In re M.S.E.

• Decision Date: 18 June 2021
• Docket Number: No. 192A20,192A20
• Citation: 859 S.E.2d 196
• Parties: In the MATTER OF: M.S.E. and K.A.E.
• Court: North Carolina Supreme Court

859 S.E.2d 196

In the MATTER OF: M.S.E. and K.A.E.

No. 192A20

Supreme Court of North Carolina.

Filed June 18, 2021

Mary Boyce Wells, Raleigh, for petitioner-appellee Wake County Human Services.

R. Bruce Thompson II, Raleigh, for appellee Guardian ad Litem.

Kathleen M. Joyce, for respondent-appellant mother.

EARLS, Justice.

¶ 1 Respondent appeals from an order terminating her parental rights in her children, M.S.E. (Mary) and K.A.E. (Kevin).¹ We affirm.

I. Background

¶ 2 Kevin was born in August 2010, and Mary was born in May 2017. On 8 May 2018, Wake County Human Services (WCHS) filed a juvenile petition alleging that Kevin and Mary were neglected juveniles. The petition alleged that on 9 December 2017, WCHS received a report that respondent, Kevin, Mary, and respondent's ten-year-old son² , Gary, had been expelled from the Salvation Army homeless shelter based on respondent's failed drug screens. Respondent took the children briefly to a hotel but ran out of money. Kevin and Mary were placed in a safety placement with respondent's cousin, and Gary was placed with his father. Respondent had a history of homelessness and transiency, repeatedly placing her children with relatives for extended periods of time due to housing and income instability. She acknowledged daily use of marijuana since the age of fourteen and use of cocaine after 2014. Respondent had been diagnosed with depression, post-traumatic stress disorder, and anxiety.

¶ 3 The petition further alleged that while respondent agreed to participate in substance abuse and mental health treatment, she failed to do so. The Salvation Army connected respondent-mother with North Carolina Recovery Services for Substance Abuse Intensive Outpatient (SAIOP) treatment, but she did not attend any of the scheduled appointments. She also failed to appear for appointments with WCHS for In-Home Services. On 13 March 2018, respondent experienced a mental health crisis and went to Holly Hill Hospital for evaluation. She was not admitted but was recommended to immediately schedule an appointment with an outpatient therapist, a psychiatrist, and a SAIOP program. She did not follow any of the recommendations. On 14 March 2018, she went to Healing Transitions, a residential substance abuse treatment program, but she left after five days. By this time, Kevin and Mary had been in their safety placement for four months, and respondent had only visited them on three occasions.

¶ 4 Following hearings on 15 June 2018 and 9 July 2018, the trial court entered an order on 4 September 2018 adjudicating Kevin and Mary to be neglected juveniles and continuing custody with WCHS. On 6 August 2018, Kevin was transferred to a therapeutic foster home after it was determined that he required a higher level of care than his safety placement could provide. The trial court conducted a review hearing on 1 October 2018, and entered an order on 23 October 2018 finding that respondent had failed to comply with any drug screen requests since the hair screen specifically ordered at the conclusion of the dispositional hearing. She admitted to ongoing, regular use of marijuana approximately three times per week, and the result of a hair sample screen was positive for marijuana and cocaine. The trial court also found that returning Kevin and Mary to the home would be contrary to their health and safety. The primary permanent plan was set as reunification, with a secondary plan of adoption.

¶ 5 Following a review hearing on 25 March 2019, the trial court entered an order on 22 April 2019 finding that respondent continued to use marijuana and had only complied with one of five drug screens requested by WCHS since the prior review hearing. Respondent reported use of cocaine on 22 February 2019. She had participated in five of sixteen possible parenting coaching sessions, and the sessions she did attend were productive, resulting in "noticeable improvements" in her interactions with the children. On 23 May 2019, Mary was transferred to a foster home after her safety placement could no longer care for her.

¶ 6 On 30 September 2019, WCHS filed a motion to terminate respondent's parental rights in Kevin and Mary. WCHS alleged: (1) respondent had neglected the children, and it was probable there would be a repetition of neglect if they were returned to her care, see N.C.G.S. § 7B-1111(a)(1) (2019): (2) respondent had willfully left the children in foster care for more than twelve months without showing reasonable progress under the circumstances to correct the conditions that led to their removal, see N.C.G.S. § 7B-1111(a)(2) ; and (3) the children had been placed in WCHS custody and respondent had for a continuous period of six months next proceeding the filing of the motion willfully failed to pay a reasonable portion of the cost of care for the children although physically and financially able to do so, see N.C.G.S. § 7B-1111(a)(3).

¶ 7 The motion to terminate respondent's parental rights came on for hearing on 16 and 29 January 2020. On 9 March 2020, the trial court entered an order concluding that grounds existed to terminate respondent's parental rights in Kevin and Mary pursuant to N.C.G.S. § 7B-1111(a)(1)–(2). The trial court determined it was in Kevin and Mary's best interests that respondent's parental rights be terminated, and the court terminated her parental rights.³ See N.C.G.S. § 7B-1110(a). Respondent appeals.

II. Analysis

A. Rule 17 Guardian ad Litem

¶ 8 Respondent's first argument on appeal is that the trial court abused its discretion by failing to, sua sponte, conduct an inquiry into whether she should be appointed a guardian ad litem (GAL) under Rule 17 of the North Carolina Rules of Civil Procedure to assist her during the termination hearing. She contends that once the trial court learned the results of a psychological evaluation she underwent in December 2019, it had a duty to inquire into her competency.

¶ 9 Section 7B-1101.1(c) of the North Carolina General Statutes permits the trial court "[o]n motion of any party or on the court's own motion" to appoint a GAL for a parent who is incompetent in accordance with N.C.G.S. § 1A-1, Rule 17. N.C.G.S. § 7B-1101.1(c). An "incompetent adult" is defined as one "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, intellectual disability, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or similar cause or condition." N.C.G.S. § 35A-1101(7) (2019).

¶ 10 "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 [that] raise a substantial question as to whether the litigant is non compos mentis. " In re T.L.H. , 368 N.C. 101, 106–07, 772 S.E.2d 451 (2015) (alterations in original) (quoting In re J.A.A. , 175 N.C. App. 66, 72, 623 S.E.2d 45 (2005) ). "A trial court's decision concerning whether to conduct an inquiry into a parent's competency" and "[a] trial court's decision concerning whether to appoint a parental [GAL] based on the parent's incompetence" are both reviewed on appeal for abuse of discretion. Id. at 107, 772 S.E.2d 451. "An ‘[a]buse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.’ " Id. (alteration in original) (quoting State v. Hennis , 323 N.C. 279, 285, 372 S.E.2d 523 (1988) ). Further, the abuse of discretion standard is appropriate here because the evaluation of an individual's competence "involves much more than an examination of the manner in which the individual in question has been diagnosed by mental health professionals."

In re T.L.H. , 368 N.C. at 108, 772 S.E.2d 451. Also important are factors such as the individual's behavior in the courtroom, how clearly they express themselves, whether they appear to understand what is going on, and whether they can assist counsel. Id. at 108–09, 772 S.E.2d 451.

¶ 11 Here, respondent relies heavily on the testimony of a WCHS social worker who testified at the termination hearing. The social worker testified that on 4 December 2019, respondent completed a psychological assessment with Dr. Robert Aiello. Dr. Aiello determined respondent had borderline intellectual functioning. The social worker testified that Dr. Aiello recommended a parenting education program which focused on individuals with some cognitive impairments, "delivering the information on more of a functional level for the parents." Dr. Aiello further recommended that respondent identify a consistent support person who could provide her with "direction and guidance" with complex decisions regarding the needs and welfare of her children and with "daily living and important decision-making"; that if respondent was awarded disability, she would require a payee to assure proper use of funds; and that WCHS personnel and professional parties working with respondent review written documents with her to assure understanding of the information being presented.

¶ 12 Respondent argues that the results of Dr. Aiello's assessment and his recommendations indicate she needed the assistance of a Rule 17 GAL. Respondent also contends that there was other evidence to suggest she might be legally incompetent: she needed assistance from vocational rehabilitation, she believed she needed a disability instructor due to her learning comprehension disability in order to pass the General Educational Development Test, and a WCHS social worker noted in a March 2019 permanency planning hearing report that respondent "does not understand why this case was initiated or continues, and does not understand why she needs to pursue services."

¶ 13 After careful review of the record, we believe the record contains "an appreciable amount of evidence tending to...