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1. Appeal and Error_appealability--permanency planning order
A permanency planning order that changed the permanent plan from reunification to
adoption was a final order from which appeal could be taken.
2. Termination of Parental Rights_permanency planning order_appointment of
guardian ad litem for parent
A permanency planning order was remanded for a hearing as to whether respondent-
parent was entitled to the appointment of a guardian ad litem where the evidence raised genuine
issues about the interplay between respondent's mental health, the neglect of his children, and his
entitlement to a guardian ad litem. N.C.G.S. § 7B-602(b)(1).
Judge JACKSON dissenting.
Sybil G. Mann and Lisa Morrison for petitioner-appellee
Buncombe County Department of Social Services.
Michael N. Tousey for Guardian ad Litem, Jan Wilkins.
Susan J. Hall for respondent-appellee mother.
Katharine Chester for respondent-appellant father.
HUNTER, Judge.
Respondent-father (“respondent”) appeals from two permanency
planning and review orders entered by the trial court relieving the
Buncombe County Department of Social Services (“DSS”) of further
efforts to reunify respondent with his minor child, P.D.D., and his
stepdaughter, K.H. Respondent contends the trial court erred in
failing to appoint a guardian ad litem to represent him where therecord contained substantial evidence of his mental illness and
substance abuse. We agree that the trial court erred in failing to
hold a hearing as to whether respondent was entitled to appointment
of a guardian ad litem, and we therefore reverse the permanency
planning orders of the trial court.
On 18 September 2003, DSS filed a juvenile petition in
Buncombe County District Court alleging that one-month-old P.D.D.
was a neglected juvenile in that he lived in an environment
injurious to his welfare. The petition alleged, inter alia, that
respondent regularly used crack cocaine, was verbally and
physically abusive towards his wife (P.D.D.'s mother) and other
members of the household, and had threatened to kill an
investigative social worker. A nonsecure custody order was
subsequently issued. On 17 March 2004, P.D.D. was adjudicated
neglected. The central concerns with respondent's parental
abilities, as found by the trial court in its order of adjudication
and disposition, were (1) his substance abuse; (2) domestic
violence perpetrated by respondent; and (3) issues of anger
management. The trial court also found that respondent had been
diagnosed “with depression, Bipolar Disorder, that he has been
viewed as suicidal and homicidal, that he has been addicted to
crack cocaine and started using approximately 20 to 25 years ago.”
Respondent had also been diagnosed with “Personality Disorder NOS”
and “appears to have some borderline tendencies including
'splitting' the world into extremes.” On 20 August 2004, the trial court held a permanency planning
and review hearing pursuant to N.C. Gen. Stat. § 7B-907(a)
regarding both P.D.D. and respondent's stepdaughter, K.H., who had
earlier been adjudicated neglected in a separate proceeding. In
its subsequent order, the trial court noted that respondent had
attempted to commit suicide in June of 2004 by slitting his throat,
and found that respondent's “suicidal incident in June raises
ongoing concern about his mental health[.]” The trial court found
respondent had not addressed the issues of domestic violence and
substance abuse that led to the children's removal from the home.
After reviewing the evidence, the trial court found and concluded
that the best plan to achieve a safe, permanent home for P.D.D. and
K.H. would be to change the plan from reunification to adoption
with a concurrent plan of guardianship with a relative. The trial
court therefore relieved DSS of further reunification efforts with
respondent. Respondent appeals. Respondent-mother does not
appeal.
[1] Initially, it should be noted that the district court's
order is a final order and, as such, is appealable. See N.C. Gen.
Stat. § 7B-1001 (2003) (orders of disposition after an adjudication
of abuse, neglect, or dependency are appealable final orders); In
re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 136-37 (2003)
(an order that ceases reunification and allows termination of
rights is a dispositional order that is appealable). Because the
permanency planning order changed the permanent plan from
reunification to that of adoption, it is a final order from whichappeal may be taken. See In re C.L.S., 175 N.C. App. 240, 241-42,
623 S.E.2d 61, 62-63 (2005).
[2] Respondent argues the trial court erred in failing to
appoint a guardian ad litem pursuant to section 7B-602 of the North
Carolina General Statutes, which provides in pertinent part that:
(b) In addition to the right to appointed
counsel . . . 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 the
juvenile is a dependent juvenile
within the meaning of G.S. 7B-101 in
that the parent is incapable as the
result of substance abuse, mental
retardation, mental illness, organic
brain syndrome, or any other similar
cause or condition of providing for
the proper care and supervision of
the juvenile[.]
N.C. Gen. Stat. § 7B-602(b) (2003).
(See footnote 1)
Section 7B-602(b)(1) requires
appointment of a guardian ad litem where “(1) the petition
specifically alleges dependency; and (2) the majority of the
dependency allegations tend to show that a parent or guardian is
incapable as the result of some debilitating condition listed in
the statute of providing for the proper care and supervision of hisor her child.” In re H.W., 163 N.C. App. 438, 447, 594 S.E.2d 211,
216, disc. review denied, 358 N.C. 543, 599 S.E.2d 46 (2004).
In the present case, there is no express allegation of
dependency, and no allegations of incapability on the part of
respondent. Nevertheless, this Court will reverse an order for
appointment of guardian ad litem where the evidence tends to show
“that respondent'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 (2004); In re C.B., ___ N.C. App. ___, ___, 614
S.E.2d 579, 581-82 (2005).
In the present case, it is unclear the extent to which
respondent's mental health issues are inextricably linked to the
issues of domestic violence, substance abuse, and anger management
that support the finding of continued neglect of K.H. and P.D.D.
The evidence indicating respondent suffers from depression, Bipolar
Disorder, Personality Disorder NOS, as well as his suicide attempt,
raises genuine questions regarding the interplay between
respondent's mental health, the neglect of his children, and his
entitlement to a guardian ad litem. As such, we conclude the trial
court erred in failing to hold a hearing as to respondent's need
for a guardian ad litem, and we reverse the orders of the trial
court and remand for a hearing as to whether respondent is entitled
to appointment of a guardian ad litem. See In re L.M.C., 170 N.C.
App. 676, 678-79, 613 S.E.2d 256, 258 (2005) (vacating a permanency
planning order for failure to appoint a guardian ad litem). Reversed and remanded.
Judge WYNN concurs.
Judge JACKSON dissents in a separate opinion.
JACKSON, Judge dissents.
For the reasons stated below, I must respectfully dissent from
the majority's opinion reversing the permanency planning orders,
and
holding the trial court erred in failing to conduct a hearing
as to whether respondent was entitled to the appointment of a
guardian ad litem.
While the majority relies on In re J.D. and In re C.B. for the
conclusion that respondent's mental health issues were so
intertwined with P.D.D.
and K.H.
's neglect, such that separating
the two was virtually impossible, the instant case is
distinguishable from J.D. and C.B. In both of those cases, the
petitions actually alleged that the children were dependent on the
respondents in those cases, and that the respondents' mental
illnesses significantly contributed to the children being
dependent. See In re C.B., 171 N.C. App. 341, 346, 614 S.E.2d 579,
582 (2005); In re J.D., 164 N.C. App. 176, 182, 605 S.E.2d 643, 646
(2004). This is not so in the instant case. Here there has been
no allegation of dependency or of respondent's incapability to
parent, and his mental illness has not been alleged as a
significant factor in the neglect of P.D.D. or K.H.
The case of In re L.M.C., also relied on by the majority, also
may be distinguished from the instant case. In L.M.C., whendependency was alleged in the juvenile petition, this Court held
the trial court erred in failing to appoint a guardian ad litem for
the respondent mother, after the court had been presented with
evidence sufficient
to support a finding that the juvenile's mother
had various mental health disorders, and that these disorders
resulted in L.M.C. being dependent on her mother. In re L.M.C.,
170 N.C. App. 676, 679, 613 S.E.2d 256, 258 (2005). In the instant
case, although respondent was diagnosed as having Bipolar Disorder
and other personality issues which might interfere with his being
able to be an effective, nurturing, and safe parent, there was not
a finding by any mental health professional or an allegation that
respondent's mental health issues resulted in P.D.D.
and K.H.
being
neglected or dependent, or that he was incapable of parenting the
children.
Based on the record before this Court, there is no dispute
that respondent suffers from various mental health issues and that
he has failed to comply with the prior court orders, however there
is not sufficient evidence that his mental health issues resulted
in respondent's being incapable to parent or care for P.D.D.
and
K.H.
This Court has held that even though a juvenile petition may
not specifically reference dependency or allegations of
incapability on the part of respondent, when the trial court allows
evidence to be presented regarding the parent's mental illness and
substance abuse, and the adverse effect on the parent's ability to
care for their children, the parent may be entitled to have a
guardian ad litem appointed. In re T.W., 173 N.C. App. 153, 157-58, 617 S.E.2d 702, 706 (2005); In re B.M., 168 N.C. App. 350, 358-
59, 607 S.E.2d 698, 704 (2005). Although the trial court in the
instant case may have taken respondent's mental health issues into
consideration when ruling on respondent's permanency planning
order, there is no indication that the trial court's ruling was
based solely on respondent's mental health issues and their effect
on his ability to parent P.D.D.
and K.H.
Also, at no point during
the permanency planning review hearings did respondent request the
appointment of a guardian ad litem based on his mental illness.
Cf. In re T.W., 173 N.C. App. at 158-59, 617 S.E.2d at 706
(respondent specifically petitioned the trial court for appointment
of guardian ad litem based upon her mental illness, and the trial
court erred in not appointing one when it considered her mental
illness as a factor in deciding to terminate her parental rights).
While dependency or respondent's incapability may not have
been alleged in the juvenile petition, we still
must determine
whether respondent was entitled to the appointment of a guardian ad
litem per Rule 17 of our Rules of Civil Procedure.
In re J.A.A.,
175 N.C. App. 66, 71, 623 S.E.2d 45, 49 (2005)
. Rule 17 provides
that
In actions or special proceedings when any of
the defendants are . . . incompetent persons,
. . . they must defend by general or
testamentary guardian, if they have any within
this State or by guardian ad litem appointed
hereinafter provided; and if they have no
known general or testamentary guardian in the
State, . . . the court in which said action or
special proceeding is pending, upon motion of
any of the parties, may appoint some discreet
person to act as guardian ad litem to defendin behalf of such . . . incompetent persons .
. . .
N.C. Gen. Stat. § 1A-1, Rule 17(b)(2) (2005).
Thus, a trial court
need only inquire into the competency of a litigant in a case such
as respondent's when “circumstances are brought to [the trial
court's] attention, which raise a substantial question as to
whether the litigant is non compos mentis.” J.A.A., 175 N.C. App.
at 72, 623 S.E.2d at 49 (citing Rutledge v. Rutledge, 10 N.C. App.
427, 432, 179 S.E.2d 163, 166 (1971)). After reviewing the record
in the instant case, I believe the evidence was insufficient to
raise a substantial question regarding respondent's competency.
Thus, I believe respondent was not entitled to the appointment of
a guardian ad litem per Rule 17.
Although the juvenile petition in the instant case does
contain references to respondent's drug abuse, and the subsequent
permanency planning orders reference respondent's mental health
issues, “the trial court is not required to appoint a guardian ad
litem 'in every case where substance abuse or some other cognitive
limitation is alleged.'” J.A.A., 175 N.C. App. at 70-71, 623
S.E.2d at 48 (citations omitted). As there were no allegations of
dependency or respondent's incapability to parent P.D.D. and K.H.
properly, I would affirm the trial court's permanency planning
orders, and hold the trial court was not required to conduct a
hearing on the issue appointing a guardian ad litem for respondent.
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