IN RE: A.C.J. and P.A.G.S.
Durham County
No. 04 TPR 6, 7
Deputy County Attorney Thomas W. Jordan, Jr., for petitioner.
Wendy C. Sotolongo, for Guardian ad litem.
Annick Lenoir-Peek, for respondent.
HUDSON, Judge.
The Durham County Department of Social Services (“DSS”) filed
a petition for termination of respondent mother's parental rights
to minor children A.C.J. and P.A.G.S. on 10 December 2002. On 15
January 2003, the children were adjudicated neglected. Following
a hearing, the district court of Durham County terminated
respondent's parental rights by order dated 24 September 2004 on
the grounds that respondent mother had left the children in foster
care for more than twelve months without showing reasonable
progress under the circumstances. Respondent mother appeals, and
we vacate the order and remand for further proceedings. Respondent mother had a history of substance abuse, and was
diagnosed with bipolar disorder and obsessive compulsive disorder.
The court made numerous findings, some of which are challenged by
respondent mother:
7. On January 15, 2003, a disposition was held
and the Court entered an Order which provided
in relevant part that: visitation with
respondent mother be supervised ; the mother
shall establish child support; receive mental
health treatment and follow any
recommendations for treatment including
medication management; refrain from any
substance abuse; receive substance treatment
and follow any recommendations for treatment;
complete an intake for Family Drug Treatment
Court; obtain and maintain stable housing;
obtain and maintain stable employment; and
attend and complete a parenting class.
8. On April 8, 2003, this matter was
reviewed. The mother was compliant with most
of her treatment. She had been hospitalized
for two weeks at Coastal Plains in Rocky
Mount, NC for mental health as well as
substance abuse treatment. However the mother
had not been clean or free of addictive
substances for any extended period of time,
despite treatment. The mother was regularly
visiting with her children for one supervised
hour per week. The Court ordered visitation
to continue to be supervised by DSS or DSS
appointed contact and to be conditioned upon
the mother being drug and alcohol free during
the visits. The visits were increased to two
hours per week.
9. At the court review on July 8, 2003, the
Court found that the mother was not compliant
with court orders and treatment in that she
had not attended her group treatment or random
drug screening since the beginning of June,
2003, and had declined screening. The mother
admitted to not being clean for any extended
period of time. The mother wanted to attend a
residential treatment program, an option which
the social worker explored with the treatment
counselor. There were no programs available
that Ms. Cook had not already been to or waseligible for. The mother continued to visit
regularly with the children. The Court
ordered that: visitation with the mother be
supervised by DSS or DSS appointed contact
including the DAP program and conditioned upon
the mother being drug and alcohol free during
the visits and remain at two hours per week;
if the mother desired reunification, the
mother shall take the necessary actions to
correct the conditions which led to the
removal of the children, including continue
with drug treatment, and follow any
recommendations for treatment, including
random drug screen, and attend and complete
the next parenting course of classes offered
at DSS or the Exchange Clubs Parenting
Program.
10. The case was reviewed again on December 2,
2003. The Court found that the mother had
been in a psychiatric admission at Durham
Regional Hospital from September 17 to 29.
The mother is also infected with Hepatitis C
and has had nine cocaine-induced seizures.
She began reusing substances upon her release
from the hospital and had not returned prior
to treatment prior to the court date. The
mother had not seen the children since
September 17, 2003. There are concerns by DSS
that the mother does not appropriately
interact with children during visitation and
that she provides insufficient structure and
guidance to their behavior. The Court further
found that it is not possible to return the
children to the home immediately nor is it
likely within the next six (6) months due to
the mother's continued drug use and
noncompliance with treatment plans and court
orders. The children have been out of the
home for a year. The permanent plan for the
children is adoption. There are no relatives
available to take care of the children. The
concurrent plan is custody to a court
appointed caretaker.
11. On December 2, 2003, the Court ordered
that visitation with the respondent mother be
supervised by DSS or DSS appointed contact
including the DAP program and conditioned upon
the mother being drug and alcohol free during
the visits and compliant with recommendations
of her treatment counselor. The Court furtherordered that if the mother desires
reunification, the mother shall take the
necessary actions to correct the conditions
which led to the removal of the children,
including maintain safe housing that will be
adequate in size for the family; maintain an
income to provide for the basic needs of the
children; apply for Work First Assistance
including job training; continue with drug
treatment, and follow any recommendations for
treatment, including random drug screens, and
attend and complete the next parenting course
of classes offered at DSS or the Exchange
Clubs Parenting Program. DSS was authorized
to cease reunification efforts with the
mother. The permanent plan of adoption and
the concurrent plan of custody to a court
appointed caretaker were approved by the
Court.
15. At the time of the filing of the
termination of parental rights motions, the
mother was not in treatment and was continuing
to use addictive substances. Her substance
abuse continued to impair her judgment and to
impair her ability to provide day to day care
for the children. The risk to her children
continues.
Respondent argues that the court erred in failing to appoint
a guardian ad litem to her when she lost her children due to mental
illness and substance abuse. In accordance with recent decisions,
of this Court, we must agree.
N.C. Gen. Stat. § 7B-1111(a)(6) provides for termination of
parental rights upon a finding:
[t]hat the parent 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.
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 theparent unable or unavailable to parent the
juvenile and the parent lacks an appropriate
alternative child care arrangement.
N.C. Gen. Stat. § 7B-1111(a)(6) (2004). This Court has repeatedly
held that even where the petition to terminate parental rights does
not specifically cite this statute, if incapacity due to substance
abuse or mental illness is the basis of the petition, the trial
court must appoint a guardian ad litem to the respondent. In re
B.M., 168 N.C. App. 350, 357, 607 S.E.2d 698, 703 (2005). Where
there is “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 . . .
impossible[,]” appointment of a guardian ad litem is required. 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) (2004) (holding that
the court erred in failing to appoint a guardian ad litem where the
mother's mental illness factored heavily in the removal of the
children); see also In re T.W., __ N.C. App. __, __, 617 S.E.2d
702, __ (2005) (holding that the court erred in failing to appoint
a guardian ad litem where “respondent's mental instability and her
incapacity to raise her minor children were central factors in the
court's decision to terminate her parental rights.”)
Here, while the petition does not cite N.C. Gen. Stat. §
7B-1111(a)(6), the mother's mental health and substance abuse are
discussed throughout and it appears these factors and respondent's
failure to care for her children “were so intertwined at times as
to make separation of the two virtually . . . impossible.” In reJ.D., 164 N.C. App. at 182, 605 S.E.2d at 646. The petition notes
that the mother
has a 15 year history of substance abuse. Her
drug of choice is cocaine. Her substance
abuse impairs her judgment and impairs her
ability to provide for the day to day care of
the children. . . . The mother has a further
mental health diagnosis of Obsessive
Compulsive Disorder, Bipolar Disorder and
Trichotillomania.
The petition goes on to refer repeatedly to respondent's mental
health and substance abuse treatments and hospitalizations. It is
clear from these recent decisions that the trial court erred in
failing to appoint a guardian ad litem to represent respondent.
Accordingly, we must vacate the order terminating respondent's
parental rights and remand the matter for further proceedings after
appointment of the guardian ad litem. Because of this result, we
need not address her other assignments of error.
Vacated and remanded.
Judges ELMORE and SMITH concur.
Report per Rule 30(e).
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