In re H.B.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1474
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
IN THE MATTER OF: Johnston County
H.B., H.C., N.D., B.D. Nos. 11 JT 166-69
Appeal by respondent from orders entered 23 October 2013 by
Judge Paul A. Holcombe, III, in Johnston County District Court.
Heard in the Court of Appeals 28 April 2014.
Holland & O’Connor, P.L.L.C., by Jennifer S. O’Connor, for
petitioner-appellee Johnston County Department of Social
Services.
Marie H. Mobley for guardian ad litem.
Mercedes O. Chut for respondent-appellant mother.
McCULLOUGH, Judge.
Respondent appeals from orders terminating her parental
rights as to the minor children H.B. (born in 2001), H.C. (born
in 2003), N.D. (born in 2008), and B.D. (born in 2009)
(collectively “the juveniles”).1 We affirm.
I. Background
1
The court also terminated the parental rights of H.B.’s
biological father, B.C., and H.C.’s biological father, M.H. The
father of N.D. and B.D. (hereafter “Mr. D.”) relinquished his
parental rights on or about 14 August 2013.
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The Johnston County Department of Social Services (“DSS”)
filed juvenile petitions on 2 December 2011, seeking
adjudications of neglect and dependency as to each child.2 The
petitions alleged that respondent’s husband (“Mr. D.”) had
returned to the home from prison in July 2011, having been
convicted of sexually abusing his step-daughter, H.C., when she
was six years old. Respondent had allowed Mr. D. to return to
the home without engaging in sex offender treatment, in
violation of her 2010 case plan. The petitions further alleged
a series of domestic violence incidents between respondent and
Mr. D. in the juveniles’ presence between October and December
2011. When DSS attempted to take the juveniles into non-secure
custody, respondent nearly drove her car into one of the
vehicles containing her children. She then grabbed one social
worker by the neck and arm and punched a second social worker in
the face, all in front of the juveniles.
The district court adjudicated the juveniles neglected and
dependent on 7 March 2012. It ceased reunification efforts as
to respondent on 14 September 2012, and changed the juveniles’
permanent plan to adoption by order signed 9 January 2013.
DSS filed petitions to terminate respondent’s parental
2
DSS filed an amended petition as to H.B. on 4 January 2012,
adding information about her biological father.
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rights on 6 February 2013, alleging three grounds for
termination: (1) neglect; (2) lack of reasonable progress to
correct the conditions that led to the juveniles’ out-of-home
placement during the twelve months that immediately preceded the
petition’s filing; and (3) failure to pay a reasonable portion
of the juveniles’ cost of care during the six months immediately
preceding the petition’s filing. N.C. Gen. Stat. § 7B-
1111(a)(1)-(3) (2013). After a hearing on 25 September 2013,
the court entered orders terminating respondent’s parental
rights on 23 October 2013. The court adjudicated the existence
of each of the three grounds for termination alleged by DSS and
concluded that terminating respondent’s parental rights would
serve the juveniles’ best interests. Respondent filed timely
notice of appeal from these orders.
II. Discussion
On appeal, respondent argues that the trial court erred by
(A) failing to conduct an inquiry as to whether respondent
needed a guardian ad litem and (B) erroneously choosing to
terminate her parental rights at the dispositional stage of the
proceedings.
A. Appointment of a Guardian Ad Litem
Respondent first claims the district court violated N.C.
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Gen. Stat. § 7B-1101.1(c) (2011)3 by failing to inquire sua
sponte into the need to appoint a guardian ad litem (“GAL”) for
respondent in the termination proceedings. At the time of the
termination hearing, N.C. Gen. Stat. § 7B-1101.1(c) authorized
the appointment of a GAL on motion of a party, or the court’s
own motion, “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) (2011). Whether to
inquire into a parent’s need for a GAL is a decision left to the
district court’s sound discretion, based on the circumstances
known to the court. In re J.A.A. & S.A.A., 175 N.C. App. 66,
72, 623 S.E.2d 45, 49 (2005).
North Carolina defines “[i]ncompetent adult” 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, mental retardation, . . . similar
cause or condition.” N.C. Gen. Stat. § 35A-1101(7) (2013). By
contrast,
3
Respondent notes that N.C. Gen. Stat. § 7B-1101.1(c) was amended
effective 1 October 2013 by 2013 N.C. Sess. Laws 129, § 25 (June
19, 2013), but cites the version in effect at the time of the
termination hearing on 25 September 2013.
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[t]he phrase “diminished capacity,” . . . is
used primarily in the criminal law context
and is defined as “[a]n impaired mental
condition-short of insanity-that is caused
by intoxication, trauma, or disease and that
prevents a person from having the mental
state necessary to be held responsible for a
crime.” However, 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. 258, 262, 664 S.E.2d 583, 585-86
(2008) (citations omitted). “In other words, a person with
diminished capacity is not incompetent, but may have some
limitations that impair their ability to function.” In re
P.D.R., __ N.C. App. __, __, 737 S.E.2d 152, 158 (2012).
On motion of respondent’s counsel, the district court
appointed GAL Scott Corl “to assist the [respondent] in
representation in this matter” on 2 February 2012, prior to
entering the adjudications of neglect and dependency on 7 March
2012. See N.C. Gen. Stat. § 7B-602(c) and (e) (2011).4 On 7 May
2012, the court appointed respondent a new GAL, Aleta Ballard,
replacing Mr. Corl. Respondent’s GAL attended proceedings in
this cause through a permanency planning review hearing
scheduled for 15 June 2013. No further attendance by the GAL is
4
Effective 1 October 2013, N.C. Gen. Stat. § 7B-602(c) was
amended, and (e) was repealed by 2013 N.C. Sess. Laws 192, §§
17, 41 (June 19, 2013).
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reflected in the record on appeal; nor does the record indicate
why her participation stopped.
By appointing a GAL merely to assist respondent, rather
than to serve in a substitutive capacity, the district court
exercised its then-existing authority under N.C. Gen. Stat. §
7B-602(c) and (e) to appoint a GAL for a parent with diminished
capacity. See In re P.D.R., __ N.C. App. at __, 737 S.E.2d at
158. We find nothing in the record to suggest respondent was
incompetent.5 Indeed, respondent acknowledges that the “[f]acts
in the record” are suggestive of diminished capacity, rather
than incompetency. She contends, however, that the district
court’s 23 October 2013 orders include “numerous findings which
indicate the continuing presence of diminished capacity” at the
time of the termination hearing. Because “[n]othing in the
record indicates that [her] need for a GAL had lessened[,]”
respondent argues that the “court’s failure to conduct an
inquiry on the need for a GAL is reversible error per se.”
In 2013 N.C. Sess. Laws 129 (June 13, 2013), our General
Assembly enacted amendments to Article 11 of the Juvenile Code
5
Respondent’s December 2011 psychological evaluation found “no
indication . . . of delusions, thought disorder or
hallucinations” and found respondent to be “alert and fully
oriented” and possessed of “well developed” language skills,
“logical and goal directed” thought processes, and good “powers
of attention and concentration[.]”
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which apply to all cases pending on or filed after 1 October
2013. 2013 N.C. Sess. Laws 129, §§ 32, 41. Section 32 of the
law deleted the language in N.C. Gen. Stat. § 7B-1101.1(c)
allowing the court to appoint a GAL for a parent with diminished
capacity. Subsection (c) now provides as follows: “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). The session law also repealed N.C. Gen. Stat.
§ 7B-1101.1(e), which listed the forms of assistance a GAL could
provide to a parent. 2013 N.C. Sess. Laws 129, § 32.
As amended, N.C. Gen. Stat. § 7B-1101.1 no longer
authorizes the appointment of a GAL of assistance for a parent
with diminished capacity. The statute now contemplates only the
appointment of a GAL of substitution for a parent who is
incompetent, consistent with N.C. R. Civ. P. 17. N.C. Gen.
Stat. § 7B-1101.1(c).
To the extent respondent challenges the district court’s
failure to inquire into her need for a GAL of assistance based
on the evidence of diminished capacity, we conclude her appeal
is moot. Article 11 of the Juvenile Code no longer authorizes
the appointment of a GAL of assistance for a parent in a
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termination proceeding. Because the amendments enacted by 2013
N.C. Sess. Laws 192 apply to any future proceedings in this
cause, the district court would no longer have the authority to
conduct the inquiry sought by respondent under N.C. Gen. Stat. §
7B-1101.1(c), if the cause were remanded. Cf. Davis v. Zoning
Board of Adjustment of Union County, 41 N.C. App. 579, 582, 255
S.E. 2d 444, 446 (1979) (finding that “all questions raised have
been rendered moot by the amendments to the Union County Zoning
Ordinance”).
To the extent respondent faults the court for failing to
inquire into her competency, we find no abuse of discretion.
There is no indication that respondent was incompetent at any
time during these proceedings. Nor did DSS allege dependency as
a ground for terminating her parental rights. See In re S.R.,
207 N.C. App. 102, 109, 698 S.E.2d 535, 540 (2010).
Accordingly, this assignment of error is overruled.
B. Termination of Parental Rights
Respondent next claims the district court erred at the
dispositional stage of the proceedings by choosing to terminate
her parental rights. We disagree.
After adjudicating the existence of one or more grounds for
termination under N.C. Gen. Stat. § 7B-1111(a), the court must
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determine at disposition “whether terminating the parent’s
rights is in the juvenile’s best interest.” N.C. Gen. Stat. §
7B-1110(a) (2013). Subsection 7B-1110(a) provides that in
making this determination,
In each case, the court shall consider the
following criteria and make written findings
regarding the following that are relevant:
(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.
N.C. Gen. Stat. § 7B-1110(a). “We review the trial court’s
determination that a termination of parental rights is in the
best interest of the juvenile for an abuse of discretion.” In
re S.R., 207 N.C. App. at 110, 698 S.E.2d at 541. “‘Abuse of
discretion exists when the challenged actions are manifestly
unsupported by reason.’” Id. (quoting Barnes v. Wells, 165 N.C.
App. 575, 580, 599 S.E.2d 585, 589 (2004)).
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We reject as frivolous respondent’s claim that the district
court “completely bypass[ed] the dispositional phase” prescribed
by N.C. Gen. Stat. § 7B-1110 (2013). A proceeding for
termination of parental rights consists of an adjudicatory stage
under N.C. Gen. Stat. § 7B-1109 (2013) and a dispositional stage
under N.C. Gen. Stat. § 7B-1110 (2013). It is well established,
however, that
[t]he trial court need not conduct a
separate and distinct hearing for each stage
. . . and may hear adjudicatory and
dispositional evidence concurrently,
provided that it applies the appropriate
standard of proof at each stage. Moreover,
evidence heard or introduced throughout the
adjudicatory stage, as well as any
additional evidence, may be considered by
the court during the dispositional stage.
In re M.A.I.B.K., 184 N.C. App. 218, 224-25, 645 S.E.2d 881, 886
(2007) (internal citations and quotations omitted).
Here, at the conclusion of the evidence on adjudication,
the court made clear that “[w]e are having a bifurcated hearing”
and allowed the parties to present additional evidence and
argument as to “the best interest inquiry” at disposition. The
court granted DSS’s request to consider the evidence from the
adjudicatory stage of the hearing for purposes of disposition.
It also received a written report prepared by the juveniles’ GAL
addressing each of the factors prescribed by N.C. Gen. Stat. §
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7B-1110(a). Respondent declined the opportunity to offer
dispositional evidence. After hearing the parties’ arguments,
the court proceeded “to consider and determine the best interest
of the juvenile[s] under 7B-1110.” It announced specific
findings as to the juveniles’ ages, their likelihood of
adoption, whether termination would assist in accomplishing
their permanent plan, and the juveniles’ bond with respondent
and their current caretakers. See N.C. Gen. Stat. § 7B-
1110(a)(1)-(5). Upon “considering all the particular issues,
including its previous findings,” the court concluded that
termination of respondent’s parental rights “is in the best
interest of these children[.]” The court’s written orders
reiterate these findings and conclusions in compliance with the
statute. Respondent’s suggestion that the court somehow
circumvented the dispositional stage of the hearing is patently
false.
Respondent also challenges the court’s finding that the
juveniles are adoptable. See N.C. Gen. Stat. § 7B-1110(a)(2).
Specifically, she claims there is “no evidence” to support the
following finding as to H.C.:
The Court finds that a possible adoptive
placement has been located for the juvenile
and there is a likelihood that the juvenile
will be adopted. The Court recognizes that
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the juvenile has had some issues that
warrant her placement in therapeutic
[foster] care[;] however these issues are
not such that they would prevent the
juvenile from being adopted.
We review dispositional findings only to determine if they “are
supported by competent evidence,” in which case “they are
conclusive on appeal.” In re Weiler, 158 N.C. App. 473, 477,
581 S.E.2d 134, 137 (2003) (citations omitted).
The GAL reported to the court that each juvenile’s
“likelihood of adoption is high.” The DSS caseworker, Elizabeth
Gore, testified that H.C. was in a level 2 therapeutic foster
home due to the mental health and behavioral issues she
experienced as a victim of sexual abuse. Ms. Gore deemed it
“very likely” that H.C. and her siblings would be adopted and
averred that, “including [H.C.], the current [foster] homes are
interested in providing permanency, if available.” This
evidence fully supports the court’s finding.
Respondent also challenges the finding that five-year-old
N.D. “has flourished since being in the same home as her
siblings.” The GAL reported that N.D. and B.D. were “adjusting
well” to their foster home. Likewise, Ms. Gore described their
relationship with the foster parents as follows:
It’s really strong. Even though [N.D.] and
[B.D] have only been placed since July 20th,
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they had been visiting with the family since
March, so a relationship has developed over
time with that [and] with the visits as
well, but they have a close relationship.
They have a bond. They refer to the foster
parents as Mom and Dad.
Respondent’s exception is overruled.
Finally, respondent challenges the findings that H.B. and
H.C. “ha[ve] not asked about [respondent]” since their contact
with her ceased in December 2012. Respondent points to the
following testimony by Ms. Gore on this issue:
Q. When was the last time the children had a
visit with [respondent]?
A. It was November of 2012.
Q. And since that time, have the children
displayed any negative behaviors or
inquired about [respondent] as a result of
the visits being terminated?
A. The older children will ask questions.
The younger children do not.
Assuming arguendo that these findings are not supported by the
evidence, we conclude the error is harmless. See generally In
re Estate of Mullins, 182 N.C. App. 667, 670-71, 643 S.E.2d 599,
601 (2007) (“In a non-jury trial, where there are sufficient
findings of fact based on competent evidence to support the
trial court's conclusions of law, the judgment will not be
disturbed because of other erroneous findings which do not
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affect the conclusions.”) (internal citation and quotation marks
omitted). The court’s findings under N.C. Gen. Stat. § 7B-
1110(a)(4) acknowledged that “a bond did exist with
[respondent]” for both H.B. and H.C. but noted that each child
had “made progress since ceasing contact with [her.]” In light
of the girls’ strong bond with their prospective adoptive
parents, the fact that H.B. and H.C. had asked Ms. Gore about
respondent would not affect an assessment of their best
interests.
Having reviewed each of respondent’s arguments related to
disposition, we hold that the district court did not abuse its
discretion in concluding that termination of respondent’s
parental rights was in the best interests of the juveniles. The
court’s orders are hereby affirmed.
Affirmed.
Judges HUNTER, Robert C., and GEER concur.
Report per Rule 30(e).