{ "id": 8411723, "name": "IN THE MATTER OF: S.B.", "name_abbreviation": "In re S.B.", "decision_date": "2004-10-05", "docket_number": "No. COA03-1239", "first_page": "494", "last_page": "498", "citations": [ { "type": "official", "cite": "166 N.C. App. 494" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "431 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "488" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 817", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526565 ], "year": 1993, "pin_cites": [ { "page": "822" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0817-01" ] }, { "cite": "605 S.E.2d 643", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "646-47" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 176", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8896289 ], "year": 2004, "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0176-01" ] }, { "cite": "585 S.E.2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 459", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491911, 491401, 491468, 491532, 491724, 491601, 491539, 491417, 491902 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0459-02", "/nc/357/0459-07", "/nc/357/0459-03", "/nc/357/0459-06", "/nc/357/0459-08", "/nc/357/0459-01", "/nc/357/0459-04", "/nc/357/0459-05", "/nc/357/0459-09" ] }, { "cite": "579 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "498" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 513", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9187603 ], "year": 2003, "pin_cites": [ { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0513-01" ] }, { "cite": "588 S.E.2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "558", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 7B-1I01(1)" }, { "page": "558" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 424", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8958264 ], "year": 2003, "pin_cites": [ { "page": "429", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 7B-1I01(1)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0424-01" ] } ], "analysis": { "cardinality": 487, "char_count": 10086, "ocr_confidence": 0.756, "pagerank": { "raw": 6.470291726553117e-08, "percentile": 0.39876359586987503 }, "sha256": "5c6798c3ed48824cddba67b07bc67505adc05464066542a776c29ee688d3f283", "simhash": "1:8ae1de2f9fc815c2", "word_count": 1621 }, "last_updated": "2023-07-14T18:02:59.875915+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and GEER concur." ], "parties": [ "IN THE MATTER OF: S.B." ], "opinions": [ { "text": "ELMORE, Judge.\nP.B. (respondent) appeals from an order entered 15 May 2003 terminating her parental rights with respect to her daughter, S.B. We note that a companion case, captioned In the Matter of: S.B., COA03-1001 and filed concurrently with this opinion, sets forth a comprehensive history of petitioner Orange County Department of Social Service\u2019s (OCDSS) involvement with respondent, S.B, and other family members. For the reasons set forth herein, we reverse the trial court\u2019s order.\nThe pertinent procedural and factual history as reflected by the record is as follows: S.B. is the biological child of respondent and her husband, O.B. Respondent and O.B. have had a twenty-year relationship marked by frequent instances of domestic violence and marital separation, as well as chronic substance abuse by O.B. On 17 January 2002, the district court granted OCDSS non-secure custody of S.B., as well as her two half-siblings, after OCDSS filed a petition alleging neglect and dependency. The petition alleged, inter alia, that respondent \u201cis not mentally healthy. She sometimes appears to be socially phobic, unable to care for the family and unable to follow through with taking advantage of services offered to her.\u201d On 21 November 2002, following a permanency planning review hearing, the district court entered an order relieving OCDSS of reunification efforts and changed the permanent plan for S.B. to adoption.\nOn 21 January 2003, OCDSS filed a motion in the cause to terminate respondent\u2019s parental rights with respect to S.B. The motion alleged, in pertinent part, as follows:\n7. That [respondent] is incapable of providing for the proper care and supervision of [S.B.], such that [S.B.] is a dependent juvenile within the meaning of G.S. 7B-101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other similar cause or condition.\n8. Dr. David Ziff completed a psychological evaluation on Respondent which has previously been submitted as evidence and is part of the record. The evaluation indicates that Respondent suffers from depression, personality and emotional problems, which render her unable to parent [S.B.]\nOn 16 April 2003, a hearing was held on the OCDSS motion to terminate respondent\u2019s parental rights to S.B. By order entered 15 May 2003, the trial court granted the motion and terminated respondent\u2019s parental rights with respect to S.B. The trial court\u2019s order contained the following pertinent findings of fact:\n10. Dr. David Ziff, a clinical and forensic psychologist, completed a psychological examination on [respondent] by prior Court Order. He found [respondent] to be limited in her intellectual functioning, to have a personality disorder, NOS (not otherwise specified) with avoidant and dependent features and to suffer from depression. Dr. Ziff is of the opinion, and the Court so finds, that [respondent] is not able to adequately parent her children, all of whom have special needs, and this Court so finds.\n16. [Respondent] is socially isolated and does not have adequate social support to assist with the difficult task of parenting her children. She does not have adequate independent living skills to care for herself and her children. She has not been able to make good decisions which would protect the children from certain risks and she has not learned, nor does she understand, the consequences of her behavior in relation to the children.\n17. [Respondent] does not know or understand the normal developmental needs of children and she does not know how to develop a plan to meet those needs. She does not know or understand the effects of abuse and neglect on children nor how to develop a strategy to meet her children\u2019s special needs, which are the result of neglect and possible abuse.\n22. [Respondent] is not able to parent the children who are now in the custody of [OCDSS],\nThe trial court then concluded as follows:\n27. That [respondent] is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other similar cause or condition.\nThe trial court then ordered that the parental rights of respondent with respect to S.B. be terminated. From this order, respondent now appeals.\nBy her first assignment of error, respondent contends the trial court erred by failing to appoint a guardian ad litem to represent her at the termination hearing. We agree.\nSection 7B-1101 of our General Statutes mandates appointment of a guardian ad litem to represent a parent in proceedings to terminate that parent\u2019s parental rights \u201c[wjhere it is alleged that [the] parent\u2019s rights should be terminated pursuant to G.S. 7B-llll[a](6), and the incapability to provide proper care and supervision pursuant to that provision is the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or another similar cause or condition.\u201d N.C. Gen. Stat. \u00a7 7B-1101(1) (2003) (emphasis added). Section 7B-llll(a)(6) of our General Statutes states that the trial court may terminate a parent\u2019s rights upon a finding that the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependant juvenile within the meaning of N.C. Gen. Stat. \u00a7 7Br101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. The statute specifically provides that \u201c[i]ncapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other cause or condition that renders the parent unable or unavailable to parent the juvenile and the parent lacks an appropriate alternative child care arrangement.\u201d N.C. Gen. Stat. \u00a7 7B-llll(a)(6) (2003).\nThis Court has previously held that \u201c[i]n cases \u2018[w]here it is alleged that a parent\u2019s rights should be terminated pursuant to G.S. 7B-llll(a)(6)[,]\u2019 our statutes require that a guardian ad litem be appointed to represent the parent.\u201d In re Dhermy, 161 N.C. App. 424, 429, 588 S.E.2d 555, 558 (2003) (quoting N.C. Gen. Stat. \u00a7 7B-1I01(1)); see also In re Estes, 157 N.C. App. 513, 515, 579 S.E.2d 496, 498, disc. review denied, 357 N.C. 459, 585 S.E.2d 390 (2003). Moreover, \u201c[failure to meet this requirement results in remand of the case to the trial court for appointment of a guardian ad litem, as well as a rehearing.\u201d Dhermy, at 429, 588 S.E.2d at 558; In re J.D., 164 N.C. App. 176, 182, 605 S.E.2d 643, 646-47 (2004). This is true even when the respondent parent fails to request a guardian ad litem, and even where the respondent mother was likely not prejudiced by the error. In re Richard v. Michna, 110 N.C. App. 817, 822, 431 S.E.2d 485, 488 (1993).\nIn the present case, the motion in the cause to terminate respondent\u2019s parental rights with respect to S.B. alleges in paragraph seven, as grounds for terminating respondent\u2019s parental rights, S.B.\u2019s juvenile dependency due to respondent\u2019s \u201cincapability\u201d in language that tracks the statutory language of section 7B-llll(a)(6). The motion then proceeds to allege, in paragraph eight, that respondent has been diagnosed as \u201csuffering] from depression, personality and emotional problems, which render her unable to parent\u201d S.B. Moreover, the trial court\u2019s order contains findings regarding respondent\u2019s limited intellectual functioning and diagnoses of personality disorder and depression, as well as the effect of these conditions on her ability to parent S.B. Finally, in paragraph 27 of the TPR order, the trial court concluded as a matter of law that respondent is incapable of providing for S.B.\u2019s proper care and supervision such that S.B. is a dependent juvenile, and that there is a reasonable probability respondent\u2019s incapability to do so will continue for the foreseeable future. We note that, as with the language employed by OCDSS in the TPR motion, the language employed by the trial court in this conclusion of law tracks the statutory language of section 7B-llll(a)(6). Accordingly, respondent was entitled, pursuant to section 7B-1101 and to previous decisions of our appellate courts, to appointment of a guardian ad litem before the trial court heard the motion to terminate her parental rights. Because the statutory mandate for appointment of a guardian ad litem was violated, we reverse the order terminating respondent\u2019s parental rights with respect to S.B. and remand this case for appointment of a guardian ad litem for respondent and a new hearing.\nWe do not reach respondent\u2019s remaining assignments of error because the first issue is dispositive.\nReversed and remanded.\nJudges BRYANT and GEER concur.\n. COA 03-1001, which was heard by a different panel of this Court on 31 March 2004, is a separate appeal by S.B.\u2019s father O.B. from a separate order terminating his parental rights with respect to S.B.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Northen Blue, L.L.P., by Carol J. Holcomb and Samantha H. Cabe for the petitioner Orange County Department of Social Services.", "Rebekah W. Davis for the respondent-appellant mother.", "Karen Davidson for the Guardian Ad Litem." ], "corrections": "", "head_matter": "IN THE MATTER OF: S.B.\nNo. COA03-1239\n(Filed 5 October 2004)\nTermination of Parental Rights \u2014 guardian ad litem for parent \u2014 emotional problems\nAn order terminating a mother\u2019s parental rights was reversed because the court did not appoint a guardian ad litem for her despite allegations and findings concerning depression, personality disorder, and emotional problems. N.C.G.S. \u00a7 7B-llll(a)(6).\nAppeal by respondent mother from order entered 15 May 2003 by Judge M. Patricia DeVine in Orange County District Court. Heard in the Court of Appeals 19 May 2004.\nNorthen Blue, L.L.P., by Carol J. Holcomb and Samantha H. Cabe for the petitioner Orange County Department of Social Services.\nRebekah W. Davis for the respondent-appellant mother.\nKaren Davidson for the Guardian Ad Litem." }, "file_name": "0494-01", "first_page_order": 524, "last_page_order": 528 }