In Re L.B-M

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA14-747 NORTH CAROLINA COURT OF APPEALS Filed: 31 December 2014 IN THE MATTER OF: L.B-M. Orange County No. 12 JT 98 Appeal by respondent mother from order entered 16 April 2014 by Judge Beverly Scarlett in Orange County District Court. Heard in the Court of Appeals 9 December 2014. Holcomb & Cabe, L.L.P, by Samantha H. Cabe and Carol J. Holcomb, for petitioner-appellee Orange County Department of Social Services. Mark L. Hayes for respondent-appellant mother. Ellis & Winters LLP, by Kelly Margolis Dagger, for guardian ad litem. DILLON, Judge. Respondent mother terminating her Respondent argues 1 A pseudonym. appeals parental the trial from rights court the to trial the abused court’s juvenile its order Lynn.1 discretion by -2failing to inquire into whether it was necessary to appoint her a guardian ad litem (“GAL”). We affirm. Respondent grew up in foster care and has a history of both substance abuse and mental health problems. Lynn is her fourth child, all and the other three children were adopted after Respondent either relinquished her parental rights or her rights were terminated. In October of 2012, the Orange County Department of Social Services (“DSS”) received reports that Lynn was missing and that Respondent had stolen her father’s car. When the car was recovered, Respondent appeared to be high on crack cocaine. On 2 November 2012, DSS filed a petition alleging Lynn was neglected and dependent, and the trial court entered a non- secure custody order. In an order entered 13 November 2012, Respondent consented to an adjudication of dependency. left open. The allegation of neglect was Lynn remained in foster care, and Respondent was provided with supervised visitation. Respondent also agreed to a substance abuse evaluation, random drug screens, parent-child therapy, and psychiatric evaluation and treatment. On 5 June 2013, the trial court entered a permanency planning order changing the permanent plan for Lynn to adoption -3and ordered DSS to cease reunification efforts. In its order, the trial court found that Lynn had been placed outside the home for six of the most recent twenty-two months, that Respondent had not participated in treatment services long enough to make any progress, and that Respondent had abruptly left North Carolina to go live in Pennsylvania. On 12 June 2013, DSS Respondent’s parental rights. alleged neglect, another child N.C. Gen. dependency, had Stat. previously § filed a motion to terminate As grounds for termination, DSS and that been 7B-1111(a)(1), Respondent’s involuntarily (6), (9) rights to terminated. (2013). After hearings on the matter, on 6 April 2014, the trial court entered an order terminating Respondent’s parental rights. court concluded all three grounds to terminate parental rights existed as alleged in the petition. The trial Respondent’s Respondent appeals. ______________________________________________________ In her sole argument on appeal, Respondent contends the trial court abused its discretion by failing to conduct an inquiry into whether it was necessary to appoint her a guardian ad litem (“GAL”). We disagree. -4“On motion of any party or on the court’s own motion, the court may appoint a guardian ad litem for a parent incompetent in accordance with G.S. 1A-1, Rule 17.” Stat. § 7B-1101.1(c) (2013).2 who is N.C. Gen. An incompetent adult: [L]acks 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) (2013). issue from a parent’s ability supervision for her children. to Competency is a separate provide proper care and In re A.H., 183 N.C. App. 609, 615, 644 S.E.2d 635, 639 (2007). “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 2 The statute was amended in 2013 to delete language permitting appointment of guardians ad litem for parents who have “diminished capacity[,]” and this change applied “to actions filed or pending on or after” 1 October 2013. 2013 N.C. Sess. Laws 129, Sects. 32, 41. The petition to terminate Respondent’s parental rights was filed in 12 June 2013 but was still “pending” on 1 October 2013, as the order terminating Respondent’s parental rights was not filed until 6 April 2014, following hearings on 21 November 2013 and 20 February 2014. Therefore, the 2013 amendment is applicable and the statute now only allows appointment of a GAL for “incompetent” parents. -5a substantial question as to whether the litigant is non compos mentis.” In re J.A.A., 175 N.C. App. 66, 72, 623 S.E.2d 45, 49 (2005) (citation omitted). “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.” marks omitted). “A ruling Id. (citation and quotation 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.” In re A.R.D., 204 N.C. App. 500, 504, 694 S.E.2d 508, 511 (citation and quotation marks omitted), aff’d per curiam, 364 N.C. 596, 704 S.E.2d 510 (2010). Previously, a trial court was required to appoint a GAL when the petition alleged dependency as a ground to terminate the parent’s rights. In re J.D., 164 N.C. App. 176, 180, 605 S.E.2d 643, 645, disc. review denied, 358 N.C. 732, 601 S.E.2d 531 (2004). A dependency allegation no longer automatically triggers appointment of a GAL, although allegations of mental health problems may still require the trial court to inquire into appointment of a GAL. In re N.A.L., 193 N.C. App. 114, 118-19, 666 S.E.2d 768, 771-72 (2008). -6Respondent argues that the allegations in the termination of parental rights motion, testimony regarding her long history of substance abuse and mental health issues, and her own behavior and testimony at trial show that she was incompetent and the trial court abused its discretion in not inquiring into and appointing her a GAL for the termination of parental rights hearing. We do not believe that the trial court abused its discretion by terminating Respondent’s parental rights without inquiring into her competency. At the February 2014 termination hearing, Respondent’s counsel did not request appointment of a GAL, and Respondent testified on her own behalf. Even though evidence was presented as to Respondent’s history of drug abuse and mental competent to health manage issues, her own the record affairs. showed that It apparent was she was from Respondent’s testimony that she understood her own diagnoses, the names of her therapists, and the medications she was taking and the reasons for taking each of them. She knew the results of her most recent drug screens and the approximate date of her last positive drug test. Respondent was also able to articulate the treatment steps she had taken to address her mental health issues and her objections to the termination of her parental -7rights. She also was able to obtain housing, execute a lease, discussed her current living situation, brought a cell-phone recorded video of her home for court review, described the steps to request a home-study, and arranged attend her treatment appointments. for transportation Given the nature of to her testimony and the other evidence presented at the termination hearing, we conclude the trial court did not abuse its discretion by failing to inquire into whether Respondent needed a GAL. We also are not convinced by Respondent’s argument that DSS’s allegations that she was “incapable of providing for the proper care and supervision of the juvenile[,]” in showing dependency, along with the allegations of mental illness and substances abuse, required a GAL. trial court dependency, established that she was incompetent and If Respondent’s argument was correct, then the would be required along with to appoint allegations of a GAL time illness mental every and substance abuse, was alleged as grounds to terminate parental rights. manage The their focus own in competency affairs, etc., is see whether N.C. the Gen. parent Stat. § can 35A- 1101(7), but, in contrast, the focus for termination of parental rights based on neglect, dependency, etc. is the parent’s -8capacity to provide proper care and supervision to the child. See N.C. Gen. Stat. § 7B-1111. Pursuant to N.C. Gen. Stat. § 7B-1101.1(c), the trial court has discretion to inquire into and determine whether appointment of a GAL for a parent is necessary by looking at the specific circumstances, the demeanor of the parent in court, and facts before it regarding each individual parent. Here, the facts show that Respondent was capable of handling her own affairs, see N.C. Gen. Stat. § 35A-1101(7), and the trial inquire court into did whether not abuse Respondent its discretion needed a GAL. by failing to Respondent’s arguments are overruled. Accordingly, we affirm the order terminating Respondent’s parental rights. AFFIRMED. Judge STROUD and Judge DIETZ concur. Report per Rule 30(e).

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