In re Shepard, COA03-212.

Citation162 NC App. 215,591 S.E.2d 1
Decision Date20 January 2004
Docket NumberNo. COA03-212.,COA03-212.
PartiesIn the Matter of Dashaun SHEPARD DOB: 9-19-87; Shalita Shepard DOB: 2-8-89; Jarico Shepard DOB: 7-6-90; Asia Shepard DOB: 2-7-92.
CourtCourt of Appeal of North Carolina (US)

Robert W. Ewing, Winston-Salem, for Crystal Shepard, respondent-appellant.

Assistant County Attorney Theresa A. Boucher, for Forsyth County Department of Social Services, petitioner-appellee; and Womble Carlyle Sandridge & Rice, PLLC, by Jason B. Buckland, for Guardian ad Litem, petitioner-appellee. McCULLOUGH, Judge.

On 6 May 1996, the Forsyth County Department of Social Services (DSS) filed Juvenile Petitions pursuant to N.C. Gen.Stat. § 7A-517 (now N.C. Gen.Stat. § 7B-400), alleging Dashaun Shepard, aged nine, Shalita Shepard, aged seven, Jarico Shepard, aged five, Asia Shepard, aged four, and their two older siblings to be "dependent juveniles" as defined by N.C. Gen.Stat. § 7A-517(13) (now N.C. Gen.Stat. § 7B-101(9) (2001)). Dashaun, Shalita, Jarico, and Asia (the "Shepard Children" when referred to collectively) were taken into non-secure custody by DSS, adjudicated to be dependent, and remained in the custody of DSS until termination of their parental rights. All statutes under the juvenile code were complied with during this period of custody.

On 17 August 2001, a petition to terminate parental rights was filed as to these four juveniles, and after a hearing on 18 March 2002, the parental rights of Ms. Shepard were terminated. Three statutory grounds were found as the basis of termination, N.C. Gen.Stat. § 7B-1111(a)(2), (3) and (6). The trial court then found it was in the best interest of Dashaun, Shalita, Jarico, and Asia to have the parental rights of their mother terminated.

In the first portion of this opinion, we uphold the trial court's determination that there was clear, cogent, and convincing evidence supporting the termination of the parental rights on at least one of the alleged adjudicatory grounds in the termination proceeding. For the sake of clarity, we do so using only the undisputed evidence before this Court. In the second portion of the opinion, we consider the disputed evidence set out in the testimony of the Guardian Ad Litem (GAL) statutorily assigned for Ms. Shepard in this case. Specifically we answer the question of whether such a GAL may testify as to their ward's parental capability, and ultimately against the interest of their ward as to the termination hearing. We conclude such a guardian may so testify.

I. Undisputed Facts Supporting Grounds for Termination

A. Facts and Procedure

The undisputed facts of this case are as follows: On 4 May 1996, Ms. Shepard was involuntarily committed to inpatient care at Forsyth/Stokes Mental Health Center with the preliminary diagnosis of bipolar disorder. The Shepard children came under the care of DSS as dependent juveniles. Non-secure custody was awarded to DSS on 6 May 1996, and with the exception of an unsuccessful trial placement of Dashaun and Jarico in the home of Ms. Shepard from October 1996 to March 1997, the children have lived continuously in the care provided by the DSS since that time.

In a 27 August 1996 juvenile order adjudicating the four children dependent juveniles, the court found as fact:

6. Crystal Shepard does not like her living environment at this time, and Jarico Shepard is having behavioral problems in the school setting.
7. Crystal Shepard appears to have difficulty raising six children as a single parent, compounded by her reluctance to accept assistance from community resources.
8. On May 4, 1996, Crystal Shepard was involuntarily committed for treatment and the preliminary diagnosis, upon admission was Bi Polar disorder.

The order concluded as a matter of law that it was in the best interest of the Shepard children to remain in the custody of DSS. Pursuant to these conclusions, the court ordered:

2. All visitations shall be arranged and scheduled by the Forsyth County Department of Social Services.
3. Crystal Shepard shall seek out-patient therapy at Forsyth/Stokes Mental Health and shall follow all recommendations.
5. Crystal Shepard shall cooperate with all agencies providing services to this family.
7. The Forsyth County Department of Social Services shall make all appropriate resources available to Crystal Shepard for the possible reunification of this family.

Between the period 27 August 1996, and DSS's petition for termination of parental rights, Ms. Shepard struggled to comply with the conditions of the order. Suzette Hager, the social worker for DSS assigned to the Shepard children, was charged with overseeing the visitation and mental health aspects of the order when she took on the Shepard children case in 1998. In the termination proceedings, Ms. Hager testified that, as of October of 1999, Ms. Shepard no longer welcomed Ms. Hager in her home despite her status as the Shepard children's social worker. Ms. Hager testified that the last time Ms. Shepard visited Dashaun and Jarico was 5 September 2000, and the last time she visited Shalita and Asia was 21 December 2000. Additionally, Ms. Hager testified as to the following:

During that period of time in October of `98 we were able to get Mrs. Shepard to initiate a psychological ... evaluation which she didn't complete.
And there was also an effort to get her to obtain a psychiatric evaluation, which she went to the appointment but didn't cooperate with the testing, so both of those tests came back inconclusive. And that was the only treatment that she had had during the period of time that I've been involved in the case, other than her going to meet with Doctor Bosworth.

As the caseworker for the Shepard children, Ms. Hager testified as to the children's conditions as well: Dashaun had been diagnosed bipolar, Attention Deficit/Hyper Disorder (ADHD), and adjustment disorder with disturbance in mood and conduct. He had not complied with taking his medications, was taught in a self-contained classroom, and since 1998 had resided in a therapeutic foster home. Jarico had also been diagnosed as ADHD. He was on medication, was taught in a self-contained classroom, and since 1998 had resided in a therapeutic foster home. These boys lived in neighboring homes. Shalita had also been diagnosed with ADHD, and at the time of the termination hearing there were concerns she initiated or communicated auditory and visual hallucinations, and was being assessed for thought process disorder. Asia struggles with adjustment disorder. The two girls lived in the same home.

Kim Nesbitt (GAL), for the Shepard children, testified in the termination proceeding that she began to oversee Ms. Shepard's visitations of the children in July of 2001. She did so when Ms. Shepard expressed problems with Ms. Hager's supervising. Ms. Nesbitt testified that she recommended twice a month visits with the girls, and once a month visits with the boys, but Ms. Shepard was to initiate such meetings. Ms. Shepard only made one direct phone call to Ms. Nesbitt in regard to such visits, and when Ms. Nesbitt tried to respond, her calls were not returned. Ms. Nesbitt had suggested a number of locations for the visitation to occur, her church being one, but Ms. Shepard could not agree on any of the offered locations.

The Forsyth County Juvenile Court ordered a psychological evaluation of Ms. Shepard to assess any progress since the 27 August 1996 juvenile order. The evaluation, dated 27 October 2000, conducted and written by Dr. Thomas Bosworth, was to include an assessment of her parenting and overall psychological functioning. As to both of these, his evaluation included the following:

She admitted to not agreeing to allow one of the boys to be placed in a special class; first, because she could "sense" that it was not the right place for him, and, second, after she saw the classroom, she knew it was not the right place for him. She was also against her children being on medication, but she went along with it for fear that they would be removed if she refused to allow them to take the medication. She "knew" her sons did not need medication. Even now, she does not think her sons need medication....
... Ms. Shepard reported that her mood has not been good for several years. She gets sad and depressed, but she tries not to pay any attention to it. She reported that her mind is not like it used to be. Things just come into her mind, and she has thoughts that bother her. There are times when she is "confused," such as when it seems like the TV is talking in a totally different language. There are times when she has heard voices outside her door, and when she goes to look, no one is there. She has seen "scary" things that others do not see, such as a part of a person sticking out of the ground. "People worry [her]." She feels like people mistreat her, and she gave several examples of when she has felt this way. She feels like she was put in jail based on a lie. When handcuffed, the policeman refuses to loosen the cuffs when she complains about them being too tight. In jail, she was put in a "foul cell."

In the summary of the evaluation he stated:

Ms. Shepard suffers from severe psychological problems that have limited, and continue to limit, her ability to function adequately on her own, much less to function as a parent. Making matters worse is the fact that Ms. Shepard denies that she has any type of problem that would benefit from professional help.... It appears Ms. Shepard suffers primarily from having a paranoid personality disorder. Secondarily, she appears to have areas of distorted thinking, confusion, and even hallucinations. Ms. Shepard also appears to suffer from depression....
... With her disorder, however, she is not able to care for even one child in the most benign situation.
Ms. Shepard's condition is not likely to improve.... One, Ms. Shepard does not see herself as having a problem that requires treatment. Two,

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