IN THE MATTER OF:
I.D. and S.D.,
No. 02 J 13
Janet K. Ledbetter for Respondent-Appellant.
Batton & Guin Attorneys at Law, by David R. Guin, for Petitioner-Appellee Franklin County Department of Social Services.
Alexandra S. Gruber for Petitioner-Appellee Guardian ad Litem.
I.D. and S.D. (the children) are fraternal twins who were born prematurely to A.D. (Respondent) on 17 August 2001. As a result of their premature birth, the children have experienced significant medical problems and have required frequent medical care. Each child required eye surgery as a result of detached retinas. The eye surgery did not repair S.D.'s problem, and she is legally blind. I.D. also underwent hernia surgery. Additionally, the children were required to wear heart monitors for several years to alert their caretakers to heart and breathing problems. Thechildren had numerous medical appointments with a variety of medical professionals and were prescribed various medications throughout their infancy and early childhood.
The Franklin County Department of Social Services (DSS) filed a juvenile petition on 18 January 2002, alleging I.D. and S.D. were neglected and dependent. DSS obtained non-secure custody of the children by order entered 23 January 2002. The children were adjudicated neglected and dependent in an order entered 21 May 2002.
The trial court found that Respondent failed to keep scheduled medical appointments for the children and failed to give them required prescription medications. The trial court also found that Respondent failed to have the children wear their heart monitors, even though Respondent had been trained in the proper use of the heart monitors and had been informed as to their importance. Further, at the time the petition was filed, Respondent was incarcerated and had left the children in the care of an individual who was not trained in the proper use of the monitors and who was unwilling to transport the children to their medical appointments. The trial court ordered Respondent to submit to random drug testing and comply with the family services case plan established by DSS. On 29 May 2002, Respondent refused to sign a case plan developed by DSS, which required, inter alia, that Respondent attend parenting classes. Respondent denied she needed to participate in parenting classes. At that time, the permanent plan for the children was reunification with Respondent. Respondent underwent a psychological evaluation after DSS referred her to Carolina C.A.R.E. for a consultative evaluation. After undergoing a clinical interview and more than six hours of psychological testing, Dr. Robert Aiello (Dr. Aiello) diagnosed Respondent with antisocial personality disorder. Dr. Aiello's diagnosis was based upon: (1) Respondent's "irritability [and] verbally aggressive behaviors" toward those attempting to work with her, (2) Respondent's "possible disregard for the safety of [the] children," and (3) Respondent's inability "to accept responsibility for any contribution she had to the problems resulting in her . . . involvement" with DSS. Dr. Aiello recommended individual counseling services for Respondent. However, Dr. Aiello cautioned that "patients experiencing antisocial personality functioning are not often highly responsive to psychological forms of treatment and therapeutic services." Dr. Aiello also indicated Respondent was at risk for substance abuse because of her history of drug-related criminal behaviors, including past convictions for drug sales. Respondent began weekly therapy sessions with Dr. Rebecca Ansted (Dr. Ansted) on 8 August 2002 at the Franklin County Mental Health Clinic.
Pursuant to N.C. Gen. Stat. § 7B-906, a review hearing was held on 27 June 2002. At that time, the trial court ordered DSS to continue to pursue reunification with Respondent. Additional review hearings were held 26 September 2002 and 30 January 2003. The trial court ordered DSS to continue pursuing reunification with Respondent. Pursuant to N.C. Gen. Stat. § 7B-907, a permanencyplanning hearing was held on 27 March 2003. At that hearing, Respondent requested that custody of the children be returned to her. The trial court found Respondent "had not appropriately educated herself regarding the children's medical and emotional needs." The trial court also found that even though the children had been in DSS custody for more than twelve months, it was not in their best interests to pursue termination of Respondent's parental rights at that time. Thus, the permanency plan continued to be reunification with Respondent.
In March 2003, Respondent stated she was no longer willing to see Dr. Ansted. Dr. Ansted indicated Respondent was not "responsive to therapeutic counseling and [Respondent] does not see herself as having any problems." Further, Dr. Ansted stated that Respondent "accepts no blame or remorse for her treatment of the children in the past or currently" and that "her anger with DSS continues to get in her way and prevents her from effectively using the resources given her to participate in [the] children's treatment and growth."
Respondent was permitted unsupervised visits with the children pursuant to an order resulting from a review hearing held on 26 June 2003. However, the unsupervised visits were suspended on 31 July 2003, and the trial court ordered Respondent to continue mental health treatment and submit to an additional psychological evaluation. The permanency plan remained reunification.
Respondent was charged on 31 July 2003 with obtaining property by false pretenses for stealing money from the custodial trustaccount established for juveniles, including the children in question, in DSS custody. Respondent later pled guilty to the charge. Respondent was again incarcerated on 23 September 2003 for several felony charges, and sentenced to sixty days in jail pursuant to a probation violation on 29 September 2003.
DSS filed a motion to terminate Respondent's parental rights on 30 October 2003 based upon (1) neglect, pursuant to N.C. Gen. Stat. § 7B-101(15); and (2) willfully leaving the children in foster care for more than twelve months without showing reasonable progress in correcting those conditions which led to the removal of the children. (See footnote 1) In an order entered 26 November 2003, the trial court ordered that the permanent plan for the children be adoption. Respondent did not appeal. However, she denied neglecting the children and denied willfully leaving them in foster care for more than twelve months.
The termination hearing was initially scheduled for 19 December 2003, but was continued at the request of Respondent, through counsel, because Respondent was incarcerated at the time. The termination hearing was again continued on 26 February 2004 after Respondent moved to replace her counsel "based on the fact that [Respondent's] parental rights [had] not been explained to [her.]" Respondent's attorney joined Respondent's motion, and the trial court permitted Respondent's counsel to withdraw. The termination hearing was again set for 29 April 2004. Respondent moved for the appointment of substitute counsel, and the hearing was again continued to permit her newly-appointed counsel to prepare. The matter next came on for hearing on 1 July 2004, and the trial court again found just cause to continue the hearing. The trial court found that Respondent remained incarcerated and all parties consented to the continuation.
DSS filed an amended motion for termination of parental rights on 16 July 2004 based upon Respondent's: (1) neglect, pursuant to N.C. Gen. Stat. § 7B-101(15); (2) willfully leaving the children in foster care for more than twelve months without showing reasonable progress; and (3) dependency, pursuant to N.C. Gen. Stat. § 7B- 101(9). Respondent again denied DSS' allegations.
The matter came on for hearing 29 July 2004 and 26 August 2004. Each time the trial court continued the matter for just cause, with the consent of all parties. At a hearing on 25 October 2004, the trial court determined that the allegations of the amended motion required the appointment of a guardian ad litem for Respondent, and appointed Respondent's counsel to act as Respondent's guardian ad litem. The trial court ordered counsel, as guardian ad litem, to submit a report regarding Respondent's competence to appear at trial and Respondent's ability to assist her counsel. Respondent's counsel submitted a report on 27 October 2004, concluding that Respondent understood the allegations in the motion to terminate her parental rights and that Respondent had actively participated in the preparation of her case. However, thematter was again continued on 27 October 2004 with the consent of all parties.
Respondent's counsel moved for the appointment of an independent guardian ad litem for Respondent on 3 December 2004, which the trial court granted in an order dated 6 December 2004. When the matter next came on for hearing on 15 December 2004, the trial court continued the hearing, again with the consent of all parties. The order does not explain why the continuance was necessary. Respondent's second guardian ad litem filed a report with the trial court on 17 December 2004 recommending that the proceedings be delayed because the guardian ad litem felt Respondent lacked "sufficient contact with reality." Specifically, the guardian ad litem noted that Respondent believed the current proceedings were part of a conspiracy by DSS and the children's foster parents, and that Respondent's incarceration was part of the conspiracy.
Respondent filed a written complaint with the trial court against her attorney on 22 December 2004 for "allowing evidence to be [suppressed], not subpoenaing witnesses, not filing a dismissal for termination of parental rights on [her] behalf and not asking important questions of witnesses."
The termination hearing was held on 2, 3, 4 February and 2 March 2005. The trial court terminated Respondent's parental rights, finding the children neglected and dependent, and further finding that Respondent had willfully left the children in foster care for more than twelve months without reasonable progress underthe circumstances. The trial court also concluded that termination of Respondent's parental rights was in the best interests of the children. Respondent appeals.
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