In re K.R.M. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-248
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
IN THE MATTER OF:
K.R.M., K.A.L.M., Cumberland County
Minor Juveniles. Nos. 10 JT 89-90
Appeal by Respondent-Mother from order entered 19 November
2013 by Judge Edward A. Pone in District Court, Cumberland
County. Heard in the Court of Appeals 22 July 2014.
Elizabeth Kennedy-Gurnee for Petitioner-Appellee Cumberland
County Department of Social Services.
Ryan McKaig for Respondent-Appellant Mother.
Beth A. Hall for Guardian ad Litem.
McGEE, Judge.
Respondent-Mother (“the Mother”) appeals from the order
terminating her parental rights as to K.R.M. and K.A.L.M. (“the
children”). The Mother contends the trial court abused its
discretion by failing to conduct a hearing to determine whether
it was necessary to appoint a guardian ad litem for her, and by
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concluding that termination of her parental rights was in the
childrens’ best interests. We affirm.
The Cumberland County Department of Social Services (“DSS”)
first became involved with the Mother’s family in 1997, while
the Mother’s father was incarcerated and the Mother was living
with her paternal grandmother. The Mother’s father was awarded
custody of the Mother in 2003 when she was fifteen years old,
after his release from incarceration. The Mother alleged in
March 2006 that she had been sexually abused by her father, but
that case was closed without further action.
The children were born in 2006 and 2007. DSS again became
involved with the Mother in December 2009, when the Mother had a
physical fight with her father because she threatened to report
to authorities that he was the childrens’ father. DSS provided
services for the Mother, including personal and family
counseling, public housing assistance, substance abuse and
mental health assessments, and assistance in obtaining her GED.
DSS obtained non-secure custody of the children on 17 February
2010.
DSS filed a petition in February 2010, alleging the
children to be neglected and dependent. At adjudication, the
Mother stipulated that the children were neglected. The
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adjudicatory order, entered 30 June 2010, identified the
Mother’s father as the childrens’ putative father, and the trial
court found that multiple relatives believed that the Mother and
her father were involved in an incestuous relationship.
On 24 July 2012, DSS filed a petition to terminate the
parental rights of the Mother and four putative fathers,
including the Mother’s father. As grounds for termination of
the Mother’s parental rights, DSS alleged: (1) neglect; (2)
failure to make reasonable progress toward correcting the
conditions that led to the childrens’ removal from the home
after willfully leaving the children in foster care for twelve
months; (3) willful failure to pay a reasonable portion of the
cost of the childrens’ care for six months prior to the filing
of the petition; and (4) willful abandonment.
The trial court entered an Order of Paternity on 22 May
2013, establishing the Mother’s father as the natural father of
the children. The termination of parental rights hearing was
held on 22 July 2013. The Mother was present at the hearing and
testified at both the adjudication and dispositional phases of
the hearing. The trial court entered an order terminating the
Mother’s parental rights on 19 November 2013, as well as the
parental rights of the childrens’ father/grandfather. The trial
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court concluded there was sufficient evidence to support all
four grounds alleged in the petition to terminate the Mother’s
parental rights, and that it was in the childrens’ best
interests to terminate the Mother’s parental rights. The Mother
appeals.
I.
In her first argument on appeal, the Mother contends the
trial court abused its discretion by failing to conduct a
hearing to determine whether it was necessary to appoint a
guardian ad litem for her. The Mother contends the trial court
was required to do so because the allegations against her were
related to mental health issues caused by the abuse inflicted
upon her by her father. We disagree.
“On motion of any party or on the court’s own motion, the
court may appoint a guardian ad litem for a parent who is
incompetent in accordance with G.S. 1A-1, Rule 17.” N.C. Gen.
Stat. § 7B-1101.1(c) (2013).1 “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
1
The North Carolina General Assembly repealed N.C. Gen. Stat. §
7B-907 and replaced it with N.C. Gen. Stat. § 7B-906.1 for
juvenile actions filed or pending on or after 1 October 2013.
See 2013 N.C. Sess. Laws 129, § 25, 41 (June 19, 2013). We
review this case pursuant to the amended statute. 2013 N.C.
Sess. Laws 129, sec. 32.
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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.” In re A.R.D., 204 N.C. App. 500, 504, 694
S.E.2d 508, 511 (citation omitted), aff’d per curiam, 364 N.C.
596, 704 S.E.2d 510 (2010).
An incompetent adult “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(7) (2013). The trial court is not
required to appoint a guardian ad litem in every termination of
parental rights case where a cognitive limitation is alleged.
Rather, the trial court should appoint guardians in cases where
parents “would be unable to aid in their defense at the
termination of parental rights proceeding.” In re J.A.A., 175
N.C. App. at 71, 623 S.E.2d at 48 (citations omitted).
In the case before us, although there was ample evidence
that the Mother suffered extraordinary and appalling abuse by
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her father, there was no evidence that the abuse impacted her
ability to manage her own affairs, communicate with counsel, or
participate in the termination hearing. In fact, the Mother
testified at both the adjudication and the dispositional phases
of the hearing and was able to explain her circumstances and
articulate her own interest in retaining her parental rights.
In addition, contrary to the Mother’s argument, the trial
court held a hearing on 21 November 2012 regarding the need for
appointment of a guardian ad litem for the Mother. The trial
court appointed a guardian ad litem for the Mother in an order
entered on 10 December 2012. One month later, the Mother’s
guardian ad litem and counsel filed a report that stated: “[The
Mother] is able to fully communicate with her counsel and she
understands the nature of the proceedings thereby no[t]
requiring a guardian ad litem.” The trial court entered an
order allowing the guardian ad litem to withdraw. Therefore,
the trial court did not abuse its discretion because it did
investigate whether the Mother needed a guardian ad litem,
appointed a guardian ad litem, and allowed the guardian ad litem
to withdraw, based on the recommendation of the guardian ad
litem and the Mother's counsel.
II.
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In her remaining argument, the Mother contends the trial
court abused its discretion by determining that termination of
her parental rights was in the childrens’ best interests. The
Mother does not challenge the trial court’s findings of fact,
but argues that the extraordinary circumstances of this case
override the trial court’s best interests determination. We
cannot agree.
Once the trial court has determined that a ground for
termination exists, it moves to the disposition stage, where it
must determine whether termination is in the best interests of
the juvenile. N.C. Gen. Stat. § 7B-1110(a) (2013). In
determining the best interests of the juvenile, the trial court
shall consider the following factors:
(1) The age of the juvenile.
(2) The likelihood of adoption of the
juvenile.
(3) Whether the termination of parental
rights will aid in the accomplishment
of the permanent plan for the juvenile.
(4) The bond between the juvenile and the
parent.
(5) The quality of the relationship between
the juvenile and the proposed adoptive
parent, guardian, custodian, or other
permanent placement.
(6) Any relevant consideration.
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N.C. Gen. Stat. § 7B-1110(a). The trial court must make written
findings addressing the relevant factors. In re J.L.H., ___
N.C. App. ___, ___, 741 S.E.2d 333, 337-38 (2012). The trial
court’s decision at this stage is reviewed for an abuse of
discretion. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d
599, 602 (2002).
In the present case, the trial court made the following
relevant findings in the disposition portion of the termination
order:
3. [K.R.M.] . . . is currently five (5)
years old. [K.A.L.M.] . . . is currently
six (6) years old. The likelihood of
adoption is great due to their age and
placement. The juveniles are of tender
years. The juveniles currently reside
together in a pre-adoptive foster home with
Mr. and Mrs. [R]. [K.A.L.M.] has been in
that placement since she was two years old.
[K.R.M.] was most recently placed there in
October, 2012. Mr. and Mrs. [R] are ready,
willing and able to adopt the juveniles
should they become available for adoption.
4. That the permanent plan for the
juveniles at this point is adoption. This
plan has been previously approved by the
Court. That the entry of an order
terminating the parental rights of the
Respondent Mother and the Respondent Father
would aid in the accomplishment of that plan
and is necessary in order to complete that
plan.
5. That with regard to the bond between
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the juveniles and the Respondents, the Court
finds that [K.R.M.] is autistic. She does
not have a significant bond with either the
Respondent Mother or the Respondent Father.
At both the time of the removal of the
juveniles from the home as well as at the
time of the cessation of visitation,
[K.A.L.M.] was very bonded to the
Respondent Mother. [K.A.L.M.] remains very
much aware of who her mother is and has
photographs of her mother in a scrapbook.
. . . The Respondent Mother was very bonded
to both of the juveniles at the time of the
cessation of the visitation, and that bond
remains for her today.
6. Both juveniles are very bonded with
their proposed adoptive parents. The
juveniles call Mr. and Mrs. [R][] “mommy”
and “daddy” in their own respective ways.
7. The juveniles are currently placed
together in a safe and nurturing
environment. This is preferred as they are
siblings. The home in which the juveniles
are placed is a two-parent home. The
potential adoptive parents have two
biological sons of their own. [The
juveniles] know them as their brothers. The
family is functioning as a family unit.
. . . .
10. [K.R.M.] is autistic and has special
needs. She has been in this current
placement since she was two (2) years old.
At the time that she was placed with Mr. and
Mrs. [R], [K.R.M.] was non-verbal. Today,
[K.R.M.] is limited verbally; however, she
is continuing to make progress. Mr. and
Mrs. [R] have been very attentive to
[K.R.M.]’s needs. They have made their home
child friendly and set up areas to
specifically address the needs of this very
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special little girl, to include [K.R.M.]
having her very own independent work area.
. . . . The [R]s have worked diligently
with [K.R.M.] to teach her sign language.
Additionally, the [R]s and their two sons
have also learned sign language in order
that they may be able to effectively
communicate with [K.R.M.]. Since [K.A.L.M.]
has been placed in their home, [K.A.L.M.]
has also been learning sign language.
11. [K.A.L.M.] has only been in the home
since October, 2012; however, she has
transitioned well into the home and fits
right in. She enjoys being back together
with her biological sister. [K.A.L.M.] is
very talkative. She loves to go shopping,
and she often spends time with Mr. [R]. Mr.
[R] is a member of the United States Army.
He has been deployed frequently; however, he
most recently returned from deployment.
[K.A.L.M.] enjoys spending time with Mr.
[R]. He recently bought [K.A.L.M.] her own
fishing pole and tackle box so they can go
fishing.
. . . .
16. The Respondent Mother continued to be
involved in acts of domestic violence with
the Respondent Father. That has not
changed.
17. The Respondent Mother has mental,
emotional, and behavioral issues that are of
a long standing and enduring nature. This
Court is mindful that these issues the
Respondent Mother has were created due to no
fault of her own. The Respondent Mother was
in fact a victim of sexual abuse and the
Court is very mindful of that as well.
However, the standard of this case at this
juncture is what is in the best interest of
the juveniles.
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. . . .
21. The Court finds that it is in the best
interest of these juveniles for the purpose
of obtaining safety, permanence, and
stability that the parental rights of the
Respondents . . . be terminated.
These findings demonstrate that the trial court considered all
of the relevant statutory factors, and weighed them in arriving
at the reasoned conclusion that termination of the Mother’s
parental rights was in the childrens’ best interests. In fact,
the trial court’s findings plainly establish that it gave
careful consideration to the Mother’s status as a victim of her
own father’s abuse. Accordingly, we affirm the order
terminating the Mother’s parental rights.
Affirmed.
Judges STEELMAN and ERVIN concur.
Report per Rule 30(e).