An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA05-159

NORTH CAROLINA COURT OF APPEALS

Filed: 15 November 2005

IN RE: A.C.J. and P.A.G.S.

                        Durham County        
                            No. 04 TPR 6, 7

    Appeal by respondent from judgment entered 24 September 2004 by Judge James T. Hill in Durham County District Court. Heard in the Court of Appeals 22 September 2005.

    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).

*** Converted from WordPerfect ***