IN THE MATTER OF: Cleveland County
No. 03-J-164
R.A.L.
Charles E. Wilson, Jr. for petitioner-appellee Cleveland
County Department of Social Services.
Katherine Haen for Guardian ad Litem.
Carlton, Rhodes & Carlton, by Gary C. Rhodes, for respondent-
appellant.
HUNTER, Judge.
Respondent-mother appeals from an order of the trial court
terminating her rights to her minor son. Respondent argues the
trial court erred in proceeding with the termination hearing
without first appointing a guardian ad litem to represent her where
it was alleged that respondent suffered from significant mental
illness. As we agree that the trial court erred in terminating
respondent's parental rights without first assessing her need for
appointment of a guardian ad litem, we reverse the orderterminating respondent's parental rights and remand this case to
the trial court for a hearing on whether respondent is entitled to
a guardian ad litem.
The State presented evidence at the termination hearing
tending to show the following: The minor child at issue was born
to respondent on 21 October 2002. Two days later, the Cleveland
County Department of Social Services (“DSS”) filed a juvenile
petition alleging the infant was neglected in that “the child and
the mother had tested positive for cocaine at the time of the
child's birth and that the mother was [a] paranoid schizophrenic
and heard voices and had not been taking her medication.” DSS was
unable to locate the infant's father, whom respondent could only
identify as a Mexican man named “Amigas.” Respondent told social
workers she did not have a relationship with the infant's father
and was unaware of his whereabouts. DSS also attempted to find an
appropriate family placement for the child but was unable to do so.
DSS therefore placed the infant in foster care.
On 31 October 2002, respondent visited with her son. During
the visit, respondent was “agitated” and “accused . . . the social
workers of putting stuff in her baby's milk to hurt him.”
Respondent was also observed talking to herself and twice “almost
dropped the baby.” In January of 2003, respondent was hospitalized in the
psychiatric unit of the Kings Mountain Hospital. Following her
release, she was arrested and later convicted of two counts of
felonious breaking, entering, and larceny.
On 12 February 2003, the trial court held an adjudication
hearing regarding the minor child. Respondent, who was
incarcerated at the time of the hearing, stipulated that the child
was a neglected juvenile as defined by section 7B-101(15) of the
General Statutes in that he lived in an environment injurious to
his welfare, based upon a finding of respondent's substance abuse.
The trial court subsequently entered an order finding and
concluding that respondent's child was a neglected child and placed
legal and physical custody with DSS.
On 9 April 2003, respondent was hospitalized and diagnosed
with “schizoaffective disorder, bipolar, type M” as well as “early
or full remission for alcohol, cannabis, [and] cocaine dependence.”
In July of 2003, respondent was again incarcerated and placed in
the residential mental health program at the North Carolina
Correctional Institution for Women. While in the residential
mental health program, respondent received treatment for mental
health issues and addiction. Jamie McGinnis (“McGinnis”), a
clinical social worker in the residential mental health program,
testified respondent experienced delusions about “various famouspeople -- having relationships with them . . . receiving money from
them.” On 18 February 2004, respondent discussed with McGinnis her
“concern about three point five million dollars . . . that she was
going [to] will back to . . . Woodrow Wilson and Terry.” McGinnis
stated that respondent was scheduled for release from incarceration
no earlier than January 2005 and no later than April 2005.
Following presentation of the evidence, the trial court found
and concluded that sufficient grounds existed to terminate
respondent's parental rights. Specifically, the trial court found
that respondent “by her use of cocaine while pregnant with the
juvenile, has neglected the juvenile.” The trial court made the
following pertinent findings in regards to respondent's mental
health issues:
15. That the respondent mother was
incarcerated in the North Carolina
Department of Correction[] from July 2001
until January 2002 for felonious
breaking, entering and larceny charges.
That during her incarceration, the
respondent mother received residential
Mental Health services through the
Department of Correction[], which
included treatment for substance abuse
and [mental] illness.
. . .
27. That the Cleveland County Department of
Social Services scheduled at least 10
supervised visits for the mother between
the period of October 31, 2002 and March
6, 2003. The mother only exercisedvisitation with the juvenile on four of
those occasions, including one visit
where the mother left early, and another
where she arrived late. The respondent
mother, during visits, demonstrated a
lack of knowledge of parenting, almost
dropped the baby twice and talked to
herself during the visit.
. . .
31. That during this same period, the
respondent mother was also hospitalized
in the psychiatric unit of the Kings
Mountain Hospital. . . .
. . .
33. That following her arrest the respondent
mother [was] released on bond, but
subsequently arrested again and
hospitalized at Broughton Hospital for at
least one month pursuant to a House Bill
Commitment. . . .
34. That during her current period of
incarceration in the Department of
Correction[], the respondent mother has
. . . continued to demonstrate mental
instability as recently as February 2004.
. . .
40. That the respondent mother, while
incarcerated . . . has received services
based upon a dual diagnosis of mental
illness and substance abuse addiction.
The trial court concluded that respondent had willfully abandoned
the juvenile and had willfully left the juvenile in foster care
without making reasonable progress in correcting the conditions
that led to the child's removal. The trial court concluded it wasin the best interests of the child for respondent's parental rights
to be terminated and entered an order accordingly. From the order
terminating her parental rights, respondent appeals.
Respondent argues the trial court erred in failing to appoint
a guardian ad litem to represent her where substantial evidence was
presented tending to show she was incapable of caring for her child
due to mental illness and substance abuse. We agree that, under
the facts of this case, the trial court erred in proceeding to a
termination hearing without first assessing the need for a guardian
ad litem to be appointed for respondent. We therefore reverse the
order terminating respondent's parental rights and remand this case
to the trial court for a hearing on whether respondent should
receive a guardian ad litem.
A parent's right to retain custody of his or her child and to
determine the care and supervision suitable for that child, is a
“'fundamental liberty interest'” requiring due process protection.
In re Montgomery, 311 N.C. 101, 106, 316 S.E.2d 246, 250 (1984)
(quoting Santosky v. Kramer, 455 U.S. 745, 758-59, 71 L. Ed. 2d
599, 610 (1982)). “Accordingly, the judicial system has a distinct
obligation to ensure that parental rights are protected.” In re
T.W., L.W., E.H., ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (No.
COA04-1204 filed 6 September 2005) (slip op. 6). “[W]ith respect
to termination proceedings, our statutes provide [various]procedures, consistent with due process, to protect the various
interests of the parties involved.” Montgomery, 311 N.C. at 108,
316 S.E.2d at 251. Section 7B-1101 of our General Statutes is one
such example. Section 7B-1101 of our General Statutes provides, in
pertinent part, that:
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 substance
abuse, mental retardation, mental
illness, organic brain syndrome, or
another similar cause or condition.
N.C. Gen. Stat. § 7B-1101 (2003). Where the allegations contained
in a petition or motion to terminate parental rights tend to show
that the respondent is incapable of properly caring for his or her
child because of mental illness, the trial court is required to
appoint a guardian ad litem to represent the respondent at the
termination hearing. In re Estes, 157 N.C. App. 513, 518, 579
S.E.2d 496, 499, disc. review denied, 357 N.C. 459, 585 S.E.2d 390
(2003). A guardian ad litem must be appointed even when juvenile
dependency is alleged, but not pursued as a ground to terminate
parental rights at the termination hearing. This is because theevidence in neglect and dependency cases often reveals that a
parent's “mental health issues and the child's neglect [are] so
intertwined at times as to make separation of the two virtually, if
not, impossible.” 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);
see also In re B.M., M.M., An.M., & Al.M., 168 N.C. App. 350, 358-
59, 607 S.E.2d 698, 703-04 (2005) (reversing the trial court where
it failed to appoint a guardian ad litem even though a ground other
than dependency existed to terminate the respondent's parental
rights, as the same mental health issues were pertinent to both
grounds).
The appointment of a guardian ad litem for a parent who
suffers from diminished capacity is essential to protect the
parent's procedural due process rights. See In re D.S.C., 168 N.C.
App. 168, 171, 607 S.E.2d 43, 46 (2005) (stating that
“[a]ppointment of a GAL . . . is for the purpose of protecting and
ensuring, at the very least, the procedural due process rights of
a parent who may be later adjudicated as 'incapable'”); In re
Shepard, 162 N.C. App. 215, 227, 591 S.E.2d 1, 9 (2004) (noting
that the role of the guardian ad litem is as a “guardian of
procedural due process for [the] parent, to assist in explaining
and executing her rights”). In Montgomery, our Supreme Court held that the termination of
parental rights of a person suffering from diminished capacity is
constitutional. The respondent-mother in Montgomery “suffered from
mental problems” in that she “often related to others that she
believed someone was looking in the windows of her house and also
that someone was trying to get inside her mind.” Montgomery, 311
N.C. at 103, 316 S.E.2d at 248. Psychological evaluations
indicated that the respondent-mother was also mentally retarded.
The trial court terminated the respondent-mother's parental rights
on the ground that she had neglected her children.
On appeal, the respondent-mother challenged, inter alia, the
constitutionality of subsection (7) of N.C. Gen. Stat. § 7A-289.32
(now codified as N.C. Gen. Stat. § 7B-1111(a)(6)), which provided
for termination of parental rights upon a finding that “'the parent
is incapable as a result of mental retardation or mental illness of
providing for the proper care and supervision of the child . . .
and that there is a reasonable probability that such incapability
will continue throughout the minority of the child.'” Montgomery,
311 N.C. at 114, 316 S.E.2d at 254 (quoting N.C. Gen. Stat. §
7A-289.32(7)). The respondent-mother argued that termination of
her parental rights under this section denied her due process
rights. The Montgomery Court disagreed, noting that the parental
termination statutes provided for notice and a hearing for parents,as well as the right to present witnesses and conduct cross-
examination. The Court further stated that:
A parent has a right to counsel and to
appointed counsel in case of indigency, if not
waived by the parent. The Act also provides
for the appointment of a guardian ad litem to
represent the parent who suffers a diminished
mental capacity. We believe the provisions of
this statute adequately assure respondent[],
and those similarly situated, of procedural
due process protection.
Id. at 115, 316 S.E.2d at 255 (citation omitted) (emphasis added).
Thus, our Supreme Court considered the appointment of a guardian ad
litem a critical factor in the protection of procedural due process
rights for parents who suffer diminished mental capacity.
More recently, this Court held that the trial court erred when
it failed to rule on a motion to appoint a guardian ad litem during
a termination proceeding for a respondent-mother diagnosed with
bipolar affective disorder with possible psychotic disorder.
(See footnote 1)
See
In re T.W., ___ N.C. App. at ___, ___ S.E.2d at ___. Although the
respondent-mother's parental rights were not terminated pursuant to
section 7B-1111(6), the Court nevertheless held that, where theevidence tended to show, and the trial court made findings
indicating that the respondent-mother's “mental instability and her
incapacity to raise her minor children were central factors in the
court's decision to terminate her parental rights[,]” the failure
to address the respondent-mother's request for a guardian ad litem
was reversible error. In re T.W., ___ N.C. App. at ___, ___ S.E.2d
at ___ (slip op. 10).
In the present case, the original juvenile petition filed by
DSS alleged respondent had neglected her infant in that “the child
and the mother had tested positive for cocaine at the time of the
child's birth and that the mother was [a] paranoid schizophrenic
and heard voices and had not been taking her medication.” At the
termination hearing, the State presented significant evidence of
respondent's history of mental illness, including her
hospitalization at two mental institutions and her assignment to
the residential mental health program at the North Carolina
Correctional Institution for Women. The evidence tended to show
that respondent was diagnosed as schizophrenic, bipolar, and that
she experienced delusions and talked to herself at times. During
one visit with her child, respondent was “agitated,” accused social
workers of attempting to harm the infant, and twice almost dropped
her child. In its order terminating respondent's parental rights,
the trial court made several findings noting respondent's historyof mental illness, including the fact that respondent had
“continued to demonstrate mental instability as recently as
February 2004[,]” which was only one month prior to the termination
hearing. As such, there was substantial evidence that respondent
suffered from diminished mental capacity. Moreover, the trial
court's findings “demonstrate the court's awareness of respondent's
severe limitations in the ability to parent her child[] based upon
her mental illness.” In re T.W., ___ N.C. App. at ___, ___ S.E.2d
at ___ (slip op. 9). Under these facts, we conclude that the trial
court erred in terminating respondent's parental rights without
first holding a hearing to determine whether the appointment of a
guardian ad litem was necessary to protect respondent's procedural
due process rights.
Petitioner argues that respondent is not entitled to
appointment of a guardian ad litem, in that the petition to
terminate her parental rights did not allege dependency as grounds
for termination, but only neglect. Nor did the petition for
termination allege any mental instability on the part of
respondent. Petitioner is correct that section 7B-1101 only
requires the trial court to appoint a guardian ad litem “[w]here
it is alleged that a parent's rights should be terminated pursuant
to G.S. 7B-1111(6).” N.C. Gen. Stat. § 7B-1101(1). Protection of
respondent's procedural due process rights cannot stand or fall,however, based upon DSS's discretionary decision to allege neglect,
rather than dependency, in its petition for termination of parental
rights. Otherwise, the determination of whether a parent is
entitled to a guardian ad litem appointment is placed entirely in
the hands of DSS, who is the adversarial party in a termination
case. As noted supra, the right to custody of one's child is a
“fundamental liberty interest” requiring due process protection.
Our Supreme Court has held that the due process rights of a parent
with diminished capacity are protected during a termination
proceeding where the statutes provide for appointment of a guardian
ad litem. See Montgomery, 311 N.C. at 115, 316 S.E.2d at 255.
Thus we hold that where, as here, substantial evidence before the
trial court tends to show that the respondent suffers from
diminished mental capacity, the trial court must conduct a hearing
to determine the respondent's need for appointment of a guardian ad
litem before terminating parental rights. See id.; In re T.W., ___
N.C. App. at ___, ___ S.E.2d at ___. We therefore reverse the
order of termination and remand this case to the trial court for a
hearing to determine respondent's need for a guardian ad litem to
protect her procedural due process rights. Our decision makes it
unnecessary to address respondent's remaining assignments of error.
The judgment of the trial court is
Reversed and remanded.
Judges TYSON and STEELMAN concur.
Report per Rule 30(e).
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