In Re: J.N., (04-1017) 05/03/2005

Appeal by respondent-appellant from order entered 30 September 2003 by Judge Elizabeth D. Miller in District Court, Mecklenburg County. Heard in the Court of Appeals 23 March 2005.

    Alan B. Edmonds, Associate County Attorney, for petitioner- appellee.

    The Turrentine Group, PLLC, by Karlene Scott-Turrentine, for respondent-appellant.

    Emily B. Lewis for guardian ad litem.

    McGEE, Judge.

    This is respondent's second appeal from an order terminating her parental rights to J.N. Respondent's rights were first terminated in an order entered 22 March 2000, on the grounds that respondent had willfully left J.N. in foster care for a period exceeding twelve months without making reasonable progress toward correcting the conditions that led to J.N.'s placement in foster care. See N.C. Gen. Stat. § 7B-1111(a)(2) (2003). Our Court reversed and vacated that order, holding that there was not clear, cogent and convincing evidence to support the trial court's order terminating respondent's parental rights. In re Nesbitt, 147 N.C. App. 349, 361, 555 S.E.2d 659, 667 (2001).     Mecklenburg County Department of Social Services, Division of Youth and Family Services (petitioner), filed a second petition to terminate respondent's parental rights on 11 July 2002. The petition alleged that grounds had been established to terminate respondent's parental rights pursuant to: (1) N.C. Gen. Stat. § 7B- 1111(a)(1), on the grounds that respondent neglected J.N. as defined by N.C. Gen. Stat. § 7B-101(15); (2) N.C. Gen. Stat. § 7B- 1111(a)(2), on the grounds that respondent willfully left J.N. in foster care for more than twelve months without showing reasonable progress in correcting the conditions that led to the placement of J.N. in foster care; (3) N.C. Gen. Stat. § 7B-1111(a)(3), on the grounds that J.N. had been placed in petitioner's custody and respondent, for a continuous period of more than six months preceding the filing of the petition, had willfully failed to pay a reasonable portion of the cost of J.N.'s care, despite being physically and financially able to do so; (4) N.C. Gen. Stat. § 7B- 1111(a)(6), on the grounds that respondent was incapable of providing for the proper care and supervision of J.N., such that J.N. was a dependent child within the meaning of N.C. Gen. Stat. § 7B-101, and there was a reasonable probability that such incapability would continue for the foreseeable future; and (5) N.C. Gen. Stat. § 7B-1111(a)(7), on the grounds that respondent had willfully abandoned J.N. for at least six consecutive months immediately preceding the filing of the petition.
    Psychologist Dr. Jenny Poston (Dr. Poston) testified at the second termination hearing. Dr. Poston evaluated respondent inDecember 1997 and again in April and May 2002. After the 1997 evaluation, Dr. Poston diagnosed respondent with Schizotypal Personality Disorder (SPD). Dr. Poston concluded from the 2002 evaluation that, although respondent suffered from a mild level of major depression, respondent had made some improvements and no longer qualified for a diagnosis of SPD. However, Dr. Poston testified that respondent still exhibited some symptoms of SPD, and that had the symptoms been "a little bit more pronounced," respondent would qualify for the diagnosis. Dr. Poston also indicated it was possible that respondent could revert back to a SPD diagnosis. Dr. Poston testified that respondent's mental health affected respondent's ability to parent and that respondent was not "to a point now where I would be comfortable with her parenting [J.N.] without any supervision or interaction from anybody else[.]"
    At the close of petitioner's evidence, petitioner dismissed the portion of the petition to terminate respondent's parental rights that alleged that J.N. was a dependent juvenile. At the hearing, petitioner's attorney stated:
        In view of the testimony, particularly the testimony of Dr. Poston and her report, [petitioner] is dismissing paragraph A of the petition . . . where [petitioner] alleged that [respondent] was incapable of providing the proper care and supervision of [J.N.] such that [J.N.] is a dependent juvenile . . . . I think in view of [Dr. Poston's] testimony and the report that [petitioner] can[not] in good conscience say that the evidence has shown that [respondent] is incapable due to a mental disability of doing that.

    At the close of the hearing, the trial court found thatgrounds existed to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), N.C. Gen. Stat. § 7B- 1111(a)(2), N.C. Gen. Stat. § 7B-1111 (a)(3), and N.C. Gen. Stat. § 7B-1111(a)(7). The trial court also found that it was in J.N.'s best interests that respondent's parental rights be terminated. Respondent appeals.
    In her first assignment of error, respondent argues that the trial court erred in failing to appoint a guardian ad litem to represent respondent when DSS alleged that J.N. was a dependent juvenile and that grounds existed to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(6). In response, petitioner and J.N.'s guardian ad litem contend that since petitioner dismissed the allegation of juvenile dependency at the close of its evidence and did not proceed on that ground at the termination hearing, the trial court was not required to appoint a guardian ad litem for respondent.
    N.C. Gen. Stat. § 7B-1101(1) (2003) provides:
        [A] guardian ad litem shall be appointed in accordance with the provisions of [N.C.]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 [N.C.]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.

(emphases added).
    North Carolina case law interpreting the statute is clear thatwhen a petition for the termination of parental rights alleges juvenile dependency on the grounds of a respondent-parent's mental illness, a guardian ad litem must be appointed to represent the respondent-parent. In re Estes, 157 N.C. App. 513, 517-18, 579 S.E.2d 496, 499, disc. review denied, 357 N.C. 459, 585 S.E.2d 390 (2003). Failure to appoint a guardian ad litem in these cases results in reversible error, even when the respondent-parent does not request a guardian ad litem or does not otherwise suffer any prejudice. In re Richard v. Michna, 110 N.C. App. 817, 821-22, 431 S.E.2d 485, 488 (1993). Furthermore, a guardian ad litem must be appointed even when juvenile dependency is only alleged, and not pursued as a ground to terminate parental rights at the termination hearing. 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).
    In J.D., although the petition to terminate parental rights alleged that the juvenile was both neglected and dependent, the petitioner did not pursue dependency at the termination hearing. Id. at 179-81, 605 S.E.2d at 644-46. We held that the trial court committed reversible error by failing to appoint a guardian ad litem to represent the respondent because dependency was alleged in the petition, the petitioner offered evidence regarding the effect of the respondent's mental health on the respondent's ability to care for the juvenile, and the trial court referenced the mental health evidence in its order. We stated:
        While neglect was the ground [petitioner] pursued during the termination hearing and ultimately found by the trial court as the basis for terminating respondent's parentalrights, 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.

Id. at 182, 605 S.E.2d at 646. See also In re B.M., ___ N.C. App. ___, ___, 607 S.E.2d 698, 703-04 (1 February 2005) (holding that it was reversible, and not harmless, error when a trial court failed to appoint a guardian ad litem even though a ground other than dependency existed to terminate the respondent's parental rights, since the same mental health issues were pertinent to both grounds).
    We find that, as in J.D., respondent's mental health issues and her ability to care for J.N. "were so intertwined . . . [that] separation of the two [are] impossible." J.D., 164 N.C. App. at 182, 605 S.E.2d at 646. In this case, the petition to terminate respondent's parental rights alleged the following:
        8.    . . . [T]he grounds set forth in [N.C. Gen. Stat.] § 7B-1111(a)(6) have been established in that [respondent] is incapable of providing for the proper care and supervision of [J.N.] such that [J.N.] is a dependent juvenile within the meaning of [N.C. Gen. Stat.] § 7B-101 and there is a reasonable probability that such incapability will continue for the foreseeable future.

            a.    Previously in a psychological evaluation ordered by the [trial court] in 1997, [respondent] was diagnosed with Schizotypal Personality Disorder by [Dr. Poston].

            b.    The psychological evaluation recommended [respondent] receive regular therapy and medication.
            c.    [Respondent] was re-evaluated by Dr. Poston in 2002. Dr. Poston determined [respondent] no longer met the criteria under Axis II for Schizotypal Personality Disorder, but noted that those features remain present.

            d.    Under Axis I, [respondent] was diagnosed with major depression, recurrent, mild.

            e.    [Respondent] did not seek regular treatment or therapy for the Schizotypal Personality Disorder following the end of the termination of parental rights trial in March, 2000.

            f.    As a consequence, [respondent] has been unable to secure regular employment, housing, or make sufficient financial arrangements that would allow her to care for herself and [J.N.].

            g.    [Respondent's] mental condition and inability to parent remain the same as they were five years ago when she was first evaluated by Dr. Poston. It is reasonably probable her mental condition will remain the same for the foreseeable future.
The petition also references respondent's mental health condition and compliance with her mental health treatment in its allegations that respondent neglected J.N., that respondent willfully left J.N. in foster care for twelve months while failing to make reasonable progress, and that respondent abandoned J.N. Petitioner further offered evidence, through Dr. Poston's testimony and report, about respondent's mental health and its affect on her ability to parent J.N. Finally, the trial court made extensive findings regarding respondent's psychological issues based on Dr. Poston's testimony,and relied on this testimony when it found that grounds existed to terminate respondent's parental rights.
    Since the petition alleged dependency, petitioner presented evidence regarding respondent's mental health condition and its affect on her ability to parent, and the trial court referenced this evidence throughout its findings, we hold that the trial court erred in failing to appoint a guardian ad litem to represent respondent.
    Because we find this issue dispositive of this case on appeal, we need not consider respondent's other assignments of error. Therefore, we reverse the order terminating respondent's parental rights and remand this case for appointment of a guardian ad litem to represent respondent and a new trial.
    Reversed and remanded.
    Judges BRYANT and STEELMAN concur.
    Report per Rule 30(e).

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