Opinion
No. COA11–1356.
2012-05-1
In The Matter of C.M. and B.M.
Gail E. Carelli for Petitioner–Appellee New Hanover County Department of Social Services. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for Respondent–Appellant Mother.
Appeal by Respondent–Mother from orders entered 31 March 2011 and 22 July 2011 by Judge J.H. Corpening, II in District Court, New Hanover County. Heard in the Court of Appeals 3 April 2012. Gail E. Carelli for Petitioner–Appellee New Hanover County Department of Social Services. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for Respondent–Appellant Mother.
Pamela Newell for Guardian ad Litem.
McGEE, Judge.
New Hanover County Department of Social Services (DSS) filed a petition on 21 May 2010, alleging that C.M. and B.M. (the juveniles) were neglected and dependent juveniles. DSS alleged that Respondent–Mother:
ha[d] mental health issues, most likely depression and ha [d] recently attempted to gain voluntary admission to the Oaks psychiatric facility but was turned away for lack of beds. She ha [d] been involved in a relationship that [was] consumed by domestic discord, ha [d] sent a letter to school with one of her children complaining of all the problems in the home and then recanted all of her allegations in a second letter. She ha [d] recently turned over a two and a half year old child for adoption at the insistence of her significant other. She ha [d] moved several times in the last three months, to and away from her significant other, and the children ha[d] missed at least ten days of school since their enrollment on March 10, 2010.... She has failed to cooperate with a voluntary placement of the children that would have averted removal from her legal custody and also failed to cooperate with efforts to address her mental health and domestic violence issues.
DSS obtained non-secure custody of the juveniles and placed them with their paternal grandmother.
The juveniles were adjudicated neglected on 11 October 2010, based upon stipulations to the allegations in the petition. The allegation of dependency was dismissed. The trial court ordered that custody remain with DSS, with placement continuing with the paternal grandmother. The trial court permitted Respondent–Mother supervised visitation once per week. The court ordered Respondent–Mother to: (1) “participate in a substance abuse assessment and follow all recommendations;” (2) “obtain and maintain stable housing and employment;” (3) “obtain a psychological evaluation and follow all recommendations;” and (4) “complete empowerment classes[.]”
DSS filed a motion for review on 16 November 2010, in which it sought to suspend Respondent–Mother's visitation. DSS claimed that Respondent–Mother had an “outburst” during a visit on 20 October 2010. DSS stated that Respondent–Mother acted “extremely erratic during [the] visit, and hostile toward the [juveniles]. [Respondent–Mother] screamed at the [juveniles] and ended the visit after only a few minutes.” After the 20 October 2010 visit, Respondent–Mother disappeared for several weeks. Upon contacting DSS to request another visit with the juveniles, Respondent–Mother claimed that “she was kidnapped during this time.” The trial court entered an order on 14 December 2010 suspending visitation between Respondent–Mother and the juveniles.
A review hearing was held on 17 March 2011. At the hearing, a DSS social worker, Denise Strickland (Ms. Strickland), testified. DSS introduced into evidence a report prepared by Ms. Strickland. At the time of the 17 March 2011 hearing, Respondent–Mother's whereabouts were unknown and she had not contacted DSS in several months. According to Ms. Strickland's report, prior to Respondent–Mother's disappearance, Respondent–Mother “went to jail, was charged with two assault charges, had a restraining order granted against her, terminated her employment and claimed to have been kidnapped by her former significant other five times[.]” DSS expressed “serious concerns” regarding Respondent–Mother's mental health and recommended that the juveniles remain with their paternal grandmother. At a hearing held on 17 March 2011, the trial court ceased reunification efforts. Respondent–Mother gave notice to preserve her right to appeal.
The trial court held a permanency planning review hearing on 31 March 2011. At this hearing, Respondent–Mother's counsel requested that a guardian ad litem be appointed for Respondent–Mother. The trial court denied counsel's motion, and entered an order awarding guardianship of the juveniles to their paternal grandmother. Respondent–Mother appeals.
Respondent–Mother first contends the trial court abused its discretion by not appointing a guardian ad litem for her in accordance with N.C. Gen.Stat. § 7B–602(c). Pursuant to this section:
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 parent's counsel shall not be appointed to serve as the guardian ad litem.
N.C. Gen.Stat. § 7B–602(c) (2011).
“Because N.C.G.S. § 7B–602(c) employs the term ‘may,’ a trial court's action pursuant to this statute is discretionary, and our review is limited to a determination of whether the trial court abused its discretion.” In re M.H.B., 192 N.C.App. 258, 261, 664 S.E.2d 583, 585 (2008) (citation omitted). “A trial court abuses its discretion when its decision is ‘manifestly unsupported by reason.’ “ Id. (citation omitted).
We have been unable to find case law establishing the trial court's procedure for making a determination pursuant to N.C.G.S. § 7B–602(c). Nonetheless, the statute is clear that a guardian ad litem may be appointed “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.” N.C.G.S. § 7B–602(c). Thus, if the inquiry is undertaken, the trial court must determine whether one or both of the conditions enumerated in N.C.G.S. § 7B–602(c) apply to the parent. In determining whether the parent is mentally incompetent, our Court has held that the trial court should make findings of fact regarding whether the parent meets the definition of mentally incompetent set forth in N.C. Gen.Stat. § 35A–1101(7), which provides:
“Incompetent adult” means an adult or emancipated minor who lacks sufficient capacity to manage the [parent]'s own affairs or to make or communicate important decisions concerning the [parent]'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) (2011); In re M.H.B., 192 N.C.App. at 262, 664 S.E.2d at 585.
In determining whether the parent suffers a diminished capacity, the trial court should make findings of fact regarding whether the parent has a “lack of ability to perform mentally.” In re M.H.B ., 192 N.C.App. at 262, 664 S.E.2d at 585 (citations and internal quotation marks omitted). Pursuant to N.C.G.S. § 7B–602(c), these findings must be supported “by a reasonable basis.” If the trial court determines that either of the conditions is present, then it may exercise its discretion regarding the appointment of a guardian ad litem. “ ‘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.’ “ In re J.A.A. & S.A.A., 175 N.C.App. 66, 72, 623 S.E.2d 45, 49 (2005) (citation omitted).
In its petition alleging neglect and dependency, DSS claimed that Respondent–Mother had “mental health issues,” and DSS continued to express concern for Respondent–Mother's mental health over time. At the permanency planning review hearing, Respondent–Mother testified that she was seeing a doctor for bipolar disorder, depression and anxiety. However, the trial court had the opportunity to observe Respondent–Mother and to listen to her testimony. The trial court's order contains the following findings of fact pertinent to the issue of appointment of a guardian ad litem:
14. That Attorney Beth Bryant requested a Guardian ad Litem be appointed for [Respondent–Mother].
15. That the court finds [Respondent–Mother's] testimony not to be credible. Further, she does not demonstrate a lack of understanding and has been clear in her communication; thus, appointment of a Guardian ad Litem is not necessary.
We note that, despite Respondent–Mother's claim that she was seeing a doctor for mental health issues, the trial court found that Respondent–Mother lacked credibility, and found that Respondent–Mother had not undergone any psychological evaluation, and that there was no diagnosis of mental illness on the record. See In Re A.R.D., 204 N.C.App. 500, 505, 694 S.E.2d 508, 512,aff'd per curiam, 364 N.C. 596, 704 S.E.2d 510 (2010). While Respondent–Mother may have behaved erratically, her behavior alone does not “amount[ ] to a diagnosis of a mental health issue or indicate[ ] that [R]espondent-[M]other was unable to handle her own affairs.” Id.
The record in the present case did not include findings concerning Respondent Mother's competence or ability to perform mentally. The better method for undertaking an inquiry as to the necessity of a guardian ad litem would be for the trial court to make specific findings of fact as set forth above. However, reviewing the record in this case as a whole, we conclude that the trial court's decision not to appoint a guardian ad litem was not arbitrary or manifestly unsupported by reason. Accordingly, we conclude the trial court did not abuse its discretion by denying Respondent–Mother's request for appointment of a guardian ad litem.
Respondent–Mother next argues that the trial court's order concerning visitation constitutes an abuse of discretion. N.C. Gen.Stat. § 7B–905(c) provides that any dispositional order that leaves the juveniles in a placement “outside the home shall provide for appropriate visitation as may be in the best interests of the juvenile and consistent with the juvenile's health and safety.” N.C. Gen.Stat. § 7B–905(c) (2011). In the present case, the trial court determined it would be contrary to the juveniles' best interests and welfare for them to participate in visitation with Respondent–Mother. Respondent–Mother does not challenge this finding of fact on appeal. Thus, we conclude the trial court did not err by refusing to grant Respondent–Mother visitation.
Respondent–Mother also argues that the “trial court abused its discretion by conditioning visitation in part on [Respondent–Mother's] completion of a ‘psychological evaluation’ where both DSS and [Respondent–Mother's] attorney were relieved of all further responsibilities in this case.” However, we note that Respondent–Mother fails to cite any authority in support of this argument other than the standard of review. We find Respondent–Mother's argument on this point insufficient to persuade us that the trial court abused its discretion.
Affirmed. Judges STEPHENS and HUNTER, JR. concur.
Report per Rule 30(e).