In re M.H.B.

• Court: North Carolina Court of Appeals
• Writing for the Court: McGee
• Citation: In re M.H.B., 664 S.E.2d 583 (N.C. App. 2008)
• Decision Date: 19 August 2008
• Docket Number: No. COA08-337.,COA08-337.
• Parties: In the Matter of M.H.B., A Minor Child.

664 S.E.2d 583

In the Matter of M.H.B., A Minor Child.

No. COA08-337.

Court of Appeals of North Carolina.

August 19, 2008.

Appeal by Respondent from adjudication order entered 22 October 2007 by Judge Bradley B. Letts and from disposition orders entered 18 and 28 December 2007 by Judge Danny E. Davis in District Court, Swain County. Heard in the Court of Appeals 23 July 2008.

Chester M. Jones, Franklin, for Petitioner-Appellee Swain County Department of Social Services.

The Turrentine Group, PLLC, by Karlene Scott-Turrentine, Raleigh, for Respondent-Appellant.

Pamela Newell Williams, Raleigh, for Respondent-Appellee Guardian ad Litem.

McGEE, Judge.

The biological father of M.H.B. (Respondent) appeals from adjudication and disposition orders finding M.H.B. to be abused and neglected. For the reasons set forth below, we reverse and remand.

The Swain County Department of Social Services (DSS) received a report from Memorial Mission Hospital of possible child abuse regarding M.H.B. on 25 June 2007. In response to the report, DSS filed a petition on 27 June 2007 alleging that M.H.B. was abused and neglected. DSS alleged M.H.B. had suffered multiple broken ribs, hemorrhaging of the eyes, internal bleeding, and bruises on her chest that were the result of the intentional acts and/or improper care of both Respondent and M.H.B.'s biological mother, who is not a party to this appeal. The trial court entered an order for nonsecure custody on 27 June 2007, placing custody of M.H.B. with DSS.

The trial court held a hearing on 24 September 2007 and entered an order adjudicating M.H.B. to be an abused and neglected juvenile on 22 October 2007. In its adjudication order, the trial court ordered, in part, that "[Respondent] ... shall submit to a psychological evaluation and results of the same shall be made available unto [DSS] and the Guardian ad litem for [M.H.B.]" The trial court also ordered that "the Balsam Center shall allow [DSS] and the Guardian ad litem and other parties hereto access to and copies of any and all mental health records of the Balsam Center concerning [Respondent]." The trial court held a disposition hearing on 22 October 2007 and entered a disposition order on 18 December 2007, continuing custody of M.H.B. with DSS, but authorizing a trial home placement of M.H.B. with her biological mother in the residence of the maternal grandparents. The trial court entered a revised disposition order on 28 December 2007. As to visitation, both the 18 and 28 December 2007 disposition orders provided as follows:

That visitation with [M.H.B.] by [Respondent] ... shall be at time and places set by [DSS] within its discretion. However, the Court suspends visitation between [Respondent] and [M.H.B.] at this time pending receipt and review of the reports from the Balsam Center by [DSS]. In addition, [Respondent] shall Undergo a drug screen before he has any visitation. Further the Court leaves in the discretion of [DSS] to start visitation between [M.H.B.] and [Respondent] after [DSS] receives and reviews such records concerning [Respondent] from the Balsam Center and after [Respondent] undergoes a drug screen. Any [and] all visitation between [Respondent] and [M.H.B.] shall be supervised.

Respondent father appeals.

Respondent argues the trial court erred by failing to appoint a guardian ad litem to represent him.¹ During proceedings held on petitions for abuse, neglect, or dependency, the Juvenile Code presently provides:

On motion of any party or on the court's own motion, the court may appoint a guardian ad litem for a parent in accordance with [N.C. Gen.Stat. §] 1A-1, Rule 17, if the court determines that there is a reasonable basis to believe that the parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest.

N.C. Gen.Stat. § 7B-602(c) (2007); see also N.C. Gen.Stat. § 1A-1, Rule 17 (2007).

Our research has revealed no published case interpreting N.C.G.S. § 7B-602(c), which was added to N.C.G.S. § 7B-602 in 2005, and which applies to petitions filed on or after 1 October 2005. Prior to enactment of N.C.G.S. § 7B-602(c), N.C. Gen.Stat. § 7B-602(b) (2003) provided that a trial court was required to appoint a guardian ad litem for a parent who was a minor and

[w]here it is alleged that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101 in that the parent is incapable as the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other similar cause or condition of providing for the proper care and supervision of the juvenile[.]

N.C. Gen.Stat. § 7B-602(b) (2003). Under the new provision, which applies in the present case, a trial court is required to appoint a guardian ad litem for a parent only when the parent is a minor. N.C. Gen.Stat. § 7B-602(b) (2007). However, in addition, the new provision permits any party to file a motion requesting the trial court to appoint a guardian ad litem for a parent in any neglect, abuse, or dependency proceeding where "there is a reasonable basis to believe that the parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest." N.C.G.S. § 7B-602(c). N.C.G.S. § 7B-602(c) also allows the trial court to appoint a guardian ad litem on its own motion pursuant to these same criteria. Because N.C.G.S. § 7B-602(c) employs the term "may," a trial court's action pursuant to this statute is discretionary, and our review is limited to a determination of whether the trial court abused its discretion. See Loren v. Jackson, 57 N.C.App. 216, 219, 291 S.E.2d 310, 312 (1982). A trial court abuses its discretion when its decision is "manifestly unsupported by reason." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). However, "[a] court's complete failure to exercise discretion amounts to reversible error." State v. McVay, 174 N.C.App. 335, 340, 620 S.E.2d 883, 886 (2005); see also State v. Bartlett, 153 N.C.App. 680, 685, 571 S.E.2d 28, 31 (2002) (recognizing that "[w]here the trial court fails to exercise its discretion, ... such failure constitutes reversible error").

Our Court has also held that a trial court "has a duty to inquire into the competency of a litigant in a civil proceeding where `circumstances are brought to [the trial court's] attention, which raise a substantial question as to whether the litigant is non compos mentis.'" In re S.N.H., 177 N.C.App. 82, 87-88, 627 S.E.2d 510, 514 (2006) (quoting In re J.A.A., 175 N.C.App. 66, 72, 623 S.E.2d 45, 49 (2005)). "`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.'" In re J.A.A., 175 N.C.App. at 72, 623 S.E.2d at 49 (quoting Rutledge v. Rutledge, 10 N.C.App. 427, 432, 179 S.E.2d 163, 166 (1971)).

Pursuant to N.C. Gen.Stat. § 35A-1101(7) (2007), an "Incompetent adult" is defined as

an adult or emancipated minor 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.

The phrase "diminished capacity," which appears in N.C.G.S. § 7B-602(c), is used primarily in the criminal law context and is defined as "[a]n impaired mental condition — short of insanity — that is caused by intoxication, trauma, or disease and that prevents a person from having the mental state necessary to be held responsible for a crime." Black's Law Dictionary 220 (8th ed.2004). However, our Court has also defined "diminished capacity" in the juvenile context as a "lack of `ability to perform mentally.'" In re Reinhardt, 121 N.C.App. 201, 204, 464 S.E.2d 698, 701 (1995) (quoting Taber's Cyclopedic Medical Dictionary 278 (16th ed.1989)), overruled on other grounds by In re Brake, 347 N.C. 339, 493 S.E.2d 418 (1997).

In the case before us, the trial court made the following findings of fact related to Respondent's mental state both prior to the hearing and at the hearing:

38.... [Respondent] states that he is suffering posttraumatic stress disorder, that he [h]as a diagnosis of being manic depressive and bipolar. He states that he was prescribed medication including lithium. He stated that he did not like the side effects of the prescribed medication and discontinued taking the same. He stated that he now self medicates by consuming marijuana and that he uses approximately 25 dollars of marijuana per week.

39. That since the filing of the petition, [Respondent] has received mental health treatment and recommenced taking his prescription medications and is taking them currently.

40. That while [Respondent] was testifying in this case, the Court noted that he was weeping, crying, confounded, agitated and stated that he wished someone would take his life right then.

41. That after the Petition was filed in this case, [Respondent] did threaten suicide.

42. That [Respondent] is mentally and emotionally unstable.

43. That while testifying, [Respondent] even stated that he did not know why he was present at the adjudicatory hearing in this case.

Based upon these findings of fact, Respondent argues the trial court abused its discretion by failing to appoint a guardian ad litem for him. In response, DSS contends as follows:

It is submitted that if one considered only the foregoing out of proper context and without considering the totality of the testimony, facts and circumstances which were in fact before the trial court, then one might possibly be concerned that there was a reasonable basis that [Respondent] may have had some sort of diminished capacity at the time of the adjudicatory hearing and that [Respondent] was not able to act in his own interest. However, when the rest of the...