Termination of Parental Rights--failure to appoint guardian ad litem for parent--mental
instability
The trial court erred in a termination of parental rights case by failing to appoint a
guardian ad litem to represent respondent mother as required by N.C.G.S. § 7B-1101 despite the
fact that respondent's parental rights were not terminated based on juvenile dependency but
instead based on neglect, because: (1) N.C.G.S. § 7B-1111(a)(6) was clearly alleged in the
petition; (2) the Department of Social Services offered some evidence that tended to show
respondent was incapable of caring for the minor child due to mental illness; and (3) the trial
court referenced evidence of respondent's mental illness in its order.
This opinion supercedes
and replaces the opinion reported at 161 N.C. App. 424.
Charlotte A. Wade for petitioner-appellee Buncombe County
Department of Social Services.
Attorney Advocate Judith Rudolph, Guardian Ad Litem.
Janet K. Ledbetter; The McDonald Law Office, P.A., by Diane K.
McDonald, for respondent-appellant.
HUNTER, Judge.
An opinion was filed in this case on 2 December 2003. On 16
December 2003, respondent filed a petition for rehearing. On 13
January 2004, we allowed that petition, reconsidering the case with
the filing of additional briefs only. The following opinion
supersedes and replaces the opinion filed 2 December 2003.
Respondent appeals from an order terminating her parental
rights to her daughter, J.D. (d.o.b. 25 February 1991). For the
reasons stated herein, we reverse the trial court's order. On 25 September 2000, the Buncombe County Department of Social
Services (“BCDSS”) filed a juvenile petition alleging that J.D. was
an abused and neglected juvenile. The events that occurred prior
to the filing of the petition were as follows.
On 28 August 1996, BCDSS received a child protective services
report (“CPS report”) stating that respondent had taken J.D. (then
four years old) to an emergency room claiming that the child's
fourteen-year-old half-brother, M.D., had raped her. Although a
medical examination did not indicate the presence of any
abnormality of her hymen, J.D. began seeing a therapist in
connection with the alleged sexual abuse.
On 17 January 1997, BCDSS received a report from J.D.'s
therapist that J.D. stated during a therapy session that M.D.
played with her vaginal area. Thereafter, respondent acknowledged
that her son was a sexual offender and needed to be placed outside
the home to protect J.D. However, shortly after out-of-home
placement was located for M.D., respondent's husband and J.D.'s
step-father, John, returned M.D. to the family home when respondent
was hospitalized for psychological problems.
The juvenile court proceeded with an action against M.D. for
the sexual assault of J.D. The court was ultimately unable to
adjudicate M.D. as a sexual offender because J.D. and respondent
recanted their previous statements, and John and M.D. denied that
J.D. had been sexually abused. Without any clear evidence, M.D.
was only ordered to (1) complete a sex offender specific
evaluation, and (2) be placed outside the family home. Thus, a
trailer was placed next to the family home for M.D. to live in thatwas equipped with sensory devices to prevent him from leaving
undetected. However, M.D. regained access to his parents' home
after his supervision by the juvenile court ended.
A third CPS report was received by BCDSS on 9 September 1997
concerning a violent fight between John and M.D. At that time, the
social worker investigating the incident observed that M.D. and
J.D. were both living in the family home. Respondent threatened to
kill anyone who tried to take M.D. away.
On 9 October 1998, another CPS report was received by BCDSS in
which J.D. disclosed to her therapist that both M.D. and John had
sexually abused her. The child made no further disclosures, and
the matter was not substantiated.
Next, respondent reported to BCDSS on 11 April 2000 that her
step-daughter and the step-daughter's husband, Tammera and Justin
respectively, smoked marijuana in the presence of their two-year-
old son, Brandon. Respondent further reported that Tammera and
Justin, who were living with respondent at that time, were involved
in drug dealing and were being targeted for revenge because they
had ripped off a drug dealer. When questioned, Justin admitted
using marijuana. Tammera denied all drug usage, but later gave
birth to another son on 28 July 2000 who tested positive for
marijuana.
The final event that led BCDSS to file a juvenile petition
with respect to J.D. occurred on 24 September 2000 when Brandon was
seriously burned while in the care of respondent. Respondent's
initial story was that her step-grandchild had doused himself with
lighter fluid and struck a match. However, after being advisedthat the evidence did not support her story, respondent accused
J.D. of the incident. Although Brandon never specifically stated
who burned him, he did state a number of times that “grandma
matched me.” Thus, the preliminary results of the investigation
implicated respondent as the main suspect.
Following the filing of the juvenile petition, BCDSS obtained
an order for non-secure custody of J.D. on 28 September 2000. J.D.
underwent a medical evaluation on 26 October 2000 which indicated
abnormalities of her hymen that were not present in J.D.'s 1996
medical evaluation. The evaluating physician opined that the
abnormalities suggested sexual abuse.
By order filed 11 January 2001, J.D. was adjudicated a
physically and sexually abused child and a neglected juvenile in
that respondent and John had “created or allowed to be created a
substantial risk of serious physical injury to the child by other
than accidental means . . . .” The court ordered custody of J.D.
to remain with BCDSS and that a psychological evaluation of both
parents and J.D. be performed.
On 4 April 2001, a permanency planning and review hearing was
held. At the hearing, the court found that (1) respondent had been
suffering from significant mental health issues at least since
August of 1999, (2) J.D. had to be moved from her previous foster
home after BCDSS received information that respondent had
threatened to take the child and run to Canada, and (3) J.D.
continued to be at risk if returned to her parents' care because
they continued to deny responsibility for her neglect and abuse. The court concluded that BCDSS be relieved of reunification efforts
and that the permanent plan be changed to adoption.
On 27 August 2001, BCDSS filed a petition to terminate
respondent's parental rights on the grounds of neglect and juvenile
dependency. Prior to the hearing, respondent told BCDSS social
workers that “she had separated from John . . . and that she
believed that he had been sexually abusing [J.D.], and had thought
so for a number of years. The respondent mother gave no
explanation why she had failed to protect [J.D.,]” but claimed that
she would not be reconciling with John.
The termination of parental rights hearing was held on 25-28
March 2002. At the start of the hearing, BCDSS voluntarily
dismissed the termination of parental rights action against John
because he had “no parental rights to terminate, as he [wa]s
neither the biological father nor the legal father[]” of J.D.
During the hearing, evidence was offered regarding the likelihood
that respondent was responsible for setting Brandon on fire,
respondent's prior and continuing mental health problems, and the
family's extensive and troublesome history, most of which evidenced
that J.D. had been sexually abused and neglected. As to J.D. being
sexually abused, respondent testified that she did not believe M.D.
“was dangerous or a threat to [J.D.], and that [respondent's]
problems were limited to bad choices she made.” She further
testified as to her belief that John had sexually abused J.D.
However, despite respondent's earlier claim that the two were
separated and would not be reconciling, the court took notice that
John and respondent attended court together every day during thehearing and that her apartment was in close proximity to where John
was living. Based on all the evidence, the court concluded there
was
clear, cogent and convincing evidence that
grounds exist to terminate the parental rights
of the respondent mother pursuant to N.C.G.S.
7B-1111(a)(1) in that she had neglected the
minor child when the child came into the
custody of the Department, she has continued
to neglect the child during the entire time
the child has been in the custody of [BCDSS],
and there is a probability of the repetition
of neglect if the minor child was returned to
her care as the respondent mother has failed
to correct the conditions which led to the
abuse and neglect.
Therefore, the trial court determined it would be in J.D.'s best
interests to terminate respondent's parental rights. Respondent
appeals.
By her first assignment of error, respondent argues the trial
court committed reversible error by not appointing a guardian ad
litem to represent her as statutorily required when juvenile
dependency is alleged as a ground for termination.
Subsection 7B-1111(a)(6) of our General Statutes provides,
inter alia, that the court may terminate parental rights upon a
finding that due to mental illness or any other similar cause or
condition “the parent is incapable of providing for the proper care
and supervision of the juvenile, such that the juvenile is a
dependent juvenile within the meaning of G.S. 7B-101, and that
there is a reasonable probability that such incapability will
continue for the foreseeable future.” N.C. Gen. Stat. § 7B-
1111(a)(6) (2003). In cases “[w]here it is alleged that a parent's
rights should be terminated pursuant to G.S. 7B-1111(6),” ourstatutes require that “a guardian ad litem shall be appointed” to
act on behalf of the incapable parent. N.C. Gen. Stat. § 7B-1101
(2003). Respondent cites two cases that were reversed and remanded
for a new trial by this Court due to the trial court's failure to
comply with this statutory requirement.
In In re Richard v. Michna, 110 N.C. App. 817, 431 S.E.2d 485
(1993), the petitioner alleged and the trial court found that the
mother was incapable of providing for the proper care and
supervision of her children because of mental retardation and other
mental conditions. On appeal, this Court held that (1) N.C. Gen.
Stat. § 7A-289.23 (now Subsection 7B-1111(a)(6)) required that “a
guardian ad litem 'shall be appointed' whenever the petitioner
alleges . . . that parental rights should be terminated because the
parent is incapable of proper care and supervision of the children
due to mental retardation or other mental condition[;]” (2)
although the mother failed to request a guardian ad litem, N.C.
Gen. Stat. § 7A-289.23 is mandatory and does not require such a
request be made; and (3) observation of the statute's mandate is
required even if the mother was likely not prejudiced by the error.
Id. at 822, 431 S.E.2d at 488.
Similarly in In re Estes, 157 N.C. App. 513, 579 S.E.2d 496,
disc. rev. denied, 357 N.C. 459, 585 S.E.2d 390 (2003), the trial
court determined that the mother was incapable of providing for the
proper care and supervision of her minor child, such that the child
was a dependent juvenile. On appeal, the dispositive issue was
whether
the trial court could properly terminate
respondent's parental rights withoutappointing a guardian ad litem to represent
respondent at the termination hearing where
the petition or motion to terminate parental
rights alleged, and the evidence supporting
such allegations tended to show, that
respondent was incapable of providing proper
care and supervision to the child due to
mental illness.
Id. at 515, 579 S.E.2d at 498 (emphasis added). This Court held
that, where
the allegations contained in the petition or
motion to terminate parental rights tend to
show that the respondent is incapable of
properly caring for his or her child because
of mental illness, the trial court is required
to appoint a guardian ad litem to represent
the respondent at the termination hearing.
Id. at 518, 579 S.E.2d at 499. Accordingly, the trial court erred
in failing to appoint a guardian ad litem for the mother because
the petition contained numerous allegations concerning the mother's
mental instability, the trial court made findings supporting those
allegations, and based on those findings, concluded that the child
was a dependent juvenile.
BCDSS contends that Richard and Estes are distinguishable from
the present case because, although juvenile dependency was alleged
in the petition as a ground for terminating respondent's parental
rights, it was not pursued by BCDSS during the termination hearing.
Specifically, counsel for BCDSS stated in her opening argument that
BCDSS
would be asking the Court to terminate
parental rights based on the fact that [J.D.]
was neglected and abused in the home of
origin, and there's a substantial risk that
she would be abused and neglected again
because [respondent] does not accept her own
responsibility for what's happened to her
child . . . .Respondent's counsel also did not address juvenile dependency as a
ground for termination in her opening argument, arguing instead
that
we contend that there's no evidence of neglect
occurring as of today, which is the standard
for termination of parental rights, and there
is adequate evidence that [respondent] has
complied with what DSS has asked, and that she
has corrected the problems which may have
occurred at the time the child was taken.
We disagree with BCDSS' contention.
While neglect was the ground BCDSS pursued during the
termination hearing and ultimately found by the trial court as the
basis for terminating respondent's parental rights, there was
nevertheless some evidence that tended to show that respondent's
mental health issues and the child's neglect were so intertwined at
times as to make separation of the two virtually, if not,
impossible. In fact, in its order regarding adjudication, the
trial court found that a doctor's psychological assessment of
respondent was credible in that respondent's “psychological
problems can negatively impact on her ability to be an adequate
parent and caretaker. Further, that [respondent] was and is
emotionally regressed and parenting would be a challenge to her.”
Moreover, the trial court considered respondent's mental health
issues in its disposition order by stating that
the respondent mother cannot provide a safe
and permanent home for the minor child as she
lacks any insight into her own significant
mental health issues, how her failure to
protect her daughter damaged her daughter,
that she helped to create the neglectful and
abusive environment, and how this has been
detrimental to her daughter.
Respondent therefore should have had a guardian ad litem act on her
behalf at the termination hearing.
In conclusion, the statutory mandate for appointment of a
guardian ad litem was violated despite the trial court not
terminating respondent's parental rights based on juvenile
dependency. Subsection 7B-1111(a)(6) was clearly alleged in the
petition, BCDSS offered some evidence that tended to show that
respondent was incapable of caring for J.D. due to mental illness,
and the trial court referenced that evidence in its order. Thus,
we reverse the order terminating respondent's parental rights and
remand this case for appointment of a guardian ad litem for
respondent and a new trial. Our holding as to this assignment of
error renders the need to address respondent's remaining assigned
errors unnecessary.
Reversed and remanded.
Judges McGEE and CALABRIA concur.
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