In re T.L.H.

• Decision Date: 11 June 2015
• Docket Number: No. 457A14.,457A14.
• Citation: 368 N.C. 101,772 S.E.2d 451
• Parties: In the Matter of T.L.H.
• Court: North Carolina Supreme Court

368 N.C. 101

772 S.E.2d 451

In the Matter of T.L.H.

No. 457A14.

Supreme Court of North Carolina.

June 11, 2015.

Mercedes O. Chut, Greensboro, for petitioner-appellant Guilford County Department of Health and Human Services.

Parker Poe Adams & Bernstein, LLP, by Sye T. Hickey, Charlotte, Appellate Counsel for appellant Guardian ad Litem, on behalf of the minor child.

J. Lee Gilliam, Assistant Appellate Defender, for respondent-appellee mother.

ERVIN, Justice.

The ultimate issue before us in this case is the extent to which a trial court must inquire into a parent's competence to determine whether it is necessary to appoint a guardian ad litem for that parent despite the absence of any request that such a hearing be held or that a parental guardian ad litem be appointed. After considering this issue in light of the record developed in this case, the Court of Appeals held that the trial court abused its discretion by failing to inquire into the issue of whether respondent was entitled to the appointment of a parental guardian ad litem given that the information available to the trial court raised a substantial question concerning her competence. We reverse the decision of the Court of Appeals.

Respondent delivered her son, T.L.H., in April of 2013. At the hospital in which T.L.H. was born, respondent voluntarily placed the child with the Guilford County Department of Health and Human Services ("DHHS") based upon her concerns about the safety of the home that she shared with her romantic partner, Adam McNeill. Respondent's concerns stemmed from the presence of illicit drugs in the residence that she shared with Mr. McNeill and the unsafe environment created by certain unsavory individuals who frequented the home. In addition, respondent acknowledged that, even though she had been diagnosed as suffering from certain mental health problems,¹ she was not taking her prescribed psychotropic medication at that time. Nonetheless, respondent clearly indicated that, instead of relinquishing her parental rights in T.L.H., she wanted to work toward reunification with her son.

On 12 April 2013, DHHS filed a petition alleging that T.L.H. was a neglected and dependent juvenile. In its petition, DHHS alleged, among other things, that respondent "ha[d] been to the hospital on several occasions in the last year due to mental health complications" and that she "has diagnoses of schizoaffective disorder, bipolar, cannabis abuse and personality disorder." At the request of DHHS, Judge Betty Brown appointed Amy Bullock to serve as respondent's guardian ad litem on a "provisional/interim basis" in an order entered on 18 April 2013 that lacked findings of fact or conclusions of law relating to the appointment issue and did not specify whether Ms. Bullock was to act in a substitutive or assistive capacity.

After a hearing held on 16 May 2013, Judge Brown entered an adjudication and disposition order on 5 June 2013 determining that T.L.H. was a dependent juvenile, dismissing the neglect allegation without prejudice, retaining T.L.H. in DHHS custody, and establishing a case plan under which respondent would visit with T.L.H. At the time of the 16 May hearing, respondent did not have housing independent of Mr. McNeill, with whom incidents of domestic violence had occurred. However, respondent was on a Housing Authority waiting list. Respondent's sole source of income consisted of $473.00 in monthly Social Security disability benefits that had been awarded based on her diagnosed mental conditions, including bipolar disorder, schizoaffective disorder, and narcolepsy. According to court summaries that had been prepared by DHHS and T.L.H.'s guardian ad litem and submitted for Judge Brown's consideration:

[Respondent] has a history of substance abuse and has diagnoses of schizophrenic, chronic paranoid type, chronically noncompliant, marijuana dependence, personality disorder, rule out borderline intellectual functioning.

....

... [Respondent] is not consistent in her mental health treatment and is not currently on medication.

[Respondent] does not come to visitation timely and needs guidance for basic child care.

As a result, Judge Brown found in the 5 June 2013 order that:

11. [Respondent] has been to the hospital on several occasions in the last year due to mental health complications. According to the hospital records, [respondent] is diagnosed with Schizoaffective Disorder, Bi-polar Disorder, Cannabis Abuse and Personality Disorder.

A permanency planning hearing, at which respondent testified, was held on 11 July 2013 before Judge Angela C. Foster. On 9 August 2013, Judge Foster entered an order finding that respondent was not in compliance with her case plan "on any level" and had not been visiting with T.L.H. on a regular basis. As a result, Judge Foster relieved DHHS from any responsibility for making further efforts to reunify respondent with T.L.H. and determined that the permanent plan for T.L.H. would be adoption.

On 9 September 2013, DHHS filed a petition seeking to have respondent's parental rights in T.L.H. terminated on the grounds that T.L.H. was a neglected juvenile, that respondent was incapable of properly providing for T.L.H.'s care and did not have an appropriate alternate child care arrangement for T.L.H., and that respondent's parental rights in another child had previously been terminated² and respondent lacked the ability or willingness to establish a safe home for T.L.H. N.C.G.S. § 7B–1111(a)(1), (6), (9) (2013). Among other things, DHHS alleged that respondent's parental rights were subject to termination for incapability pursuant to N.C.G.S. § 7B–1111(a)(6) on the basis of her "narcolepsy, mental illness (including Schizophrenia, Chronic Paranoid Type, Chronically Noncompliant, Schizo–Affective Disorder, Bipolar Disorder, and level of functioning), failure to comply with mental health treatment, and long history of using illegal substances (Cannabis Dependency)." Moreover, DHHS requested that the trial court "make an inquiry as to whether [respondent] needs to have a Guardian ad Litem appointed for purposes of this proceeding."

On 18 November 2013, Judge Thomas Jarrell, Jr., conducted a pretrial hearing regarding the termination petition. Ms. Bullock, who had served as respondent's guardian ad litem at the adjudication and disposition hearing and at the permanency planning proceeding, was present and stood "in for Attorney Edward Branscomb as Attorney for Mother" at the pretrial hearing. Without making any specific findings concerning respondent's mental condition or the reasons underlying Ms. Bullock's initial appointment as respondent's guardian ad litem, Judge Jarrell determined that "Attorney Amy C. Bullock was released by operation of law effective October 1, 2013 as the mother's guardian ad litem attorney of assistance."

The termination petition came on for hearing before the trial court on 6 January 2014. Because respondent was not present when the case was called for hearing, her trial counsel unsuccessfully sought to have the termination proceeding continued. On 4 February 2014, the trial court entered an order finding that respondent's parental rights in T.L.H. were subject to termination based upon all the grounds enumerated in the petition and that T.L.H.'s best interests would be served by terminating respondent's parental rights.³ Among other things, the trial court found as a fact that respondent "ha [d] been diagnosed with Bipolar Disorder, Schizophrenia, Schizo–Affective Disorder, and Narcolepsy"; that she "ha [d] a long history of failing and refusing to take her mental health medications as prescribed and recommended"; and that she "ha[d] also been diagnosed with Cannabis Dependence, has a long history of the same, tested positive for Marijuana, and failed to submit to a substance abuse assessment as requested." Respondent noted an appeal to the Court of Appeals from the trial court's termination order.

In her sole challenge to the trial court's termination order before the Court of Appeals, respondent argued that the trial court had abused its discretion by failing to conduct an inquiry concerning whether she was entitled to the appointment of a guardian ad litem. In re T.L.H., ––– N.C.App. ––––, ––––, 765 S.E.2d 88, 90 (2014). A divided panel of the Court of Appeals determined that respondent's contention had merit, reversed the trial court's termination order, and remanded this case to the trial court for the purpose of determining whether respondent was, in fact, entitled to the appointment of a guardian ad litem. Id. at ––––, 765 S.E.2d at 92. In dissent, Judge Robert C. Hunter argued that Judge Jarrell had, in fact, conducted an inquiry into the necessity for appointment of a parental guardian ad litem at the pretrial hearing, that the record did not contain any indication that respondent's mental condition had deteriorated between the pretrial hearing and the termination hearing to such an extent that the trial court abused its discretion by failing to conduct an inquiry into the extent to which she was entitled to the appointment of a guardian ad litem, and that the trial court had not abused its discretion by failing to make an inquiry into respondent's competence. Id. at ––––, 765 S.E.2d at 93–94 (Hunter, J., dissenting). DHHS and T.L.H.'s guardian ad litem noted an appeal from the Court of Appeals' decision to this Court. We reverse that decision.

The statutory provisions governing a parent's entitlement to the appointment of a guardian ad litem in termination of parental rights proceedings have changed over time. Prior to 1 October 2005, N.C.G.S. § 7B–1101(1) provided that a parental guardian ad litem must be appointed "[w]here it is alleged that a parent's rights should be terminated pursuant to [N.C.G.S. § ] 7B–1111(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,...