Opinion
No. COA15-1319
05-17-2016
IN THE MATTER OF: K.P.
Krystle F. Melvin and Margaret Riddle Russ for petitioner-appellee Cumberland County Department of Social Services. Beth A. Hall for Guardian Ad Litem. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Joyce L. Terres, for Respondent-appellant Father.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Cumberland County, No. 10 JT 666 Appeal by Respondent father from order entered 17 August 2015 by Judge Robert J. Stiehl, III in Cumberland County District Court. Heard in the Court of Appeals 13 April 2016. Krystle F. Melvin and Margaret Riddle Russ for petitioner-appellee Cumberland County Department of Social Services. Beth A. Hall for Guardian Ad Litem. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Joyce L. Terres, for Respondent-appellant Father. INMAN, Judge.
Respondent father appeals from a trial court order terminating his parental rights to his daughter, Katie. On appeal, Respondent father contends the trial court abused its discretion by failing to conduct an inquiry, sua sponte, as to whether Respondent father should be appointed a guardian ad litem ("GAL"). After careful review, we hold that the trial court did not abuse its discretion by not inquiring into Respondent father's competency.
We use pseudonyms to protect the privacy of the juvenile.
Factual and Procedural History
Respondent father and Katie's mother ("mother") (collectively "the parents") met in Pennsylvania at a "special ed school" and married in 1997. On 6 August 2005, the parents gave birth to a daughter, Katie, in Fayetteville. Following Katie's birth, the Cumberland County Department of Social Services ("DSS") received several referrals concerning her safety. During an investigation in December of 2009, DSS discovered that the parents were not helping Katie attend school regularly and determined that the family needed services.
On 28 December 2010, DSS took Katie into nonsecure custody and filed a petition alleging that Katie was neglected and dependent. On 6 December 2011, an adjudication and disposition order was entered pursuant to a hearing held on 3 October 2011. The allegation of neglect was dismissed and Katie was adjudicated dependent. The court found that Respondent father was not present at the hearing and had not appeared in court since July of 2011. Additionally, the court found that Respondent father's whereabouts were unknown. Accordingly, the court granted motions by Respondent father's attorney and GAL to withdraw from their representation of him. In the same order, the court maintained custody of Katie with DSS "for placement in foster care, therapeutic care, with suitable relatives, or with other [c]ourt approved caretakers, pending further order of this [c]ourt." The trial court ordered that mother have continued supervised visitation with Katie, but ordered that Respondent father have no contact and no visitation with Katie.
On 15 March 2012, the court held a permanency planning review hearing. By order entered 17 April 2012, the court found that mother had willfully refused to complete a psychological evaluation and parenting assessment. The court further found that Respondent father had not attempted to contact DSS, had acted inconsistently with his status as a parent, and had abdicated his responsibilities as a parent. The trial court directed DSS to cease reunification efforts with the parents, and the permanent plan was changed to adoption.
On 19 July 2012, DSS filed a motion to terminate the parents' parental rights in Katie on the following grounds: Katie was a neglected juvenile; the parents had willfully left Katie in foster care or placement outside the home for more than 12 months without showing that reasonable progress under the circumstances had been made in correcting those conditions which led to the removal of Katie; Katie had been placed in DSS custody for a continuous period of six months and the parents willfully failed to pay a reasonable portion of the cost of care; the parents were incapable of properly providing for Katie's care and did not have an appropriate alternative child care arrangement; and the parents' parental rights to another child had previously been terminated. N.C. Gen. Stat. §7B-1111(a)(1), (2), (3), (6), (9) (2013). As an additional ground for terminating specifically Respondent father's parental rights, DSS also alleged that Respondent father willfully abandoned Katie for at least six consecutive months. N.C. Gen. Stat. §7B-1111(a)(7).
The parents' parental rights in two other children had previously been terminated. Annie, their first child, was born in August (Respondent father does not remember what year) in Pennsylvania and was placed with an adoptive family. The parents' second child, John, was born on 15 March 2000, and was taken into nonsecure custody by Carteret County Department of Social Services at the hospital.
The trial court conducted a termination of parental rights pre-hearing conference on 11 October 2012. Respondent father did not appear, but his former counsel appeared and was re-appointed by the trial court to represent Respondent father. Respondent father's former GAL also attended the pre-hearing conference, although the trial court's order does not specify that the GAL was formally re-appointed at that time.
On 15 May 2013, the trial court conducted another pre-hearing conference which Respondent father attended along with his counsel. At that time, Respondent father's GAL informed the court that Respondent father wished for Katie to be placed with his sister, Mae, in Ohio.
On 9 September 2013, at another termination pre-hearing conference, Respondent father's GAL's orally moved to withdraw "based upon new legislation." The trial court allowed the motion.
The termination hearing was subsequently continued for various reasons throughout the following year. On 2 September 2014, the termination hearing proceeded before Judge Stiehl. Respondent father was present on the first day of the hearing, but was not present on the second (3 September 2014) or third day (8 May 2015) of the hearing. On 3 September 2014, Judge Stiehl made an oral ruling as to the adjudication, finding all grounds for termination of parental rights that were alleged in the petition. The dispositional hearing was continued to a future date.
On 9 December 2014, the trial court memorialized its oral ruling in a written adjudication order. The findings and conclusions contained in this order were restated by the trial court in its subsequent 17 August 2015 order terminating parental rights.
On 24 March 2015, mother signed a relinquishment of her parental rights. On 8 May 2015, the trial court conducted a dispositional hearing. At the hearing, the trial court incorporated evidence from the adjudicatory hearing and heard additional evidence. On 17 August 2015, the trial court entered an adjudication and disposition order terminating the parental rights of Respondent father to Katie. Respondent father timely appealed.
As of the final hearing on the motion for termination of parental rights, mother had not revoked her relinquishment. Therefore, mother is no longer a party to this action.
Analysis
Respondent father argues that the trial court abused its discretion by not conducting an inquiry into whether he should be appointed a guardian ad litem.
"[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). "An abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." Id. (internal quotation marks and citations omitted).
In T.L.H., a case with facts similar to those here, the North Carolina Supreme Court provided the following historical legal review:
The statutory provisions governing a parent's entitlement to the appointment of a guardian ad litem in termination of parental rights proceedings have changed over time. Prior to 1 October 2005, N.C.G.S. § 7B-1101(1) provided that a parental guardian ad litem must be appointed "[w]here it is alleged that a parent's rights should be terminated pursuant to [N.C.G.S. § ] 7B-1111(6), and the incapability to provide proper care and supervision pursuant to that provision is the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or another similar cause or condition." N.C.G.S. § 7B-1101(1) (2003). From 1 October 2005 until 30 September 2013, N.C.G.S. § 7B-1101.1(c) provided that "[t]he court may appoint a guardian ad litem for a parent if the court determines that there is a reasonable basis to believe that the parent is incompetent or has diminished capacity." Id. § 7B-1101.1(c) (2011). Under the pre-October 2013 version of N.C.G.S. § 7B-1101.1(c), the difference between the roles assumed by a guardian ad litem, whether substitutive or assistive, depended upon "the extent of the parent's disability." In re P.D.R., 224 N.C. App. 460, 468, 737 S.E.2d 152, 158 (2012). However,
effective for juvenile proceedings filed or pending on or after 1 October 2013, the General Assembly amended N.C.G.S. § 7B-1101.1(c) to authorize the appointment of a parental guardian ad litem "for a parent who is incompetent in accordance with . . . Rule 17" of the North Carolina Rules of Civil Procedure. N.C.G.S. § 7B-1101.1(c) (2013). An "incompetent adult" is defined as one "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." Id. § 35A-1101(7) (2013).368 N.C. at 105-06,772 S.E.2d at 454-55 (footnote omitted).
Here, on 9 September 2013, three weeks before Section 7B-1101.1(c) was amended to eliminate diminished capacity as a basis for appointing a GAL for a parent, Respondent father's GAL was permitted to withdraw from assisting Respondent father "based upon new legislation." In its order, the trial court used language of "incapability," not "incompetency," and found that Respondent father "willfully abandoned" and "willfully neglected" Katie. Thus, the record indicates that the GAL was initially appointed for diminished capacity, not incompetence. Therefore, the GAL's discharge based on the October 2013 change in the law was proper and the trial court was not required to inquire into Respondent father's competence.
Respondent father cites In re J.A.A. for the contention that "[a] trial judge 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." 175 N.C. App. 66, 72, 623 S.E.2d 45, 49 (2005) (citation omitted). DSS asserts that the "substantial question" test articulated in J.A.A. "is no longer the controlling law on the issue of when a trial judge has the duty to inquire into the competency of a litigant in a civil proceeding[,]" and contends that in T.L.H., "our Supreme Court set forth a new standard by which this Court must review a trial judge's action or inaction on this issue." In T.L.H., the Supreme Court held the following:
[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.368 N.C. at 108-09, 772 S.E.2d at 456. Respondent father contends that "the argument by DSS confuses two different standards-the standard which the trial court must follow in assessing the need for a competency inquiry and this Court's standard of review as to the trial court's decision on this matter." We agree with Respondent father on this point, but it is not dispositive, as explained below.
Respondent father argues that the "trial court's failure to make an inquiry regarding [his] competency was unsupported by a reasoned decision in light of the overwhelming indicators of his incompetence[.]" Specifically, Respondent father contends that the trial court abused its discretion by ignoring his mental health diagnoses, the allegations of incapability in the termination motion, his residence in a group home, and his confusing testimony. We disagree.
In In re J.R.W., the respondent-mother argued that the trial court should have conducted an inquiry into her competence and need for a GAL "due to her history of mental health problems[.]" ___ N.C. App. ___, ___, 765 S.E.2d 116, 120 (2014). The respondent-mother's argument, "that if her mental health history rendered her incompetent as a parent, it must also have rendered her incompetent as a litigant[,]" relied on this Court's decision in In re N.A.L. Id. However, N.A.L. was decided under earlier versions of section 7B-1101.1(c), and, as this Court explained in J.R.W., the current statute is "far narrower in its requirements." Id. This Court went on to hold that "nothing in the statute's plain language requires the trial court to conduct an inquiry to determine whether a GAL should be appointed for a parent merely because of her mental health history. Although our General Assembly could have revised the statute to reinstate this requirement in 2013, it chose not to do so." Id. Accordingly, this Court held that the trial court did not abuse its discretion in not inquiring into the respondent-mother's competency. Id. at ___, 765 S.E.2d at 121.
Here, Respondent father was diagnosed with paranoid schizophrenia. However, "evidence of mental health problems is not per se evidence of incompetence to participate in legal proceedings." J.R.W., ___ N.C. App. at ___,765 S.E.2d at 120. Additionally, a thorough review of the record reveals "an appreciable amount of evidence tending to show that [Respondent father] . . . is not incompetent[.]" T.L.H., 368 N.C. at 108-09, 772 S.E.2d at 456.
Respondent father wrote numerous letters to DSS social workers and attorneys about his parental rights being terminated and wanting his sister to take care of Katie, demonstrating that he understood the proceedings. Respondent father testified that he understood he could not get Katie back and wanted his sister to raise Katie. Thus, there is evidence that Respondent father understood that this was a proceeding to determine whether his parental rights would be terminated as to Katie, and Respondent father was able to express his desire to have his child remain in the care of a family member.
Respondent father explained his group home living situation in his testimony before the trial court. He lived in the group home by choice. Staff in the group home obtained and provided him with medication, took him to the doctor, and provided him with psychotherapy and a counselor. Respondent father also named the specific doctors he saw for specific conditions. Respondent father's living situation demonstrates self-awareness of his need for assistance, and when considered with his understanding of the proceeding and ability to express his desire, constitutes an appreciable amount of evidence that Respondent Father is not incompetent. T.L.H., 368 N.C. at 108-09, 772 S.E.2d at 456. The evidence, considered as a whole, does not raise a substantial question regarding Respondent father's mental competency. J.A.A., 175 N.C. App. at 72, 623 S.E.2d at 49. Accordingly, following either of the two standards argued by the parties, the evidence did not require the trial court to inquire about Respondent father's competency.
We are unable to conclude that the trial court abused its discretion in not conducting a GAL inquiry. See T.L.H. 368 N.C. at 108, 772 S.E.2d at 456 ("[W]e are equally unable to conclude that the apparent failure to conduct such an inquiry constituted an abuse of discretion."). As our Supreme Court noted in T.L.H., "the standard of review applicable to claims like the one before us in this case is quite deferential." 368 N.C. at 108, 772 S.E.2d at 456.
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. The trial court's vital role in assessing the evidence directly regarding a parent's mental condition is an example of why trial courts, which we generally refer to as "lower courts," are in no way lesser courts.
Conclusion
For the aforementioned reasons, we affirm the trial court's order terminating Respondent father's parental rights to Katie.
AFFIRMED.
Judges ELMORE and MCCULLOUGH concur.
Report per Rule 30(e).