An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 2 January 2007
In re: J.D.T.
New Hanover County
Appeal by Respondents from judgment entered 11 April 2005 by
Judge Shelly S. Holt in District Court, New Hanover County. Heard
in the Court of Appeals 31 October 2006.
Dean W. Hollandsworth for petitioner-appellee.
Regina Floyd-Davis for Guardian ad Litem - appellee.
Terry F. Rose for respondent mother - appellant.
Annick Lenoir-Peek for respondent father - appellant.
Where a trial court terminates parental rights based
inextricably upon a parent's mental illness and drug abuse, that
parent is entitled to a guardian ad litem.
(See footnote 1)
Mother had been diagnosed with schizophrenia and had a history of
drug abuse. Because the order terminating the Respondent-Mother's
parental rights was based substantially upon her mental illness and
history of drug abuse, we reverse and remand this matter for the
appointment of a guardian ad litem for the Respondent-Mother.
However, regarding the appeal of the Respondent-Father from thetermination of his parental rights, we find no merit to his
arguments on appeal.
The record shows that the child in this matter, J.D.T., was
one day old when the Juvenile Petition was filed on 22 October 2002
by the New Hanover Department of Social Services (DSS). Both
parents abused controlled substances, including daily use of
marijuana by the Father and positive drug test results from the
Mother for marijuana, cocaine, and PCP during the pregnancy, and
positive drug tests from both Mother and J.D.T. at his birth.
Based on this evidence, on 12 December 2002, the trial court
adjudicated the child neglected under N.C. Gen. Stat. § 7B-101(15).
From the time of the December 2002 hearing to the filing of
the Termination Petition in August 2004, the Mother continued to
experience drug problems as well as mental health issues despite
efforts to rehabilitate her. Regarding the Father, the record
shows he had no contact with the child since birth and had been
incarcerated for most of the child's life.
On 11 April 2005, the trial court ordered that the parental
rights of Respondent-Mother and Respondent-Father be terminated.
The parents appealed from this order.
Respondent-Mother makes several arguments; however, we
dispositively reverse and remand based on the trial court's failure
to appoint a guardian ad litem for Respondent-Mother.
Under Section 7B-1111(a)(6) of the 2003 North Carolina General
Statutes, where substance abuse or mental illness renders a parentincapable of child care and no alternative child care arrangement
The court may terminate the parental rights
upon a finding . . .
That the parent is incapable of providing for
the proper care and supervision of the
juvenile . . . and that there is a reasonable
probability that such incapability will
continue for the foreseeable future.
Under Section 7B-1101 of the 2003 North Carolina General
[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(6), and
the incapability to provide proper care and
supervision pursuant to that provision is the
result of substance abuse, . . . [or] mental
illness . . . .
This Court has held that where the petition for termination of
parental rights does not allege incapacity to parent as a ground
for the termination of rights, 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.' In re J.A.A., 175
N.C. App. 66, 623 S.E.2d 45 (2005) (quoting In re H.W., 163 N.C.
App. 438, 447, 594 S. E.2d 211, 216, disc. review denied, 358 N.C.
543, 603 S.E.2d 877 (2004)).
However, in In re C.B., we recognized that in termination
proceedings, when determining whether an appointed guardian ad
litem was required by N.C. Gen. Stat. § 7B-1101, this Court has
considered the evidence introduced by the parties during the
hearing and relied upon by the trial court in its terminationorder. In re C.B., 171 N.C. App. 341, _, 614 S.E.2d 579, 581-82
(2005) (citing In re J.D., 164 N.C. App. 176, 182, 605 S.E.2d 643,
646, disc. review denied, 358 N.C. 732, 601 S.E.2d 531 (2004)
(holding that a guardian ad litem was required by N.C. Gen. Stat.
§ 7B-1101 in termination hearing where, although dependency was not
pursued as a ground for termination,
some evidence . . . tended to
show that respondent's mental health issues and the child's neglect
were so intertwined at times as to make separation of the two
virtually, if not, impossible)).
In the case before us, DSS alleged J.D.T. dependent due to
neglect arising from an environment injurious to J.D.T.'s welfare.
As a basis for this, DSS alleged, inter alia, Respondent-Mother was
an unmedicated schizophrenic with a history of substance abuse -
primarily marijuana and cocaine, and acknowledged that previous
trial courts ordered Respondent-Mother to cooperate with local
health services and follow their recommendations regarding her
substance abuse and mental health issues.
Moreover, testimony at the adjudicatory hearing established
that Respondent-Mother was a diagnosed schizophrenic who abused
various controlled substances and who had, after treatment,
relapsed into drug use multiple times. Respondent-Mother's DSS
case worker testified that Respondent-Mother was not allowed to see
J.D.T. due to an inability to achieve a required three consecutive
negative drug tests. Furthermore, Respondent-Mother testified that
she had been diagnosed with schizophrenia for ten years, about thesame amount of time she had been using drugs, and that after
treatment she had relapsed into drug use on multiple occasions.
The trial court which terminated Respondent-Mother's parental
rights for J.D.T. concluded, as reflected in its order, that
Respondent-Mother neglected J.D.T. and that the probability of
repetition of neglect was strong.
[Respondent-Mother] [has] willfully abandoned
[her] child for a period of six consecutive
months preceding the filing of the Petition
and [has] willfully . . . left the child,
[J.D.T.], in foster care for more than twelve
months without showing to the satisfaction of
the Court that reasonable progress under the
circumstances has been made to correct the
conditions that led to the child's removal.
We find that the evidence of neglect and probability of
neglect repetition was substantially premised on Respondent-
Mother's history of substance abuse and her diagnosed mental
illness. Respondent-Mother's drug abuse and mental illness were
substantially, if not inextricably, intertwined with Petitioner's
allegations and the root of the trial court's conclusion of
neglect. Accordingly, we reverse the order terminating the
Respondent-Mother's parental rights, and remand for the appointment
of a guardian ad litem for the Respondent-Mother.
Respondent-Father argues in his appeal that the trial court
(I) erred by entering its termination order more than thirty days
from the date of the adjudicatory hearing and (II) abused its
discretion when it concluded it was in J.D.T.'s best interest to
terminate Respondent-Father's parental rights.
Respondent-Father first argues the trial court erred by
entering its termination order more than thirty days from the date
of the adjudicatory hearing.
To reverse an order terminating parental rights due to a trial
court's failure to enter a written order within thirty days of the
termination hearing, the appellant must establish prejudice from
the lack of a written entry. See In re J.L.K., 165 N.C. App. 311,
598 S.E.2d 387, cert. denied, 359 N.C. 68, 604 S.E.2d 314 (2004)
(father was not entitled to reversal of an order terminating his
parental rights when the trial court entered the order more than 30
days after the hearing because he failed to show that he suffered
prejudice as a result of the late order); In re P.L.P., 173 N.C.
App. 1, 618 S.E.2d 241 (2005), aff'd, _ N.C. _, 625 S.E.2d 779
(2006) (mother was not entitled to reversal of an order terminating
her parental rights despite the fact that it was entered more than
30 days after the hearing because she failed to show that she
suffered prejudice as a result of the late order); In re S.N.H., _
N.C. App. _, 627 S.E.2d 510 (2006) (a trial court's entry of an
order 83 days following the termination of parental rights hearing
did not constitute prejudice per se, requiring a new hearing; the
mother failed to articulate any prejudice she suffered).
Here, the trial court held Respondent-Father's adjudicatory
hearing on 8 November 2004 and his disposition hearing on 11 April
2005. The trial court filed the written order encompassing both
decisions 11 May 2005. Respondent-Father argues he was prejudiceddue to the extensive period between the conclusion of the
adjudicatory hearing and the entry of the written order. We
Regardless of the time frame between the adjudicatory hearing
and the written order terminating parental rights, Respondent-
Father conceded at the adjudicatory hearing that he had fulfilled
none of his parental duties. He stated that he did not recall
seeing J.D.T. after he was born. And, though he was incarcerated
for a period of the time between J.D.T.'s birth and the termination
hearing, he stated that for at least twelve months of that time he
was not incarcerated. Yet, he failed to contact the child or send
monetary support and felt that the DSS worker harassed him about
such things as clothes, shoes, and giving J.D.T. what he could.
Given his admitted complete failure to fulfill a parental
duty, we find no prejudice to Respondent-Father in the delay to
enter a written order after the adjudicatory hearing.
Respondent-Father next argues the trial court abused its
discretion when it concluded it was in J.D.T.'s best interest to
terminate Respondent-Father's parental rights. We disagree.
Under Section 7B-1110(a) of the 2003 North Carolina General
Should the court determine that any one or
more of the conditions authorizing a
termination of the parental rights of a parent
exist, the court shall issue an order
terminating the parental rights of such parent
with respect to the juvenile unless the court
shall further determine that the best
interests of the juvenile require that theparental rights of the parent not be
See also In re Carr, 116 N.C. App. 403, 448 S.E.2d 299 (1994) (the
court may exercise its discretion in the dispositional stage only
after the court has found that there is clear and convincing
evidence of one of the statutory grounds for terminating parental
rights during the adjudicatory stage).
As noted earlier, Respondent-Father conceded that he failed to
contact J.D.T., did not recall seeing J.D.T. after he was born;
never gave any monetary support for J.D.T.; and felt the Department
of Social Services harassed him about giving J.D.T. clothes, shoes,
and other things that he could. We find the trial court's
determination that the termination of Respondent-Father's parental
rights was in the best interest of J.D.T. was not so arbitrary that
it could not be the product of a reasoned decision. Accordingly,
we hold the trial court did not abuse its discretion.
In sum, we reverse the order terminating the Mother's parental
rights and remand for an appointment of a guardian ad litem
However, we affirm the order terminating the rights of the
Reversed in part; Affirmed in part.
Judges, HUDSON and STEPHENS concur.
The judges participated and submitted this opinion for filing
prior to 1 January 2007.
Report per rule 30(e).
See In re J.D.
, 164 N.C. App. 176, 182, 605 S.E.2d 643, 646,
disc. review denied
, 358 N.C. 732, 601 S.E.2d 531 (2004)
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