Opinion
No. COA10-153
Filed 15 June 2010
Appeal by respondent from order entered 25 August 2009 by Judge Mitchell McLean in Alleghany County District Court. Heard in the Court of Appeals 25 May 2010.
Pamela Newell, for Guardian ad Litem. Susan J. Hall, for respondent-mother.
Alleghany County No. 06 JT 43.
Respondent-mother appeals from the trial court's order terminating her parental rights to juvenile A.R.D. Respondent-mother contends the trial court abused its discretion by failing to appoint a guardian ad litem for her, and contends the trial court failed to conduct the termination hearing within ninety days of the filing of the petition to terminate her parental rights. We affirm.
The Alleghany County Department of Social Services ("DSS") became involved with this family when A.R.D.'s maternal grandfather ("grandfather") contacted DSS to report respondent-mother's erratic behavior. Respondent-mother had told the grandfather that she "was going to put A.R.D. in the trash, cut her up and put her in the garbage disposal and that she hated A.R.D." A social worker responded to the report with a home visit on 16 October 2006, and respondent-mother still appeared very depressed and resentful. On the same date, DSS filed a petition alleging that A.R.D. was neglected and lived in an environment injurious to her welfare. The district court entered an order for nonsecure custody, and placed A.R.D. with the grandfather.
On 7 November 2006, the district court entered an order adjudicating A.R.D. abused and neglected. The district court found that A.R.D. "shows no visible signs of neglect. She is clean, appropriately dressed and well-nourished. However, what concerns the Court is the mother's temper, her emotional imbalance and her extreme resistance to an authority figure such as DSS." The district court ordered that A.R.D. remain in DSS custody and in the current placement with the grandfather, and that respondent-mother be evaluated by a psychiatrist or psychologist and comply with treatment recommendations. Respondent-mother agreed, in a consent order entered 17 January 2007, to comply with terms of her case plan.
After a review hearing on 10 April 2007, the district court ordered that A.R.D. be placed in respondent-mother's physical custody for a trial placement, and that respondent-mother continue to comply with mental health services and parenting classes. The next day, respondent-mother called DSS and stated that she could not care for A.R.D. because of her own conflicts with the grandfather. When respondent-mother learned that A.R.D. would be placed in foster care and a social worker came to remove A.R.D. from the home, respondent-mother screamed at the social worker, attempted to block the car from leaving the home, and had to be restrained by law enforcement. In an order entered 14 May 2007, the district court continued A.R.D. in foster care, but did not relieve DSS of reunification efforts.
In a court report prepared 19 June 2007, DSS noted that respondent-mother had completed anger management and parenting classes, obtained income, and completed one session of family counseling. DSS, however, noted that the conflict between respondent-mother and the grandfather prevented respondent-mother from adequately parenting A.R.D. On 20 November 2007, the district court entered a permanency planning order. The district court found that respondent-mother had served a written relinquishment of her parental rights on DSS, and ordered that the permanent plan for A.R.D. be changed to termination of parental rights.
On 13 May 2008, DSS filed a petition to terminate respondent-mother's parental rights. In the petition, DSS recounted respondent-mother's history of emotional outbursts and erratic behavior. DSS alleged that "[t]he combination of [respondent-mother's] depression, uncontrollable temper, and emotional imbalance has rendered [her] incapable of properly caring for her child and creates an atmosphere of potential danger for the Juvenile."
As grounds for termination, DSS alleged that A.R.D. was a neglected juvenile, that A.R.D. had lived outside the home for more than twelve months and respondent-mother had failed to make reasonable progress toward correcting the conditions that led to her removal, that respondent-mother had not provided any financial support for A.R.D. while A.R.D. had been placed outside the home, that A.R.D. was dependent and that respondent-mother was incapable of providing proper care, and that respondent-mother had willfully abandoned A.R.D. On 29 May 2008, the district court entered an order in which it concluded that respondent-mother was unable to identify A.R.D.'s father and ordered that the father be served by publication. The father has not been a party to these proceedings.
On 8 July 2008, respondent-mother filed an answer to the termination petition, in which she denied most of the allegations and counterclaimed for custody of A.R.D. DSS responded to the counterclaim on 21 July 2008. In a review order entered on 14 October 2008, the district court noted that reunification efforts ceased on or about 30 October 2007. The district court found that respondent-mother had completed anger management and parenting classes and obtained income, but DSS still considered her "emotionally unstable." The permanent plan for A.R.D. remained termination of respondent-mother's parental rights and adoption.
In a report dated 2 April 2009, the guardian ad litem for A.R.D. reported that respondent-mother had cut off contact with DSS and the guardian ad litem and refused to provide her address or phone number. The guardian ad litem reported that A.R.D. needed "emotional security," and that respondent-mother "has consistently showed [sic] signs of emotional instability and poor judgment." The case came on for adjudication hearings on 7 January 2009, 11 March 2009, and 12 May 2009. Respondent-mother testified on her own behalf at the 12 May 2009 hearing.
On 26 June 2009, the trial court entered an adjudication order in which it concluded that grounds existed to terminate respondent-mother's parental rights based on neglect and the willful failure to make reasonable progress toward correcting the conditions that led to A.R.D.'s removal from the home. The trial court specifically found:
The combination of the mother's uncontrollable temper, emotional imbalance, dishonest behavior, uncooperative nature and actual specific acts of abuse and neglect as cited hereinabove have rendered the mother incapable of properly caring for her child, has created an atmosphere of potential danger for the Juvenile and establish by clear cogent and convincing evidence that her parental rights should be terminated[.]
After a disposition hearing on 12 August 2009, the trial court entered a 25 August 2009 disposition order in which it adopted the salient findings of fact from the adjudication order, made some additional findings, and concluded that it was in A.R.D.'s best interests to terminate respondent-mother's parental rights. Respondent-mother appeals.
We first address respondent-mother's argument that the trial court abused its discretion by failing to appoint her a guardian ad litem. We disagree.
Our General Statutes provide that a trial court may appoint a guardian ad litem for a parent in a termination of parental rights case "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-1101.1(c) (2009).
"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, which raise a substantial question as to whether the litigant is non compos mentis." In re J.A.A. S.A.A., 175 N.C. App. 66, 72, 623 S.E.2d 45, 49 (2005). Whether to conduct such an inquiry is in the sound discretion of the trial judge. Id. "It is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). This Court has also reviewed findings of diminished capacity for abuse of discretion. In re M.H.B., 192 N.C. App. 258, 266, 664 S.E.2d 583, 588 (2008). "A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." White, 312 N.C. at 777, 324 S.E.2d at 833.
Under N.C.G.S. § 35A-1101, an incompetent adult is defined as
an adult . . . 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.
N.C. Gen. Stat § 35A-1101 (2009). Likewise, "our Court has also defined diminished capacity in the juvenile context as a lack of ability to perform mentally." In re M.H.B., 192 N.C. App. at 262, 664 S.E.2d at 586 (internal quotation marks omitted). We conclude that the record does not evidence any circumstance which would call into question respondent-mother's mental competence, her ability to perform mentally, or to act in her own interest.
Respondent-mother testified at the disposition hearing that she was doing some work at the ambulance base and in home health care, and that she worked at a convenient store. At the adjudication hearing, she testified that she provided in home health care to two patients, one of whom had dementia, and that she had a clean work history with both patients. She testified that she was working toward her EMT license.
Respondent-mother likens her case to In re N.A.L. A.E.L., Jr., 193 N.C. App. 114, 666 S.E.2d 768 (2008), where this Court found error in failing to appoint a guardian ad litem for respondent-mother where "the allegations made by DSS and the diagnosis of respondent-mother" indicated "problems in controlling her anger outbursts; her significant tendency to be aggressive towards others;" her low IQ; a personality disorder; and Borderline Intellectual Functioning. Id. at 118-19, 666 S.E.2d at 771. The trial court, in the case sub judice, mentions respondent-mother's "emotional imbalance" and states that "[respondent-mother] admits that her psychiatric evaluation found her to `have a flare for dramatic behavior,' be easily excited, be prone to emotional outbursts, be overly sensitive to the opinions of others and be impulsive and rebellious." There was also anecdotal evidence of some erratic behavior by respondent-mother presented at the hearing. However, none of this evidence amounts to a diagnosis of a mental health issue or indicates that respondent-mother was unable to handle her own affairs. Therefore, we conclude that the trial court did not abuse its discretion in failing to inquire as to respondent-mother's competency, and overrule this assignment of error.
The dissent notes the trial court's various findings of fact about respondent-mother's erratic behavior, including that she was involuntarily committed after an incident where she had to be subdued by the police. The dissent believes that this behavior evidences a mental condition that resembles that of the parents in In re N.A.L. A.E.L., Jr., 193 N.C. App. 114, 666 S.E.2d 768 (2008), and In re M.H.B., 192 N.C. App. 258, 664 S.E.2d 583 (2008). We believe that one critical distinguishing factor between In re N.A.L. and In re M.H.B and the current case is the existence of a diagnosis of a mental illness. In In re M.H.B., the trial court notes that the father alleged he suffered from posttraumatic stress disorder and had been diagnosed as being manic depressive and bipolar. In re M.H.B, 192 N.C. App. at 262-63, 664 S.E.2d at 586. The trial court further found that the father had received mental health treatment and was back on his medication for his mental illness. Id. In addition, the trial court noted that the father did not know why he was at the adjudication hearing. Id. Likewise, in In re N.A.L., the mother was "diagnosed as having Personality Disorder NOS and Borderline Intellectual Functioning." In re N.A.L., 193 N.C. App. at 118, 666 S.E.2d at 771. Additionally, we note that although the dissent points out singular similarities between the three cases such as the fact that the father in In re M.H.B threatened to commit suicide and the trial court in the case sub judice believed that respondent-mother may harm herself, when viewing the totality of the circumstances, the parents in In re N.A.L. and In re M.H.B. showed significant evidence of incapacity that respondent-mother does not. Id.; M.H.B., 192 N.C. App. at 263, 664 S.E.2d at 586. We reemphasize that respondent-mother in the case sub judice was able to testify on her own behalf at both the 12 May 2009 adjudication and the disposition hearing, and there was no evidence to suggest that respondent-mother was diagnosed with any mental health disorder. In fact, respondent-mother answered "No," when she was asked at the 12 May 2009 hearing, "[P]rior to this action being brought have you ever been diagnosed by a mental health professional as [having] any kind of — mental health disorder?"
Although, as the dissent notes, the mother was ordered to undergo a psychological evaluation, the results of the evaluation do not appear in the record, and any use of those results in our review as evidence that she was incompetent would be purely speculative. The mere fact that the trial court ordered an evaluation is not dispositive in itself, especially because the consent order makes it clear that the evaluation and following of the recommendations were part of a plan so that respondent-mother could resume visitation. As respondent-mother had made threats to harm A.R.D. in the past, it would be prudent to require a psychological evaluation before visitation was resumed. In any event, as we have noted here, doubting respondent-mother's ability to parent A.R.D. does not necessarily indicate to the trial court that respondent-mother was incapable of handling her affairs.
Respondent-mother's remaining argument is that the trial court failed to enter the termination order within ninety days of the filing of the petition to terminate her parental rights. "The hearing on the termination of parental rights shall be conducted . . . no later than 90 days from the filing of the petition or motion unless the judge pursuant to subsection (d) of this section orders that it be held at a later time." N.C. Gen. Stat. § 7B-1109(a) (2009). Section (d) provides that "[c]ontinuances that extend beyond 90 days after the initial petition shall be granted only in extraordinary circumstances when necessary for the proper administration of justice, and the court shall issue a written order stating the grounds for granting the continuance." N.C. Gen. Stat § 7B-1109(d). Time limitations in the juvenile code are not jurisdictional, and the appellant bears the burden of proving any delay was prejudicial. See In re C.L.C., K.T.R, A.M.R. E.A.R., 171 N.C. App. 438, 443, 615 S.E.2d 704, 707 (2005), aff'd per curiam, disc. review improvidently allowed, 360 N.C. 475, 628 S.E.2d 760 (2006).
In this case, DSS filed the petition to terminate respondent-mother's parental rights on 13 May 2008. The first adjudication hearing was not held until 7 January 2009, well beyond the ninety day statutory time period. Respondent-mother asserts that she was prejudiced because she was not allowed additional visitation with A.R.D. and because the trial court did not proceed on her motion to modify custody presented in her counterclaim. We conclude that additional visits with A.R.D. or a custody hearing would not have changed the ultimate outcome of the termination proceeding. Respondent-mother presented no evidence that she had rectified the situation which led to A.R.D.'s removal in the ninety days between 13 May 2008 and 13 August 2008, or between 13 August 2008 and the hearing on 7 January 2009. Thus, the trial court possessed the requisite grounds to terminate parental rights on all three dates and respondent-mother was not prejudiced by the delay in the proceeding. See In Re J.M.Z., R.O.M., R.D.M. D.T.F., 184 N.C. App. 474, 480, 646 S.E.2d 631, 635 (2007) (Steelman, J. dissenting) (stating that there was a lack of prejudice because "[n]o assertion [was] made that had [respondent-mother] been allowed visitation that she would have been able to demonstrate that she had rectified" the circumstances which led to her children's removal), rev'd and remanded per curiam, 362 N.C. 167, 655 S.E.2d 832 (2008) (adopting the reasoning of the Court of Appeals dissent). Thus, we find no prejudicial error and overrule this assignment of error.
Affirmed.
Judge HUNTER concurs.
Judge Beasley dissents in a separate opinion.