In re Z.V.A.

• Decision Date: 06 December 2019
• Docket Number: No. 180A19,180A19
• Citation: 373 N.C. 207,835 S.E.2d 425
• Parties: In the MATTER OF: Z.V.A.
• Court: North Carolina Supreme Court

373 N.C. 207

835 S.E.2d 425

In the MATTER OF: Z.V.A.

No. 180A19

Supreme Court of North Carolina.

Filed December 6, 2019

Jill Cairo, Reidsville, for petitioner-appellee Social Services of New Hanover County and K&L Gates LLP, Charlotte, by Abigail F. Williams, for appellee Guardian ad Litem.

David A. Perez, Thomasville, for respondent-appellant father.

Richard Croutharmel, Raleigh, for respondent-appellant mother.

MORGAN, Justice.

Respondent-father, who is the legal father of the minor child Z.V.A. (Zoey¹ ), and respondent-mother appeal from the district court's order terminating their parental rights to Zoey. We affirm.

Factual Background and Procedural History

On 15 December 2016, the New Hanover County Department of Social Services (DSS) received a Child Protective Services report regarding three-day-old Zoey. The report indicated that there was domestic violence between respondent-parents, that respondent-father had issues with alcohol and assaultive behavior, and that respondent-mother had developmental and cognitive issues. In response to the report, DSS began providing in-home services to the family. DSS had previously worked with respondent-parents from 2012 to 2015 in an attempt to address issues with an older child. However, the previous case ended with respondent-father relinquishing his parental rights to the older child and respondent-mother having her parental rights terminated by order of the court.

On 30 March 2017, a DSS social worker visiting respondent-parents’ residence noticed that respondent-mother had recently been crying. When asked about her emotional state, respondent-mother reported that respondent-father had become angry and had struck respondent-mother while she was putting Zoey down for a nap. On 3 April 2017, DSS filed a petition alleging that Zoey was a neglected and dependent juvenile. Zoey was placed in the nonsecure custody of DSS.

On 12 July 2017, the district court entered an order adjudicating Zoey as a neglected juvenile based on findings of fact to which respondent-parents stipulated. Respondent-parents were both ordered to complete psychological evaluations and vocational rehabilitation services, and to comply with any resulting recommendations; to engage in parenting education programs; to refrain from drug and alcohol use; and to provide an adequate living environment for Zoey. Respondent-father was additionally ordered to participate in paternity testing and to engage in domestic violence programs. Zoey remained in DSS custody.

On 22 June 2018, the district court entered a permanency planning order. The district court detailed the progress made by respondent-parents on their respective case plans. The district court also found that respondent-parents were unable to translate what they supposedly learned while working their case plans into successfully changing their behaviors, and as a result, Zoey could not be returned to the family home. The district court set the permanent plan as adoption with a concurrent plan of reunification and ordered DSS to proceed with termination of respondents’ parental rights.

On 2 July 2018, DSS filed a petition to terminate respondents’ parental rights pursuant to N.C.G.S. § 7B-1111(a)(1)–(2) (2017). On 10 July 2018, Zoey was placed with her maternal aunt in New Jersey.

The termination hearing was conducted from 29–31 October 2018. On 1 March 2019, the district court entered an order finding that the evidence established facts sufficient to support the termination of both respondents’ parental rights pursuant to N.C.G.S. § 7B-1111(a)(1).² The district court also concluded that it was in Zoey's best interest for her parents’ rights to be terminated and thereupon, terminated respondents’ parental rights. Respondents each gave timely notice of appeal to this Court pursuant to N.C.G.S. §§ 7A-27(a)(5) and 7B-1001(a1)(1).³

Respondent-Mother's Competency

Respondent-mother argues that the district court abused its discretion by failing to address whether she required a guardian ad litem under N.C.G.S. § 1A-1, Rule 17 (2017). Respondent-mother contends that the evidence presented at the termination hearing demonstrated that she was unable to manage her own affairs. In our view, the district court did not abuse its discretion here.

Section 7B-1101.1(c) of the North Carolina General Statutes permits the district court, either on the motion of a party or on its own motion, to appoint a guardian ad litem for an incompetent parent. 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) (Supp. 2018).

District "court decisions concerning both the appointment of a guardian ad litem and the extent to which an inquiry concerning a parent's competence should be conducted are reviewed on appeal using an abuse of discretion standard." In re T.L.H. , 368 N.C. 101, 107, 772 S.E.2d 451, 455 (2015). "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, 527 (1988) ). As this Court has previously explained, the district court is afforded substantial deference with respect to its decisions involving a party's competence, because it "actually interacts with the litigant whose competence is alleged to be in question and has, for that reason, a much better basis for assessing the litigant's mental condition than that available to the members of an appellate court, who are limited to reviewing a cold, written record." Id. at 108, 772 S.E.2d at 456. Thus,

when the record contains an appreciable amount of evidence tending to show that the litigant whose mental condition is at issue is not incompetent, the [district] court should not, except in the most extreme instances , be held on appeal to have abused its discretion by failing to inquire into that litigant's competence.

Id. at 108–09, 772 S.E.2d at 456 (emphasis added).

The instant case does not present such an extreme instance. As reflected by the record evidence underlying the district court's unchallenged findings of fact, although respondent-mother's approximate IQ of 64 indicates a mental disability, the psychologist who examined respondent-mother diagnosed her with only a "mild intellectual disability" because respondent-mother had been able to work and to attend school. Moreover, the district court found that respondent-mother demonstrated that she had developed adaptive skills to lessen the impact of her disability, and that while working on her case plan, respondent-mother completed empowerment classes to help address the issues of domestic violence in her relationship. The evidence which supported these findings of fact does not suggest that respondent-mother's disability rose to the level of incompetence so as to require the appointment of a guardian ad litem to safeguard respondent-mother's interests. Accordingly, we conclude that the district court did not abuse its discretion when it did not conduct an inquiry into respondent-mother's competency.

Adjudication of Neglect as to Respondent-Father

Respondent-father argues that no clear, cogent and competent evidence supports the district court's findings of fact which in turn led to its conclusion of law that his parental rights should be terminated based upon his neglect of Zoey.

Termination of parental rights proceedings consist of two stages: adjudication and disposition. N.C.G.S. §§ 7B-1109, -1110 (2017); In re Montgomery , 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). At the adjudicatory stage, the petitioner must prove by "clear, cogent, and convincing evidence" that one or more grounds for termination exist under section 7B-1111(a) of our General Statutes. N.C.G.S. § 7B-1109(e), (f) (2017). Thus, we review a district court's adjudication "to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law." In re Montgomery , 311 N.C. at 111, 316 S.E.2d at 253 (citing In re Moore , 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982) ). Unchallenged findings of fact made at the adjudicatory stage are binding on appeal. Koufman v. Koufman , 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (citing Schloss v. Jamison , 258 N.C. 271, 275, 128 S.E.2d 590, 593 (1962) ). If the petitioner proves at least one ground for termination during the adjudicatory stage, "the court proceeds to the dispositional stage, at which the court must consider whether it is in the best interests of the juvenile to terminate parental rights." In re D.L.W. , 368 N.C. 835, 842, 788 S.E.2d 162, 167 (2016) (citing In re Young , 346 N.C. 244, 247, 485 S.E.2d 612, 614–15 (1997) ; N.C.G.S. § 7B-1110 ).

Pursuant to Section 7B-1111(a)(1), termination of parental rights is proper where a district court finds a parent has neglected his or her child to such an extent that the child is a "neglected juvenile." N.C.G.S. § 7B-1111(a)(1). For purposes of a termination proceeding, a neglected juvenile is, inter alia , one "whose parent, guardian, custodian, or caretaker does not provide proper care, supervision, or discipline; ... or who lives in an environment injurious to the juvenile's welfare[.]" N.C.G.S. § 7B-101(15) (Supp. 2018).

When it cannot be shown that a parent is neglecting his or her child at the time of the termination hearing because "the child has been separated from the parent for a long period of time, there must be a showing of past neglect and a likelihood of future neglect by the parent."

In re D.L.W. , 368 N.C. at 843, 788 S.E.2d at 167 (citing In re Ballard , ...