Opinion
No. COA10-174
Filed 1 June 2010 This case not for publication
Appeal by respondent parents from order entered 23 December 2009 by Judge Kimberly Y. Best-Staton in Mecklenburg County District Court. Heard in the Court of Appeals 29 April 2010.
Mecklenburg County Department of Social Services, Youth and Family Services, by Senior Associate Attorney Kathleen Arundell Widelski, for Petitioner-appellee. Richard Croutharmel for Respondent-Father. Charlotte Gail Blake for Respondent-Mother. Pamela Newell for Appellee Guardian ad Litem.
Mecklenburg County 08 J 474, 475, 476.
Sandra L., Respondent-Mother, and Calvin L., Respondent-Father, appeal from the trial court's order terminating their parental rights in the juveniles C.E.L., A.M.L., and R.A.L. After careful consideration of the arguments advanced by Respondent-Parents in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.
The pseudonyms Cullen, Adam, and Rose are used in this opinion to refer to C.E.L., A.M.L., and R.A.L., respectively, in order to protect their privacy and for ease of reading.
I. Factual and Procedural Background
On 24 June 2008, the Youth and Family Services Division of the Mecklenburg County Department of Social Services received a report alleging that an episode of domestic violence had occurred between the Respondent-Parents on the preceding day and that Respondent-Father had "whipped" Cullen and Adam. As a result of this incident, Respondent-Father was charged with assault on a female. On 1 July 2008, the children were taken into YFS custody following the issuance of a nonsecure custody order.
On 8 July 2008, YFS filed a petition alleging that the children were neglected and dependent juveniles. On 2 September 2008, the children were adjudicated to be neglected and dependent juveniles with respect to Respondent-Mother based on a mediated agreement between Respondent-Mother and YFS. The factual stipulations contained in the mediated settlement agreement indicated that, on 23 June 2008, while the Respondent-Parents were under the influence of alcohol, Respondent-Father assaulted Respondent-Mother, resulting in the loss of a tooth, a black eye, bruises, an injured ear drum, and a fractured wrist. On the same date, Respondent-Father beat Cullen and Adam, resulting in bruising that was visible several days later. In the mediated settlement agreement, Respondent-Mother admitted that she drank vodka to cope with Respondent-Father's violence and that she was afraid to intervene when he hit the children. The mediated settlement agreement stated that substance abuse and domestic violence were "the primary issues" that needed to be addressed. In the mediated settlement agreement, Respondent-Mother agreed to complete mental health, substance abuse and domestic violence assessments, comply with any recommendations stemming from these assessments, abstain from use of mood-altering substances, obtain safe housing of her own, and attempt to find work. Respondent-Mother was granted supervised visitation with the children. YFS warned Respondent-Mother that, if she continued her relationship with Respondent-Father and he failed to comply with his own case plan, she might not regain custody of the children regardless of the extent to which she successfully completed her own case plan.
On 18 September 2008, the court adjudicated the children to be abused, neglected, and dependent juveniles with respect to Respondent-Father. The court's findings at the adjudication hearing were consistent with the factual stipulations set out in the mediated settlement agreement between YFS and Respondent-Mother. In the dispositional portion of the court's order, the children were ordered to remain in YFS custody. Respondent-Father was ordered to pay child support and to obtain domestic violence counseling, parenting education, a mental health assessment, and substance abuse treatment. Respondent-Father was required to complete at least four domestic violence counseling sessions before having visitation with the children.
Since the juvenile petition only alleged that the children were neglected and dependent, the trial court erred by adjudicating the children abused as to Respondent-Father. See In re D.C., C.C., 183 N.C. App. 344, 348, 644 S.E.2d 640, 642 (2007) (stating that the "court erred by adjudicating [the child] to be a neglected juvenile because the petition . . . alleged only that [he was] a dependent juvenile"). However, since this issue was not raised at the trial level or on appeal and since the trial court's error did not affect any of the subsequent proceedings which are before us for review, we need not address it in connection with the present appeal.
Neither parent attended review hearings that were conducted on 18 December 2008 and 3 March 2009, or the permanency planning hearing that was held on 10 March 2009. At the conclusion of the December 2008 hearing, the court found that Respondent-Mother had failed to comply with the mental health and substance abuse components of her plan and that Respondent-Father had made no progress on his case plan, including addressing the domestic violence and substance abuse issues that lay at the heart of the family's difficulties. At the March 2009 hearing, the court found that Respondent-Parents still had not resolved their domestic violence and substance abuse issues and that additional criminal charges had been lodged against Respondent-Father as the result of further instances of domestic violence. The court described the case as "one of the worst cases of denial of domestic violence" the court had seen, suspended the requirement that YFS seek to achieve reunification, and changed the permanent plan for the children from reunification to termination of parental rights and adoption. Following the 10 March 2009 permanency planning hearing, the court found that:
Father has made no progress toward reunification. . . . Mother has not complied with domestic violence or substance abuse treatment. The parents are not engaged in services [to] eliminat[e] those conditions that caused [the] children to come into [YFS's] care. . . . The issues of domestic violence and substance abuse have not been addressed.
As a result, the court concluded that termination of parental rights and adoption would be in the best interests of the children, suspended visitation, and directed YFS to seek termination of parental rights.
On 13 May 2009, YFS filed motions seeking the termination of the Respondent-Parents' parental rights in the children. The motions alleged that grounds for terminating Respondent-Parents' parental rights existed in that they had neglected and abandoned the children and had failed to make any financial contribution to the cost of the children's care. Following hearings held on 2, 6 and 7 October 2009, the trial court announced that it intended to enter an order concluding that Respondent-Parents had neglected and abandoned the children and that they had failed to provide any support for the children despite having the ability to do so. The trial court further stated that it intended to conclude it was in the children's best interests to terminate Respondent-Parents' parental rights. On 23 December 2009, the trial court entered an order terminating Respondent-Parents' parental rights in the children. Respondent-Parents noted an appeal from the trial court's order to this Court.
II. Standard of Review
"Termination of parental rights is a two-step process. In the first phase of the termination hearing, the petitioner must show by clear, cogent and convincing evidence that a statutory ground to terminate exists." In re S.N., X.Z., 194 N.C. App. 142, 145-46, 669 S.E.2d 55, 58 (2008) (citing In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001), and In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997)). The court "must make findings of fact which are supported by this evidentiary standard, and the findings of fact must support the trial court's conclusions of law." S.N., X.Z., 194 N.C. App. at 146, 669 S.E.2d at 58 (citing In re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d 403, 406 (2003)).
"Appellate review of a trial court's determination at the adjudicatory stage is whether the trial court's findings of fact are based upon clear, cogent, and convincing evidence and whether the findings support the conclusions of law." In re I.T.P.L, ___ N.C. App. ___, ___, 670 S.E.2d 282, 287 (2008) (citing In re Pope, 144 N.C. App. 32, 547 S.E.2d 153, aff'd, 354 N.C. 359, 554 S.E.2d 644 (2001)). "[T]he trial court's findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings." In re N.G., 186 N.C. App. 1, 4, 650 S.E.2d 45, 47 (2007) (quoting In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997)). "Findings of fact that are not challenged on appeal are deemed supported by the evidence and are binding upon this Court." In re N.B., ___ N.C. App. ___, ___, 688 S.E.2d 713, 717 (2009) (citing In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003)).
"If the trial court determines that a ground for termination exists, the court moves to the disposition stage, where it must determine whether termination is in the best interest of the child. N.C. Gen. Stat. § 7B-1110(a) [(2009)]." In re S.T.P., ___ N.C. App. ___, ___, 689 S.E.2d 223, 227 (2010). "We review this decision on an abuse of discretion standard, and will reverse a court's decision only where it is `manifestly unsupported by reason.'" S.N., at 146, 669 S.E.2d at 59 (quoting Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980)).
III. Legal Analysis A. Respondent-Mother's Appeal 1. Sufficiency of the Evidence of Neglect
Respondent-Mother first contends that the trial court erred by finding that her parental rights were subject to termination on the grounds of neglect, arguing that "such finding and conclusion was not supported by clear, cogent and convincing evidence." We disagree.
N.C. Gen. Stat. § 7B-1111(a)(1) provides, in pertinent part, that a trial court may terminate a parent's parental rights based upon a finding that:
(1) The parent has . . . neglected the juvenile. The juvenile shall be deemed to be . . . neglected if the court finds the juvenile to be . . . a neglected juvenile within the meaning of [N.C. Gen. Stat. § ] 7B-101.
N.C. Gen. Stat. § 7B-101(15) defines a "neglected juvenile" as:
(15) A juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent . . . or who has been abandoned . . . or who lives in an environment injurious to the juvenile's welfare[.]
As a general proposition, "[a] finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding." In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997) (citation omitted). However, "a prior adjudication of neglect may be admitted and considered by a trial court in ruling upon a later petition to terminate parental rights on the ground of neglect." In re Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984). In such cases, "[t]he trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect." Id. at 715, 319 at 232 (citation omitted). Thus, where
there is no evidence of neglect at the time of the termination proceeding . . . parental rights may nonetheless be terminated if there is a showing of a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to [his or] her parents.
In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000) (citation omitted). In challenging the trial court's finding that her parental rights were subject to termination on the basis of neglect, Respondent-Mother argues that "there was insufficient evidence to show that [she] neglected her children or could not, at the time of the termination hearing, provide an environment for them that was not injurious to their welfare[.]"
Respondent-Mother does not dispute the fact that she consented to the adjudication of the children as neglected and that she did not appeal the order in which the children were adjudicated to be neglected. In addition, Respondent-Mother does not challenge the trial court's findings of fact, which are, for that reason, binding on appeal. Instead, Respondent-Mother argues that the trial court's finding that her parental rights were subject to termination based on neglect rested on a "single instance" of domestic violence between Respondent-Parents occurring after the initial adjudication and that this isolated incident constituted "insufficient evidence" to support a finding that her parental rights were subject to termination based on neglect.
In its termination order, the trial court made the following findings concerning the incident of domestic violence to which Respondent-Mother alludes in her argument:
43. That on 29 January 2009, the [CMPD] and MEDIC . . . observed a laceration, with some swelling and controlled bleeding to the top of [Respondent-Mother's] head.
44. . . . On 29 January 2009, [a law enforcement officer] . . . noticed [Respondent-Mother] walking and bleeding from her head while [Respondent-Father] was in a vehicle following [her]. . . . Upon questioning, the respondent mother denied her injuries were the result of an assault. . . .
45. . . . During the examination of [Respondent-Mother], MEDIC noted . . . controlled bleeding to the crown of her head; multiple abrasions that did not appear fresh, to her right shoulder; and bruising, swelling, and discoloration consistent with signs of injury to the front of her left hand.
46. That [Respondent-Mother] initially claimed the injuries were the result of a fall. . . . After being informed of the need to understand the "mechanism of her injury" . . . [she] told MEDIC that [Respondent-Father] struck her "multiple times with a stick." . . .
47. That [Respondent-Mother] admitted to earlier alcohol use: unknown amount. Additionally, MEDIC also noted an alcohol like odor on [Respondent-Mother]. . . .
These findings, which are not disputed on appeal, show that Respondent-Mother suffered significant injuries at the hands of Respondent-Father, initially attempted to conceal what he had done to her, and failed to comply with the requirement of her case plan that she maintain sobriety. Evidence of this nature tends to show that, if the children were in Respondent-Mother's custody, she would not provide "proper care, supervision, or discipline" and that placement of the children in her home would be "injurious to [their] welfare." N.C. Gen. Stat. § 7B-101(15). Respondent-Mother cites no authority in support of her contention that this incident of domestic violence constitutes an insufficient basis for a finding of neglect, and we know of none.
In addition, Respondent-Mother's contention that the trial court's finding of neglect was based on this "single instance" of domestic violence does not accurately reflect the record, since the termination order contains numerous findings that support the trial court's determination that Respondent-Mother's parental rights were subject to termination on the basis of neglect in addition to those cited above, including the following:
21. . . . [Respondent-Mother had] a F.I.R.S.T. assessment on 9 July 2008 . . . [and] was recommended for substance abuse treatment, domestic violence counseling, and mental health treatment.
22. . . . [Respondent-Mother] failed to comply with the recommendations from the F.I.R.S.T. assessment. . . . [Respondent-Mother] enrolled in substance abuse treatment. . . . A short time later, she began to miss substance abuse treatment sessions. . . . [She] was unsuccessfully discharged from the F.I.R.S.T. program.
23. . . . [Respondent-Mother's] actions do not indicate she has addressed her substance abuse issues. After the juveniles were placed in the Movant's custody, [Respondent-Mother] tested positive for illegal substances. She also reported use of alcohol. There is no evidence that she completed substance abuse treatment[.] . . . The Court cannot find that she has successfully addressed her substance abuse issues.
. . . .
28. . . . [Respondent-Parents] have been involved in a relationship since 1991. There is a history of domestic violence between [them.] Domestic violence was one of the primary issues in this case. . . .
29. . . . [Respondent-Mother] was recommended for domestic violence treatment at the Women's Commission[, and required to] . . . attend and participate in 12 group sessions. . . .
. . . .
31. . . . [Respondent-Mother] did not attend the following domestic violence group sessions: 21 October 2008; 16 December 2008; 6 January 2009; and 13 January 2009.
. . . .
33. That after [Respondent-Mother] missed group sessions, the Women's Commission attempted to contact [her, but Respondent-Mother's] contact information . . . was no longer valid. The Women's Commission did not have an address for [Respondent-Mother, and] . . . there was no additional contact between the Women's Commission and [Respondent-Mother.]
34. That the Women's Commission closed [Respondent-Mother's] case on 15 January 2009. [She] did not successfully complete domestic violence counseling. There is no evidence that she participates in and/or completed another domestic violence treatment program.
35. That [YFS social worker] Mrs. Harvey does not believe the respondent mother has demonstrated skills learned in the domestic violence program. Ms. Harvey testified, which the court adopts, that there have been calls for service as well [as] continued domestic violence and contact between the respondent parents.
. . . .
38. That while the juveniles have been in the Movant's custody, the respondents continued to engage in domestic violence and have not surmounted this issue.
. . . .
49. . . . [Respondent-Mother] agreed to . . . inform Mrs. Harvey of any other domestic violence incidents. She did not comply with this piece of the mediated case plan[.] . . .
. . . .
52. That the possibility of reunification with a parent, who has done everything on the case plan, remaining with another parent who has not completed the case plan[,] has been discussed with [Respondent-Mother.] . . . [She] is adamant in her decision to remain with [Respondent-Father, and] informed Mrs. Harvey that she knew if she remained with [him] she was hindering reunification with the juveniles. [Respondent-Parents] do not plan to separate. Instead their plan at this time is to remain together.
53. That the court cannot find that this is a safe environment for the juveniles to return. Neither respondent has successfully addressed . . . the primary issues in this case, substance abuse and domestic violence.
. . . .
62. That the respondent mother was allowed to participate in supervised visits with the juveniles. . . . [V]isits with the juveniles were suspended for 30 days in November 2008 because she tested positive for cocaine[.] . . . In December 2008, the Court provided [Respondent-Mother] another chance to visit the juveniles. [She] was required to comply with substance abuse treatment. She did not take the required steps in order to reinstate the supervised visits. Her last visit with the juveniles was in November 2008.
69. That the respondent parents abandoned the juveniles. They have not paid any child support to defray the cost of the juveniles' care. . . . Neither respondent complied with requirements to reinstate visits with the juveniles. . . .
. . . .
70. That the respondent parents have not shown any interest regarding the juveniles. . . . [Respondent-Mother], aware of the impact on reunification, chose to remain with [Respondent-Father.] Neither has provided the love, care, and personal contact that inhere in the parental relationship.
73. That [Respondent-Parents] have not corrected the issues that led to the juveniles' out of home placement. . . . Consequently, [they] are not in a position now or in the foreseeable future to appropriately care or provide a safe, stable, and permanent home for the juveniles. Given the respondent parents' lack of progress . . . this situation is likely to continue indefinitely.
Based on these and other findings, the trial court concluded, in pertinent part:
7. That pursuant to N.C. [Gen. Stat.] § 7B-1111 (a)(1), the respondents have neglected the juveniles as that term is defined in N.C. [Gen. Stat.] § 7B-101(15) in that they have failed to provide proper care, supervision and discipline for the juveniles and have abandoned the juveniles[.] . . . The respondents failed to address the issues that led to the juveniles' out of home placement. Neither made progress on the mediated case plan[.] . . . [They] have not demonstrated an ability to provide appropriate care for the juveniles or . . . meet the juveniles' basic needs. The respondent parents have not provided any monies to the Movant to defray the cost of out of home placement for the juveniles. They have not visited and/or taken the required steps to have visits reinstated. . . . The respondent parents have abandoned the juveniles.
8. That the Court further concludes that the likelihood of ongoing or continued neglect is substantially and significantly high if the juveniles are returned to the respondent parents' care because [they] have not shown an interest in or addressed the issues that led to the juveniles' out of home placement . . . [or] addressed the primary issues, domestic violence and substance abuse, leading to the out of home placement. . . . They continue to reside in the same home. Some of the issues leading to the out of home placement continued to exist while the juveniles have been in the Movant's custody. Consequently, there is a substantial likelihood that neglect will continue in the foreseeable future.
As a result, we conclude that the trial court's findings of fact support its conclusion that Respondent-Mother neglected the children and that this conclusion was based on considerably more than a "single instance" of post-adjudication domestic violence. Thus, Respondent-Mother's first argument lacks merit.
2. Other Grounds for Termination
Respondent-Mother also argues that the trial court erred by finding, as alternative grounds for terminating her parental rights in the children, that she abandoned and failed to support them. However, a "finding that any one of the grounds for the termination of a parent's parental rights in a juvenile enumerated in N.C. Gen. Stat. § 7B-1111 existed is sufficient to support a decision to terminate that parent's parental rights." In re M.D., ___ N.C. App. ___, ___, 682 S.E.2d 780, 783 (2009) (citing In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990)). "Because we have upheld the trial court's findings and conclusion regarding neglect, we need not address respondent's [arguments] contesting termination based on abandonment [or failure to provide financial support]." In re Yocum, 158 N.C. App. 198, 204, 580 S.E.2d 399, 403 (2003) (citing Taylor, id.).
3. Appropriateness of Trial Court's Termination Decision
Next, Respondent-Mother contends that the trial court abused its discretion by terminating her parental rights in the children on the grounds that "her children wanted to maintain a relationship with her" and that "it was contemplated that the mother would have a continuing role in their lives." According to Respondent-Mother, "everyone involved" expected her to have a continuing role in the children's lives. Respondent-Mother alleges that (1) her children "told their counselor" they wanted an ongoing relationship with her; (2) the counselor supported the children's request; (3) YFS "anticipated" that she would "remain involved" with the children; (4) the children's foster parent "was open to shared parenting;" and (5) the trial court "contemplated" that she would "continue to be involved with her children." On the basis of these assertions, Respondent-Mother contends that the termination of her parental rights in the children constituted an abuse of discretion. After careful consideration, we find Respondent-Mother's argument unpersuasive.
Respondent-Mother's argument rests on the contention that everyone involved in the proceedings "anticipated" that she would continue to be involved with the children. However, Respondent-Mother recognizes that the court changed the permanent plan for the children to adoption and directed YFS to seek termination of her parental rights on 10 March 2009 and that YFS filed a motion seeking the termination of her parental rights on 13 May 2009. The entry of an order terminating a parent's parental rights "terminates all rights and obligations of the parent to the juvenile and of the juvenile to the parent arising from the parental relationship." N.C. Gen. Stat. § 7B-1112. Thus, the undisputed record establishes that neither the trial court nor YFS anticipated that Respondent-Mother would have a legal right to continued involvement with the children.
In addition, even if Respondent-Mother is correct in assuming that YFS, her children, their counselor and the foster parent assumed that she would continue to be involved in the children's lives, Respondent-Mother has not argued that the trial court failed to consider the opinions or testimony of the witnesses in concluding that termination of her parental rights was in the children's best interests and cites no authority requiring the trial court to rule in accordance with the preferences of the parties, the children, or various witnesses, unless their wishes are also in the children's best interests. Although the trial court, YFS, and any future adoptive parents may allow Respondent-Mother to remain in contact with the children as a matter of grace, the fact that "everyone" may expect this to occur is not a legal basis for overturning a trial court's discretionary determination that termination of parental rights is in the children's best interests. As a result, we conclude that Respondent-Mother's argument has no merit.
4. Adequacy of Findings of Fact
Finally, Respondent-Mother argues that the trial court erred at the dispositional phase by "fail[ing] to consider all of the factors in N.C. Gen. Stat. § 7B-1110." Once again, we do not find Respondent-Mother's argument to be persuasive.
N.C. Gen. Stat. § 7B-1110(a) provides that the trial court shall consider the following factors in determining if termination of parental rights is in the children's best interests:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
According to Respondent-Mother, the trial court failed to consider the likelihood that the children would be adopted, the likelihood that the three children would be adopted as a group, or "the quality of the relationship between the foster parent and each child" in making its dispositional decision.
In its termination order, the trial court found:
74. That the juveniles [have been] in the same foster home . . . since 1 July 2008. This is a potential adoptive placement for the juveniles. [Adam] is more affectionate with the foster parent. [Rose] is comfortable talking to the foster parent. . . . [Cullen] has always been nonchalant and funny. The juveniles have a bond with the foster parents' extended family.
. . . .
76. That [when YFS] . . . received the case, the juveniles argued, made fun of [Rose] and picked on [her] because she was not on grade level. The juveniles were bitter and angry. Recently, . . . they are pleasant and will sit on the sofa together. . . .
. . . .
77. That [Rose] has some developmental delays. All of the juveniles have an IEP for their educational needs. . . . [Cullen's] behavior in school has also improved. [Adam] has always done well in school.
. . . .
80. That one of the identified therapeutic goals for the juveniles was addressing their behavior. They had to learn how to follow rules in the home, school, and community. . . . Now, there are less behavioral issues and less school suspensions.
. . . .
82. That another goal for the juveniles was addressing issues . . . related to separation from family and their history of domestic violence. . . . Each juvenile was protective of the respondent parents. Now, the juveniles acknowledge that they miss and love the respondent parents while still being able to function.
. . . .
89. That the juveniles are in need of a safe, stable, permanent, and appropriate environment. Finding a safe, stable, and permanent environment can only be accomplished through adoption. Termination of parental rights would assist in the adoption process. The goal in this case is adoption.
A careful review of the trial court's findings indicates that the trial court sufficiently considered the possibility of adoption and the relationship between the children and their foster parent. Although nothing in N.C. Gen. Stat. § 7B-1110(a) requires the trial court to consider the likelihood that the juveniles would be adopted as a group, the trial court's findings suggest that the foster parent plans to adopt all three of the children, so that the "group adoption" issue is also addressed in the trial court's findings. As a result, Respondent-Mother's final argument lacks merit as well.
B. Respondent-Father's Appeal 1. Appointment of Guardian ad Litem
In his first argument on appeal, Respondent-Father argues that the trial court erred by failing to conduct a hearing to determine whether a guardian ad litem should have been appointed for him. After carefully considering Respondent-Father's arguments in light of the record and the applicable law, we disagree.
N.C. Gen. Stat. § 7B-1101.1(c) provides that:
On motion of any party or on the court's own motion, the court may 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. . . .
The trial court "has a duty to properly inquire into the competency of a litigant in a civil trial or proceeding when circumstances are brought to the judge's attention, which raise a substantial question as to whether the litigant is non compos mentis." In re J.A.A. S.A.A., 175 N.C. App. 66, 72, 623 S.E.2d 45, 49 (2005) (citing Rutledge v. Rutledge, 10 N.C. App. 427, 432, 179 S.E.2d 163, 166 (1971)). "Whether the circumstances . . . are sufficient to raise a substantial question as to the party's competency is a matter to be initially determined in the sound discretion of the trial judge." Rutledge, id. "A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).
On appeal, Respondent-Father argues that:
Respondent-Father implicitly requested a guardian ad litem . . . with his request for a new attorney for the [termination of parental rights] proceeding and [his] TPR trial attorney specifically requested a guardian ad litem for Respondent-Father during the TPR hearing. YFS's motions alleged that Respondent-Father was incapable of parenting his children . . . [and] contained facts suggesting [that he] had diminished capacity.
A careful review of the record does not, however, provide adequate support for Respondent-Father's factual contentions that he or his attorney requested the appointment of a guardian ad litem or that the allegations of the termination motion placed Respondent-Father's competence at issue.
First, the record does not reflect that Respondent-Father either explicitly or implicitly requested the appointment of a guardian ad litem. Although Respondent-Father corresponded with the court for the purpose of seeking replacement counsel on the grounds that his existing trial counsel was not communicating with him to the extent that he deemed appropriate and now argues that this request for a new attorney "should have triggered a concern that Respondent-Father may have needed a guardian ad litem," Respondent-Father does not explain why this request for the appointment of a new court-appointed attorney raises an issue of competence. Respondent-Father's request for the appointment of a new attorney does not allege that he had "communication" problems himself. Instead, Respondent-Father claimed that his counsel "refuse[d] to give any services" and that he had called "20 times" but his counsel would "hang up when called." Simply put, Respondent-Father's request for the appointment of replacement counsel was not predicated on any "disability" on his own part. As a result, we conclude that Respondent-Father's request for new counsel did not suggest that Respondent-Father was incompetent or needed a guardian ad litem.
Secondly, Respondent-Father's trial counsel did not seek the appointment of a guardian ad litem. In arguing to the trial court at the conclusion of the termination hearing, Respondent-Father's trial counsel noted that:
He testified to the fact that he's been diagnosed with dementia. . . . [T]here's two ways to take his testimony. One is that maybe he's just stubborn as heck and just refused to do what he's supposed to do. The other [is that he] . . . does suffer from dementia[.] . . . I don't think he's got the mental ability to do the things that he needs to do. . . . [I]t really didn't come to me until last night thinking about this case. My client probably should have had [a] GAL appointed for him. . . . I don't think that's determinative in this case, but I think he probably should have. But quite frankly, I didn't realize how lacking in lucidity he was until yesterday after he testified.
A careful reading of these comments demonstrates that Respondent-Father's counsel did not move for appointment of a guardian ad litem, that he conceded that the issue was not "determinative," and that he had not even considered the possibility that the appointment of a guardian ad litem might be appropriate until the termination of parental rights hearing was well underway. In addition, Respondent-Father's trial counsel did not provide any proof of his client's claims to suffer from dementia other than his client's assertion that he had this condition, and he did not request a continuance to investigate Respondent-Father's claims of dementia after its existence was alluded to in Respondent-Father's testimony. Thus, Respondent-Father did not seek the appointment of a guardian ad litem during the hearing.
Thirdly, the termination motion filed by YFS did not allege that Respondent-Father was incapable of caring for his children. Although Respondent-Father concedes that the termination motion does not allege dependency as a ground for the termination of his parental rights, he points to an allegation that he had provided "inappropriate care" to the children and to the fact that the children had been adjudicated to be dependent juveniles. Based on these portions of the record, Respondent-Father argues that:
Since the trial court's underlying adjudication order found that the children were dependent and the children had parents, the trial court must have believed the parents were incapable of caring for the children. Thus, YFS's [motion] alleged that Respondent-Father was incapable of caring for his children despite YFS's lack of a dependency allegation as a ground for [termination of parental rights.]
An allegation that Respondent-Father actually provided "inappropriate care" to the children is not the equivalent of an allegation that he lacked the capacity to provide proper care for them. Similarly, the fact that the children were adjudicated dependent in the original adjudication order does not constitute a finding that Respondent-Father was incapable of caring for the children for a reason that would support the appointment of a guardian ad litem.
Moreover, the statutory grounds for termination alleged in a petition or motion seeking the termination of a parent's parental rights do not determine whether the trial court is required to conduct a hearing to consider the appointment of a guardian ad litem. At one point, N.C. Gen. Stat. § 7B-1101 required the trial court to appoint a parental guardian ad litem in all termination cases in which the petitioner "alleged that a parent's rights should be terminated pursuant to [N.C. Gen. Stat. § ] 7B-1111(a)(6), and the incapability to provide proper care and supervision pursuant to that provision is the result of substance abuse, mental retardation, mental illness." In 2005, however, the General Assembly amended N.C. Gen. Stat. § 7B-1101 and enacted N.C. Gen. Stat. § 7B-1101.1, resulting in new statutory language governing the appointment of parental guardians ad litem. The amended version of N.C. Gen. Stat. § 7B-1101, which eliminated the language making appointment of a guardian ad litem mandatory in the event that the petitioner sought termination on the basis of dependency stemming from substance abuse, mental retardation, or mental illness, "reveals the legislature's intent to limit the appointment of a guardian ad litem." In re J.S.L., 177 N.C. App. 151, 158, 628 S.E.2d 387, 391 (2006). Thus, even if the YFS termination motion had alleged dependency stemming from substance abuse, mental retardation, or mental illness, the trial court would still not necessarily have been required to conduct a hearing for the purpose of considering the appointment of a guardian ad litem for Respondent-Father.
As a result, we conclude that Respondent-Father's allegations are not supported by the record, in that he did not implicitly request a guardian ad litem when he sought the appointment of replacement counsel, his counsel did not specifically request a guardian ad litem in his argument to the trial court, and the YFS termination motion neither "alleged that Respondent-Father was incapable of parenting his children" nor "contained facts suggesting [that he] had diminished capacity." Thus, the remaining issue that we need to consider is whether the trial court was required to conduct a hearing to determine whether a guardian ad litem should have been appointed for Respondent-Father on its own motion.
In arguing that the trial court erred by not convening such a hearing on its own motion, Respondent-Father relies primarily on his own testimony at the termination hearing. In essence, Respondent-Father contends that the fact that he claimed that he suffered from dementia and gave incoherent testimony at the termination hearing required the trial court to conduct an inquiry into whether a guardian ad litem should have been appointed for him.
Respondent-Father testified that he was diagnosed with "dementia" in 2006 and had a hearing before an unspecified tribunal in 2008 to determine his "degree of disability." However, Respondent-Father admitted that he had not provided evidence of his diagnosis or disability to the court prior to the termination hearing and had not been "declared disabled." On the other hand, while Respondent-Father testified that he had "no idea" why his children were in YFS custody, he acknowledged the June 2008 domestic violence charge, his pending DWI charge, and another pending domestic violence charge. Respondent-Father recalled the 29 January 2009 incident when law enforcement officers found him driving slowly beside Respondent-Mother as she walked with a bleeding injury to her head, but denied any knowledge of how she had been injured. Respondent-Father denied being ordered to pay child support. Respondent-Father defined domestic violence as a "conflict between the two people." Respondent-Father admitted he had not been in contact with the YFS social worker assigned to the case and had not asked her how to gain visitation privileges with his children. Respondent-Father testified that he had not completed a domestic violence program or a parenting class, and had not obtained mental health counseling, all of which he explained on the basis of his "medical condition."
We have carefully reviewed Respondent-Father's testimony at the termination hearing and do not believe that it was so incoherent as to have required the trial court to have conducted a hearing concerning the appointment of a parental guardian ad litem for Respondent-Father on its own motion. The trial court's implicit determination that no such action was necessary inevitably rested, at least in part, on its assessment of Respondent-Father's credibility. As part of this process, the trial court was able to observe Respondent-Father's demeanor and to consider the testimony of other witnesses. "`[I]t is the duty of the trial judge to consider and weigh all of the competent evidence, and to determine the credibility of the witnesses and the weight to be given their testimony.'" In re S.C.R., ___ N.C. App. ___, ___, 679 S.E.2d 905, 909 (2009) (quoting In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000)). As Respondent-Father's counsel admitted in his closing argument, one obvious way to view Respondent-Father's testimony is that he was "just stubborn as heck and just refused to do what he's supposed to do." The trial court's findings of fact indicate that it accepted just this interpretation of Respondent-Father's conduct:
57. That [Respondent-Father] testified that he was disabled. He testified that for at least 3 years, he has suffered various medical conditions and was prescribed at least 5 medications to address the medical conditions. However, there is no verification that he has been diagnosed with these various medical conditions or declared disabled. [Respondent-Father] because of his `medical condition' uses [Respondent-Mother] as his caretaker. Prior to his testimony in this termination hearing, he did not inform the Movant of these medical conditions.
58. That initially, the Respondent Father informed the Movant he was looking for a job. During this hearing, [he] testified that at this time, he is not receiving disability income on a monthly basis. He testified that he received 1 disability payment for $953.00 in September 2009. He indicates that the monthly amount for disability has not been determined. There is no proof that [Respondent-Father] is disabled.
Furthermore, Respondent-Father's testimony that he suffers from "dementia" is not supported by any diagnostic reports, therapist's assessments, medical records, or any other evidence tending to show a lack of competence. As a result, it is clear that the trial court concluded that Respondent-Father's trial testimony was not credible, a fact which strongly supports a conclusion that it did not abuse its discretion by failing to conduct a hearing into Respondent-Father's need for a guardian ad litem.
Respondent-Father argues that "his case is substantially similar to the facts in [ In re] N.A.L. A.E.L., Jr., [ 193 N.C. App. 114, 666 S.E.2d, 768 (2008)] and thus he should have had a guardian ad litem also." However, in N.A.L.:
The petitions specifically alleged respondent-mother was `incapable of providing for the proper care and supervision of the minor child' due to respondent-mother's `problems in controlling her anger outbursts; her significant tendency to be aggressive towards others, including her child; and her lack of understanding of her prior neglect of the minor child.' Additionally, respondent-mother's psychological assessment determined she has a Full Scale IQ score . . . well below average. Respondent-mother was also diagnosed as having Personality Disorder NOS and Borderline Intellectual Functioning. The trial court also found in its order terminating the parental rights of respondent-mother that she `has significant mental health issues which impact her ability to parent this child and meet his needs.'
N.A.L., 193 N.C. App. at 118-19, 666 S.E.2d at 771. In contrast, the termination motion filed in the present case does not allege incapacity, the record does not contain medical or psychological evidence tending to show that Respondent-Father was incompetent, and the trial court made no findings that Respondent-Father suffered from any mental illness. As a result, we conclude that the facts at issue in N.A.L. are readily distinguishable from those at issue here.
Respondent-Father also argues that the fact that the trial court's initial disposition order directed him "to engage in an age-appropriate parenting class" demonstrates that the court "had concerns about Respondent-Father's ability to care for his children." However, it is equally possible, if not more likely, that the court had doubts about Respondent-Father'swillingness to behave appropriately or about the extent to which he had adequate knowledge of appropriate parenting techniques, rendering the fact that the court ordered him to complete a parenting class indicative of a belief that Respondent-Father had the ability to improve. Respondent-Father also notes that the trial court ordered him to obtain a mental health assessment and argues that this decision "should have triggered concerns for all involved" about Respondent-Father's "mental health issues." However, the fact that the trial court believed that Respondent-Father should obtain a mental health assessment does not demonstrate that any such "issues" he may have had were sufficiently serious to require consideration of the appointment of a guardian ad litem. Thus, we do not find these arguments persuasive either.
As a result, the record developed in this proceeding does not establish that the trial court abused its discretion by failing to convene a hearing on its own motion for the purpose of determining whether a guardian ad litem should be appointed for Respondent-Father. For that reason, we decline Respondent-Father's request that we overturn the trial court's termination order on this basis.
2. Adequacy of Findings of Fact
Secondly, Respondent-Father argues that the trial court erred by "fail[ing] to make findings in its written order as required by N.C. Gen. Stat. § 7B-1110(a)." According to Respondent-Father, the trial court's order fails to demonstrate that it considered the likelihood that the children would be adopted, their bond with the foster parents, or the bond between the children and Respondent-Father in making its decision that terminating his parental rights would be in the children's best interests. We disagree.
The termination order entered by the trial court included the following findings:
19. . . . [At] the 16 September 2008 Adjudicatory Dispositional Hearing, the Court ordered [Respondent-Father] to engage in domestic violence treatment counseling; engage in age appropriate parenting . . . establish child support for his children . . . and complete and comply with the recommendations from a F.I.R.S.T. assessment.
20. That in October 2008, Mrs. Harvey made several attempts to meet with [Respondent-Father] for the purpose of developing an . . . Agreement, which would list the steps needed such that the juveniles could be returned to his care, custody, and control. [Respondent-Father] cancelled, rescheduled, or did not appear for the scheduled appointments. . . .
. . . .
25. That one of the goals outlined in the . . . Agreement required [Respondent-Father] to successfully address his substance abuse issues. . . .
26. . . . There is no evidence that [Respondent-Father] enrolled in, participated in, or successfully completed substance abuse treatment [, and he] . . . has not successfully . . . addressed his substance abuse issues.
. . . .
36. . . . [The] Agreement and prior court orders required [Respondent-Father] . . . to submit to a domestic violence assessment . . . and comply with the recommendations from the assessment. . . . [Respondent-Father] is not enrolled in or participating in or successfully completed any domestic violence treatment[.] . . . [The] Court cannot find that he accomplished this objective[.] . . .
. . . .
38. That while the juveniles have been in the Movant's custody, the respondents continued to engage in domestic violence and have not surmounted this issue.
. . . .
43. That on 29 January 2009, the [CMPD] and MEDIC responded to an incident involving [Respondent-Parents and]. . . . observed a laceration, with some swelling and controlled bleeding to the top of [Respondent-Mother's] head.
. . . .
48. That [Respondent-Father] testified that on 29 January 2009 . . . he saw [Respondent-Mother] walking down the street at the same time the police saw her. He further testified that he . . . did not have a chance to speak with [Respondent-Mother] regarding her injury. He did not know how [she] received an injury. The Court does not find this testimony credible.
. . . .
64. That [Respondent-Father] had . . . [an] opportunity to participate in supervised visits `once he completes at least 4 sessions with NOVA or a Domestic Violence Batter[er]s Program[.'] [He] failed to comply with the requirements[.] . . . Consequently, there have been no visits between [Respondent-Father] and the juveniles since the juveniles have been in the Movant's custody.
. . . .
68. That [Respondent-Father] testified he did not complete parenting classes or . . . [pay] Child Support . . . because `no one asked him to do' these things. The Court does not find this testimony credible. . . .
. . . .
70. That [Respondent-Parents] have not shown any interest regarding the juveniles. [Respondent-Father] focused on his needs and frustrations instead of the juveniles. . . .
. . . .
74. That the juveniles are placed in the same foster home. They have been in the same placement since 1 July 2008. This is a potential adoptive placement for the juveniles. [Adam] is more affectionate with the foster parent. [Rose] is comfortable talking to the foster parent. . . . [Cullen] has always been nonchalant and funny. The juveniles have a bond with the foster parents' extended family.
. . . .
80. That one of the identified therapeutic goals for the juveniles was addressing their behavior . . . in the home, school, and community. . . . Now, there are less behavioral issues and less school suspensions.
. . . .
82. That another goal for the juveniles was addressing issues . . . related to separation from family and their history of domestic violence. . . . Each juvenile was protective of the respondent parents. Now, the juveniles acknowledge that they miss and love the respondent parents while still being able to function.
. . . .
89. That the juveniles are in need of a safe, stable, permanent, and appropriate environment. Finding a safe, stable, and permanent environment can only be accomplished through adoption. Termination of parental rights would assist in the adoption process. The goal in this case is adoption.
By finding that Respondent-Father failed to take even minimal action to comply with his case plan, including acting to ensure that he had the ability to visit with the children, the trial court clearly addressed the relationship between Respondent-Father and the children. In addition, as we noted in addressing a similar contention by Respondent-Mother, the trial court's findings indicated that the children's current foster parent was a potential adoptive placement and discussed the children's relationship with the foster parent. As a result, we conclude that the trial court's findings show sufficient consideration of the statutory factors enunciated in N.C. Gen. Stat. § 7B-1110(a), rendering Respondent-Father's argument without merit.
IV. Conclusion
For the reasons discussed above, we conclude that the trial court did not err in terminating Respondent-Parents' parental rights. As a result, the trial court's order should be, and hereby is, affirmed.
Affirmed.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).