In re D.H., COA05-1501.

• Decision Date: 06 June 2006
• Docket Number: No. COA05-1501.,COA05-1501.
• Citation: 629 S.E.2d 920
• Court: North Carolina Court of Appeals
• Parties: In the Matter of D.H., C.H., B.M., C.H. III.

629 S.E.2d 920

In the Matter of D.H., C.H., B.M., C.H. III.

No. COA05-1501.

Court of Appeals of North Carolina.

June 6, 2006.

Appeal by respondent mother from order entered 1 June 2005 by Judge James T. Hill for Durham County District Court. Heard in the Court of Appeals 11 May 2006.

Cathy L. Moore, Durham, for petitioner-appellee Durham County Department of Social Services.

Wendy C. Sotolongo, Durham, for petitioner-appellee Guardian ad Litem.

Richard Croutharmel, Raleigh, for respondent-appellant.

TYSON, Judge.

K.K. ("respondent") appeals from order entered terminating her parental rights to her minor children, D.H. and C.H., born in July 2000, B.M., born in September 1998, and C.H. III, born in February 2002. We affirm.

I. Background

Respondent was allegedly gang raped by approximately ten boys from her school on 15 September 1993, when she was fifteen years of age and no charges were filed. Respondent refused to testify against the alleged assailants. During the proceedings leading up to this appeal, respondent was diagnosed with post-traumatic stress disorder as a result of these alleged offenses.

Respondent dropped out of high school during the tenth grade. She worked in fast food restaurants and as a nurse's aid until 1999 when she moved into her boyfriend's home. Her boyfriend supported her financially.

By the time respondent was twenty-three years old, she had given birth to five children. Durham County Department of Social Services ("DSS") filed a juvenile petition alleging neglect of C.H. and D.H. on 21 December 2001. On 28 March 2002, the trial court adjudicated these children neglected. The children were placed in DSS's custody.

In April 2002, respondent admitted to using illegal drugs. In May 2002, respondent was arrested on twenty-three charges, including possession of cocaine and marijuana with the intent to sell or deliver, possession of marijuana and Schedule IV narcotics, maintaining a dwelling for the sale of drugs, and six charges of obtaining property by false pretenses. After respondent was released from jail, she moved into the home of Mr. H., the father of C.H. III, C.H., and D.H.

On 17 October 2002, respondent, Mr. H., and Mr. H.'s mother were arrested during a drug raid at Mr. H.'s home. At that time, all of her children went to live with respondent's mother. After release from jail, respondent moved into her mother's residence.

DSS filed another juvenile petition alleging neglect of T.H., B.M., and C.H. III on 21 November 2002 due to concerns respondent might remove the children from her mother's home. The trial court adjudicated B.M. and C.H. III to be neglected on 9 April 2003. All three children were placed in DSS's custody.

Respondent continued to reside in her mother's home. She made progress during this time. Respondent contacted the Durham Center in April and May 2003 for mental health services. She completed a parenting program. Respondent assisted in the daily care of the children. The medical provider for the twins, D.H. and C.H., stated, "[t]he mother of the children . . . has shown steady progress personally while living with her mother and her children."

Mr. H. was released from prison on 18 June 2003. Following his release, respondent missed several mental health appointments and was fired from her job. On 12 August 2003, police responded to a domestic violence complaint at respondent's mother's home. The police requested respondent and Mr. H. to leave her mother's home. Following this event, respondent resided with Mr. H.'s family at multiple addresses until April 2005, when she moved into her sister's home.

The children remained in the maternal grandmother's home. The childrens' guardian ad litem ("GAL") advocated to remove all four children from their grandmother's home due to "the state of filth demonstrated by the children (and extreme odor), lack of medical care and demonstrated level of hunger." The GAL also reported respondent stated her children were not hungry and described the children as, "my children are greedy children, greedy children."

The trial court changed the permanent plan to adoption and ordered DSS to initiate termination of all parental rights on 25 May 2004. On 4 August 2004, the trial court ordered the parties to participate in mediation on the issue of placement of the children. DSS filed a motion to terminate the parental rights of the parents on 24 August 2004.

On 6 December 2004, respondent's attorney filed a motion to withdraw due to lack of contact with respondent. The trial court granted that motion on 23 December 2004. On 11 February 2005, the Durham County Public Defender assigned a court appointed attorney to represent respondent.

The trial court conducted the termination hearing on 5 and 6 May 2005 and terminated respondent's parental rights to C.H., D.H., B.M., and C.H. III. At the time of the hearing, respondent admitted she had not seen C.H., D.H., or C.H. III since January 2004 and had seen B.M. four times during the preceding year. Respondent appeals.

II. Issues

Respondent argues the trial court erred by proceeding to terminate her parental rights without appointing a guardian ad litem because her mental health problems were substantially intertwined with DSS's allegations of grounds to terminate her parental rights.

III. Standard of Review

"On appeal, our standard of review for the termination of parental rights is whether the trial court's findings of fact are based upon clear, cogent and convincing evidence and whether the findings support the conclusions of law." In re Baker, 158 N.C.App. 491, 493, 581 S.E.2d 144, 146 (2003) (citations and internal quotations omitted).

The trial court's "conclusions of law are reviewable de novo on appeal." Starco, Inc. v. AMG Bonding and Ins. Servs., 124 N.C.App. 332, 336, 477 S.E.2d 211, 215 (1996).

IV. Appointment of a GAL

N.C. Gen.Stat. § 7B-1101 governs the appointment of a GAL during termination of parental rights proceedings. N.C. Gen.Stat. § 7B-1101 (2003) provides, the trial court shall appoint a GAL to a parent "where it is alleged that a parent's rights should be terminated pursuant to [N.C. Gen. Stat. § 7B-1111(a)(6)], and the incapability to provide proper care and supervision pursuant to that provision is the result of . . . mental illness, organic brain syndrome, or another similar cause or condition."

In its motion to terminate respondent's parental rights, DSS alleged:

a. The mother has neglected the children, and the children are neglected children within the meaning of N.C. Gen.Stat. § 7B-101(15). There is a reasonable probability of the repetition of neglect.

b. The mother has wilfully left the children in foster care for more than twelve (12) months without showing to the satisfaction of the Court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the children.

c. The children have been placed in the custody of Durham DSS and the mother, for a continuous period of six (6) months next preceding the filing of the petition, has wilfully failed for such period to pay a reasonable portion of the cost of care for the children although physically and financially able to do so.

d. The mother has wilfully abandoned the children for at least six (6) consecutive months immediately preceding the filing of the petition.

In the adjudication and termination petitions, DSS did not allege respondent's minor children were dependent. In the adjudication order of B.M. and C.H. III, the trial court stated, "[t]he mother is unable to provide appropriate care and supervision for the children due to her mental health issues, criminal involvement, and general instability."

In the adjudication order of C.H. and D.H., the trial court made the following finding of fact, "[a] specific factor as to the mother is that she appears to be depressed and that it appears that she had some mental health issues which may have impaired her ability to consistently follow through on the children's needs." When the trial court reviewed the matter for all of the children on 8 July 2003, 1 October 2003, 3 December 2003, 2 March 2004, 25 May 2004, and August 2004, it ordered respondent to "continue to seek mental health treatment through The Durham Center." Respondent argues, "[a] trial court's failure to appoint a [GAL] for a respondent-parent with mental health issues early on in abuse and neglect proceedings . . . is reversible error where the termination of parental rights was based, in part, on the mental health issues."

This Court held in In re O.C. and O.B., "the motion to terminate parental rights neither alleged respondent was incapable of caring for the minor children due to a debilitating condition, nor cited G.S. § 7B-1111(a)(6)." 171 N.C.App. 457, 462, 615 S.E.2d 391, 394, disc. rev. denied, 360 N.C. 64, 623 S.E.2d 587 (2005). The respondent in In re O.C. and O.B. argued the termination order should be reversed because the initial adjudication petition alleged the children to be both neglected and dependant, and a GAL had not been appointed to her. 171 N.C.App. at 462, 615 S.E.2d at 394. This Court has rejected this argument and has stated:

Only the order on termination of parental rights is before this Court; the order on adjudication is not. Even assuming, arguendo, that the trial court failed to appoint a GAL for respondent during the adjudication proceedings and that she was even entitled to such a GAL, we reject her argument that this bears a legal relationship with the validity of the later order on termination. First, there is no statutory authority for the proposition that the instant order is reversible because of a GAL appointment deficiency that may have occurred years earlier. Our legislature has adopted two separate juvenile GAL appointment provisions concerning the appointment of a GAL for a parent, one found in Article 6 of the Juvenile Code concerning petitions alleging the...