Converted WP file 061041-1

Appeal by Respondent mother from order entered 30 March 2006 by Judge James T. Hill in Durham County District Court. Heard in the Court of Appeals 22 February 2007.

Annick Lenoir-Peek for Respondent-Appellant.

Cathy L. Moore for Petitioner-Appellee.

    STEPHENS, Judge.

    Respondent-Appellant (“Respondent”) is the mother of C.H., the juvenile who is the subject of this appeal. In a juvenile petition filed 2 February 1999, the Durham County Department of Social Services (“DSS”) alleged that C.H. was dependent and neglected. Specifically, DSS alleged that
        e. [C.H.] has been diagnosed as an autistic child . . . [and] is in need of mental health services and medication management. [Respondent] minimizes the child's behaviors and need for services . . . [and] has discontinued in home family services in the past. The child's behaviors include hitting and lashing out.
        f. [Respondent] and [C.H.] live in the home of the maternal grandmother [R.]H. [Respondent] leaves the day to day care of [C.H.] to [R.]H. and leaves the home for hours and days at a time. But for [R.]H.,[C.H.] would be in need of placement.
        g. Upon information and belief, [Respondent] suffers from a mental condition. She may havea pervasive developmental disorder which interferes with her day to day living and judgment. She is very rigid in her thinking and her actions.
        h. [Respondent] controls the conditions of the home by her behavior. The home is dirty and cluttered with clothes and at times has roaches and other insects. [Respondent] has piles of clothing in the halls and in the bedrooms to where . . . three fourths of the house is unlivable to the detriment of [C.H.] [R.H.] has attempted to clear out the home; however, [Respondent] will not let her throw away the clothing or store the clothing.

By order filed 5 May 1999, upon motion of Respondent's attorney   (See footnote 1) and pursuant to Rule 17 of the North Carolina Rules of Civil Procedure, the Honorable Elaine O'Neal appointed a guardian ad litem for Respondent. After an adjudicatory hearing held 21 May and 3 June 1999, the Honorable Kenneth C. Titus determined that C.H. was dependent and neglected, ordered C.H. placed in the legal custody of DSS, and granted DSS the authority to place C.H. in a therapeutic community. By order filed 8 March 2000, Judge Titus continued legal custody of C.H. with DSS, ordered that “C.H. shall continue to receive mental health treatment with treatment decisions to be made by the Durham Center[,]” and relieved the assigned guardian ad litem for Respondent of further responsibilities.
    This case then continued in Durham County District Court for regular review hearings. After a permanency planning hearing, inan order filed 15 October 2003, the Honorable James T. Hill changed the permanent plan for C.H. to “guardianship/custody [with] a court appointed caretaker[,]” and ordered that “DSS is relieved of further reunification efforts at this time.” In February 2005, C.H. was placed in a therapeutic foster home under the care of Elaine and Donald Winstead. By order filed 25 January 2006, Judge Hill ordered the Winsteads “appointed legal guardians for . . . [C.H.] as the permanent plan” and that “DSS continues to be relieved of reunification efforts with [Respondent].” Following a 28 February review hearing, in an order filed 30 March 2006, Judge Hill ordered that the Winsteads “continue to be appointed legal guardians for the child,” that “DSS continues to be relieved of reunification efforts with [Respondent][,]” and that “[t]here shall be no further reviews [in this matter] unless upon the filing of a motion by a party as circumstances warrant.” From this order, Respondent appeals. For the reasons which follow, we reverse the order of the trial court.

    By her first argument, Respondent contends that the trial court erred by failing to sua sponte appoint a guardian ad litem to assist her after the 8 March 2000 order of Judge Titus relieving her original guardian ad litem of further responsibilities on her behalf. As set out below and based on recent decisions of this Court, we agree.
    As Respondent concedes, at the onset of this case, the Juvenile Code did not require the trial court to appoint a guardianad litem for Respondent. That is because, when the juvenile petition was filed in this case, N.C. Gen. Stat. § 7B-602 required only the appointment of legal counsel and made no mention of a guardian ad litem for parents in juvenile proceedings. N.C. Gen. Stat. § 7B-602 (1999). However, under Rule 17 of the North Carolina Rules of Civil Procedure, once the trial court was made aware of a substantial question regarding Respondent's mental condition, it had a duty to inquire into the competency of Respondent. See In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45 (2005). Having made such an inquiry in this case upon motion of Respondent's trial counsel, Judge O'Neal appointed a guardian ad litem for Respondent pursuant to Rule 17.
    Additionally, the statute in effect at the time of the permanency planning order from which Respondent appeals does not mandate the appointment of a guardian ad litem for a parent, but instead leaves the decision of whether a guardian ad litem is necessary to the discretion of the trial court. That statutory provision, however, does not apply here. See N.C. Gen. Stat. § 7B- 602(c) (2005) (applicable to petitions or actions filed on or after October 1, 2005, and allowing a trial judge to “appoint a guardian ad litem for a parent in accordance with G.S. 1A-1, Rule 17, 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”).
    Pertinent to our inquiry is the amendment to N.C. Gen. Stat. § 7B-602 enacted during the pendency of this case which, undercertain circumstances, mandates the appointment of a guardian ad litem for a parent. This amendment applies to cases filed and pending as of 1 January 2002, and provides in relevant part as follows:
        In addition to the right to appointed counsel . . ., 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 case[]:
            (1)     Where it is alleged that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101 in that the parent is incapable as the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other similar cause or condition of providing for the proper care and supervision of the juvenile[.]

N.C. Gen. Stat. § 7B-602(b)(1) (2001) (emphasis added). In In re H.W., 163 N.C. App. 438, 447, 594 S.E.2d 211, 216 (citing In re Estes, 157 N.C. App. 513, 579 S.E.2d 496, disc. review denied, 357 N.C. 459, 585 S.E.2d 390 (2003)), disc. review denied, 358 N.C. 543, 599 S.E.2d 46, 603 S.E.2d 877 (2004), this Court determined that
        a trial court need not appoint a guardian ad litem pursuant to G.S. § 7B-602(b)(1) unless (1) the petition specifically alleges dependency; and (2) the majority of the dependency allegations tend to show that a parent or guardian is incapable as the result of some debilitating condition listed in the statute of providing for the proper care and supervision of his or her child.

As noted above, by order filed 5 May 1999, pursuant to Rule 17 of the North Carolina Rules of Civil Procedure, Judge O'Neal appointed a guardian ad litem for Respondent based on Respondent's allegedincompetency. Subsequently, by order filed 8 March 2000, Judge Titus, without explanation, relieved Respondent's guardian ad litem of all further responsibility. The record is void of any evidence that the trial court was asked to revisit this issue again. Clearly, however, this case remained pending when section 7B-602 was amended. Further, in In re T.T., ___ N.C. App. ___, ___ S.E.2d ___ (Mar. 6, 2007) (COA06-117), this Court found reversible error when the trial court knew of the parent's mental illness, based dependency findings on such illness, and nevertheless failed to sua sponte appoint a guardian ad litem to assist the parent.
    In this case, we believe that the standard espoused in H.W. and T.T. controls, and that, consequently, the trial court erred by failing to sua sponte appoint a guardian ad litem for Respondent.   (See footnote 2) The juvenile petition specifically alleges dependency, and the majority of the dependency allegations tend to show that Respondent's incapability of providing proper care or supervision of C.H. results from a debilitating mental condition. In particular, the allegations that (1) Respondent “suffers from a mental condition . . . which interferes with her day to day living and judgment[,]” (2) Respondent “minimizes [C.H.'s] behaviors and need for services . . . [and] has discontinued in home family services in the past[,]” (3) Respondent “leaves the day to day careof [C.H.] to [R.]H. and leaves the home for hours and days at a time[,]” and (4) Respondent “controls the conditions of the home by her behavior” all implicate Respondent's mental condition and the impact it has on C.H.'s status as a dependent juvenile.
    More importantly, like the trial court in T.T., the trial court in this case was keenly aware of Respondent's mental condition. This is apparent from the trial court's repeated references to Respondent's mental health and the directives the trial court provided to Respondent in court orders. For example, in an order filed 13 March 2002, the court directed Respondent to “continue treatment with UNC Psychiatry and follow up with any treatment recommendations.” By orders filed 17 September 2002, 15 October 2003, 3 March 2004, and 27 July 2004, Respondent was instructed to “continue with treatment at The Durham Center and follow the recommendations of this treatment, including recommendation to take medication to control hoarding/collecting behavior and help her clean out the home.” Finally, by order filed 25 January 2006, the court ordered Respondent to
        take the actions needed to correct the conditions that led to the removal of the child from the home, including: . . . cooperat[ing] with her own case management services and mental health treatment, and take medication, if prescribed; work with [C.H.'s] treatment plan as required and demonstrate the ability to meet the child's special needs.

From these orders, it is clear that the trial court was cognizant of Respondent's mental condition and had an elevated level of concern that prompted the court to order Respondent to seektreatment from mental health professionals, but nevertheless failed to appoint the statutorily required guardian ad litem. See N.C. Gen. Stat. § 7B-602 (2001). This failure constituted “'prejudicial error per se[.]'” In re L.M.C., 170 N.C. App. 676, 679, 613 S.E.2d 256, 258 (2005) (quoting H.W., 163 N.C. App. at 448, 594 S.E.2d at 216 (citation omitted)); accord T.T., supra. Accordingly, the 30 March 2006 permanency planning order of the trial court is reversed. This case is remanded for the appointment of a guardian ad litem for Respondent and a new review hearing.   (See footnote 3)

    Respondent next contends that the trial court erred by relying on DSS court reports and failing to make independent findings of fact required at the end of the permanency planning hearing. Although we remand this case under Respondent's first argument, for instructive purposes and for purposes of judicial economy, we have chosen to address this issue. We find Respondent's argument without merit.
    Under North Carolina law,
        [a]t any permanency planning review, the court shall consider information from the parent, the juvenile, the guardian, any foster parent, relative or preadoptive parent providing care for the child, the custodian or agency with custody, the guardian ad litem, and any other person or agency which will aid it in the court's review.

N.C. Gen. Stat. § 7B-907(b) (2005). When conducting a juvenile proceeding, the trial court is permitted to consider all materials,including written reports, that have been submitted in connection with the proceeding, but must make independent findings of fact from all the evidence, including testimony offered at the hearing as well as previously prepared reports and court summaries. In re J.S., 165 N.C. App. 509, 598 S.E.2d 658 (2004).
    The independent findings of fact required to be made by the trial court are dependent on the result of the hearing:
        At the conclusion of the hearing, if the juvenile is not returned home, the court shall consider the following criteria and make written findings regarding those that are relevant:
            (1)    Whether it is possible for the juvenile to be returned home immediately or within the next six months, and if not, why it is not in the juvenile's best interests to return home;
            (2)     Where the juvenile's return home is unlikely within six months, whether legal guardianship or custody with a relative or some other suitable person should be established, and if so, the rights and responsibilities which should remain with the parents;
            (3)     Where the juvenile's return home is unlikely within six months, whether adoption should be pursued and if so, any barriers to the juvenile's adoption;
            (4)     Where the juvenile's return home is unlikely within six months, whether the juvenile should remain in the current placement or be placed in another permanent living arrangement and why;
            (5)    Whether the county department of social services has since the initial permanency plan hearing made reasonable efforts to implement the permanent plan for the juvenile;
            (6)     Any other criteria the court deems necessary.
N.C. Gen. Stat. § 7B-907(b). In In re J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004), overruled on other grounds by In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005), superceded by statute as stated in In re A.B., ___ N.C. App. ___, 635 S.E.2d 11 (2006), this Court determined that this section of the Juvenile Code does not require a permanency planning order to contain a formal listing of the § 7B-907(b)(1)-(6) factors, “as long as the trial court makes findings of fact on the relevant § 7B-907(b) factors[.]” In addition to the required findings under section 7B- 907(b), under certain circumstances N.C. Gen. Stat. § 7B-907(d) requires that:
        In the case of a juvenile who is in the custody or placement responsibility of a county department of social services, and has been in placement outside the home for 12 of the most recent 22 months . . . the director of the department of social services shall initiate a proceeding to terminate the parental rights of the parent unless the court finds:
            (1)    The permanent plan for the juvenile is guardianship or custody with a relative or some other suitable person; [or]
            (2)    The court makes specific findings why the filing of a petition for termination of parental rights is not in the best interests of the child[.]

N.C. Gen. Stat. § 7B-907(d) (2005).
    In his permanency planning order, Judge Hill made the following relevant findings of fact:
        4. The child has been in DSS custody for six years. Due to [C.H.'s] autism and the mother's limitations, the mother is not able to care for [C.H.] on a day-to-day basis.        5. The child has been placed with the foster parents since February 2005, and she is doing well in this home.

        . . . .

        10. The foster parent, Ms. Winstead, provides [C.H.] with a very basic structured routine in order for her to function.
        11. Ms. Winstead is willing to continue to be appointed guardian for the child only if some changes are made in the visitation schedule as it places too many demands on the family and too many disruptions on the child. She is requesting visitation be two times a month and no holidays.

        . . . .

        13. There continue to be no family members who have come forward to be considered as guardians for [C.H.]
        14. As further findings of fact, the Court adopts the DSS court summary which is incorporated herein as if fully set forth.
        [15]. Based on the history of the case and the prior orders, it is not possible for the child, [C.H.], to be returned to the home immediately nor is it likely within the next six months. Termination of parental rights is not an appropriate plan for the child due to her need for a structured therapeutic placement and her attachment to the family. Guardianship to a court-appointed caretaker is an appropriate plan for [C.H.] The concurrent plan is guardianship with a relative.
        [16]. To implement the permanent plan DSS has made the efforts as described in the court summary.
        [17]. The child has lived with the guardians for a year. The placement is stable and continuing. The guardians are willing to be the permanent guardians for the child. They understand the legal significance of being guardians and have sufficient financial resources with the guardianship subsidy to provide for the needs of the child. Neither the interests of the child nor any other party require[s] further statutory reviews. All parties have been advised that the matter may be brought back for review at any time by thefiling of a motion by a party or the Court upon its own motion.

The trial court also made a conclusion of law that would have been better labeled a finding of fact in that it stated:
        4. Durham DSS has made reasonable efforts to implement the permanent plan. The permanent plan was implemented by appointing Mr. and Mrs. Winstead as guardians for the child on November 1, 2005.

These findings are sufficient to meet the requirements under N.C. Gen. Stat. §§ 7B-907(b) and (d). In particular, we hold that (1) the requirements under section 7B-907(b)(3) are met by findings of fact [15] and [17]; (2) the requirements under section 7B-907(b)(4) are met by findings of fact 5, 10, 11, [15], and [17]; and (3) the requirements under section 7B-907(b)(5) are met by finding of fact 14 and conclusion of law 4. Additionally, the trial court made sufficient independent findings of fact as required by N.C. Gen. Stat. § 7B-907(b)(1). Specifically, we hold that the trial court's findings of fact 4 and [15], referencing the history of the case, C.H.'s special needs, and Respondent's struggles to improve her ability to care for C.H., provide the basis upon which Judge Hill relied in determining that it was not in C.H.'s best interests to return home. Finally, the requirements under section 7B-907(b)(2) are met by findings of fact 11, 13, [15], and [17], and a conclusion of law that determined it “is in the best interests of the child that she have regular visitation with [Respondent].” See J.C.S., 164 N.C. App. at 106, 595 S.E.2d at 161 (finding sufficient findings of fact under section 7B-907(b)(2) where the trial courtfound “that the children should remain in their current foster care placement, with respondent continuing to have visitation rights”).
    With regard to section 7B-907(d), we believe that the requirements under section 7B-907(d)(1) are met by findings of fact [15] and [17], and the requirements under section 7B-907(d)(2) are met by finding of fact [15]. We thus overrule Respondent's assignments of error related to the trial court's findings of fact.
    For the reasons stated, the order of the trial court is reversed for failure to appoint the statutorily required guardian ad litem, and this case is remanded for further proceedings in accordance with this opinion.
    REVERSED AND REMANDED.
    Judges McGEE and CALABRIA concur.
    Report per Rule 30(e).

Footnote: 1