An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 1 August 2006
A.M.A. Polk County
No. 02 J 18
Appeal by respondent father from order entered 12 April 2005
by Judge Robert S. Cilley in the District Court in Polk County.
Heard in the Court of Appeals 11 May 2006. The family service case plan following A.M.A.'s removal again
included the requirements that respondent father remain drug-free,
abide by the law, not commit violence against A.M.A.'s mother,establish a stable home environment, and obtain and maintain
employment. Respondent tested positive for drugs on numerous
Phillip R. Feagan, for petitioner-appellee Polk County
Department of Social Services.
Charlotte Gail Blake, for respondent-appellant.
In February 2004, the Polk County Department of Social
Services (DSS) filed a petition to terminate respondent father's
parental rights as to minor child A.M.A. The trial court held a
hearing on 8 October 2004 and filed its order terminating
respondent's parental rights in April 2005. Respondent appeals
and we reverse and remand.
A.M.A was born six weeks prematurely in September 2002.
Shortly thereafter, DSS filed a petition alleging that A.M.A. was
a dependent child. The DSS court report from October 2002 stated
that both parents had a history of drug abuse, that there wasdomestic violence between respondents, that the living environment
was unstable and the home inadequate to house an infant, and that
neither parent had stable employment and both had criminal records.
The report further stated that the infant was not taken to her
first doctor's appointment even though she had jaundice, that
respondent father stated that he refused to comply with any DSS
request, that during a DSS visit to the home respondent father
became angry and screamed and cursed at the DSS workers and exposed
his buttocks twice, and that during a DSS visit police were
conducting a drug raid of respondents' residence. In addition,
A.M.A.'s older sibling had been in DSS custody since January 2002.
In December 2002, respondent parents stipulated that A.M.A. was
dependent and the trial court adjudicated A.M.A. to be dependent.
The court required that the parents comply with DSS
recommendations, including providing safe, adequate housing, being
gainfully employed, attending domestic violence counseling, and
remaining drug and alcohol free. DSS allowed A.M.A. to continue to
reside with her parents until they were arrested in February 2003
on drug possession and trafficking charges in South Carolina.
Thereafter, DSS placed A.M.A. in foster care.
occasions and was convicted of several additional crimes and found
to have violated probation in 2003. In January 2004, respondent
began serving an active sentence for probation violations. In
February 2004, DSS filed to terminate respondent father's parental
rights as to A.M.A. In June 2004, A.M.A.'s mother relinquished her
parental rights. Defendant was serving an active sentence at the
time of the termination hearing in October 2004.
Respondent first argues that the trial court erred in failing
to appoint a guardian ad litem for him. At the time DSS filed its
termination of parental rights (TPR) petition, N.C. Gen. Stat. §
7B-1101 (2003) required that a guardian ad litem shall be
appointed in accordance with the provisions of G.S. 1A-1, Rule 17,
to represent a parent . . . Where it is alleged that a parent's
rights should be terminated pursuant to G.S. 7B-1111(a)(6). Id.
(See footnote 1)
N.C. Gen. Stat. § 7B-1111(a)(6) (2003) statesthat the trial court may terminate parental rights if it finds
[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 the
parent unable or unavailable to parent the
juvenile and the parent lacks an appropriate
alternative child care arrangement.
Id. This Court has repeatedly held that the trial court's failure
to appoint a guardian ad litem where DSS alleges incapability for
such reasons to provide proper care in the TPR petition requires
reversal, even where the court terminated the parent's rights
pursuant to other grounds. In re K.R.S., 170 N.C. App. 643, 613
S.E.2d 318 (2005); In re B.M., 168 N.C. App. 350, 607 S.E.2d 698
(2005); In re J.D., 164 N.C. App. 176, 605 S.E.2d 643, disc. review
denied, 358 N.C. 732, 601 S.E.2d 531 (2004). In In re J.D., this
Court reversed an order terminating respondent's parental rights
for failure to appoint a guardian ad litem where the trial court
terminated the respondent's parental rights based on neglect, but
the petition alleged dependency and the trial court considered
evidence regarding the respondents's mental health problems. 164
N.C. App. at 182, 605 S.E.2d at 646. We also reversed for failureto appoint a guardian ad litem in In re K.R.S., where the trial
court terminated parental rights based on other grounds, but the
record showed that the trial court considered respondent's ongoing
substance abuse and mental illness in determining whether to
terminate her parental rights. 170 N.C. App. at 649, 613 S.E.2d
at 321. Similarly, in In re B.M., we held that it was reversible,
and not harmless, error when the trial court failed to appoint a
guardian ad litem even though a ground other than dependency
existed to terminate the respondent's parental rights. 168 N.C.
App. at 359, 607 S.E.2d at 704. The Court reasoned that [t]he
same mental health issues that bear upon respondents' ability to
provide proper care and supervision for their children also bears
upon whether the parents have made reasonable progress towards
correcting the conditions that led to the removal of the children
from their home. Id.
Here, DSS alleged substance abuse and/or mental illness of
both parents as a ground for termination, pursuant to § 7B-
1111(a)(6). The petition also alleged several other grounds for
termination. Ultimately, the court terminated respondent's rights
pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) (2003), which states,
in pertinent part, that parental rights may be terminated where
[t]he parent has willfully left the juvenile in foster care or
placement outside the home for more than 12 months without showingto the satisfaction of the court that reasonable progress under the
circumstances has been made in correcting those conditions which
led to the removal of the juvenile. Id. In its order terminating
respondent's parental rights, the Court specifically found that
there was insufficient evidence to support dependency due to
substance abuse alone. However, the respondent's substance abuse
was included as a basis for termination on the grounds of failure
to make progress pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). The
court made findings that respondent had several positive drug
screens for marijuana and methamphetamine and that he refused to
admit himself to court-ordered inpatient treatment, and the Court
made the following specific finding in support of its conclusion
that respondent had not made reasonable progress towards correcting
the conditions that led to A.M.A.'s removal:
The Respondent Father was to remain free of
drug and alcohol abuse. Since that
adjudication, he has had fourteen (14)
positive drug screens for methamphetamine;
thirteen (13) positive drug screens for
marijuana; and one (1) positive drug screens
for opiates. While Respondent Father has
apparently remained drug free while
incarcerated in prison, until the day he was
sent to prison he made no reasonable progress
toward this goal.
Even though the court made several findings which are arguably
unrelated to respondent's substance abuse, the court based part of
its conclusion that respondent failed to show reasonable progress onrespondent's substance abuse, and clearly considered respondent's
ongoing substance abuse . . . in determining whether to terminate
her parental rights. In re K.R.S., 170 N.C. App. at 649, 613 S.E.2d
at 321. We further note that substance abuse played a central role
in each of the orders and court reports, incorporated by reference in
the termination order here. We conclude that some evidence . . .
tend[s] to show that respondent's [substance abuse] issues and
respondent's failure to make reasonable progress were so intertwined
at times as to make separation of the two virtually, if not,
impossible. In re J.D., 164 N.C. App. at 182, 605 S.E.2d at 646.
Because the trial court erred in failing to appoint a guardian ad
litem, we reverse the TPR order and remand for a new hearing. Since
we have remanded for a new hearing, we need not address respondent's
remaining assignments of error.
Reversed and remanded.
Judges MCCULLOUGH and TYSON concur.
Report per Rule 30(e).
In 2005, the legislature amended this statute and added
N.C. Gen. Stat. 1101.1 (2005) (c), which states that 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. Id. However, the change became
effective 1 October 2005 and applies to petitions filed on or
after that date.
*** Converted from WordPerfect ***