will be served by termination of the
parental rights of the Respondent.
Termination of Respondent's parental rights
will afford the juveniles an opportunity for
adoption and permanence.
3. Further attempts at reunification will not
be in the best interests of these children.
Respondent contends the trial court erred in finding her
incapable of providing proper care and supervision by reason of her
mental illness and mental incapacity. Specifically, there was not
clear and convincing evidence offered by DSS to support such a
finding.
In a termination proceeding, the appellate court should affirm
the trial court where the trial court's findings of fact are based
upon clear and convincing evidence and the findings support theconclusions of law. See In re Allred, 122 N.C. App. 561, 565, 471
S.E.2d 84, 86 (1996).
N.C. Gen. Stat. § 7A-289.32(7)
(See footnote 1)
, as written at the time of the
trial court's order, provides that parental rights may be
terminated when:
the parent is incapable of providing for the
proper care and supervision of the child, such
that the child is a dependent child within the
meaning of G.S. 7A-517(13), and that there is
a reasonable probability that such
incapability will continue for the foreseeable
future. Incapability under this subdivision
may be the result of substance abuse, mental
retardation, mental illness, organic brain
syndrome, or any other similar cause or
condition.
N.C. Gen. Stat. § 7A-289.32(7)(Cum. Supp. 1998).
N.C. Gen. Stat. § 7A-517(13)
(See footnote 2)
defines a dependent juvenile as:
A juvenile ... whose parent ... is unable to
provide for the care or supervision and lacks
an appropriate alternative child care
arrangement.
N.C. Gen. Stat. § 7A-517(13)(Cum. Supp. 1998).
This Court, in In re Scott, 95 N.C. App. 760, 383 S.E.2d 690
(1989), held that the trial court's finding that the mother was
mentally incapable of providing proper care and supervision to her
minor children, and that such incapability would last throughout
the minority of the children, was not supported by clear andconvincing evidence and reversed the trial court's order
terminating the mother's parental rights.
In Scott, the mother admitted to suffering from a personality
disorder. However, her psychiatrist testified that the fact that
someone carries a diagnosis of personality disorder “does not mean
that they are incapable of raising children.” Id. at 763, 383
S.E.2d at 691. Further, the psychiatrist testified that the
mother's pattern of behavior by itself did not mean that she was
incapable of taking care of her children. Id. With regard to the
probability of the mother's illness lasting throughout the minority
of the children, the psychiatrist testified, “[u]sually, these
kinds of behavior patterns are very difficult to change over the
long haul, although that can be done. I would find it very
difficult to guess how things would go with [the mother].” Id.
Based upon this testimony, the Scott Court held that the
psychiatrist “could not predict within a reasonable probability
that respondent's mental illness would continue throughout the
minority of the children.” Id. The court noted that, “in fact,
[the psychiatrist] testified that [the mother] was currently
experiencing her longest sustained period of improvement, and she
had dealt with the stress of the hearing in a positive manner.”
Id. at 763, 383 S.E.2d at 692.
In this case, Dr. Mark Davis, the court appointed clinical
psychologist, testified concerning respondent's mental abilities.
Dr. Davis testified that he could not conclude that respondent
suffered from a personality disorder or from any mental illness. On direct examination, Dr. Davis testified to the following in
part:
Q: [...] Dr. Davis, did you arrive at
an estimation of any impairment in
Ms. Cobb's parenting abilities? And
if so, what?
A: My--I--I have next to no information
directly bearing on her interactions
with her children. So, I'm kind of
shooting in the dark here. The
areas of concern that would be
suggested by the results of testing
and interview would include a
probable tendency for a certain
amount of cognitive fragmentation
under stress when challenged by a
complex situation that would
potentially result in inconsistent
and rather fragmented behaviors that
in a child-rearing situation would
not be helpful, and in fact, could
be detrimental.[...]
On cross-examination, Dr. Davis testified in part:
Q: [...] In your summary, you indicate
'Ms. Cobb appears to have made
significant improvements in
functioning, despite a number of
serious psychological difficulties
and shortcomings.' And my question
to you would be, are these
improvements such that they would be
more of a benefit to Ms. Cobb's
functioning as an individual, or are
these improvements such that they
would somehow assist in her
parenting abilities?
A: I think that's a very good question.
I attempted to point out, probably
in about that same paragraph, on the
closing, that I don't feel as though
I have a sufficient enough
assessment of the extent to which
she is involved in active -- active
coping activities these days that
would be similar to the challengesposed by children with special
needs, or children in general.[...]
Q: [...] Assuming she did have a mental
illness to some degree, does the
fact that she had some mental
illness, in and of itself, make her
unable to parent a child?
A: No.
Q: Were you able to conclude, on the
basis of a personality disorder or
mental illness, that she is unable
to parent these minor children
through their minority?
A: No, I was not so able to conclude.
Q: [...] Based on the information that
you ... had before you in your
evaluation of Clarissa Cobb, you
cannot determine or form an opinion,
based upon a reasonable degree of
certainty, that she is incapable of
parenting her two children through
minority based on mental
deficiencies, correct?
A: To a reasonable degree of certainty,
I don't believe I can.
On re-direct examination, the following exchange occurred:
Q: What difficulties can you predict,
with a reasonable degree of
certainty, that Ms. Cobb will
encounter parenting two children,
both of whom are ADHD?
A: My degree of uncertainty is largely
a function of the extent to which I
am unaware of how much of her daily
routine involves coping with
equivalent challenging stressors.
My impression is that not much of it
does.[...]
Thomas Maultsby, respondent's counselor for the four years
preceding the termination hearing, testified concerning her
improved mental condition. He testified that she was last
diagnosed as manic depressive with bipolar disorder in 1997, but
that the illness was in remission. Further, respondent does not
exhibit any behavior indicative of bipolar disorder and there has
been no need to see a psychiatrist since 1997.
Beth Smerko, the guardian ad litem appointed to represent
respondent, testified that “I have not, in my role as guardian,
uncovered evidence that would lead me to believe that her mental .
. . condition would prevent her from parenting or that she has
abandoned her children.”
Additionally, we note the record reveals Ms. Smerko testified
that she read a report from Ms. Kramer, the guardian ad litem for
the children. However, Ms. Kramer's report does not appear in the
record and the trial court's order does not reference the report.
The testimony of Dr. Davis does not provide clear and
convincing evidence to support the trial court's finding that
respondent is incapable, by virtue of her mental illness and mental
incapacity, of providing proper care to her children because of
their ADHD diagnosis. See In re Scott, 95 N.C. App. at 763, 383
S.E.2d at 691; In re LaRue, 113 N.C. App. 807, 812, 440 S.E.2d
301, 304 (1994). Although the trial court found that respondent
lacked the ability to protect her children from the harm of Mr.
Cobb, he is now deceased. Therefore, we reverse the decision ofthe trial court terminating respondent's parental rights pursuant
to N.C. Gen. Stat. § 7A-289.32(7).
Reversed.
Judges LEWIS and MARTIN concur.
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