A termination of parental rights order was reversed and remanded for the appointment of
a guardian ad litem for the parent and a rehearing where there were allegations and findings
about respondent's drug use but a guardian ad litem was not appointed for her. The trial court
must appoint a guardian ad litem when a motion to terminate alleges dependency due to
incapability of the parent to provide proper care as spelled out in N.C.G.S. § 7B_1111(6) and
that incapability is the result of one of the conditions enumerated in N.C.G.S. § 7B_1101(1).
Kathleen Arundell Widelski for petitioner-appellee.
Katharine Chester for respondent-appellant.
THORNBURG, Judge.
Respondent is the mother of the minor child, T.B.K. T.B.K.
was born on 16 June 2000. In January 2001, the Cabarrus County
Department of Social Services (“DSS”) received a neglect report
alleging that respondent was addicted to drugs, on the run with her
boyfriend, involved in illegal activities and generally unable to
care for T.B.K. On 7 April 2001, respondent and DSS entered a case
plan to address the issues raised by the neglect report. Under the
case plan respondent was supposed to attend NA and/or AA meetings,
submit to random drug screens, attend parenting classes and address
other concerns about her home life. While respondent did receive
a substance abuse evaluation, she failed to attend any substance
abuse group meetings and admitted to continued drug use. On 13March 2001, respondent was charged with driving while impaired
after she flipped her car over with T.B.K. in the car. Respondent
was also charged with possession of cocaine on 19 April 2001.
Respondent and DSS entered into a substantially similar case
plan on 3 July 2001. On 14 August 2001, respondent submitted to a
drug screen and tested positive for cannabinoid and cocaine. On 15
August 2001, DSS filed a petition alleging that respondent and
T.B.K.'s father neglected T.B.K. DSS received non-secure custody
of T.B.K. on that date as well. On 10 September 2001, respondent
stipulated to a finding of neglect. The trial court ordered
respondent to submit to a psychological evaluation, to submit to a
substance abuse assessment, to attend a parenting course, to
maintain stable employment and housing and to abstain from the
abuse of alcohol and controlled substances. The trial court also
ordered that T.B.K. remain in the custody of DSS.
Initially, respondent made “substantial progress” in
addressing the issues which led to T.B.K.'s placement with DSS and
the permanent plan for T.B.K. was reunification with respondent.
However, shortly after the birth of respondent's second child,
J.C., the court began to have concerns about respondent's progress.
At the permanency planning review hearing, on 14 March 2002, the
trial court found that respondent was no longer making progress on
her case plan goals. Respondent refused to submit to drug
screenings on 29 January 2002 and 1 March 2002. Respondent missed
three scheduled visits with T.B.K. and failed to be at the hospital
while T.B.K. was undergoing surgery. DSS was having difficulty
contacting respondent due to her phone being lost or disconnected. Respondent had not been in contact with her substance abuse program
for two weeks.
At the 9 May 2002 permanency planning review hearing, the
trial court found that respondent had made no progress in her
efforts to regain custody of T.B.K. Respondent failed to provide
proof of her attendance at any AA/NA meetings, she failed to attend
substance abuse treatment, she failed to maintain contact with DSS
as ordered, she missed numerous scheduled visits with T.B.K., she
failed to submit to drug screens, she was unemployed after having
been fired from her job and she admitted to the use of controlled
substances both before and after the birth of her second child.
Respondent was arrested on 6 April 2002 and was still in custody at
the time of the May review.
DSS filed a motion to terminate respondent's parental rights
on 30 September 2002. A hearing on the motion was conducted on 16
January 2003 and 14 February 2003. Respondent's parental rights
were terminated in an order entered on 27 February 2003.
Respondent appeals.
Respondent argues on appeal: (1) that the trial court erred in
terminating respondent's parental rights when she had not been
appointed a guardian ad litem as required by N.C. Gen. Stat. § 7B-
1101; (2) that the trial court erred in failing to hold the
termination hearing within ninety days as required by statute; (3)
that the trial court erred in failing to hold a bifurcated hearing;
(4) that the trial court erred in terminating respondent's parental
rights where there was no timely appointment of a guardian ad litem
for T.B.K. and no evidence to show that any services were performedby the guardian ad litem; and (5) that there was not clear, cogent
and convincing evidence of any of the grounds for termination found
by the trial court. After a careful review of the record and
briefs, we agree that the trial court erred in not appointing a
guardian ad litem to respondent. We reverse and remand.
In the motion in the cause to terminate respondent's parental
rights, DSS alleged that grounds to terminate existed under several
provisions of N.C. Gen. Stat. § 7B-1111. One of the alleged
grounds is 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 N.C. Gen. Stat. § 7B-101
and that there is a reasonable probability that such incapability
will continue for the foreseeable future. While the motion does
not specifically cite the statute, the language of the motion
tracks N.C. Gen. Stat. § 7B-1111(6), which spells out when a parent
shall be found to be “incapable of providing for the proper care
and supervision of the juvenile.” N.C. Gen. Stat. § 7B-1111(6)
(2003).
The mandates of N.C. Gen. Stat. § 7B-1101 must be followed
when N.C. Gen. Stat. § 7B-1111(6) is invoked. N.C. Gen. Stat. § 7B
1101 provides, in pertinent part:
In addition to the right to appointed counsel
set forth above, a guardian ad litem shall be
appointed in accordance with the provisions of
G.S. 1A-1, Rule 17, to represent a parent in
the following cases:
(1) Where it is alleged that a
parent's rights should be terminated
pursuant to G.S. 7B-1111(6), and the
incapability to provide proper care
and supervision pursuant to that
provision is the result of substanceabuse, mental retardation, mental
illness, organic brain syndrome, or
another similar cause or condition.
N.C. Gen. Stat. § 7B-1101 (2003) (emphasis added). Thus, where a
motion alleges dependency due to incapability as spelled out in
N.C. Gen. Stat. § 7B-1111(6), and the incapability is the result of
one of the conditions enumerated in N.C. Gen. Stat. § 7B-1101(1),
the trial court must appoint a guardian ad litem. Respondent
argues that her incapability was alleged in the motion to be the
result of substance abuse, one of the conditions enumerated in N.C.
Gen. Stat. § 7B-1101(1). We agree based on the analysis infra, and
thus the trial court erred in not appointing her a guardian ad
litem.
DSS included the following factual allegations in the motion
to support the alleged grounds for termination:
The (CCDSS) investigation revealed that the
mother was on the run with her boyfriend but
recently left him. The mother admitted to
using cocaine, marijuana and prescription
drugs (Zanax, Oxycodone, Valium and Loratab).
The mother admitted that her drug addiction
was keeping her from caring for her child
properly. She admitted to not interacting
with her child for days at a time because she
was so sick she can not get off the couch.
The CCDSS substantiated neglect and the case
was transferred to Case Management/Case
Planning on March 8, 2001 to assist the mother
in seeking treatment for her substance abuse
problems.
On March 13, 2001 the mother was driving under
the influence with the child in the car and
flipped the car over. The officer involved
indicated that the child could have easily
been killed. The mother admitted to the
assigned social worker that she had drank
[sic] four beers before driving with the
child.
On April 6, 2001 the mother contacted CCDSS
and stated she wanted to kill herself. She
was taken to Northeast Medical Center and
admitted to Stanly Memorial Behavioral
Healthcare. The mother checked herself out on
April 8, 2001.
The mother tested positive for marijuana at
the child's birth. On April 7, 2001, the
mother tested positive for cocaine and
benzodiazepines while at Stanly Memorial. The
mother tested positive for cocaine and
marijuana on February 27, 2001 and May 11,
2001; and on July 2, 2001 the mother tested
positive for marijuana.
On April 19, 2001 the mother was charged with
possession of cocaine.
The mother secured an assessment from Piedmont
Behavioral Healthcare in June but has failed
to follow through with recommendations which
included meeting with a counselor, attending a
substance abuse group and attending NA/AA
meetings.
At a review hearing on March 14, 2002, the
court found that the mother had made some
progress but there were areas of concern that
needed to be addressed.
On May 9, 2002, the court found that
[respondent] had failed to make reasonable
progress in complying with the court-ordered
Family Services Case Plan. [Respondent] had
continued to use controlled substances and had
failed to attend substance abuse treatment.
The court changed the plan for the child to
adoption.
On June 13, 2002 a permanency planning hearing
was held. The court found that it was not
possible for the child to return to his home
within six months; that reasonable efforts to
return the child to his own home were clearly
futile or would be inconsistent with the
child's health, safety and need for a safe
permanent home within a reasonable period of
time.
During the pendancy [sic] of this action, the
mother was incarcerated and remains in the
North Carolina Department of Corrections [sic]
at this time of the filing of this motion.
. . . .
[Respondent] has contributed nothing towards
the child's cost of care since August 15,
2001. The cost of the child's care since
August 15, 2001 has been $1644.75.
The remaining factual allegations were in reference to the
respondent-father. Six of the ten allegations make explicit
reference to respondent's substance abuse issues. These
allegations tend to show that DSS intended to rely upon
respondent's substance abuse issues as the basis of her
incapability to care for T.B.K.
This Court has held that the statutory language of N.C. Gen.
Stat. § 7B-1101 expressly mandates that a guardian ad litem be
appointed in cases where the motion alleges dependency due to one
of the conditions listed in the statute. In re Richard v. Michna,
110 N.C. App. 817, 431 S.E.2d 485 (1993) (interpreting N.C. Gen.
Stat. § 7A-289.23, now codified as N.C. Gen. Stat. § 7B-1101).
Further, this Court has held that where the motion alleges
dependency and the majority of the dependency allegations tend to
show that a parent or guardian is incapable, as the result of some
debilitating condition listed in the statute, of providing for the
proper care and supervision of his or her child, that N.C. Gen.
Stat. § 7B-1101 mandates that a guardian ad litem be appointed. In
re Estes, 157 N.C. App. 513, 579 S.E.2d 496, disc. review denied,
357 N.C. 459, 585 S.E.2d 390 (2003). In both of these cases, the
failure to meet this requirement for the appointment of a guardian
ad litem resulted in remand of the case to the trial court for the
appointment, as well as for a rehearing. This Court has also reversed and remanded a case for the
appointment of a guardian ad litem where the trial court did not
find dependency but the motion sufficiently alleged dependency and
evidence was presented regarding the respondent's relevant
debilitating condition. In re J.D., 164 N.C. App. 176, ___ S.E.2d
___ (4 May 2004) (03COA71-2), disc. review denied, 358 N.C. 732,
___ S.E.2d ___ (12 August 2004) (240P04). In Richard, this Court
further held that though there was no evidence to suggest prejudice
to the respondent due to the failure to appoint a guardian ad
litem, that “the mandate of the statute must be observed, and a
guardian ad litem must be appointed.” Richard, 110 N.C. App. at
822, 431 S.E.2d at 488.
In the instant case, we find nothing in the record to indicate
that respondent was appointed a guardian ad litem and petitioner
admits this omission by the court in its brief. The motion clearly
alleges dependency and most of the relevant factual allegations
refer to respondent's substance abuse issues. Further, the trial
court heard evidence and made findings in the termination order
concerning respondent's substance abuse issues. As such, it was
error for the trial court to not appoint a guardian ad litem to
respondent in this case.
We need not discuss respondent's other assignments of error
due to our conclusion that the case must be remanded for the
appointment of a guardian ad litem to respondent and rehearing.
After careful consideration, we reverse and remand to the trial
court for further proceedings consistent with this opinion.
Reversed and remanded. Judges HUDSON and GEER concur.
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