In re J.C.

• Decision Date: 18 May 2021
• Docket Number: No. COA20-345,COA20-345
• Citation: 857 S.E.2d 789 (Table)
• Parties: In the MATTER OF: J.C.
• Court: North Carolina Court of Appeals

857 S.E.2d 789 (Table)

In the MATTER OF: J.C.

No. COA20-345

Court of Appeals of North Carolina.

Filed May 18, 2021

Jon G. Nuckolls, for petitioner-appellee Pitt County Department of Social Services.

Mary McCullers Reece, for respondent-appellant mother.

J. Thomas Diepenbrock, for respondent-appellant father.

Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for guardian ad litem.

MURPHY, Judge.

¶ 1 Without evidence in the record of an extreme instance of a parent's incompetence or motion by counsel for an inquiry, a trial court does not abuse its discretion when it does not inquire into whether the parent needed a guardian ad litem.

¶ 2 When a party does not object, present argument, or otherwise raise the issue regarding a parent's constitutionally protected parental status at a permanency planning hearing that involves a guardianship determination and provides an opportunity to present evidence on that issue, the party waives review of the trial court's conclusion the party acted inconsistently with his or her constitutionally protected parental status and was unfit.

¶ 3 Despite waiver of appellate review of the trial court's conclusion of inconsistent action with a party's constitutionally protected parental status and unfitness, we address the remaining challenges to findings of fact and affirm findings of fact that are supported by competent evidence.

¶ 4 A trial court's failure to make necessary findings in a permanency planning order concerning a parent's ability to pay for supervised visitation costs requires us to vacate that portion of the order and remand for such findings.

BACKGROUND

¶ 5 J.C. ("Georges")¹ was born on 6 September 2018 with severe jaundice

. Georges’ pediatrician recommended hospital care for the child, and Respondent-Father ("Karl") disagreed. On 11 September 2018, Pitt County Department of Social Services ("DSS") filed a juvenile petition alleging (1) Georges was a neglected and dependent juvenile, (2) Respondent-Mother ("Lisa") was Georges’ mother, and (3) Karl was Georges’ father. The trial court issued a nonsecure custody order on 10 September 2018, which was filed on 11 September 2018.

¶ 6 After a hearing on 11 October 2018, the trial court adjudicated the minor child neglected in its Pre-Adjudication and Adjudication Order ("January 2019 Order"), filed 3 January 2019, and ordered Georges remain in DSS custody. The January 2019 Order also required Lisa and Karl to "submit to a parenting capacity evaluation."

¶ 7 The trial court held another hearing on 14 February 2019 and entered its Disposition Order ("March 2019 Order") on 15 March 2019. The March 2019 Order required Lisa to engage in mental health treatment, "demonstrate skills learned in parenting class," and maintain sufficient housing. The March 2019 Order required Karl to "submit to a psychological evaluation to include a parental capacity evaluation[,]" "maintain sufficient and stable housing[,] ... [and] income or employment." The March 2019 Order kept Georges in DSS custody.

¶ 8 At the time, Lisa had three children other than Georges, none of whom were in her custody, and her parental rights to the youngest of those children had been judicially terminated. She underwent a psychological examination in August 2016 after giving birth to the third child, which revealed she suffered from post-traumatic stress disorder

, anxiety disorder, borderline personality disorder, seizures, and obsessive-compulsive disorder. Her first two children had been fathered by Lisa's father, and the August 2016 examination noted she remained "indifferent to [that] sexual relationship[.]" The August 2016 examination concluded Lisa "should not be expected to parent independently" and recommended "she be appointed a Guardian Attorney to represent her interests" in light of her inability "to fully understand the complexities of court proceedings and legal matters associated with her ... case." The trial court did not inquire into whether Lisa needed a guardian ad litem at the permanency planning hearings reviewed in this appeal.

¶ 9 Regarding Georges, the trial court conducted a permanency planning hearing on 22 August 2019 and filed a Permanency Planning Order ("September 2019 Order") on 23 September 2019. The trial court found Lisa and Karl had completed a parenting class, would argue and call each other names during visits with Georges, had relocated to Jacksonville, and had unrealistic expectations for Georges’ development. The trial court also found Lisa expected Georges to walk at five months and get a tan. The trial court found Lisa and Karl had participated in the plan of reunification but had not made adequate progress; in particular, the trial court found Karl had not "followed through with [c]ourt ordered activities necessary to ensure the safety of [Georges]." The trial court again ordered legal custody remain with DSS, Karl "submit to a psychological evaluation to include a parental capacity evaluation" and "maintain sufficient and stable income or employment," and Lisa and Karl to "maintain sufficient and stable housing." The trial court scheduled a permanency planning hearing for 12 December 2019.

¶ 10 After expressing objectivity concerns regarding an initial psychologist, who withdrew from the case, Karl did not complete a psychological evaluation until 16 September 2019, approximately six months after the March 2019 Order. The psychological evaluation diagnosed Karl with "Unspecified Personality Disorder with significant Turbulent, Histrionic, and Antisocial Traits." The psychological evaluation recommended weekly individual therapy and couples therapy, as well as Karl "maintain employment and housing stability[.]"

¶ 11 According to the psychological evaluation,

[a]t this time it is improbable [Karl] is capable of sole caregiving to his child as he is in need of stable employment and individual and couples therapy. If [Karl] can make progress in therapy, maintain employment and housing stability, and improve the relationship and communication between he and his wife, it is possible he would be capable of sole caregiving to [Georges].

¶ 12 Karl was notified of these recommendations at a visit in November 2019 after DSS received the official copy of the psychological evaluation in late October 2019. Lisa and Karl missed visits, were late to visits, and cancelled visits with Georges in November and December 2019.

¶ 13 After a prior continuance on 12 December 2019 due to withdrawal of Lisa's counsel, the trial court held a permanency planning hearing on 9 January 2020, which Lisa and Karl did not attend, citing illness. In addition to not specifically objecting to guardianship on constitutional grounds during the hearing, Lisa's and Karl's respective attorneys did not present any argument, or raise the issue, that Karl had not acted inconsistently with his constitutionally protected parental status. Further, Karl admits he had not received individual therapy or couples therapy at the time of the 9 January 2020 permanency planning hearing.

¶ 14 After the 9 January 2020 permanency planning hearing, the trial court filed its Permanency Planning Order ("February 2020 Order") on 19 February 2020, which found Lisa and Karl to be "unfit, [and to] have neglected [Georges’] welfare and have acted inconsistently with [their] constitutional rights"; appointed Georges’ foster parents as his guardians; allowed supervised visitation for Lisa and Karl; ordered supervised visits with Georges for Lisa and Karl "at the Family Center or other location agreed upon between them and the [foster parents]"; required Lisa and Karl to "provide the costs of the visitation"; mandated "[t]he primary permanent plan for [Georges] shall remain guardianship with a [c]ourt approved caretaker with a secondary plan of reunification"; and ordered there be no further reviews in the case, pursuant to N.C.G.S. § 7B-906.1.

¶ 15 On appeal, Lisa argues the trial court had a duty to inquire into her need for a guardian ad litem pursuant to N.C.G.S. § 7B-602(c), as well as N.C.G.S. § 1A-1, Rule 17. According to Lisa, the psychological evaluator's August 2016 recommendation "she be appointed a Guardian Attorney to represent her interests" in light of her inability "to fully understand the complexities of court proceedings and legal matters associated with her ... case" triggered a duty for the trial court to inquire into her need for a guardian ad litem in Georges’ subsequent case.

¶ 16 In their respective briefs, Lisa and Karl argue the trial court failed to make findings of fact in the February 2020 Order regarding their ability to pay the costs of visitation as required by caselaw; Karl also argues the trial court needed "to make findings of fact regarding the cost of supervision[.]"

¶ 17 Karl challenges the trial court's finding of fact he was unfit, as well as various other findings; he argues the trial court erred when it awarded guardianship because the trial court's February 2020 Order relied on findings of fact that were not supported by sufficient evidence.

¶ 18 Lisa and Karl ask us to vacate the February 2020 Order and remand for further necessary findings of fact.

ANALYSIS

A. Guardian Ad Litem Inquiry

¶ 19 "We review a trial court's determination of whether or not to appoint a [guardian ad litem] for a parent for abuse of discretion." In re J.R.W. , 237 N.C. App. 229, 233, 765 S.E.2d 116, 119 (2014), disc. rev. denied , 367 N.C. 813, 767 S.E.2d 840 (2015) ; see also In re T.L.H. , 368 N.C. 101, 107, 772 S.E.2d 451, 455 (2015). "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. " In re J.A.A. , 175 N.C. App. 66, 72, 623 S.E.2d 45, 49 (2005). "Whether to conduct such an inquiry is in the sound discretion of the trial judge." In re A.R.D. , 204 N.C. App. 500, 504, 694 S.E.2d 508, 511, ...