Opinion
No. 06-245.
Filed January 2, 2007.
Appeal by Respondents from judgment entered 11 April 2005 by Judge Shelly S. Holt in District Court, New Hanover County. Heard in the Court of Appeals 31 October 2006.
Dean W. Hollandsworth for petitioner-appellee. Regina Floyd-Davis for Guardian ad Litem — appellee. Terry F. Rose for respondent mother — appellant. Annick Lenoir-Peek for respondent father — appellant.
New Hanover County No. 04-J-338.
Where a trial court terminates parental rights based inextricably upon a parent's mental illness and drug abuse, that parent is entitled to a guardian ad litem. Here, Respondent-Mother had been diagnosed with schizophrenia and had a history of drug abuse. Because the order terminating the Respondent-Mother's parental rights was based substantially upon her mental illness and history of drug abuse, we reverse and remand this matter for the appointment of a guardian ad litem for the Respondent-Mother. However, regarding the appeal of the Respondent-Father from the termination of his parental rights, we find no merit to his arguments on appeal.
See In re J.D., 164 N.C. App. 176, 182, 605 S.E.2d 643, 646, disc. review denied, 358 N.C. 732, 601 S.E.2d 531 (2004)
The record shows that the child in this matter, J.D.T., was one day old when the Juvenile Petition was filed on 22 October 2002 by the New Hanover Department of Social Services (DSS). Both parents abused controlled substances, including daily use of marijuana by the Father and positive drug test results from the Mother for marijuana, cocaine, and PCP during the pregnancy, and positive drug tests from both Mother and J.D.T. at his birth. Based on this evidence, on 12 December 2002, the trial court adjudicated the child neglected under N.C. Gen. Stat. § 7B-101(15).
From the time of the December 2002 hearing to the filing of the Termination Petition in August 2004, the Mother continued to experience drug problems as well as mental health issues despite efforts to rehabilitate her. Regarding the Father, the record shows he had no contact with the child since birth and had been incarcerated for most of the child's life.
On 11 April 2005, the trial court ordered that the parental rights of Respondent-Mother and Respondent-Father be terminated. The parents appealed from this order.
Respondent-Mother's Appeal
Respondent-Mother makes several arguments; however, we dispositively reverse and remand based on the trial court's failure to appoint a guardian ad litem for Respondent-Mother.
Under Section 7B-1111(a)(6) of the 2003 North Carolina General Statutes, where substance abuse or mental illness renders a parent incapable of child care and no alternative child care arrangement is available:
The court may terminate the parental rights upon a finding. . .
That the parent is incapable of providing for the proper care and supervision of the juvenile . . . and that there is a reasonable probability that such incapability will continue for the foreseeable future.
Under Section 7B-1101 of the 2003 North Carolina General Statutes:
[A] guardian ad litem shall be appointed in accordance with the provisions of G.S. 1A-1, Rule 17, to represent a parent . . . Where it is alleged that a parent's rights should be terminated pursuant to G.S. 7B-1111(6), and the incapability to provide proper care and supervision pursuant to that provision is the result of substance abuse, . . . [or] mental illness. . . .
This Court has held that where the petition for termination of parental rights does not allege incapacity to parent as a ground for the termination of rights, "the trial court is not required to appoint a guardian ad litem `in every case where substance abuse or some other cognitive limitation is alleged.'" In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45 (2005) (quoting In re H.W., 163 N.C. App. 438, 447, 594 S.E.2d 211, 216, disc. review denied, 358 N.C. 543, 603 S.E.2d 877 (2004)).
However, in In re C.B., we recognized "that in termination proceedings, when determining whether an appointed guardian ad litem was required by N.C. Gen. Stat. § 7B-1101, this Court has considered the evidence introduced by the parties during the hearing and relied upon by the trial court in its termination order." In re C.B., 171 N.C. App. 341, ___, 614 S.E.2d 579, 581-82 (2005) (citing In re J.D., 164 N.C. App. 176, 182, 605 S.E.2d 643, 646, disc. review denied, 358 N.C. 732, 601 S.E.2d 531 (2004) (holding that a guardian ad litem was required by N.C. Gen. Stat. § 7B-1101 in termination hearing where, although dependency was not pursued as a ground for termination, "some evidence . . . tended to show that respondent's mental health issues and the child's neglect were so intertwined at times as to make separation of the two virtually, if not, impossible")).
In the case before us, DSS alleged J.D.T. dependent due to neglect arising from an environment injurious to J.D.T.'s welfare. As a basis for this, DSS alleged, inter alia, Respondent-Mother was an unmedicated schizophrenic with a history of substance abuse — primarily marijuana and cocaine, and acknowledged that previous trial courts ordered Respondent-Mother to cooperate with local health services and follow their recommendations regarding her substance abuse and mental health issues.
Moreover, testimony at the adjudicatory hearing established that Respondent-Mother was a diagnosed schizophrenic who abused various controlled substances and who had, after treatment, relapsed into drug use multiple times. Respondent-Mother's DSS case worker testified that Respondent-Mother was not allowed to see J.D.T. due to an inability to achieve a required three consecutive negative drug tests. Furthermore, Respondent-Mother testified that she had been diagnosed with schizophrenia for ten years, about the same amount of time she had been using drugs, and that after treatment she had relapsed into drug use on multiple occasions.
The trial court which terminated Respondent-Mother's parental rights for J.D.T. concluded, as reflected in its order, that Respondent-Mother neglected J.D.T. and that the probability of repetition of neglect was strong.
[Respondent-Mother] [has] willfully abandoned [her] child for a period of six consecutive months preceding the filing of the Petition and [has] willfully . . . left the child, [J.D.T.], in foster care for more than twelve months without showing to the satisfaction of the Court that reasonable progress under the circumstances has been made to correct the conditions that led to the child's removal.
We find that the evidence of neglect and probability of neglect repetition was substantially premised on Respondent-Mother's history of substance abuse and her diagnosed mental illness. Respondent-Mother's drug abuse and mental illness were substantially, if not inextricably, intertwined with Petitioner's allegations and the root of the trial court's conclusion of neglect. Accordingly, we reverse the order terminating the Respondent-Mother's parental rights, and remand for the appointment of a guardian ad litem for the Respondent-Mother.
Respondent-Father's Appeal
Respondent-Father argues in his appeal that the trial court (I) erred by entering its termination order more than thirty days from the date of the adjudicatory hearing and (II) abused its discretion when it concluded it was in J.D.T.'s best interest to terminate Respondent-Father's parental rights.
I.
Respondent-Father first argues the trial court erred by entering its termination order more than thirty days from the date of the adjudicatory hearing.
To reverse an order terminating parental rights due to a trial court's failure to enter a written order within thirty days of the termination hearing, the appellant must establish prejudice from the lack of a written entry. See In re J.L.K., 165 N.C. App. 311, 598 S.E.2d 387, cert. denied, 359 N.C. 68, 604 S.E.2d 314 (2004) (father was not entitled to reversal of an order terminating his parental rights when the trial court entered the order more than 30 days after the hearing because he failed to show that he suffered prejudice as a result of the late order); In re P.L.P., 173 N.C. App. 1, 618 S.E.2d 241 (2005), aff'd, ___ N.C. ___, 625 S.E.2d 779 (2006) (mother was not entitled to reversal of an order terminating her parental rights despite the fact that it was entered more than 30 days after the hearing because she failed to show that she suffered prejudice as a result of the late order); In re S.N.H., ___ N.C. App. ___, 627 S.E.2d 510 (2006) (a trial court's entry of an order 83 days following the termination of parental rights hearing did not constitute prejudice per se, requiring a new hearing; the mother failed to articulate any prejudice she suffered).
Here, the trial court held Respondent-Father's adjudicatory hearing on 8 November 2004 and his disposition hearing on 11 April 2005. The trial court filed the written order encompassing both decisions 11 May 2005. Respondent-Father argues he was prejudiced due to the extensive period between the conclusion of the adjudicatory hearing and the entry of the written order. We disagree.
Regardless of the time frame between the adjudicatory hearing and the written order terminating parental rights, Respondent-Father conceded at the adjudicatory hearing that he had fulfilled none of his parental duties. He stated that he did not recall seeing J.D.T. after he was born. And, though he was incarcerated for a period of the time between J.D.T.'s birth and the termination hearing, he stated that for at least twelve months of that time he was not incarcerated. Yet, he failed to contact the child or send monetary support and felt that the DSS worker harassed him about such things as clothes, shoes, and giving J.D.T. what he could.
Given his admitted complete failure to fulfill a parental duty, we find no prejudice to Respondent-Father in the delay to enter a written order after the adjudicatory hearing.
II.
Respondent-Father next argues the trial court abused its discretion when it concluded it was in J.D.T.'s best interest to terminate Respondent-Father's parental rights. We disagree.
Under Section 7B-1110(a) of the 2003 North Carolina General Statutes:
Should the court determine that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent with respect to the juvenile unless the court shall further determine that the best interests of the juvenile require that the parental rights of the parent not be terminated.See also In re Carr, 116 N.C. App. 403, 448 S.E.2d 299 (1994) (the court may exercise its discretion in the dispositional stage only after the court has found that there is clear and convincing evidence of one of the statutory grounds for terminating parental rights during the adjudicatory stage).
As noted earlier, Respondent-Father conceded that he failed to contact J.D.T., did not recall seeing J.D.T. after he was born; never gave any monetary support for J.D.T.; and felt the Department of Social Services harassed him about giving J.D.T. clothes, shoes, and other things that he could. We find the trial court's determination that the termination of Respondent-Father's parental rights was in the best interest of J.D.T. was not so arbitrary that it could not be the product of a reasoned decision. Accordingly, we hold the trial court did not abuse its discretion.
In sum, we reverse the order terminating the Mother's parental rights and remand for an appointment of a guardian ad litem. However, we affirm the order terminating the rights of the Respondent-Father.
Reversed in part; Affirmed in part.
Judges, HUDSON and STEPHENS concur.
The judges participated and submitted this opinion for filing prior to 1 January 2007.
Report per rule 30(e).