Filed: 19 October 2004
IN THE MATTER OF: A.D.H., Mecklenburg County
a minor child No. 03 J 778
Tyrone C. Wade for petitioner-appellee Mecklenburg County
Department of Social Services.
Duncan B. McCormick for respondent-appellant.
WYNN, Judge.
Respondent, biological mother of the juvenile A.D.H.,
appeals from the order terminating her parental rights.
Respondent argues the trial court erred by failing to appoint a
guardian ad litem for Respondent as required by section
7B-1101(1) of the General Statutes. We agree with Respondent and
therefore reverse the order and remand for further proceedings.
The record reflects that juvenile was born to Respondent on
7 January 1995. On 16 May 2002, Mecklenburg County Department of
Social Services (“DSS”) obtained non-secure custody of juvenile
and filed a juvenile petition alleging neglect and dependency,upon information that Respondent's prescription drug abuse was
endangering juvenile. The court summary submitted by DSS noted
Respondent had been diagnosed with depression, schizoaffective
disorder, and bipolar disorder and had overdosed on her
prescribed medication during the course of its investigation.
The trial court held an adjudication hearing on 22 August 2002,
and entered an adjudication of neglect and dependency on 10
October 2002.
The initial case plan developed by DSS required Respondent
to address her “identified mental health diagnosis,” “history of
illegal drug use,” and lack of “parenting skills and knowledge.”
In February of 2003, in response to her limited progress, DSS
developed a new case plan containing the following five goals for
Respondent: (1) stabilize her mental health by complying with
her treatment regimen of medication and therapy; (2) obtain
stable housing and employment; (3) demonstrate her sobriety
through random drug screens; (4) remain in contact with her
social worker; and (5) complete parenting classes.
Following a 25 February 2003 review hearing, the trial court
entered an order expressing its concern at Respondent's lack of
progress. The court incorporated the findings in DSS's court
summary, in which Respondent reported that she had skipped anappointment with her psychiatrist, was unemployed, and was living
in a motel room after being evicted from her residence.
In an order entered 14 May 2003, the trial court ceased
reunification efforts. The court found Respondent had not
obtained stable housing or employment, was frequently
incarcerated, had criminal charges pending against her, and
continued to use controlled substances. The social worker's
court summary detailed Respondent's numerous arrests for
shoplifting and driving offenses, her submission to only a single
drug screen, which registered positive for cocaine, and her
failure to receive mental health treatment.
On 26 June 2003, the trial court changed the permanent plan
to adoption and directed DSS to file a petition for termination
of Respondent's parental rights. The court found Respondent “has
attempted suicide, has been incarcerated, [and] has not completed
the case plan objectives.” The social worker's summary reported
Respondent had made “no progress” and had “spent most of the last
four weeks in jail or in the psychiatric hospital[,]” after
attempting suicide on 6 June 2003.
DSS filed a petition to terminate Respondent's parental
rights on 25 July 2003, asserting as grounds for termination that
she (1) had neglected juvenile; (2) was “incapable of providing
for the proper care and supervision of the juvenile, such thatthe juvenile is a dependent juvenile within the meaning of
N.C.G.S. § 7B-101 and there is a reasonable probability that such
incapability will continue for the foreseeable future[;]” (3) had
failed for a continuous period of six months to pay for a
reasonable portion of juvenile's care; and (4) had left juvenile
in a placement outside the home for a continuous period of more
than twelve months without reasonable progress in correcting the
circumstances leading to the placement. See N.C. Gen. Stat. §
7B-1111(a)(1)-(3), (6) (2003).
Respondent failed to attend the 16 September 2003
termination hearing. Her permanency planning social worker,
David Fee, recounted her case history and her failure to progress
toward the goals established in her case plans. He noted
Respondent admitted using crack cocaine in April of 2003, and had
been hospitalized twice in June 2003 after overdosing on
prescription drugs. Although DSS did not assert dependency as a
ground for termination at the hearing, as it had in the petition,
counsel for DSS made the following argument regarding the
allegation of neglect:
No progress has been made toward remedying
the issues which necessitate[d juvenile's]
removal. There is certainly a reasonable
and, I'd say, high probability that [neglect]
will continue in light of the mother's
ongoing mental health limitations and thestruggles there, coupled with the substance abuse.
Among the findings announced by the judge in open court was the
following:
Regarding the allegation that [Respondent] is
incapable of providing for the proper care
and supervision and there's a reasonable
probability such incapability will continue
into the foreseeable future, I find that as a
result of her mental health condition,
consisting of bipolar disorder, depression,
and schizo-affective disorder, and her
substance abuse issues, that she is incapable
of providing care for the juvenile.
The court further found that Respondent's mental health history
prevented her from contributing financially to juvenile's care,
and deemed the lack of contribution to be “a basis for my finding
of neglect[.]”
The written order terminating Respondent's parental rights
includeed the following findings of fact:
8. . . . There have been three separate case
plans developed. One case plan developed in
July, 2002 attempted to address the mother's
mental health diagnosis, her history of
illegal drug usage and her lack of
appropriate parenting skills and knowledge.
An updated plan was implemented in 2003 which
required the mother to again address mental
health issues, obtain stable housing, address
substance abuse and improve her parenting
skills.
9. That the mother has been diagnosed with
severe depression, schizoaffective disorder
and bipolar disorder. The mother did not
complete the case plan objectives and has notmaintained regular and consistent visitation
with the juvenile . . . .
10. That currently, the mother continues to
have unstable housing, she has not maintained
stable employment and there have been suicide
attempts which require hospitalization. . . .
11. . . . She has been hospitalized for
prescription drug overdose. The mother
admitted to intentional drug overdoses. . . .
. . . .
17. That the mother cannot meet the
juvenile's needs.
Based on these findings, the trial court concluded that
grounds for termination were established, as follows:
3. That the respondent mother has neglected
this juvenile as that term is defined in NCGS
§7B-101(15) in that she has failed to provide
proper care, supervision and discipline for
the juvenile as more specifically set forth
in the above findings of fact and
incorporated herein. The mother has
abandoned the juvenile by depriving her of
her parental care. While the mother has not
paid anything to defray the cost of care,
failure to pay something is neglectful
behavior but this Court does not find that
she had the physical and financial means to
pay child support.
4. That respondent mother has willfully left
the juvenile in foster care or placement
outside the home for more than twelve (12)
months without showing to the satisfaction of
the Court that reasonable [progress] has been
made in correcting those conditions which led
to the removal of the juvenile.
5. That the mother has been diagnosed with
schizoaffective disorder, bipolar disorder,
and depression which ha[ve] not been
adequately addressed. The mother has not
addressed substance abuse and is incapable of
providing care for the juvenile. . . .
Having found grounds for termination, the trial court further
concluded that termination would serve the best interests of
juvenile, “in order that [she] may be placed in a permanent, safe
living arrangement where her needs will be met.” Respondent
filed timely notice of appeal from the order.
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