The issues on appeal are whether the trial court erred by:
(I) failing to dismiss the petitions; (II) failing to appoint a
guardian
ad litem for respondent; and (III) concluding that
sufficient grounds exist to terminate respondent's parental rights.
Respondent first argues the trial court erred by failing to
dismiss the petitions. Respondent asserts the petitions contained
little more than a bare recitation of statutory grounds for
termination and were thus insufficient to warrant determination
from the trial court. We note initially that, ordinarily, a party
may not seek review of a denial of a 12(b)(6) motion following a
trial on the merits. However, as respondent renewed her motion
following the close of petitioner's evidence, we treat this
objection as a motion for involuntary dismissal pursuant to N.C.
Gen. Stat. § 1A-1, Rule 41(b), and thus we address its merits on
appeal. N.C. Gen. Stat. § 7B-1104(6) (2003) requires a petition to
provide “[f]acts that are sufficient to warrant a determination
that one or more of the grounds for terminating parental rights
exists.” However, “there is no requirement that the factual
allegations be exhaustive or extensive[.]”
In re Hardesty, 150
N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002). Instead, they must
only be sufficient to “put a party on notice as to what acts,
omissions or conditions are at issue.”
Id. Thus, although a “bare
recitation . . . of the alleged statutory grounds for termination
does not comply with the requirement” of N.C. Gen. Stat. § 7B-
1104(6), where the petition “incorporates an attached
[order] . . . stat[ing] sufficient facts to warrant such a
determination[,]” the statutory requirements are met.
In re
Quevedo, 106 N.C. App. 574, 579, 419 S.E.2d 158, 160 (1992)
(concluding that a petition which incorporated an attached custody
award satisfied pleading requirements of N.C. Gen. Stat. §
7A-289.25 (now N.C. Gen. Stat. § 7B-1104)).
In this case
, the petitions request termination of
respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-
1111(a)(1), (2), and (3). With respect to N.C. Gen. Stat. § 7B-
1111(a)(1), the petitions allege respondent neglected the children
by abandoning them and failing to provide them with proper care,
supervision, and discipline. In support of this allegation, the
petitions assert respondent “has not complied with the case plan”
established by petitioner, “has not completed substance abuse
treatment and remained clean and sober[,]” “has [not] paid areasonable amount of support for” the children, and “has not
maintained employment and housing and has not attended therapy on
a regular basis.” As these facts were sufficient to “put
[respondent] on notice as to what acts, omissions or conditions
[were] at issue” regarding the allegations of neglect, we conclude
petitioner satisfied its burden with respect to this ground.
See
Hardesty, 150 N.C. App. at 384, 563 S.E.2d at 82;
In re Humphrey,
156 N.C. App. 533, 539, 577 S.E.2d 421, 426 (2003) (factual
allegations sufficient to provide notice regarding issue of neglect
where petition alleged respondent had not visited the child in the
past five years and had contributed less than $25.00 in child
support since 1992). However, because the petitions contain no
factual allegations to support termination pursuant to the other
alleged grounds, we conclude the trial court erred by refusing to
dismiss the petitions with respect to these grounds.
As detailed above, paragraphs 7 and 8 of the petitions merely
recite the statutory grounds for termination pursuant to N.C. Gen.
Stat. § 7B-1111(a)(2) and (3), providing no factual support for the
grounds whatsoever. Although we note petitioner attached a non-
secure custody order to each of the petitions, we are not persuaded
that the addition of the custody order provides “sufficient facts
to warrant . . . a determination” regarding either statutory
ground.
See Quevedo, 106 N.C. App. at 579, 419 S.E.2d at 160.
Therefore, because petitioner failed to satisfy the requirements of
N.C. Gen. Stat. § 7B-1104(6), the trial court should have granted
the motion to dismiss with respect to these grounds.
See Hardesty,150 N.C. App. at 384, 563 S.E.2d at 82. Nevertheless, because the
trial court found the properly alleged ground of N.C. Gen. Stat. §
7B-1111(a)(1) sufficient to terminate respondent's parental rights,
we will examine respondent's remaining arguments.
Respondent maintains the termination order should be reversed
because the underlying petitions were not filed within sixty days
of the trial court's decision to change the permanent plan in the
case. We disagree.
N.C. Gen. Stat. § 7B-907(e) (2003) requires the petitioner to
“file a petition to terminate parental rights within 60 calendar
days from the date of the permanency planning hearing” if
termination is “necessary in order to perfect the permanent plan
for the juvenile[.]” The petitioner must satisfy this burden
unless the trial court allows an extension and “makes written
findings why the petition cannot be filed within 60 days.”
Id.
Here
, the record reveals that on 21 October 2003, the trial
court changed the permanent plan in the case from reunification to
adoption, noting as follows:
Court changes the goal to TPR/Adoption. Court
also sends case to mediation to discuss
surrenders. If mediation is not successful,
[petitioner] to file a TPR petition as soon as
practicable thereafter.
Despite this explicit change in the permanent plan and the absence
of written findings regarding why the petitions could not be filed
within sixty days, petitioner filed the petitions 5 May 2004,
approximately six-and-one-half months later. Although we recognize
petitioner failed to satisfy the requirements of N.C. Gen. Stat. §7B-907(e), because respondent is unable to demonstrate any
prejudice resulting from the delay in filing, we reject this
assignment of error.
“[T]his Court has held that time limitations in the Juvenile
Code are not jurisdictional in cases such as this one and do not
require reversal of orders in the absence of a showing by the
appellant of prejudice resulting from the time delay.”
In re
C.L.C., ___ N.C. App. ___, ___, 615 S.E.2d 704, 707 (2005)
(citations omitted)
. “Whether a party has adequately shown
prejudice is always resolved on a case-by-case basis[.]”
In re
As.L.G., ___ N.C. App. ___, ___, 619 S.E.2d 561, 564 (2005).
“[P]rejudice can manifest itself in many forms and can equally
befall parties other than the respondent, but it must nonetheless
be appropriately articulated.”
Id. at ___, 619 S.E.2d at 565.
Here, respondent contends she was prejudiced by the delay in
filing the petitions because, after the permanent plan was changed,
she was hampered in demonstrating she had corrected the conditions
which led to her children's removal as she “no longer had any
assistance from [petitioner] in seeking to comply with her case
plan.” However, we are not persuaded that petitioner prejudiced
respondent by following the directives of the trial court and
acting under the authority of our case and statutory law in ceasing
reunification efforts. Further, we note that by failing to file
the petition within the required sixty days, petitioner actually
increased the amount of time as well as opportunities in which
respondent could demonstrate compliance with the case plan. Therecord reflects respondent took advantage of this time by
continuing to remain in communication with petitioner following the
change in the permanent plan, contacting social workers with
requests for money and the birth certificates and social security
cards of the children and providing updates regarding her place of
residence, employment, and therapy sessions. In light of the
foregoing, respondent has failed to demonstrate the prejudice
necessary to reverse the trial court's order. Accordingly, we
conclude the trial court did not err by failing to dismiss the
petitions.
Respondent next argues the trial court erred by failing to
appoint a guardian
ad litem to represent her. Respondent asserts
she was entitled to a guardian
ad litem pursuant to N.C. Gen. Stat.
§ 7B-1101. We disagree.
N.C. Gen. Stat. § 7B-1101(1) (2003)
(See footnote 1)
requires the trial court
to appoint a guardian
ad litem for the respondent where “it is
alleged that [the respondent's] rights should be terminated
pursuant to G.S. 7B-1111[(a)](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.”
“[T]he requirement of N.C. Gen. Stat. § 7B-1101(1) is mandatory,
and . . . a respondent does not lose the right to assert an errorbased upon a violation of N.C. Gen. Stat. § 7B-1101(1) by failing
to request a guardian
ad litem him or herself.”
In re K.R.S., ___
N.C. App. ___, ___, 613 S.E.2d 318, 320 (2005) (citations omitted).
However, where the petition to terminate parental rights neither
alleges incapability due to a debilitating condition nor cites N.C.
Gen. Stat. § 7B-1111(a)(6) and “none of the allegations in the
[petition] tend[] to show [the] respondent [i]s incapable of
providing care for the children[,]” the trial court does not err by
failing to appoint a guardian
ad litem for the respondent.
In re
O.C., ___ N.C. App. ___, ___, 615 S.E.2d 391, 394 (2005);
see also
In re B.M., M.M., An.M. & Al.M., 168 N.C. App. 350, 357, 607 S.E.2d
698, 703 (2005)
(“It is the use of the term 'incapable' which
triggers the requirement of N.C. Gen. Stat. § 7B-1101 for the
appointment of a guardian
ad litem.”). However, while “[a]n
allegation under N.C. Gen. Stat. § 7B-1111(a)(6) serves as a
triggering mechanism, alerting the trial court that it should
conduct a hearing to determine whether a guardian
ad litem should
be appointed[,]”
In re J.A.A., ___ N.C. App. ___, ___, ___ S.E.2d
___, ___ (No. COA05-105) (Filed 20 December 2005), “[t]he fact
there was no allegation of incapacity in the petition does not end
our inquiry.”
Id. at ___, ___ S.E.2d at ___. Instead, “[w]e must
[also] consider whether the trial court had a duty to appoint a
guardian
ad litem to represent [the] respondent under Rule 17 of
the Rules of Civil Procedure.”
Id. at ___, ___ S.E.2d at ___.
In the instant case, none of the petitions to terminate
respondent's parental rights contained an allegation thatsufficient grounds exist to terminate her parental rights pursuant
to N.C. Gen. Stat. § 7B-1111(a)(6). While some of the allegations
referred to respondent's “substance abuse treatment” and failure to
attend “therapy,” these allegations were related to respondent's
“fail[ure] to provide proper care, supervision, and discipline for
. . . and . . . abandon[ment]” of the children, not any alleged
incapability to provide such care or supervision. Nevertheless,
during the termination hearing, respondent's counsel objected when
respondent's grandmother testified that respondent was not
“mentally capable of being a good parent.” Respondent's counsel
moved to strike this testimony, asserting respondent's grandmother
was “not an expert witness,” that there was no “allegation of
incapability,” and that “[i]f there is an allegation of
incapability, we need a guardian ad litem.” The trial court
determined respondent had opened the door to the testimony and,
noting respondent's objection, allowed respondent's grandmother to
testify regarding respondent's therapy attendance. We are not
persuaded that either this testimony or any other evidence offered
during the termination proceedings triggered the trial court's duty
to appoint a guardian
ad litem under N.C. Gen. Stat. § 7B-1101 or
on its own motion.
“A trial judge has a duty to properly inquire into the
competency of a litigant in a civil trial or proceeding when
circumstances are brought to the judge's attention, which raise a
substantial question as to whether the litigant is
non compos
mentis.”
J.A.A., ___ N.C. App. at ___, ___ S.E.2d at ___ (citing
Rutledge v. Rutledge, 10 N.C. App. 427, 432, 179 S.E.2d 163, 166
(1971)). “'Whether the circumstances . . . are sufficient to raise
a substantial question as to the party's competency is a matter to
be initially determined in the sound discretion of the trial
judge.'”
Id. at ___, ___ S.E.2d at ___ (quoting
Rutledge, 10 N.C.
App. at 432, 179 S.E.2d at 166). Here, although the initial
neglect and dependency petition noted that respondent had been
diagnosed with Anxiety Disorder, as the trial court's findings of
fact and conclusions of law indicate, the evidence at the
termination hearing related primarily to respondent's failure to
satisfy the conditions of the case plan and her refusal to provide
financial support for the children. Despite respondent's
contention to the contrary, respondent's neglect of her children
and mental health and substance abuse issues were not “so
intertwined at times as to make separation of the two virtually, if
not, impossible.”
See In re J.D., 164 N.C. App. 176, 182, 605
S.E.2d 643, 646 (concluding that guardian
ad litem required where,
although the petitioner declined to proceed upon the ground, N.C.
Gen. Stat. § 7B-1111(a)(6) “was clearly alleged in the petition,
[the petitioner] offered some evidence that tended to show that
[the] respondent was incapable of caring for [the child] due to
mental illness, and the trial court referenced that evidence in its
order”),
disc. review denied, 358 N.C. 732, 601 S.E.2d 531 (2004).
Instead, respondent's use of marijuana and refusal to attend anger
management counseling and other therapy were merely referred to as
instances in which she failed to comply with the terms of her caseplan. As petitioner argued at the close of the hearing:
There's been no evidence presented that she
was incapable of making decisions at any point
during the life of this juvenile case. . . .
She's not suffered under any mental
disability. . . . [T]here is no disability
that prevents her from making the decisions
and doing the things to which she agreed in
the mediated case plan . . . .
In light of the foregoing, we conclude the trial court did not err
by failing to appoint a guardian
ad litem either pursuant to N.C.
Gen. Stat. § 7B-1101(1) or on its own motion. Accordingly,
respondent's third argument fails.
Respondent's final argument is that the trial court erred by
concluding that sufficient grounds exist to terminate her parental
rights and that it is in the best interests of the children to do
so. Although the corresponding assignments of error refer to the
insufficiency of the evidence supporting the trial court's
determination as well as its abuse of discretion in making its
determination, in the portion of her brief related to this
argument, respondent only reasserts her contentions regarding the
trial court's failure to appoint a guardian
ad litem to represent
her, stating that “[b]ecause the neglect allegations depend so
heavily on matters that also support dependency, the trial court
erred in finding that [respondent] neglected her children without
appointing a guardian
ad litem.” As we have already examined this
issue and determined the trial court did not err, we reject
respondent's final argument regarding the trial court's
determination of neglect. Further, because only one ground is
necessary to support the termination of parental rights,
see, e.g.,
J.A.A., ___ N.C. App. at ___, ___ S.E.2d at ___, we need not
address whether sufficient evidence existed to support termination
based on other grounds. Finally, since respondent has failed to
offer any argument in support for her contention that the trial
court erred in determining it was in the children's best interests
to terminate her parental rights, we decline to address the merits
of this contention. N.C.R. App. P. 28(b)(6) (2005) (“Assignments
of error not set out in the appellant's brief, or in support of
which no reason or argument is stated or authority cited, will be
taken as abandoned.”). Accordingly, respondent's last argument
fails.
In light of the foregoing, we affirm the trial court order
terminating respondent's parental rights to the children.
Affirmed.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).
Footnote: 1