An order terminating a mother's parental rights was reversed because the court did not
appoint a guardian ad litem for her despite allegations and findings concerning depression,
personality disorder, and emotional problems. N.C.G.S. § 7B_1111(a)(6).
Appeal by respondent mother from order entered 15 May 2003 by
Judge M. Patricia DeVine in Orange County District Court. Heard in
the Court of Appeals 19 May 2004.
Northen Blue, L.L.P., by Carol J. Holcomb and Samantha H. Cabe
for the petitioner Orange County Department of Social
Services.
Rebekah W. Davis for the respondent-appellant mother.
Karen Davidson for the Guardian Ad Litem.
ELMORE, Judge.
P.B. (respondent) appeals from an order entered 15 May 2003
terminating her parental rights with respect to her daughter, S.B.
We note that a companion case, captioned In the Matter of: S.B.,
COA03-1001 and filed concurrently with this opinion, sets forth a
comprehensive history of petitioner Orange County Department of
Social Service's (OCDSS) involvement with respondent, S.B, and
other family members.
(See footnote 1)
For the reasons set forth herein, wereverse the trial court's order.
The pertinent procedural and factual history as reflected by
the record is as follows: S.B. is the biological child of
respondent and her husband, O.B. Respondent and O.B. have had a
twenty-year relationship marked by frequent instances of domestic
violence and marital separation, as well as chronic substance abuse
by O.B. On 17 January 2002, the district court granted OCDSS non-
secure custody of S.B., as well as her two half-siblings, after
OCDSS filed a petition alleging neglect and dependency. The
petition alleged, inter alia, that respondent “is not mentally
healthy. She sometimes appears to be socially phobic, unable to
care for the family and unable to follow through with taking
advantage of services offered to her.” On 21 November 2002,
following a permanency planning review hearing, the district court
entered an order relieving OCDSS of reunification efforts and
changed the permanent plan for S.B. to adoption.
On 21 January 2003, OCDSS filed a motion in the cause to
terminate respondent's parental rights with respect to S.B. The
motion alleged, in pertinent part, as follows:
7. That [respondent] is incapable of providing for the
proper care and supervision of [S.B.], such that
[S.B.] is a dependent juvenile within the meaning
of G.S. 7B-101, and that there is a reasonableprobability 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.
8. Dr. David Ziff completed a psychological evaluation
on Respondent which has previously been submitted
as evidence and is part of the record. The
evaluation indicates that Respondent suffers from
depression, personality and emotional problems,
which render her unable to parent [S.B.]
. . . .
On 16 April 2003, a hearing was held on the OCDSS motion to
terminate respondent's parental rights to S.B. By order entered 15
May 2003, the trial court granted the motion and terminated
respondent's parental rights with respect to S.B. The trial
court's order contained the following pertinent findings of fact:
10. Dr. David Ziff, a clinical and forensic
psychologist, completed a psychological examination
on [respondent] by prior Court Order. He found
[respondent] to be limited in her intellectual
functioning, to have a personality disorder, NOS
(not otherwise specified) with avoidant and
dependent features and to suffer from depression.
Dr. Ziff is of the opinion, and the Court so finds,
that [respondent] is not able to adequately parent
her children, all of whom have special needs, and
this Court so finds.
. . .
16. [Respondent] is socially isolated and does not have
adequate social support to assist with the
difficult task of parenting her children. She does
not have adequate independent living skills to care
for herself and her children. She has not beenable to make good decisions which would protect the
children from certain risks and she has not
learned, nor does she understand, the consequences
of her behavior in relation to the children.
17. [Respondent] does not know or understand the normal
developmental needs of children and she does not
know how to develop a plan to meet those needs.
She does not know or understand the effects of
abuse and neglect on children nor how to develop a
strategy to meet her children's special needs,
which are the result of neglect and possible abuse.
. . .
22. [Respondent] is not able to parent the children who
are now in the custody of [OCDSS].
. . .
The trial court then concluded as follows:
27. That [respondent] 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. 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.
. . .
The trial court then ordered that the parental rights of respondent
with respect to S.B. be terminated. From this order, respondent
now appeals.
By her first assignment of error, respondent contends the
trial court erred by failing to appoint a guardian ad litem torepresent her at the termination hearing. We agree.
Section 7B-1101 of our General Statutes mandates appointment
of a guardian ad litem to represent a parent in proceedings to
terminate that parent's parental rights “[w]here it is alleged that
[the] parent's rights should be terminated pursuant to G.S. 7B-
1111[a](6), and the incapability to provide proper care and
supervision pursuant to that provision is the result of substance
abuse, mental retardation, mental illness, organic brain syndrome,
or another similar cause or condition.” N.C. Gen. Stat. § 7B-
1101(1) (2003) (emphasis added). Section 7B-1111(a)(6) of our
General Statutes states that the trial court may terminate a
parent's rights upon a finding that the parent is incapable of
providing for the proper care and supervision of the juvenile, such
that the juvenile is a dependant juvenile within the meaning of
N.C. Gen. Stat. § 7B-101, and that there is a reasonable
probability that such incapability will continue for the
foreseeable future. The statute specifically provides that
“[i]ncapability under this subdivision may be the result of
substance abuse, mental retardation, mental illness, organic brain
syndrome, or any other cause or condition that renders the parent
unable or unavailable to parent the juvenile and the parent lacks
an appropriate alternative child care arrangement.” N.C. Gen.
Stat. § 7B-1111(a)(6) (2003).
This Court has previously held that “[i]n cases '[w]here it is
alleged that a parent's rights should be terminated pursuant to
G.S. 7B-1111(a)(6)[,]' our statutes require that a guardian ad
litem be appointed to represent the parent.” In re Dhermy, 161
N.C. App. 424, 429, 588 S.E.2d 555, 558 (2003) (quoting N.C. Gen.
Stat. § 7B-1101(1)); see also In re Estes, 157 N.C. App. 513, 515,
579 S.E.2d 496, 498, disc. review denied, 357 N.C. 459, 585 S.E.2d
390 (2003). Moreover, “[f]ailure to meet this requirement results
in remand of the case to the trial court for appointment of a
guardian ad litem, as well as a rehearing.” Dhermy, at 429, 588
S.E.2d at 558; In re J.D., 164 N.C. App. 176, 182, __ S.E.2d __, __
(2004). This is true even when the respondent parent fails to
request a guardian ad litem, and even where the respondent mother
was likely not prejudiced by the error. In re Richard v. Michna,
110 N.C. App. 817, 822, 431 S.E.2d 485, 488 (1993).
In the present case, the motion in the cause to terminate
respondent's parental rights with respect to S.B. alleges in
paragraph seven, as grounds for terminating respondent's parental
rights, S.B.'s juvenile dependency due to respondent's
“incapability” in language that tracks the statutory language of
section 7B-1111(a)(6). The motion then proceeds to allege, in
paragraph eight, that respondent has been diagnosed as “suffer[ing]
from depression, personality and emotional problems, which renderher unable to parent” S.B. Moreover, the trial court's order
contains findings regarding respondent's
limited intellectual
functioning and diagnoses of personality disorder and depression,
as well as the effect of these conditions on her ability to parent
S.B. Finally, in paragraph 27 of the TPR order, the trial court
concluded as a matter of law that respondent is incapable of
providing for S.B.'s proper care and supervision such that S.B. is
a dependent juvenile, and that there is a reasonable probability
respondent's incapability to do so will continue for the
foreseeable future. We note that, as with the language employed by
OCDSS in the TPR motion, the language employed by the trial court
in this conclusion of law tracks the statutory language of section
7B-1111(a)(6). Accordingly, respondent was entitled,
pursuant to
section 7B-1101 and to previous decisions of our appellate courts,
to appointment of a guardian ad litem before the trial court heard
the motion to terminate her parental rights. Because the statutory
mandate for appointment of a guardian ad litem was violated, we
reverse the order terminating respondent's parental rights with
respect to S.B. and remand this case for appointment of a guardian
ad litem for respondent and a new hearing.
We do not reach respondent's remaining assignments of error
because the first issue is dispositive.
Reversed and remanded. Judges BRYANT and GEER concur.
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