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Termination of Parental Rights--failure to appoint guardian ad litem--mental health issues of parent
The trial court did not err by terminating respondent mother's parental rights without
appointing a guardian ad litem (GAL) under N.C.G.S. § 7B-1101 or N.C.G.S. § 1A-1, Rule 17
even though respondent contends her mental health problems were substantially intertwined with
DSS's allegations of grounds to terminate her parental rights, because: (1) respondent did not
request a GAL be appointed, and a psychologist who testified did not recommend the trial court
appoint a GAL for respondent; (2) the trial court did not make repeated findings that respondent
was incapable of parenting her minor children based upon her mental illness; and (3) the
termination of respondent's parental rights was not based on mental health issues, but instead on
neglect, willfully leaving the children in foster care for more than twelve months without
showing reasonable progress, willfully failing to provide financial support to the children, and
abandonment of the children for at least six months immediately preceding the filing of the
Cathy L. Moore, for petitioner-appellee Durham County
Department of Social Services.
Wendy C. Sotolongo, for petitioner-appellee Guardian ad Litem.
Richard Croutharmel, for respondent-appellant.
K.K. (respondent) appeals from order entered terminating her
parental rights to her minor children, D.H. and C.H., born in July
2000, B.M., born in September 1998, and C.H. III, born in February
2002. We affirm.
Respondent dropped out of high school during the tenth grade.
She worked in fast food restaurants and as a nurse's aid until 1999
when she moved into her boyfriend's home. Her boyfriend supported
By the time respondent was twenty-three years old, she had given birth to five children. Durham County Department of Social Services (DSS) filed a juvenile petition alleging neglect of C.H. and D.H. on 21 December 2001. On 28 March 2002, the trial court adjudicated these children neglected. The children were placed in DSS's custody.
In April 2002, respondent admitted to using illegal drugs. In May 2002, respondent was arrested on twenty-three charges, including possession of cocaine and marijuana with the intent to sell or deliver, possession of marijuana and Schedule IV narcotics, maintaining a dwelling for the sale of drugs, and six charges of obtaining property by false pretenses. After respondent was released from jail, she moved into the home of Mr. H., the father of C.H. III, C.H., and D.H. On 17 October 2002, respondent, Mr. H., and Mr. H.'s mother were arrested during a drug raid at Mr. H.'s home. At that time, all of her children went to live with respondent's mother. After release from jail, respondent moved into her mother's residence.
DSS filed another juvenile petition alleging neglect of T.H., B.M., and C.H. III on 21 November 2002 due to concerns respondent might remove the children from her mother's home. The trial court adjudicated B.M. and C.H. III to be neglected on 9 April 2003. All three children were placed in DSS's custody.
Respondent continued to reside in her mother's home. She made progress during this time. Respondent contacted the Durham Center in April and May 2003 for mental health services. She completed a parenting program. Respondent assisted in the daily care of the children. The medical provider for the twins, D.H. and C.H., stated, [t]he mother of the children . . . has shown steady progress personally while living with her mother and her children.
Mr. H. was released from prison on 18 June 2003. Following his release, respondent missed several mental health appointments and was fired from her job. On 12 August 2003, police responded to a domestic violence complaint at respondent's mother's home. The police requested respondent and Mr. H. to leave her mother's home. Following this event, respondent resided with Mr. H.'s family at multiple addresses until April 2005, when she moved into her sister's home.
The children remained in the maternal grandmother's home. The childrens' guardian ad litem (GAL) advocated to remove all fourchildren from their grandmother's home due to the state of filth demonstrated by the children (and extreme odor), lack of medical care and demonstrated level of hunger. The GAL also reported respondent stated her children were not hungry and described the children as, my children are greedy children, greedy children.
The trial court changed the permanent plan to adoption and ordered DSS to initiate termination of all parental rights on 25 May 2004. On 4 August 2004, the trial court ordered the parties to participate in mediation on the issue of placement of the children. DSS filed a motion to terminate the parental rights of the parents on 24 August 2004.
On 6 December 2004, respondent's attorney filed a motion to withdraw due to lack of contact with respondent. The trial court granted that motion on 23 December 2004. On 11 February 2005, the Durham County Public Defender assigned a court appointed attorney to represent respondent.
The trial court conducted the termination hearing on 5 and 6 May 2005 and terminated respondent's parental rights to C.H., D.H., B.M., and C.H. III. At the time of the hearing, respondent admitted she had not seen C.H., D.H., or C.H. III since January 2004 and had seen B.M. four times during the preceding year. Respondent appeals.
The North Carolina General Assembly recently amended the law
governing appointment for a GAL for a parent. The amendments are
applicable only to proceedings filed on or after 1 October 2005.
The amendment reveals the legislature's intent to limit the
appointment of a GAL for a parent. The amended statute provides:
On motion of any party or on the court's own motion, the court may appoint a guardian ad litem for a parent if the court determines that there is a reasonable basis to believe that the parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest. The parent's counsel shall not be appointed to serve as the guardian ad litem.
N.C. Gen. Stat. § 7B-1101.1(c) (2005).
Respondent cites this Court's decision in In re T.W., and argues, [w]hile [r]espondent-[m]other may have been competent for some purposes, including her ability to perform routine tasks and maintain employment, it does not necessarily follow that she is not debilitated by her mental health issues when it comes to parenting her children. 173 N.C. App. 153, 160, 617 S.E.2d 702, 705 (2005). The trial court made the following findings of fact in In re T.W.:
In its 25 July 2001 order, based upon the 27 April 2001 hearing which occurred prior to respondent's psychological evaluation, the court included in its Findings of Fact that it was concerned about the mother's ability to raise these children in light of her mental health and her current medications. The court went on to state that it expected DSS to take appropriate action, including removing the children from the home if there were further concerns over the mother's mental health stability . . . . Again, in its 13 December 2001 Adjudication and Disposition Order regarding E.H., based upon the 24 August 2001 hearing, the court found that the mother exhibited mental health instability. Similarly, in its Review Order of 13 December 2001 regarding T.W. and L.W., also based upon the 24 August 2001 hearing, the court found as a fact that the psychological evaluations indicates [sic] [respondent] cannot adequately parent on her own. The court reiterated this identical finding in its 13 December 2001 Permanency Planning Order for all three children based upon its 21 September 2001 hearing.
Finally, in its order Terminating Parental Rights, the court made the following finding of fact:
The mother has been diagnosed with bipolar affective disorder with possible psychotic disorder. She is on medication for these ailments, but testified that she could take the medication at her pleasure and when she feels an episode coming on. She testified she has been given approval by her physician for this behavior. This testimony is beyond belief and shows a lack of insight by her into her mental status and ability to raise children.
173 N.C. App. at 158, 617 S.E.2d at 705.
The respondent in In re T.W. specifically requested a GAL be appointed to her. 173 N.C. App. at 159, 617 S.E.2d at 706. Also,a psychologist recommended to the court that a GAL be appointed to the respondent based on the respondent's psychological evaluation. Id. Despite these requests, the trial court failed to hold a hearing on the issue and no GAL was appointed for the respondent. Id. This Court reversed the termination order and stated:
Clearly, the foregoing findings demonstrate the court's awareness of respondent's severe limitations in the ability to parent her children based upon her mental illness. Therefore, notwithstanding the fact that the court did not refer to North Carolina General Statutes section 7B-1111(a)(6) specifically in its order terminating respondent's parental rights, it was the court's repeated findings that respondent was incapable of parenting her minor children based upon her mental illness in addition to respondent's own motion that triggered the requirement for appointment of a [GAL].
Id. at 159, 617 S.E.2d at 705.
Here, respondent did not request a GAL be appointed. The psychologist who testified did not recommend the trial court appoint a GAL for respondent. The psychologist concluded, this evaluation shows no reason that she should not be capable of adequate parenting to her children. The trial court did not make repeated findings that respondent was incapable of parenting her minor children based upon her mental illness. Id.
The termination of respondent's parental rights was not based on mental health issues. In its conclusions, the trial court did not reference respondent's mental health issues. The trial court terminated respondent's parental rights based on: (1) neglect; (2) wilfully leaving the children in foster care for more than twelve months without showing reasonable progress; (3) wilfully failing toprovide financial support to the children; and (4) abandonment of the children for at least six months immediately preceding the filing of the petition.
This Court considered similar facts in In re J.A.A. & S.A.A., and held:
In the instant case, the petitions for termination of respondent's parental rights contained no allegations that respondent was incapable of properly providing care for her children. Rather, the petition alleged the children were neglected within the meaning of N.C. Gen. Stat. § 7B-1111. Although the petition does contain reference to respondent's drug abuse and alleged mental illness, 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.
. . . .
This case is distinguishable from In re T.W.,
173 N.C. App. 153, 617 S.E.2d 702 (2005) and
In re B.M., 168 N.C. App. 350, 607 S.E.2d 698
(2005). In In re T.W., although incapability
was not alleged, the respondent specifically
requested the court appoint her a guardian ad
litem and she underwent psychological
evaluation, in which the doctor recommended
she be appointed a guardian ad litem. Despite
this, the trial court failed to revisit the
guardian ad litem issue during the entire
ensuing proceedings. In In re B.M., DSS's
petition to terminate the respondents'
parental rights alleged the parents'
incapability as grounds for termination. In
neither of these cases did the trial court
conduct a hearing on whether a guardian ad
litem should have been appointed.
In this case, neither incapability within the meaning of N.C. Gen. Stat. § 7B-1111(a)(6) was alleged, nor did respondent request that a guardian ad litem be appointed.
175 N.C. App. 66, 70-71, 623 S.E.2d 45, 48 (2005) (internal quotations and citations omitted).
In In re J.A.A. and S.A.A., this Court also considered whether the trial court erred when it failed to appoint a GAL to the respondent under N.C. Gen. Stat. § 1A-1, Rule 17 (2005), which provides:
When a guardian ad litem is appointed to represent an infant or insane or incompetent person, he must be appointed as follows:
. . . .
(4) When an insane or incompetent person is
defendant and service by publication is not
required, the appointment may be made upon the
written application of any relative or friend
of said defendant, or upon the written
application of any other party to the action,
or by the court on its own motion, prior to or
at the time of the commencement of the action,
and service upon the insane or incompetent
defendant may thereupon be dispensed with by
order of the court making such appointment.
An incompetent adult and mental illness are defined as:
(7) Incompetent adult means an adult or
emancipated minor who lacks sufficient
capacity to manage the adult's own affairs or
to make or communicate important decisions
concerning the adult's person, family, or
property whether the lack of capacity is due
to mental illness, mental retardation,
epilepsy, cerebral palsy, autism, inebriety,
senility, disease, injury, or similar cause or
. . . .
(12) Mental illness means an illness that so lessens the capacity of a person to use self-control, judgment, and discretion in the conduct of the person's affairs and social relations as to make it necessary or advisable for the person to be under treatment, care, supervision, guidance, or control. The termmental illness encompasses mental disease, mental disorder, lunacy, unsoundness of mind, and insanity.
N.C. Gen. Stat. § 35A-1101 (2005).
Here, respondent did not request a GAL be appointed. The
petition for termination of her parental rights did not allege
respondent's incapability to parent the children. No allegations
were asserted, and no showing was made that respondent was
incompetent. The trial court was not required to appoint a GAL to
respondent under either N.C. Gen. Stat. § 7B-1101 or N.C. Gen.
Stat. § 1A-1, Rule 17. This assignment of error is overruled.
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