Appeal by respondent from order entered 17 May 2004 by Judge
Charles Anderson in Chatham County District Court. Heard in the
Court of Appeals 12 May 2005.
Lunday A. Riggsbee for petitioner-appellee Chatham County
Department of Social Services.
Richard E. Jester for respondent-appellant.
TIMMONS-GOODSON, Judge.
Respondent appeals the trial court order terminating her
parental rights to her minor daughter, Kate.
(See footnote 1)
Because the trial
court erred by failing to appoint a guardian ad litem for
respondent, we reverse the trial court order and remand the case
for a new trial.
The facts and procedural history pertinent to the instant
appeal are as follows: On 29 September 2003, Chatham County
Department of Social Services (“petitioner”) filed a petition to
terminate respondent's parental rights to Kate. The petitioncontained the following pertinent allegations:
1. That [Kate] was born May 17, 2002, and
currently resides in foster care in Chatham
County, North Carolina.
. . . .
3. That [petitioner] has been given custody
of [Kate] in an order dated May 20, 2002, and
an order finding [Kate] dependent was entered
at a hearing on October 24, 2002.
. . . .
6. That grounds exist for the termination of
the parental rights of [respondent], pursuant
to N.C.G.S. 7B-1111[(a)](1) in that
[petitioner] has neglected [Kate], and/or
pursuant to N.C.G.S. 7B-1111[(a)](7) in that
[respondent] has abandoned [Kate], and/or
pursuant to N.C.G.S. 7B-1111[(a)](6) in that
[respondent] is incapable of providing for the
proper care and supervision of [Kate], such
that [Kate] is a dependent juvenile and that
there is a reasonable probability that such
incapability will continue for the foreseeable
future, in that:
a) [Petitioner] uses crack cocaine, and
both [petitioner] and [Kate] tested
positive for crack cocaine at the birth
of [Kate].
b) [Petitioner] had not followed through
with any drug treatment programs since
the birth of [Kate]. She has entered and
left several programs since the birth of
[Kate].
. . . .
7. That it is in the best interests of [Kate]
to terminate the parental rights of
[petitioner].
The matter came to trial on 26 February 2004. Following
presentation of evidence and argument from both parties, the trial
court requested that petitioner and Kate's guardian ad litemprepare a proposed order of termination, and that respondent's
attorney be given an opportunity to comment on the proposed order's
findings. The trial court stated that it would enter its order
after the proposed order had been presented, and it “reserve[d] the
right in its discretion to request further hearings and to further
consider the best interests of [Kate].”
On 7 May 2004, the trial court notified the parties of a
hearing regarding its “taking [of] judicial notice of the record in
civil and criminal proceedings . . . involving the respondent,” and
a hearing was held on the matter on 13 May 2004. Following the
hearing, the trial court took judicial notice of the underlying
files. In an order entered 17 May 2004, the trial court made the
following pertinent findings of fact:
9. Grounds exist for the termination of the
parental rights of [respondent] pursuant
to NCGS 7B-1111(a)(1) and (7) in that:
(a) [Respondent] and [Kate] tested
positive for cocaine at [Kate's]
birth, May 17, 2002.
(b) [Respondent] has a long history of
use of crack cocaine and alcohol.
(c) [Respondent] left voluntary
residential drug treatment (Day by
Day, Selma, NC[]) where she was
placed with [Kate] after [Kate's]
birth pursuant to [petitioner's]
reunification effort and May 22,
2002, voluntary agreement, against
advice of treatment providers and
with express notice and warning that
[Kate] would be removed from her
care and placement and placed in
foster care if she left the
treatment program.
(d) Upon the direction and encouragementof [petitioner] as part of their
reunification efforts [respondent]
enrolled in outpatient treatment at
the Horizon Outpatient Substance
Abuse program (UNC Hospitals).
However, after a brief period of
attendance she failed to cooperate
and attend sessions, in spite of her
parents' encouragement and program
assistance with transportation, and
she dropped out of the outpatient
treatment.
(e) Subsequent to dropping out of the
Horizon Program, during a court
ordered evaluation of [respondent]
by David Rademacher, MA, LPA, NCP,
[respondent] was diagnosed as
suffering from cocaine dependency,
alcohol abuse, with depression with
psychotic features, post traumatic
stress disorder and paranoid
personality disorder. As a result
of credible threats to the
Department social worker made during
the evaluation, [respondent] was
involuntarily committed to John
Umstead Hospital, and released
shortly thereafter for outpatient
care at Orange Person Chatham Mental
Health; however [respondent] failed
to attend outpatient treatment.
. . . .
15. The opinion of [Kate's] guardian ad
litem, as set forth and substantiated in
the GAL report filed as GAL Exhibit 1, is
that it is in the best interests of
[Kate] that parental rights be
terminated.
Based in part upon these findings of fact, the trial court
concluded that sufficient grounds exist to terminate respondent's
parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) and
(7). After further concluding that it was in Kate's best interests
to do so, the trial court ordered that respondent's parental rightsto Kate be terminated. Respondent appeals.
The dispositive issue on appeal is whether the trial court
erred by failing to appoint a guardian
ad litem for respondent.
Because we conclude that respondent was entitled to an appointed
guardian
ad litem pursuant to N.C. Gen. Stat. § 7B-1101, we reverse
the trial court order and remand the case for a new trial.
N.C. Gen. Stat. § 7B-1111(a)(6) (2003) provides that a
respondent's parental rights may be terminated upon a finding that
the 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.” The statute further provides that such
incapability “may be the result of substance abuse, mental
retardation, mental illness, organic brain syndrome, or any other
cause or condition that renders the [respondent] unable or
unavailable to parent the juvenile and the [respondent] lacks an
appropriate alternative child care arrangement.”
Id.
N.C. Gen. Stat. § 7B-1101(1) (2003) requires appointment of a
guardian
ad litem for the respondent where “it is alleged that [the
respondent'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.” This Court has previouslyheld that the requirement of N.C. Gen. Stat. § 7B-1101(1) is
mandatory, and that a respondent does not lose the right to assert
an error based upon a violation of N.C. Gen. Stat. § 7B-1101(1) by
failing to request a guardian
ad litem him or herself.
See In re
Estes, 157 N.C. App. 513, 517-18, 579 S.E.2d 496, 499 (citing
In re
Richard v. Michna, 110 N.C. App. 817, 821-22, 431 S.E.2d 485, 488
(1993)),
disc. review denied, 357 N.C. 459, 585 S.E.2d 390 (2003).
In the instant case, as detailed above, the petition to
terminate respondent's parental rights specifically alleged that
sufficient grounds exist to terminate respondent's parental rights
pursuant to N.C. Gen. Stat. § 7B-1111(a)(6). The petition alleged
that Kate was a dependent juvenile and that there was a reasonable
probability that respondent would remain incapable to provide for
her care, in that respondent “uses crack cocaine” and “had not
followed through with any drug treatment programs since” Kate's
birth. However, despite these allegations, the trial court failed
to appoint a guardian
ad litem to represent respondent. We
conclude that the trial court erred.
Petitioner contends that respondent is not entitled to a new
trial because she has failed to demonstrate she was prejudiced by
the trial court's error. In support of this contention, petitioner
asserts that, prior to trial, it informed both the trial court and
respondent that it would not proceed with termination pursuant to
N.C. Gen. Stat. § 7B-1111(a)(6). However, we note that petitioner
concedes that “the record does not reflect that statement verbatim,
nor was the intent reduced to writing.” Petitioner neverthelessmaintains that respondent has failed to demonstrate prejudicial
error because the trial court did not terminate respondent's
parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(6). In
support of this contention, petitioner relies on
In re Dhermy, 161
N.C. App. 424, 429, 588 S.E.2d 555, 559 (2003), in which this Court
concluded that “although [the petitioner] should have formally
dismissed Subsection 7B-1111(a)(6) as a ground for termination
prior to the hearing, [the] respondent was not prejudiced by [the
trial court's failure to appoint a guardian
ad litem] since [the
ground] was not pursued by [the petitioner] at the hearing or found
as a ground for termination by the trial court.” However, we note
that in this Court's second opinion in
Dhermy, we rejected this
contention and reversed the trial court order terminating the
respondent's parental rights, concluding that “the statutory
mandate for appointment of a guardian ad litem was violated despite
the trial court not terminating [the] respondent's parental rights
based on juvenile dependency.”
In re J.D., 164 N.C. App. 176, 182,
605 S.E.2d 643, 646,
disc. review denied, 358 N.C. 732, 601 S.E.2d
531 (2004). We offered the following analysis for our conclusion:
While neglect was the ground . . . pursued
during the termination hearing and ultimately
found by the trial court as the basis for
terminating respondent's parental rights,
there was nevertheless some evidence that
tended to show that respondent's mental health
issues and the child's neglect were so
intertwined at times as to make separation of
the two virtually, if not, impossible. In
fact, in its order regarding adjudication, the
trial court found that a doctor's
psychological assessment of respondent was
credible in that respondent's “psychological
problems can negatively impact on her abilityto be an adequate parent and caretaker.
Further, that [respondent] was and is
emotionally regressed and parenting would be a
challenge to her.” Moreover, the trial court
considered respondent's mental health issues
in its disposition order by stating that
the respondent mother cannot provide
a safe and permanent home for the
minor child as she lacks any insight
into her own significant mental
health issues, how her failure to
protect her daughter damaged her
daughter, that she helped to create
the neglectful and abusive
environment, and how this has been
detrimental to her daughter.
Respondent therefore should have had a
guardian ad litem act on her behalf at the
termination hearing.
Id. (alterations in original).
In the instant case, although the trial court terminated
respondent's parental rights based upon those grounds listed in
N.C. Gen. Stat. § 7B-1111(a)(1) and (7), the record tends to show
that the trial court considered respondent's ongoing substance
abuse and mental illness in determining whether to terminate her
parental rights. As detailed above, in the order terminating
respondent's parental rights, the trial court found as fact that
respondent “has a long history of use of crack cocaine and alcohol”
and “was diagnosed as suffering from cocaine dependency, alcohol
abuse, with depression with psychotic features, post traumatic
stress disorder and paranoid personality disorder.” Furthermore,
the trial court noted respondent's “continue[d] cocaine use” when
determining whether she had “fail[ed] to show reasonable progress
under the circumstances in correcting the conditions that led to[Kate's] removal[.]” Finally, the trial court based its conclusion
that it was in Kate's best interests to terminate respondent's
parental rights upon a
report which stated:
Although she can function well, [respondent]
has what [a psychologist] has characterized as
severe mental illness. She abuses both crack
cocaine and alcohol. . . . [Respondent's]
paranoid personality disorder appears to keep
her from trusting the very people who could
help her. [Respondent] has never been
debriefed by the psychologist as to the
results of her evaluation 18 months ago so she
has never been told about her own mental
illness directly and from a credible source.
In light of the foregoing, we conclude that evidence of
respondent's mental health and substance abuse was “so intertwined”
with evidence supporting the grounds of termination relied upon by
the trial court that “at times . . . separation of the two [was]
virtually, if not, impossible.”
J.D., 164 N.C. App. at 182, 605
S.E.2d at 646. Therefore, we hold that respondent was entitled to
an appointed guardian
ad litem, and accordingly, we reverse the
trial court order terminating respondent's parental rights, and we
remand the case for appointment of a guardian
ad litem and a new
trial.
Reversed and Remanded.
Judges McCULLOUGH and STEELMAN concur.
Footnote: 1