1. Termination of Parental Rights-_neglect--children left in foster care for more than
twelve months without reasonable progress
The trial court did not err in a parental rights termination proceeding by concluding there
was clear, cogent, and convincing evidence supporting the termination of respondent mother's
parental rights under N.C.G.S. § 7B-1111(a)(2) on the ground that respondent left her children in
foster care for more than twelve months without showing reasonable progress had been made to
correct those conditions which led to the removal of her children, and by concluding that
termination was in the best interests of the children, because: (1) respondent willfully left her
children in the custody of DSS for a time period well beyond the statutory period of twelve
months; (2) respondent has refused to acknowledge and treat the very conditions that led to her
loss of custody and even refused to acknowledge the medical diagnosis of her children; and (3)
any attempt to set up a visitation with the children by the diligence of DSS or the children's
guardian ad litem was frustrated at respondent's own behest.
2. Guardian Ad Litem--incapable parents--competency
A guardian ad litem (GAL) statutorily assigned to respondent mother under N.C.G.S. §
1A-1, Rule 17 in a parental rights termination proceeding concerning parental incapability under
N.C.G.S. § 7B-1111(a)(6) could testify as to her ward's parental capability and ultimately against
the interest of her ward.
&nb
sp;
Robert W. Ewing for Crystal Shepard respondent appellant.
Assistant County Attorney Theresa A. Boucher, for Forsyth
County Department of Social Services petitioner appellee; and
Womble Carlyle Sandridge & Rice, PLLC, by Jason B. Buckland,
for Guardian ad Litem petitioner appellee.
McCULLOUGH, Judge.
On 6 May 1996, the Forsyth County Department of Social
Services (DSS) filed Juvenile Petitions pursuant to N.C. Gen. Stat.
§ 7A-517 (now N.C. Gen. Stat. § 7B-400), alleging Dashaun Shepard,
aged nine, Shalita Shepard, aged seven, Jarico Shepard, aged five,Asia Shepard, aged four, and their two older siblings to be
“dependent juveniles” as defined by N.C. Gen. Stat. § 7A-517(13)
(now N.C. Gen. Stat. § 7B-101(9) (2001)). Dashaun, Shalita, Jarico,
and Asia (the “Shepard Children” when referred to collectively)
were taken into non-secure custody by DSS, adjudicated to be
dependent, and remained in the custody of DSS until termination of
their parental rights. All statutes under the juvenile code were
complied with during this period of custody.
On 17 August 2001, a petition to terminate parental rights was
filed as to these four juveniles, and after a hearing on 18 March
2002, the parental rights of Ms. Shepard were terminated. Three
statutory grounds were found as the basis of termination, N.C. Gen.
Stat. § 7B-1111(a)(2), (3) and (6). The trial court then found it
was in the best interest of Dashaun, Shalita, Jarico, and Asia to
have the parental rights of their mother terminated.
In the first portion of this opinion, we uphold the trial
court's determination that there was clear, cogent, and convincing
evidence supporting the termination of the parental rights on at
least one of the alleged adjudicatory grounds in the termination
proceeding. For the sake of clarity, we do so using only the
undisputed evidence before this Court. In the second portion of
the opinion, we consider the disputed evidence set out in the
testimony of the Guardian Ad Litem (GAL) statutorily assigned for
Ms. Shepard in this case. Specifically we answer the question of
whether such a GAL may testify as to their ward's parental
capability, and ultimately against the interest of their ward as tothe termination hearing. We conclude such a guardian may so
testify.
I. Undisputed Facts Supporting Grounds for Termination
A. Facts and Procedure
The undisputed facts of this case are as follows: On 4 May
1996, Ms. Shepard was involuntarily committed to inpatient care at
Forsyth/Stokes Mental Health Center with the preliminary diagnosis
of bipolar disorder. The Shepard children came under the care of
DSS as dependent juveniles. Non-secure custody was awarded to DSS
on 6 May 1996, and with the exception of an unsuccessful trial
placement of Dashaun and Jarico in the home of Ms. Shepard from
October 1996 to March 1997, the children have lived continuously in
the care provided by the DSS since that time.
In a 27 August 1996 juvenile order adjudicating the four
children dependent juveniles, the court found as fact:
6. Crystal Shepard does not like her
living environment at this time, and Jarico
Shepard is having behavioral problems in the
school setting.
7. Crystal Shepard appears to have
difficulty raising six children as a single
parent, compounded by her reluctance to accept
assistance from community resources.
8. On May 4, 1996, Crystal Shepard was
involuntarily committed for treatment and the
preliminary diagnosis, upon admission was Bi-
Polar disorder.
The order concluded as a matter of law that it was in the best
interest of the Shepard children to remain in the custody of DSS.
Pursuant to these conclusions, the court ordered:
2. All visitations shall be arranged and
scheduled by the Forsyth County Department of
Social Services.
3. Crystal Shepard shall seek out-patient
therapy at Forsyth/Stokes Mental Health and
shall follow all recommendations.
. . . .
5. Crystal Shepard shall cooperate with
all agencies providing services to this
family.
. . . .
7. The Forsyth County Department of
Social Services shall make all appropriate
resources available to Crystal Shepard for the
possible reunification of this family.
Between the period 27 August 1996, and DSS's petition for
termination of parental rights, Ms. Shepard struggled to comply
with the conditions of the order. Suzette Hager, the social worker
for DSS assigned to the Shepard children, was charged with
overseeing the visitation and mental health aspects of the order
when she took on the Shepard children case in 1998. In the
termination proceedings, Ms. Hager testified that, as of October of
1999, Ms. Shepard no longer welcomed Ms. Hager in her home despite
her status as the Shepard children's social worker. Ms. Hager
testified that the last time Ms. Shepard visited Dashaun and Jarico
was 5 September 2000, and the last time she visited Shalita and
Asia was 21 December 2000. Additionally, Ms. Hager testified as to
the following:
During that period of time in October of '98
we were able to get Mrs. Shepard to initiate a
psychological . . . evaluation which she
didn't complete.
And there was also an effort to get her
to obtain a psychiatric evaluation, which she
went to the appointment but didn't cooperate
with the testing, so both of those tests came
back inconclusive. And that was the onlytreatment that she had had during the period
of time that I've been involved in the case,
other than her going to meet with Doctor
Bosworth.
As the caseworker for the Shepard children, Ms. Hager
testified as to the children's conditions as well: Dashaun had
been diagnosed bipolar, Attention Deficit/Hyper Disorder (ADHD),
and adjustment disorder with disturbance in mood and conduct. He
had not complied with taking his medications, was taught in a self-
contained classroom, and since 1998 had resided in a therapeutic
foster home. Jarico had also been diagnosed as ADHD. He was on
medication, was taught in a self-contained classroom, and since
1998 had resided in a therapeutic foster home. These boys lived in
neighboring homes. Shalita had also been diagnosed with ADHD, and
at the time of the termination hearing there were concerns she
initiated or communicated auditory and visual hallucinations, and
was being assessed for thought process disorder. Asia struggles
with adjustment disorder. The two girls lived in the same home.
Kim Nesbitt (GAL), for the Shepard children, testified in the
termination proceeding that she began to oversee Ms. Shepard's
visitations of the children in July of 2001. She did so when Ms.
Shepard expressed problems with Ms. Hager's supervising. Ms.
Nesbitt testified that she recommended twice a month visits with
the girls, and once a month visits with the boys, but Ms. Shepard
was to initiate such meetings. Ms. Shepard only made one direct
phone call to Ms. Nesbitt in regard to such visits, and when Ms.
Nesbitt tried to respond, her calls were not returned. Ms. Nesbitt
had suggested a number of locations for the visitation to occur,her church being one, but Ms. Shepard could not agree on any of the
offered locations.
The Forsyth County Juvenile Court ordered a psychological
evaluation of Ms. Shepard to assess any progress since the 27
August 1996 juvenile order. The evaluation, dated 27 October 2000,
conducted and written by Dr. Thomas Bosworth, was to include an
assessment of her parenting and overall psychological functioning.
As to both of these, his evaluation included the following:
She admitted to not agreeing to allow one of
the boys to be placed in a special class;
first, because she could “sense” that it was
not the right place for him, and, second,
after she saw the classroom, she knew it was
not the right place for him. She was also
against her children being on medication, but
she went along with it for fear that they
would be removed if she refused to allow them
to take the medication. She “knew” her sons
did not need medication. Even now, she does
not think her sons need medication . . . .
. . . .
. . . Ms. Shepard reported that her mood
has not been good for several years. She gets
sad and depressed, but she tries not to pay
any attention to it. She reported that her
mind is not like it used to be. Things just
come into her mind, and she has thoughts that
bother her. There are times when she is
“confused,” such as when it seems like the TV
is talking in a totally different language.
There are times when she has heard voices
outside her door, and when she goes to look,
no one is there. She has seen “scary” things
that others do not see, such as a part of a
person sticking out of the ground. “People
worry [her].” She feels like people mistreat
her, and she gave several examples of when she
has felt this way. She feels like she was put
in jail based on a lie. When handcuffed, the
policeman refuses to loosen the cuffs when she
complains about them being too tight. In jail,
she was put in a “foul cell.”
In the summary of the evaluation he stated: Ms. Shepard suffers from severe psychological
problems that have limited, and continue to
limit, her ability to function adequately on
her own, much less to function as a parent.
Making matters worse is the fact that Ms.
Shepard denies that she has any type of
problem that would benefit from professional
help. . . . It appears Ms. Shepard suffers
primarily from having a paranoid personality
disorder. Secondarily, she appears to have
areas of distorted thinking, confusion, and
even hallucinations. Ms. Shepard also appears
to suffer from depression. . . .
. . . .
. . .With her disorder, however, she is
not able to care for even one child in the
most benign situation.
. . . .
Ms. Shepard's condition is not likely to
improve. . . . One, Ms. Shepard does not see
herself as having a problem that requires
treatment. Two, paranoid people rarely trust
anyone enough to get far enough along in
treatment to see that it can be helpful.
Three, there is not likely to be a medication
that is effective enough in stabilizing her
thinking, paranoia, and mood to make her want
to continue to take it.
This report was of record for the termination proceeding. Dr.
Bosworth later testified in the termination proceeding to reflect
his evaluation.
Ms. Hager, Ms. Nesbitt, and Dr. Bosworth all testified that
they believed it to be in the Shepard children's best interest to
have Ms. Shepard's rights terminated.
B. Grounds for Termination/Children's Best Interest
[1] The order finding both the grounds for termination and
that it is in the best interest of the children that Ms. Shepard's
right be terminated was based on the statutory grounds of N.C. Gen.
Stat. § 7B-1111(a)(2), (3) and (6). We hold that the evidence setout above in this opinion supports a finding of clear, cogent, and
convincing evidence that Ms. Shepard has
willfully left the juvenile in foster
care . . . 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.
N.C. Gen. Stat. § 7B-1111(a)(2). Therefore, we uphold the trial
court's conclusion of law to terminate on this ground and that to
do so was in the children's best interest.
1. Standard of Review
A petition for termination of parental rights must be
carefully considered in light of all the circumstances and with the
children's best interest firmly in mind. “Although severing
parental ties is a harsh judicial remedy, the best interests of the
children must be considered paramount.” In re Adcock, 69 N.C. App.
222, 227, 316 S.E.2d 347, 350 (1984). Termination of parental
rights is a two-step procedure. N.C. Gen. Stat. § 7B-1109 (2001);
N.C. Gen. Stat. § 7B-1110 (2001). During the initial adjudication
phase of the trial, the petitioner seeking termination must show by
clear, cogent, and convincing evidence that grounds exist to
terminate parental rights. In re Young, 346 N.C. 244, 247, 485
S.E.2d 612, 614 (1997); N.C. Gen. Stat. § 7B-1111(b). A finding of
any one of those grounds is sufficient to support termination of
parental rights. In re Williamson, 91 N.C. App. 668, 678, 373
S.E.2d 317, 322-23 (1988). If the petitioner succeeds in
establishing the existence of any one of the statutory grounds
listed in N.C. Gen. Stat. § 7B-1111, the trial court moves to the
second, or dispositional, stage, where it determines “whether it isin the best interests of the child to terminate the parental
rights.” Young, 346 N.C. at 247, 485 S.E.2d at 615. See also
N.C. Gen. Stat. § 7B-1110(a); and In re Blackburn, 142 N.C. App.
607, 543 S.E.2d 906 (2001). However, so long as the court applies
the different evidentiary standards at each of the two stages,
there is no requirement that the stages be conducted at two
separate hearings. In re White, 81 N.C. App. 82, 344 S.E.2d 36,
disc. review denied, 318 N.C. 283, 347 S.E.2d 470 (1986).
“The standard of 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). We then consider, based on the
grounds found for termination, whether the trial court abused its
discretion in finding termination to be in the best interest of the
child. In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 225
(1995). “Evidence heard or introduced throughout the adjudicatory
stage, as well as any additional evidence, may be considered during
the dispositional stage.” In re Blackburn, 142 N.C. App. at 613,
543 S.E.2d at 910.
2. Findings of Fact and Conclusions of Law
In the termination order, the trial court made the following
findings of fact:
11. Crystal Shepard has willfully left
Dashaun Jovan Shepard, Shalita Shuandae
Patrice Douthit Shepard, Jarico Durand
Joseph Douthit Shepard, and Asia Alea
Tabya Douthit Shepard in foster care for
more than 12 months without showing to
the satisfaction of the court that
reasonable progress under thecircumstances has been made within 12
months in correcting those conditions
which led to removal of the children.
. . . .
13. On August 15, 1996, Dashaun Shepard,
Shalita Shepard, Jarico Shepard, and Asia
Shepard were adjudicated to be Dependent
juveniles. Crystal Shepard, the mother of
the children was ordered to seek out
patient therapy at Forsyth/Stokes Mental
Health (now called Centerpoint Human
Services) and cooperate with all agencies
providing services to her family. She was
additionally provided the opportunity to
have regular supervised visitation with
her children.
14. On February 13, 1997, Crystal Shepard was
ordered to seek and follow through with
therapy addressing her mental illness
and maintain herself on medication as
prescribed and all other therapeutic
recommendations.
15. On May 7, 1998, the Forsyth County DSS
was relieved by the Juvenile Court of its
obligation to make efforts to reunify
this family and instead the court adopted
a plan by which Ms. Shepard could
demonstrate directly to the Court that
she has received a psychiatric evaluation
and she is complying with all treatment
recommendations including medication if
prescribed; that she is gainfully
employed and maintaining an appropriate
residence for herself and her children;
that she has completed a series of
parenting classes and she has attended
any special classes which are recommended
by her children's therapists to assist
her in learning about her children's
special needs; and that she has
cooperate[d] with all Agencies involved
with she and her children.
16. Crystal Shepard continues to be in denial
of her mental health needs. Ms. Shepard
has refused additional psychiatric
evaluations and all therapeutic
interventions deemed appropriate for her.
Ms. Shepard also refuses to believe that
her children have special needs and arein need of special services. Ms. Shepard
has been uncooperative with efforts to
provide services to herself or her
children.
17. In 2000, Dr. Thomas Bosworth conducted a
child custody evaluation regarding
Crystal Shepard and her children. In his
report dated October 27, 2000, Dr.
Bosworth concluded that Ms. Shepard
suffers from a paranoid personality
disorder and she appears to have areas of
distorted thinking, confusion and even
hallucinations. Dr. Bosworth also
concluded that Crystal Shepard was in no
condition to take responsibility for her
children. Dr. Bosworth also concluded
that her condition is not likely to
improve. Dr. Bosworth determined that in
order for Ms. Shepard's condition to
improve she would need a combination of
counseling and medication. Crystal
Shepard does not believe she needs either
one.
18. Dr. Bosworth evaluated Ms. Shepard to
have severe psychological problems which
limit her ability to function on her own
or parent her children. Based upon her
diagnosis, Ms. Shepard is unlikely to
seek out or continue in treatment.
19. Dr. Bosworth evaluated Jarico Shepard and
Dashaun to also have severe mental health
issues; which he determined that Crystal
Shepard is unable to meet their mental
health needs.
. . . .
23. Crystal Shepard last visited with her &n
bsp; 4
children on September 4, 2000. Her last
visit with Shalita and Asia Shepard was
on December 21, 2000. Ms. Shepard
provided no cards, gifts or letters for
her children on Christmas, their
birthdays or other significant holidays.
24. Ms. Crystal Shepard was awarded
supervised visitation with her children
by the Juvenile Court of Forsyth County.
She never called the Forsyth County DSS
to request a visit with the children andshe never called to inquire as to the
well-being of her children.
25. Ms. Kimberly Nesbitt is the Guardian ad
Litem for the Shepard children.
Beginning in July 2001, Ms. Nesbitt
volunteered to coordinate and supervise
visits between Crystal Shepard and her
children on a monthly basis. From July
to November 2001, Ms. Nesbitt received no
calls from Ms. Shepard requesting
visitation with her children. In
November 2001, Ms. Shepard, through
counsel, requested a visit with her
children on either Thanksgiving Day or
Christmas Day at their grandmother's
house. Ms. Nesbitt declined to provide
visitation on the holiday however offered
to supervise a visit during the week of
Christmas at DSS or SCAN. Ms. Shepard
refused to visit at DSS or SCAN and Ms.
Nesbitt offered to conduct the visit at
her church, McDonald's or at the skating
rink. Ms. Shepard declined such
visitation. No visitation occurred
during November or December 2001. In
February 2002, Ms. Nesbitt approached Ms.
Shepard at a Court hearing and again
offered to supervise a visit. Ms.
Shepard indicated that she wanted to
visit her children at their schools but
arrangements were never made for such
visitation.
The trial court then concluded as a matter of law:
1. Grounds exist pursuant to N.C.G.S. 7B-
1111(a)(2) . . . to terminate the
parental rights of Crystal Shepard to the
children Dashaun Jovan Shepard, Shalita
Shuandae Patrice Douthit Shepard, Jarico
Durand Joseph Douthit Shepard, and Asia
Alea Tabya Douthit Shepard.
These findings are support by undisputed evidence of record and the
transcript, as set out above in this opinion, evidence which we
hold to be clear, cogent, and convincing.
“Willfulness” when terminating parental rights on the grounds
of N.C. Gen. Stat. § 7B-1111(a)(2), is something less than“willful” abandonment when terminating on the ground of N.C. Gen.
Stat. § 7B-1111(a)(7). Nolen, 117 N.C. App. at 697, 453 S.E.2d at
223. A finding of willfulness is not precluded even if respondent
has made some efforts to regain custody of the children. In re
Becker, 111 N.C. App. 85, 95, 431 S.E.2d 820, 826-27 (1993).
Willfulness may be found where the parent, recognizing her
inability to care for the children, voluntarily leaves the children
in foster care. In re Bishop, 92 N.C. App. 662, 669, 375 S.E.2d
676, 681 (1989). In addition to finding that the parent has
willfully left the children in foster care for more than twelve
months, under N.C. Gen. Stat. § 7B-1111(a)(2) the trial court must
also find that the parent has failed (1) to make reasonable
progress in correcting the conditions which led to the removal of
the children; and (2) to show positive response to DSS's diligent
efforts to encourage the parent to strengthen the parental
relationship to the children or to make and follow through with
constructive planning for the future of the children. In re Taylor,
97 N.C. App. 57, 63-64, 387 S.E.2d 230, 233 (1990).
In the instant case, there is adequate evidence to hold Ms.
Shepard was willful in leaving her children in the custody of DSS
for a time period well beyond the statutory period of 12 months.
Additionally, we hold the evidence clear, cogent, and convincing
that Ms. Shepard has refused to acknowledge and treat the very
conditions that led to her loss of custody, and even refused to
acknowledge the medical diagnosis of her children. This indicates
that, if returned to her custody, she would not pursue treatment
for herself or even her children. Finally, any attempt to set upa visitation with the children by the diligence of DSS or the
children's GAL was frustrated at Ms. Shepard's own behest, and we
find this inexcusable. These findings are set out as excerpted
above.
Based on the undisputed clear, cogent, and convincing evidence
supporting the trial court's findings of fact and conclusions of
law, we hold Ms. Shepard's parental rights terminated on the
grounds of N.C. Gen. Stat. § 7B-1111(a)(2), and we need not
consider any other grounds of termination found by the trial court.
Furthermore, we do not find the trial court abused its discretion
when finding it was in the best interest of the Shepard children to
have their mother's parental rights terminated. The DSS caseworker
for the children, the children's GAL, and a psychiatrist all
testified that termination was in the children's best interest.
Finally, we note that Ms. Shepard, while preserving as error
specific admissions of evidence by the trial court which she
alleges provided the basis for termination on the grounds of N.C.
Gen. Stat. § 7A-1111(a)(2), did not properly preserve as error the
actual finding itself. Additionally she did not assign as error
that it was in the best interest of the children to terminate her
parental rights. While we chose not to in this instance, we could
have simply held these as admitted. N.C.R. App. P. 10(a) and 28(a)
(2001).
II. Disputed Facts: Testimony by the GAL of Ms. Shepard
[2] While the analysis above is sufficient for us to affirm
the termination of Ms. Shepard's parental rights, we next address
the heart of her question on appeal. Ms. Shepard disputes theevidence offered in the testimony of the GAL statutorily assigned
to her. She contends the GAL, Ms. Twanda Staley, should not have
been permitted to testify against the interest of Ms. Shepard in
the termination proceeding, and that this testimony is grounds for
a new termination proceeding whether or not prejudice can be found.
In this portion of the opinion we hold: Ms. Staley was free to
testify as to all otherwise admissible evidence as the GAL for Ms.
Shepard, including what she believes is in the best interest of Ms.
Shepard; and that this testimony can be used as evidence to
establish grounds for termination. We note that in the instant
case the testimony was only gratuitous as there was clear, cogent,
and convincing evidence to find at least one ground for termination
without it.
A. Statutorily Mandated GAL
When DSS pursues termination on the grounds of parental
“incapability” under N.C. Gen. Stat. § 7B-1111(a)(6), “[t]he parent
has the right to counsel and to appointed counsel in cases of
indigency unless the parent waives the right. . . . [A] guardian
ad litem shall be appointed in accordance with the provisions of
G.S. 1A-1, Rule 17, to represent a parent[.]” N.C. Gen. Stat.
§ 7B-1101 (2001) (emphasis added). On at least two occasions, this
Court has ordered a new termination proceeding when the trial court
failed to appoint a GAL for a parent whose parental rights were
threatened on the ground of “incapability.” See In re Richard v.
Michna, 110 N.C. App. 817, 431 S.E.2d 485 (1993)(which held that,
although there was no evidence that the respondent had been
prejudiced by the failure of the trial court to appoint a guardianad litem, the mandate of the statute must be observed, and a
guardian ad litem must be appointed); In re Estes, 157 N.C. App.
513, 515, 579 S.E.2d 496, 499, disc. review denied, 357 N.C. 459,
585 S.E.2d 390 (2003) (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.).
In this case, Ms. Shepard was properly assigned a GAL and an
attorney, and this is undisputed.
B. Legal Duties of the GAL
Rule 17 of the North Carolina Rules of Civil Procedure sets
out the duties of a GAL appointed under this section:
Any guardian ad litem appointed for any party
pursuant to any of the provisions of this rule
shall file and serve such pleadings as may be
required within the times specified by these
rules . . . . After the appointment of a
guardian ad litem under any provision of this
rule and after the service and filing of such
pleadings as may be required by such guardian
ad litem, the court may proceed to final
judgment, order or decree against any party
so represented[.]
N.C. Gen. Stat. § 1A-1, Rule 17(e) (2001). North Carolina case law
offers little guidance as to our reading of Rule 17 and any
specific duties of a GAL assigned to a parent-ward in a termination
proceeding.
In In re Montgomery, 311 N.C. 101, 115, 316 S.E.2d 246, 255
(1984), our Supreme Court held that termination on the grounds of
parental incapability to some mental condition or substance abuseon the grounds of N.C. Gen. Stat. § 7A-289.32(7) (now N.C. Gen.
Stat. § 7B-1111(a)(6)) was constitutional. The court stated:
A parent has a right to counsel and to
appointed counsel in case of indigency, if not
waived by the parent. The Act also provides
for the appointment of a guardian ad litem to
represent the parent who suffers a diminished
mental capacity. We believe the provisions of
this statute adequately assure respondents,
and those similarly situated, of procedural
due process protection.
Montgomery, 311 N.C. at 115, 316 S.E.2d at 255 (citations
omitted)(emphasis added). Rule 17 and the case law addressing the
duties of GALs assigned to alleged “incapable” parents suggest the
role of the GAL as a guardian of procedural due process for that
parent, to assist in explaining and executing her rights.
Ms. Shepard contends that by testifying against Ms. Shepard's
interests as a parent in the termination proceeding, Ms. Staley did
not fulfill her duties as a GAL and in fact breached the duties
owed to her ward. Thus, Ms. Shepard claims this was equivalent to
not being assigned the statutorily required GAL, and is grounds for
a new termination proceeding under the authority of Estes and
Richard. We disagree.
The transcript shows Ms. Staley was assigned as the GAL in
accord with N.C. Gen. Stat. § 7B-1101 approximately two months
before the termination proceeding. Before the hearing, she met
with Ms. Shepard on three separate occasions, totaling
approximately three hours. It is clear from these meeting that Ms.
Staley sought to protect the interest of Ms. Shepard and to make
her understand the gravity of the termination proceeding. On
direct examination by DSS, Ms. Staley stated: This has been a difficult case for me. I
think the main problem that we're dealing with
is that Mrs. Shepard doesn't believe that she
has any problems. And what I suggested to
her, because I didn't think she, she
understood--or I wanted to make sure that she
understood, that her mental health or her
mental issues were at issue in this TPR
proceeding.
And I wanted to make sure that she
understood that and that she understood that
there was a possibility that if the Judge
believed that and if she wasn't getting the
help that had been recommended, that she could
possibly lose her children.
. . . .
And so I asked her if I could find a
black female therapist or psychologist that
did not work for CenterPoint or did not work
for the State of North Carolina, if she would
be willing to talk to one of them. I told her
I had two in mind, and if she would be willing
to submit herself to talk to either one of
these ladies, black females.
. . . .
I tried to explain to her that now that
she was within the system, whether she thought
it was right or wrong, what had happened to
her and what had happened to her children, if
she had a specific plan for herself.
Furthermore, the transcript reveals a number of instances where Ms.
Staley and Ms. Shepard's attorney were working together during the
course of the proceeding to protect the interest of Ms. Shepard.
Beyond this due process protection, there are no specifics as
to the proper conduct of the GAL who is acting purely as a guardian
and not an attorney (thus falling outside of the North Carolina
State Bar's Revised Rules of Professional Conduct). Furthermore,
North Carolina courts now recognize all testimonial privileges
through statute. See N.C. Gen. Stat. § 8-49, et. seq. (2001).There is no testimonial privilege that Ms. Shepard could raise to
stop Ms. Staley from testifying, and we are not inclined to now
adopt one in common law.
In In re Farmer, 60 N.C. App. 421, 299 S.E.2d 262, disc.
review denied, 308 N.C. 191, 302 S.E.2d 243 (1983), at a competency
hearing, we determined there was no authority to bar a GAL from
testifying as to the competency of their ward:
The essence of respondent's argument seems to
be that allowing the guardian to testify as to
the ward's incompetency is tantamount to
compelling respondent to testify against
herself. Respondent cites no authority to
support this argument, but contends that
"sound policy" should exclude such testimony.
We are not aware of any restrictions on the
competency of guardians ad litem as witnesses
in trials involving their wards. See G.S.
8-49; G.S. 8-50; and 1 Brandis on North
Carolina Evidence, §§ 53 and 54.
Id. at 424, 299 S.E.2d at 264. While Farmer concerned a competency
hearing, we hold that its authority covers the question in this
case. In fact, as a matter of policy, Ms. Shepard's case is less
worrisome than concerns raised in Farmer as she is in a better
position to rebut the testimony of Ms. Staley with her own, and
further was likely of more sound mind not to disclose potentially
damaging information to the GAL in the first place than the party
found incompetent in Farmer.
Finally it should be noted that Ms. Shepard did not testify as
a witness in the proceeding, and relied on calling Ms. Staley as a
witness to represent her interests after the disputed testimony:
Q: Here in the last few minutes, you and
I have had a side bar conversation with Mrs.
Shepard about whether she wants to speak on
her behalf, is that correct?
A: That is correct.
Q: Okay. And would it be correct to say
that she has expressed some reservations about
being able to fully and appropriately
articulate her position here today?
A: That's correct.
Q: Would it be fair to say that to an
extent, you know what her position is?
A: Yes.
Q: Okay. And we did agree that, more in
the capacity of me calling you as her witness,
you were willing to be her spokesperson, is
that correct?
A: Yes, and she agreed to that. I think
it was her suggestion.
From these statements it is fair to assume that, regardless of Ms.
Staley's being called as a direct witness by DSS, her testimony
would have been elicited for the purposes of being Ms. Shepard's
“spokesperson” for the record. Ms. Staley's testimony then would
have been subject to cross-examination by DSS, bringing to light
the same evidence that DSS procured in their direct examination.
This assumption is bolstered by the fact that other than Ms.
Staley's testimony, Ms. Shepard called no witnesses.
In sum, we determined there to be clear, cogent and
convincing evidence to terminate Ms. Shepard's parental rights as
to these four children on the grounds of N.C. Gen. Stat. § 7B-
1111(a)(2). Therefore, we need not address any other grounds found
by the trial court. Additionally, we hold the evidence offered
through the testimony of Ms. Shepard's GAL, Ms. Staley, is
admissible and could have been used to meet the clear, cogent, andconvincing standard as to any of the statutory grounds for
termination.
Therefore, we affirm.
Affirmed.
Judges TYSON and BRYANT concur.
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