IN THE MATTER OF:
T.D.M. Wayne County
No. 04J123
Richard E. Jester for respondent-appellant.
Manning Fulton & Skinner, P.A., by Leanor D.B. Hodge, for
guardian ad litem-appellee.
ELMORE, Judge.
Nadine Garrett (respondent) appeals from an order terminating
parental rights to her minor son, T.D.M. On 22 April 2003 the
Wayne County Department of Social Services (Wayne County DSS) filed
a Juvenile Petition alleging that T.D.M. was a neglected and
dependent juvenile. The Juvenile Petition was supported by
allegations that: respondent was hospitalized at Cherry Hospital
through commitment; respondent put two of her children outside the
home without shoes or coats; respondent hit her daughter in the
face with a shoe until her nose bled; and respondent was hearing
voices and said that the children were demons. The petition also
stated that respondent was diagnosed with a psychotic disorder.
All four of respondent's children were in the care of relativeswhen the Wayne County DSS became involved, and respondent agreed
that the children could remain there.
In an order entered 22 May 2003, T.D.M. was adjudicated a
neglected and dependent juvenile. Pursuant to this order,
respondent was directed to have a psychological evaluation, submit
to random drug testing, continue the mental health counseling she
was currently receiving, and keep the Wayne County DSS informed of
any changes in her residence. Also, respondent was ordered to have
no visitation with the juvenile unless specifically allowed by the
court.
The Wayne County DSS filed a petition to terminate
respondent's parental rights on 25 May 2004, alleging that
respondent neglected and abandoned T.D.M. Respondent's attorney
filed a motion to continue the matter in order to appoint
respondent a guardian ad litem. The court entered an order on 17
December 2004 granting the motion for a continuance and ordering
that a guardian ad litem be appointed for respondent. The matter
was continued until 8 February 2005.
On 8 February 2005 the petition for termination of parental
rights was heard before Judge Rose V. Williams in Wayne County
District Court. Respondent was not present, but she was
represented at the hearing by Kimberly Conner and by guardian ad
litem, Sarah Heekin. Ms. Connor, respondent's attorney, made a
motion for a continuance. The court denied the motion to continue.
At the close of the evidence presented, Ms. Connor moved to dismiss
the petition on the grounds that the Wayne County DSS did not proveneglect and continuing neglect by clear, cogent and convincing
evidence. In an order entered 1 March 2005, the trial court
concluded that grounds existed to terminate the parental rights of
respondent to T.D.M. Respondent filed notice of appeal to this
Court on 11 March 2005.
First, respondent contends that the trial court erred in not
appointing a guardian ad litem for her at an earlier time in the
proceedings, given her history of mental illness. N.C. Gen. Stat.
§ 7B-1101 (2003), the statute in effect at the time the termination
proceedings herein began, provides in pertinent part:
In addition to the right to appointed counsel
set forth above, 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 a parent's rights
should be terminated pursuant to G.S. 7B-
1111(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.
N.C. Gen. Stat. § 7B-1101(1) (2003). Section 7B-1111 states as
follows:
That 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 the
parent unable or unavailable to parent thejuvenile and the parent lacks an appropriate
alternative child care arrangement.
N.C. Gen. Stat. § 7B-1111(a)(6) (2003).
Respondent concedes that the petition to terminate parental
rights did not allege dependency under Section 7B-1111(a)(6).
Indeed, the petition alleged that the grounds to terminate parental
rights are that “the parents have neglected and abandoned the
juvenile.” But respondent asserts that “the history of the case”
demonstrates respondent's mental health issues. Therefore,
respondent argues, the trial court was required to appoint a
guardian ad litem. A review of our case law reveals that
respondent's position is untenable. In In re O.C. & O.B., 171 N.C.
App. 457, 462, 615 S.E.2d 391, 394, disc. review denied, 360 N.C.
64, 623 S.E.2d 587 (2005), this Court held that where the motion to
terminate parental rights did not cite to Section 7B-1111(a)(6) or
allege that the respondent is “incapable” to care for the minor
child, the trial court did not err in failing to appoint a guardian
ad litem for the hearing on the motion to terminate parental
rights.
Here, as in In re O.C., the petition to terminate parental
rights does not state that respondent is incapable of caring for
T.D.M. Also, the petition does not refer to N.C. Gen. Stat. § 7B-
1111(a)(6). As the language of the petition alone did not trigger
the requirement to appoint a guardian ad litem pursuant to Section
7B-1101, the trial court did not err in failing to appoint one
prior to granting respondent's attorney's motion to appoint a
guardian ad litem in December of 2004. Cf. In re B.M., M.M., An.M. & Al.M., 168 N.C. App. 350, 357, 607 S.E.2d 698, 703 (2005)
(where motion for termination of parental rights tracks the
language of Section 7B-1111(a)(6) and uses term “incapable,” motion
triggers requirement of appointment of guardian ad litem).
Respondent's contention is without merit. Next, respondent
asserts that the guardian ad litem appointed for her was
ineffective. Respondent's attorney made a motion to continue and
a request for the appointment of a guardian ad litem, and the trial
court granted these requests in an order entered 17 December 2004.
From this date through 8 February 2005, one and one-half months
later, respondent's guardian ad litem had time to prepare for the
termination hearing. Respondent does not point to any evidence
that the guardian ad litem lacked sufficient time for preparation.
Respondent's counsel made another motion for a continuance on 8
February 2005, but the trial court denied this motion. Respondent
was not present at the hearing, but respondent's counsel did not
state a reason why the matter should be continued further. The
record reveals, and respondent does not dispute, that respondent
was given notice of the hearing.
To the extent that respondent challenges the trial court's
denial of the motion for a continuance on 8 February 2005, we note
that the court's decision on a motion for a continuance is
ordinarily reviewed for an abuse of discretion. See In re D.Q.W.,
T.A.W., Q.K.T., & J.K.M.T., 167 N.C. App. 38, 40, 604 S.E.2d 675,
676 (2004). Where the motion raises constitutional rights, then it
is reviewed de novo by the appellate court. Id. at 41, 604 S.E.2dat 677. As mentioned supra, respondent's counsel did not raise any
basis for the motion to continue. As there was no constitutional
right asserted, we must uphold the trial court's ruling unless it
is manifestly unsupported by reason. See State v. Rogers, 352 N.C.
119, 124, 529 S.E.2d 671, 675 (2000). As respondent cannot show,
based upon the record, that her guardian ad litem was ineffective,
her assignment of error is overruled. See State v. Blakeney, 352
N.C. 287, 304, 531 S.E.2d 799, 812 (2000) (appellate court may not
assume error where none appears in the record).
Next, respondent argues that the trial court erred in taking
judicial notice of orders in the underlying case file. Respondent
acknowledges that it is proper for the court to take judicial
notice of earlier proceedings in the same case. See In re
Isenhour, 101 N.C. App. 550, 553, 400 S.E.2d 71, 73 (1991).
However, respondent asserts that the trial court relied on hearsay
statements in the reports and that this action violated the
requirement that the court make findings according to a clear,
cogent and convincing evidence standard. See N.C. Gen. Stat. § 7B-
1109(f) (2003) (all findings of fact from hearing on termination of
parental rights shall be based on clear, cogent and convincing
evidence).
The trial court's order of termination of parental rights
states that the findings of fact are made from clear, cogent and
convincing evidence. Respondent does not explain how the court
violated Section 7B-1109 by considering reports from earlier
proceedings in the case. Essentially, respondent contends thatwhen a court considers orders containing statements from persons
who testified at earlier proceedings, the court cannot possibly
support its findings by clear, cogent and convincing evidence. And
yet, respondent cites no authority for this contention. As long as
the court determines that the petitioner, the Wayne County DSS
here, has presented clear, cogent and convincing evidence of a
statutory ground for termination and enters findings of fact
accordingly, the court has complied with Section 7B-1109.
Respondent's assignment of error is overruled.
Finally, respondent argues that the trial court's findings
were not based upon adequate admissible evidence. We must
determine, then, whether these challenged findings were supported
by competent evidence. Respondent assigns error to the following
findings of fact:
12. That the mother, Nadine Yvonne Garrett,
has neglected the juvenile.
13. That the mother was ordered by the Court
to have a psychological assessment, as
substance assessment and was allowed
visitation with the juvenile and has not had
either the psychological assessment or the
substance abuse assessment.
14. That the mother has had the opportunity to
visit the juvenile and has failed regularly to
visit the juvenile.
15. That on one occasion, when the juvenile
saw the mother, he said “Who was that woman?”
The juvenile did not call the mother,
“Mother.”
16. That the mother has failed to comply with
previous orders of this Court.
18. That the mother has not provided any
support, care or nurturing to this juvenilesince the juvenile was placed in the home of
Nathan and Burnetta Barnes.
20. That the grounds exist to terminate the
parental rights of the mother of the juvenile
in that she has neglected and abandoned the
juvenile and continues to neglect the
juvenile.
21. That the mother's failure to take actions
to have the juvenile returned to her custody
are likely to continue.
Respondent concedes in her brief that there was evidence to support
the findings regarding respondent's failure to visit T.D.M.
(finding number 14); respondent's failure to comply with previous
court orders (finding number 16); and the evidence of respondent's
lack of support, care, or nurture of T.D.M. in his current
placement (finding number 18). Also, although respondent refers to
findings of fact 20 and 21 in the argument section of her brief,
respondent makes no argument with respect to her challenge to these
findings. Accordingly, plaintiff has abandoned her assignments of
error regarding findings of fact 14, 16, 18, 20, and 21. See
N.C.R. App. P. 28(b)(6).
Respondent has properly preserved her challenges to findings
of fact 12, 13, and 15. After a review of the record, we determine
there is sufficient evidence to support these findings. In finding
number 13, the court stated that respondent has not had a
psychological or substance abuse assessment as ordered by the
court. Darlene Grantham (Ms. Grantham), an employee of the Wayne
County DSS, testified that respondent has not provided a copy of
any psychological assessment or substance abuse evaluation.
Respondent presented no evidence at the hearing of a psychologicalevaluation or drug testing. Neither does she assert on appeal that
she has in fact received these evaluations. Thus, her claim that
the court erred in finding that she has not completed either
evaluation ordered by the court is without merit.
Respondent also challenges the evidence supporting finding
number 15, that T.D.M. on one occasion failed to recognize
respondent as his mother. Burnetta Barnes (Ms. Barnes) testified
that T.D.M. currently lives in her home. Ms. Barnes stated that
the last time T.D.M. saw respondent, he asked “Who was that woman?”
Respondent does not contest the accuracy of this event, but instead
asserts that it must be explained in context. Since respondent
does not have custody of T.D.M., she cannot control what he knows
her as. As there is competent evidence to support the finding,
respondent's argument is overruled.
In finding number 12, the court stated that respondent has
neglected the juvenile. If there is no evidence presented of
neglect at the termination of parental rights hearing, parental
rights may be terminated if there is a past adjudication of neglect
and the trial court finds by clear and convincing evidence a
probability of repetition of neglect if the child is returned to
the parent. In re Reyes, 136 N.C. App. 812, 814-15, 526 S.E.2d
499, 501 (2000). Here, Ms. Grantham testified that respondent has
had no contact with the Wayne County DSS to schedule a supervised
visit with T.D.M. for at least the past six months. Ms. Grantham
stated that respondent could obtain a supervised visit with T.D.M
by contacting her social worker at the Wayne County DSS. Thistestimony contradicts respondent's assertion that there was no
evidence presented of current neglect or the current situation of
respondent.
The trial court entered findings that respondent did not visit
T.D.M. regularly; has not completed psychological and substance
abuse evaluations as ordered by the court; and has failed to
provide any support or nurturing since T.D.M. was placed in the
home of Ms. Barnes. These findings support the trial court's
determination that sufficient grounds exist to terminate
respondent's parental rights. See, e.g., In re Apa, 59 N.C. App.
322, 324, 296 S.E.2d 811, 813 (1982) (in addition to failure to
provide physical necessities, neglect may be shown by “a parent's
complete failure to provide the personal contact, love, and
affection that inheres in the parental relationship”).
We affirm the trial court's order terminating respondent's
parental rights to T.D.M.
Affirmed.
Judges STEELMAN and JACKSON concur.
Report per Rule 30(e).
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