Appeal by respondent from judgment entered 11 October 2002 by
Judge Yvonne Mims Evans in Mecklenburg County District Court.
Heard in the Court of Appeals 15 March 2004.
John W. Totten, II, attorney for respondent-appellant.
Mecklenberg County Attorney's Office by J. Edward Yeager, Jr.,
for petitioner-appellee.
TIMMONS-GOODSON, Judge.
Respondent appeals an order of the trial court terminating her
parental rights with respect to L.C. and A.N. For the reasons
stated herein, we affirm the order of the trial court.
The pertinent factual and procedural history is as follows:
Respondent is the biological mother of four children, including
L.C., born 6 March 1996, and A.N., born 27 August 2000. The
Mecklenburg County Department of Social Services, Youth and Family
Services Division (“YFS”) initially became involved with the family
after A.N. tested positive at birth for cocaine.
On 21 December 2000, YFS filed a petition seeking to have all
four of respondent's children adjudicated neglected and dependent.
The children were adjudicated dependent in a hearing on 19 February2001. On the issue of neglect, the trial court stated the
following: “The Court holds any finding of neglect against the
mother in abeyance and reserves the right to make such finding at
a later time.”
YFS filed the underlying termination of parental rights
petitions on 5 December 2001, alleging that respondent neglected
L.C. and A.N., that she willfully left them in foster care for more
than 12 months, and that she failed to support them financially for
more than 6 months. The trial court conducted a termination
hearing in which respondent was represented by counsel. Respondent
did not request that the trial court appoint a guardian ad litem
for her. Upon a hearing of the evidence, the trial court entered
the following pertinent findings of fact:
9. The principle [sic] issue that prevented
reunification of [respondent] with her
children was continuing substance abuse
addiction.
11. Since YFS filed a petition and the
children were place in foster care, the
respondent mother has been under a
continuing Court order to obtain
substance abuse treatment. In fact, the
respondent mother participated in the
Mecklenburg County Family Drug Treatment
Court for an extended period of time.
However, the respondent mother has never
been able to maintain sobriety and has
never completed any type of substance
abuse treatment.
12. During the time that [respondent] was in
Family Drug Treatment Court, she resided
in a highly structured setting at
Hopehaven. She did not complete that
program and left there against advice of
her counselors.
Based on these findings, the trial court concluded as a matter
of law that the respondent had neglected the children, that she
willfully left them in foster care for more than 12 months, and
that she willingly failed to provide financial support for more
than 6 months. The trial court determined that it was in the best
interest of the children to terminate respondent's parental rights
and ordered termination of parental rights. It is from this order
that respondent appeals.
As an initial matter, we note that respondent's brief contains
arguments supporting only one of the original two assignments of
error on appeal. The omitted assignment of error is deemed
abandoned pursuant to N.C. R. App. P. 28(b)(5) (2004). We
therefore limit our review to the assignment of error addressed in
respondent's brief.
The remaining question presented on appeal is whether the
trial court erred by failing to appoint a guardian
ad litem for
respondent at the termination hearing where the petition does not
allege dependency, substance abuse, or mental illness. We conclude
that the trial court did not err.
Respondent contends that because the trial court heard
testimony about her mental capacity, and may have taken this into
consideration when making its decision, the trial court was
required to appoint a guardian
ad litem. We disagree. The General Statutes of North Carolina § 7B-1101 (2003)
provides that a guardian
ad litem shall be appointed to represent
a parent in a termination hearing
[w]here 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 substance abuse,
mental retardation, mental illness, organic
brain syndrome, or another similar cause or
condition
(emphasis added). N.C. Gen. Stat. § 7B-1111(6) (2003) provides
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.
Incapability 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.
See also In re Dhermy, ___ N.C. App. ___, ___, 588 S.E.2d 555, 558
(2003)
. Failure to comply with § 7B-1101 “results in remand of the
case to the trial court for appointment of a guardian
ad litem, as
well as a rehearing.”
Id., (citing
In re Richard v. Michna, 110
N.C. App. 817, 431 S.E.2d 485 (1993)).
In the case
sub judice, petitioner based the termination of
respondent's parental rights as to each minor child on the
following three grounds: 6. The respondent mother has neglected the
said child as defined in G.S. Section 7B-
101(15) in that she has failed to provide
proper care, supervision, and discipline
for said child and has abandoned said
child . . .
7. The respondent mother has willfully left
the child in foster care for more than
twelve (12) months without showing to the
satisfaction of the Court that reasonable
progress under the circumstances has been
made within twelve (12) months in
correcting those conditions which led to
the removal of the child.
8. The child has been placed in the custody
of Mecklenberg County Department of
Social Services and the respondent
mother, for a continuous period of more
than six (6) months next preceding the
filing of the petition, has willfully
failed for such period to pay a
reasonable portion of the cost of care
for said child although physically and
financially able to do so.
As such, these grounds mirror § 7B-1101, which authorizes
termination of parental rights upon a finding that the parent
neglected the child, willfully left the child in foster care, or
failed to pay a reasonable portion of the cost of care. Thus,
there is no allegation of dependency contained in the petition.
The focus of § 7B-1111(6) is narrow and does not require the
appointment of a guardian
ad litem in all cases where evidence
presented at the termination hearing tends to show substance abuse
or mental illness. The statute only requires the trial court to
appoint a guardian
ad litem where it is alleged that the
termination is based on dependency that is the result of substance
abuse, mental retardation, mental illness, organic brain syndrome,
or other similar cause of condition. Thus, this case isdistinguishable from
In re Estes, 157 N.C. App. 513, 579 S.E.2d 496
(2003), where dependency was alleged and “the majority of the
allegations contained in the motion to terminate respondent's
parental rights centered on respondent's 'irrational behavior and
thought patterns.'” 157 N.C. App. at 516, 579 S.E.2d at 498.
Because the petition to terminate parental rights did not
allege that the children were dependent due to respondent's
incapability to care for the children as a result of substance
abuse, mental retardation, mental illness, organic brain syndrome,
or other similar cause of condition, the trial court was not
required to appoint a guardian
ad litem.
Affirmed.
Judges LEVINSON and THORNBURG concur.
Report per Rule 30(e).
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