In re J.A.A.

• Decision Date: 20 December 2005
• Docket Number: No. COA05-105.,COA05-105.
• Court: North Carolina Supreme Court
• Parties: In re J.A.A. & S.A.A.

623 S.E.2d 45

In re J.A.A. & S.A.A.

No. COA05-105.

Court of Appeals of North Carolina.

December 20, 2005.

Appeal by respondent from judgment entered 22 June 2004 by Judge Patricia K. Young in Buncombe County District Court. Heard in the Court of Appeals 14 September 2005.

Charlotte W. Nallan, Asheville, for petitioner-appellee Buncombe County Department of Social Services.

Judy N. Rudolph, Asheville, for Guardian Ad Litem.

Carol Ann Bauer, for respondent-appellant.

STEELMAN, Judge.

Respondent-mother appeals the district court's order terminating her parental rights to two of her children, J.A. and S.A. For the reasons discussed herein, we affirm.

Because respondent-mother has not assigned error to any of the trial court's findings of fact, they are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Those findings establish the following facts. Respondent-mother is the natural mother of four children, two of whom are the subject of this appeal. The minor children's legal father was incarcerated during the time the following described events occurred. Their biological father is unknown. Life in the home was one of chaos, drug abuse, and prostitution. Prior to the family's move to North Carolina, respondent lived in Lee County, Florida with her four children: Christina, Eric, J.A., and S.A. Respondent has a long history of drug abuse. While living in Florida, she would take pills, as well as use cocaine and marijuana with her children, including J.A. In addition, respondent and her daughter Christina engaged in prostitution to support their drug habit. Respondent's two husbands were abusive and engaged in significant criminal activities. Respondent's first husband sexually abused Christina, for which he was imprisoned, and her second husband was incarcerated for drug trafficking.

In October 2001, respondent's father died from heart disease. The next month her boyfriend died of leukemia. In December 2001, while at a Christmas party, respondent's oldest son, Eric, died of a drug overdose. Family members testified they believed respondent owed a neighbor money for drugs and when she failed to pay him he intentionally put an overdose into her son's drink. Following the funeral, respondent returned home to find a statement to the effect of "J.A.'s next" spray-painted on the side of their trailer. This was understood to be a threat that if respondent did not pay the money she owed for the drugs, J.A. would be killed. The next day, respondent left Florida and moved the children to Buncombe County, North Carolina.

While respondent's life was unstable before these deaths, it sharply declined thereafter. In the late night hours of 27 April 2002, the Buncombe County DSS received a telephone call from the minor children who were trying to locate their mother. Respondent had left the home at 10:00 a.m. and had not returned. An officer was dispatched and when he arrived at respondent's home, he found J.A. and S.A. alone with a registered sex offender, for whom there was an outstanding arrest warrant. It appeared he had been staying at respondent's home on and off for three weeks. A social worker arrived at approximately 12:30 a.m. She found the condition of the home unsanitary, with no food in the home. The children were dirty and unkempt and had not bathed recently. The social worker testified "[S.A.'s] hair was so dirty it looked wet. Their clothes were dirty [and J.A.] had a foul odor. They appeared to not have been bathed for many days."

The children were immediately removed from the home. The trial court granted DSS non-secure custody. On 6 June 2002, the trial court adjudicated the minor children neglected and dependent. The trial judge entered this order with respondent's agreement. While in the custody of DSS, J.A. admitted he had sexually abused his sister, S.A., for years. There were also allegations that J.A. had been sexually abused as well, but these claims were not substantiated. While in DSS's custody, both children had significant emotional problems and had to receive extensive mental health treatment. On numerous occasions, each child was admitted to psychiatric treatment facilities — S.A. for suicidal tendencies, and J.A. for treatment of bi-polar disorder and aggressive behavior.

The trial court ordered respondent to obtain a drug and alcohol assessment, a psychological evaluation, and participate in parenting classes. Respondent failed to comply with this order. Instead, she engaged in prostitution, drug use, and at one time, was admitted to Broughton Hospital for treatment for suicidal ideation. Her treating physician reported respondent most likely did not suffer from a bi-polar disorder. Respondent was diagnosed a having antisocial personality disorder because she had cocaine dependency and was deceitful. The trial judge found respondent's testimony concerning her substance abuse not to be credible. Respondent failed to keep in contact with either child for almost a year. It was not until after DSS filed its petition for termination of her parental rights that respondent began to minimally comply with the court's order.

On 23 June 2004, DSS filed a petition for termination of parental rights to J.A. and S.A. Respondent filed an answer, but the children's father did not. The petition alleged the following grounds for termination: (1) respondent had neglected the minor children while they were in the care of DSS within the meaning of N.C. Gen.Stat. § 7B-101 N.C.Gen.Stat. § 7B-1111(a)(1); (2) respondent willfully left her children in foster care for more than twelve months without demonstrating she had made reasonable progress to correct the conditions which led to the removal of the children (N.C.Gen.Stat. § 7B-1111(a)(2)); and(3) respondent willfully failed to pay a reasonable portion of the cost of care for the minor children while they were in the custody of DSS (N.C.Gen.Stat. § 7B-1111(a)(3)). The matter came on for hearing before the Buncombe County District Court in February 2004. At the hearing, respondent testified that even if the court did not terminate her parental rights to J.A., she did not want him to live with her. The trial court terminated respondent's parental rights as to both children, finding as a basis each of the three grounds for termination alleged in the petition. The trial court further determined it was in the best interests of both children that respondent's parental rights be terminated and entered an order providing for such termination. However, respondent did not file a timely notice of appeal of the 22 June 2004 order terminating her parental rights. Respondent filed a petition for writ of certiorari to this Court on 27 April 2005. This Court granted respondent's petition and allowed her appeal of the order terminating her parental rights.

Tragically, on 11 September 2004, S.A. died in her residential facility when a care provider attempted to restrain her, resulting in her suffocation. Respondent's sister has qualified as the administrator of S.A.'s estate and filed a wrongful death action. Respondent asserts her appeal of the termination of her parental rights to S.A. is not moot because if she prevails on appeal she would be entitled to the proceeds from the wrongful death action under N.C. Gen.Stat. § 28A-18-2 and § 29-15.

We first address respondent's argument that the trial court erred in failing to appoint a guardian ad litem to represent her.

Pursuant to N.C. Gen.Stat. § 7B-1101(1) (2005):

a guardian ad litem shall be appointed in accordance with the provisions of G.S. 1A-1, Rule 17, to represent a parent . . . (1) where it is alleged that a parent's rights should be terminated pursuant to G.S. 7B-1111[a](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.

See also In re J.D., 164 N.C.App. 176, 180, 605 S.E.2d 643, 645 (noting the duty of appointment arises when the allegation of incapability under N.C. Gen.Stat. § 7B-1111(6) is alleged in the petition for termination), disc. review denied, 358 N.C. 732, 601 S.E.2d 531 (2004). In the instant case, the petitions for termination of respondent's parental rights contained no allegations that respondent was incapable of properly providing care for her children. Rather, the petition alleged the children were neglected within the meaning of N.C. Gen.Stat. § 7B-1111. Although the petition does contain reference to respondent's drug abuse and alleged mental illness, 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 H.W., 163 N.C.App. 438, 447, 594 S.E.2d 211, 216 (applying N.C. Gen.Stat. § 7B-602(b)(1)), disc. review denied, 358 N.C. 543, 599 S.E.2d 46 (2004).

N.C. Gen.Stat. § 7B-1101 requires that a guardian ad litem be appointed "in accordance with the provisions of G.S. 1A-1, Rule 17 to represent a parent. . . ." This means that where an allegation is made that parental rights should be terminated, the trial court is required to conduct a hearing to determine whether a guardian ad litem should be appointed to represent the parent. An allegation under N.C. Gen.Stat. § 7B-1111(a)(6) serves as a triggering mechanism, alerting the trial court that it should conduct a hearing to determine whether a guardian ad litem should be appointed. At the hearing, the trial court must determine whether the parents are incompetent within the meaning of N.C. Gen.Stat. § 35A-1101, such that the individual would be unable to aid in their defense at the termination of parental rights proceeding. The trial court should always keep in mind that the appointment of a guardian ad litem will divest the parent of their fundamental right to conduct his or her litigation according to their own judgment and inclination....