In Re Scott , 95 N.C. App. 760 ( 1989 )

383 S.E.2d 690 (1989)

In re James SCOTT, a minor child.
In re Jason SCOTT, a minor child.

No. 8829DC1373.

Court of Appeals of North Carolina.

October 3, 1989.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. T. Lane Mallonee, Dept. of Human Resources, Western Regional Office, Black Mountain, for petitioner, appellee.

Brent Conner for Hendersonville, for respondent, appellant.

HEDRICK, Chief Judge.

Respondent asserts "the trial court erred in finding as a fact that respondent appellant suffered from a mental illness which made her incapable of providing proper care and supervision [to her] minor children and that there is a reasonable probability that such [illness] would continue throughout the minority of the children...." Respondent contends this finding was not supported by the standard of proof required in G.S. 7A-289.32(3a) which provides:

The burden in [parental rights termination] proceedings shall be upon the petitioner to prove the facts justifying such termination by clear and convincing evidence.

"In cases involving a higher evidentiary standard, such as the case sub judice, we must review the evidence in order 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. 101, 111, 316 S.E.2d 246, 253 (1984).

In the present case, respondent concedes she suffers from a personality disorder. She argues, however, petitioner failed to prove by clear and convincing evidence that due to such mental illness, respondent was incapable of providing for the care and supervision of her children, and there was a reasonable probability that such incapability would continue throughout the minority of the children. We agree.

The only evidence offered by petitioner to show respondent was mentally incapable of caring for her children was the testimony of Dr. Kenneth Lenington, one of respondent's treating psychiatrists. Dr. Lenington, however, testified on cross-examination that the fact that someone carries a diagnosis of personality disorder "does not mean that they are incapable of raising children." Furthermore, he stated respondent's pattern of behavior by itself does not mean that she is incapable of taking care of her children. Dr. Lenington's testimony, taken as a whole, does not provide clear and convincing evidence to support the district court's finding on this point.

Petitioner also failed to show by clear and convincing evidence there was a reasonable probability that respondent's mental illness would continue throughout the minority of her children. Dr. Lenington stated, "[u]sually, these kinds of behavior patterns are very difficult to change over the long haul, although that can be done. I would find it very difficult to guess how things would go with Cindy." Dr. Lenington could not predict within a reasonable probability that respondent's mental illness would continue throughout the minority of the children. In fact, he testified that respondent was currently experiencing her longest sustained period of improvement, and she had dealt with the stress of the hearing in a positive manner.

"It should be noted that the court is not required to terminate parental rights under any circumstances." Department of Social Services v. Roberts, 22 N.C.App. 658, 660, 207 S.E.2d 368, 370 (1974). Our review of the record on appeal reveals that the district court's finding that respondent was mentally incapable of providing proper care and supervision to her minor children and such incapability would continue throughout the minority of the children was not supported by clear and convincing evidence as required by G.S. 7A-289.32(3a), and was therefore contrary to law. Under these circumstances, we must reverse the decision of the district judge in terminating the parental rights of the appellant.

Reversed.

ARNOLD and BECTON, JJ., concur.