Opinion
No. COA16-438
12-06-2016
IN THE MATTER OF: B.S. Jr. and H.S.
Tiffany P. Powers for petitioner-appellee Robeson County Department of Social Services. Allegra Collins for respondent-appellant mother. Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Jackson Wyatt Moore, Jr., for guardian ad litem.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Robeson County, Nos. 12 JT 375-76 Appeal by respondent from order entered 3 February 2016 by Judge Herbert L. Richardson in Robeson County District Court. Heard in the Court of Appeals 7 November 2016. Tiffany P. Powers for petitioner-appellee Robeson County Department of Social Services. Allegra Collins for respondent-appellant mother. Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Jackson Wyatt Moore, Jr., for guardian ad litem. ELMORE, Judge.
Respondent, the mother of the juveniles B.S. Jr. and H.S., appeals from the trial court's order terminating her parental rights. We affirm.
I. Background
On 27 November 2012, Robeson County Department of Social Services (DSS) filed petitions alleging that the juveniles were neglected. DSS first became involved with respondent's family after receiving a referral in May 2012 that H.S., who was a newborn, had tested positive for marijuana. DSS determined that services were required because respondent had tested positive for marijuana "for the births of both of her children." Additionally, the father had both substance abuse and mental health issues. Accordingly, on 18 June 2012, respondent and the father entered into a case plan in which they agreed to complete substance abuse counseling, as well as receive parenting and mental health services. However, while respondent was compliant with the case plan, the father was not compliant and could not be located by DSS. Consequently, DSS filed the petitions "to ensure the safety of the children." On 10 May 2013, because of respondent's compliance with DSS, and because the father had been sentenced to prison, DSS dismissed the petitions.
On 9 October 2013, DSS filed new petitions alleging that the juveniles were neglected. DSS had received a referral in June 2013 stating concerns of improper supervision, injurious environment, and substance abuse. DSS received a second referral in July 2013 stating that the juveniles were "walking around with dirty diapers; the house was nasty, concerns of the supervision and inappropriate discipline of the children." DSS received a third referral alleging neglect on 13 August 2013 stating concerns of "substance use, drug activities, kids having access to guns in the home, injurious environment, domestic violence and improper care." Respondent completed a substance abuse assessment during which she admitted to smoking marijuana that had been laced with cocaine. Respondent further admitted that "her drug of choice was the prescription drug Gabapentin (Neurontin) and she knew she needed intensive treatment." On 4 December 2013, the trial court adjudicated the juveniles neglected. The trial court continued the juveniles in their current kinship placement with the paternal grandmother.
On 31 December 2013, DSS amended the juvenile petitions alleging neglect. DSS stated that the juveniles' father had been released from prison on 4 November 2013 and had engaged in domestic violence with respondent. Respondent informed DSS that the father "would take his child [B.S. Jr.] to his home whenever he wanted without supervision of the kinship placement caretaker." In December 2013, following the adjudication of neglect, respondent moved into a home with another man (J.R.) and was given custody of the juveniles. The juveniles moved into the home with respondent on 12 December 2013. On 23 December 2013, DSS received a referral stating concerns that respondent and J.R. were engaged in domestic violence. Respondent admitted to engaging in domestic violence in the presence of the juveniles, and the juveniles were removed from the home. Due to on-going concerns with respondent's "instability, continued drug use, [and] domestic violence," as well as respondent's non-compliance with her case plan, DSS obtained non-secure custody of the juveniles to ensure the safety of the children.
On 30 January 2015, the trial court changed the permanent plan for the juveniles from reunification to adoption and authorized DSS to file petitions to terminate parental rights. On 3 February 2015, DSS filed petitions to terminate respondent's and the father's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) (failure to make reasonable progress), (3) (failure to pay reasonable portion of the cost of care), and (6) (dependency). DSS also alleged that the father had failed to legitimate the juveniles pursuant to N.C. Gen. Stat. § 7B-1111(a)(5). The father subsequently relinquished his parental rights.
On 3 February 2016, the trial court determined that grounds existed to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (2), and (3). The court further determined that it was in the best interests of the juveniles to terminate respondent's parental rights. Accordingly, respondent's parental rights were terminated. Respondent filed timely notice of appeal.
The trial court erroneously found that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (neglect) to terminate respondent's parental rights because this ground was not alleged in the petition. However, respondent does not challenge the existence of grounds to terminate her parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) and (3). Consequently, because the finding of any of the enumerated grounds is sufficient to support termination, the trial court's erroneous conclusion that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) does not constitute reversible error. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990).
II. Discussion
Respondent's sole argument on appeal is that the trial court abused its discretion by not conducting an inquiry, on its own motion, into whether she should be appointed a guardian ad litem. Respondent cites her diagnoses of bipolar disorder and depression, her drug addiction, and her erratic behavior, and contends that the record raised a substantial question as to whether she was competent. We disagree.
N.C. Gen. Stat. § 7B-1101.1(c) (2015) states: "On motion of any party or on the court's own motion, the court may appoint a guardian ad litem for a parent who is incompetent in accordance with G.S. 1A-1, Rule 17." An "incompetent adult" is defined as an adult "who lacks sufficient capacity to manage the adult's own affairs or to make or communicate important decisions concerning the adult's person, family, or property whether the lack of capacity is due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or similar cause or condition." N.C. Gen. Stat. § 35A-1101(7) (2015).
"[T]rial court decisions concerning both the appointment of a guardian ad litem and the extent to which an inquiry concerning a parent's competence should be conducted are reviewed on appeal using an abuse of discretion standard." In re T.L.H., 368 N.C. 101, 107, 772 S.E.2d 451, 455 (2015) (citation omitted). A trial court's discretionary ruling "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). "[W]hen the record contains an appreciable amount of evidence tending to show that the litigant whose mental condition is at issue is not incompetent, the trial court should not, except in the most extreme instances, be held on appeal to have abused its discretion by failing to inquire into that litigant's competence." In re T.L.H., 368 N.C. at 108-09, 772 S.E.2d at 456 (citation omitted).
In this case, the trial court's failure to inquire into respondent's competence did not constitute an abuse of discretion. While the record demonstrates that respondent was diagnosed with a "mental illness," our Supreme Court explained in T.L.H. that
evaluation of an individual's competence involves much more than an examination of the manner in which the individual in question has been diagnosed by mental health professionals. Although the nature and extent of such diagnoses is exceedingly important to the proper resolution of a competency determination, the same can also be said of the information that members of the trial judiciary glean from the manner in which the individual behaves in the courtroom, the lucidity with which the litigant is able to express himself or herself, the extent to which the litigant's behavior and comments shed light upon his or her understanding of the situation in which he or she is involved, the extent to which the litigant is able to assist his or her counsel or address other important issues, and numerous other factors.Id. at 108, 772 S.E.2d at 456.
Respondent had previously appeared before the same trial judge who noted his familiarity with respondent from "many different courts from criminal to juvenile to domestic violence, family court, treatment court over the last three years." Despite his familiarity with respondent, the trial judge saw no need to question her competence. As our Supreme Court stated in T.L.H.,
Affording substantial deference to members of the trial judiciary in instances such as this one is entirely appropriate given that the trial judge, unlike the members of a reviewing court, actually interacts with the litigant
whose competence is alleged to be in question and has, for that reason, a much better basis for assessing the litigant's mental condition than that available to the members of an appellate court, who are limited to reviewing a cold, written record.Id.
In addition, the trial court specifically found that respondent was "not disabled," and a social worker testified that she had "no knowledge of any disability that [respondent] has that would prevent her from working to provide for the care of her children." This finding is not challenged on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) ("Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal."). Moreover, the court declined to terminate respondent's parental rights based on incapability. See N.C. Gen. Stat. § 7B-1111(a)(6) (2015). Rather, her parental rights were terminated on the grounds of neglect, willfully leaving the juveniles in foster care without demonstrating reasonable progress to correct the conditions which led to the removal of her children from her care, and failure to pay a reasonable portion of the cost of care for the juveniles. See N.C. Gen. Stat. § 7B-1111(a)(1), (2), (3) (2015).
III. Conclusion
The trial court did not abuse its discretion by failing to conduct an inquiry into respondent's competency. We affirm the trial court's order terminating respondent's parental rights.
AFFIRMED.
Chief Judge McGEE and Judge DAVIS concur.
Report per Rule 30(e).