{ "id": 9006437, "name": "IN THE MATTER OF: K.R.S.", "name_abbreviation": "In re K.R.S.", "decision_date": "2006-06-07", "docket_number": "No. COA04-1381", "first_page": "643", "last_page": "649", "citations": [ { "type": "official", "cite": "170 N.C. App. 643" } ], "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": "601 S.E.2d 531", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631713, 12631714 ], "weight": 2, "year": 2004, "pin_cites": [ { "parenthetical": "alterations in original" } ], "opinion_index": 0, "case_paths": [ "/se2d/601/0531-02", "/se2d/601/0531-01" ] }, { "cite": "358 N.C. 732", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631713, 12631745, 12631746, 12631716, 12631717, 12631720, 12631721, 12631704 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/601/0531-02", "/se2d/601/0859-02", "/se2d/601/0859-01", "/se2d/601/0532-01", "/se2d/601/0533-01", "/se2d/601/0535-02", "/se2d/601/0535-01", "/se2d/601/0527-03" ] }, { "cite": "605 S.E.2d 643", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "646" }, { "page": "646" } ], "opinion_index": 0 }, { "cite": "164 N.C. 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App.", "case_ids": [ 8958264 ], "year": 2003, "pin_cites": [ { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0424-01" ] }, { "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": "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. 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App.", "case_ids": [ 9187603 ], "pin_cites": [ { "page": "517-18" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0513-01" ] } ], "analysis": { "cardinality": 590, "char_count": 14060, "ocr_confidence": 0.735, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.21332266861890403 }, "sha256": "abe1e82587c483071e649ca7fa17eaf02f43a80f934d1ea1bd7ac2450944e542", "simhash": "1:abe3800ed2ee9476", "word_count": 2219 }, "last_updated": "2023-07-14T16:44:47.676310+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and STEELMAN concur." ], "parties": [ "IN THE MATTER OF: K.R.S." ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nRespondent appeals the trial court order terminating her parental rights to her minor daughter, Kate. Because the trial court erred by failing to appoint a guardian ad litem for respondent, we reverse the trial court order and remand the case for a new trial.\nThe facts and procedural history pertinent to the instant appeal are as follows: On 29 September 2003, Chatham County Department of Social Services (\u201cpetitioner\u201d) filed a petition to terminate respondent\u2019s parental rights to Kate. The petition contained the following pertinent allegations:\n1. That [Kate] was born May 17, 2002, and currently resides in foster care in Chatham County, North Carolina.\n3. That [petitioner] has been given custody of [Kate] in an order dated May 20, 2002, and an order finding [Kate] dependent was entered at a hearing on October 24, 2002.\n6. That grounds exist for the termination of the parental rights of [respondent], pursuant to N.C.G.S. 7B-llll[(a)](l) in that [petitioner] has neglected [Kate], and/or pursuant- to N.C.G.S. 7B-llll[(a)](7) in that [respondent] has abandoned [Kate], and/or pursuant to N.C.G.S. 7B-llll[(a)](6) in that [respondent] is incapable of providing for the proper care and supervision of [Kate], such that [Kate] is a dependent juvenile and that there is a reasonable probability that such incapability will continue for the foreseeable future, in that:\na) [Petitioner] uses crack cocaine, and both [petitioner] and [Kate] tested positive for crack cocaine at the birth of [Kate].\nb) [Petitioner] had not followed through with any drug treatment programs since the birth of [Kate], She has entered and left several programs since the birth of [Kate].\n7. That it is in the best interests of [Kate] to terminate the parental rights of [petitioner].\nThe matter came to trial on 26 February 2004. Following presentation of evidence and argument from both parties, the trial court requested that petitioner and Kate\u2019s guardian ad litem prepare a proposed order of termination, and that respondent\u2019s attorney be given an opportunity to comment on the proposed order\u2019s findings. The trial court stated that it would enter its order after the proposed order had been presented, and it \u201creserve [d] the right in its discretion to request further hearings and to further consider the best interests of [Kate].\u201d\nOn 7 May 2004, the trial court notified the parties of a hearing regarding its \u201ctaking [of] judicial notice of the record in civil and criminal proceedings . . . involving the respondent,\u201d and a hearing was held on the matter on 13 May 2004. Following the hearing, the trial court took judicial notice of the underlying files. In an order entered 17 May 2004, the trial court made the following pertinent findings of fact:\n9. Grounds exist for the termination of the parental rights of [respondent] pursuant to NCGS 7B-llll(a)(l) and (7) in that:\n(a) [Respondent] and [Kate] tested positive for cocaine at [Kate\u2019s] birth, May 17, 2002.\n(b) [Respondent] has a long history of use of crack cocaine and alcohol.\n(c) [Respondent] left voluntary residential drug treatment (Day by Day, Selma, NC[]) where she was placed with [Kate] after [Kate\u2019s] birth pursuant to [petitioner\u2019s] reunification effort and May 22, 2002, voluntary agreement, against advice of treatment providers and with express notice and warning that [Kate] would be removed from her care and placement and placed in foster care if she left the treatment program.\n(d) Upon the direction and encouragement of [petitioner] as part of their reunification efforts [respondent] enrolled in outpatient treatment at the Horizon Outpatient Substance Abuse program (UNC Hospitals). However, after a brief period of attendance she failed to cooperate and attend sessions, in spite of her parents\u2019 encouragement and program assistance with transportation, and she dropped out of the outpatient treatment.\n(e) Subsequent to dropping out of the Horizon Program, during a court ordered evaluation of [respondent] by David Rademacher, MA, LPA, NCP, [respondent] was diagnosed as suffering from cocaine dependency, alcohol abuse, with depression with psychotic features, post traumatic stress disorder and paranoid personality disorder. As a result of credible threats to the Department social worker made during the evaluation, [respondent] was involuntarily committed to John Umstead Hospital, and released shortly thereafter for outpatient care at Orange Person Chatham Mental Health; however [respondent] failed to attend outpatient treatment.\n15. The opinion of [Kate\u2019s] guardian ad litem, as set forth and substantiated in the GAL report filed as GAL Exhibit 1, is that it is in the best interests of [Kate] that parental rights be terminated.\nBas\u00e9d in part upon these findings of fact, the trial court concluded that sufficient grounds exist to terminate respondent\u2019s parental rights pursuant to N.C. Gen. Stat. \u00a7 7B-llll(a)(l) and (7). After further concluding that it was in Kate\u2019s best interests to do so, the trial court ordered that respondent\u2019s parental rights to Kate be terminated. Respondent appeals.\nThe dispositive issue on appeal is whether the trial court erred by failing to appoint a guardian ad litem for respondent. Because we conclude that respondent was entitled to an appointed guardian ad litem pursuant to N.C. Gen. Stat. \u00a7 7B-1101, we reverse the trial court order and remand the case for a new trial.\nN.C. Gen. Stat. \u00a7 7B-llll(a)(6) (2003) provides that a respondent\u2019s parental rights may be terminated upon a finding that the respondent \u201cis 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.\u201d The statute further provides that such incapability \u201cmay be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other cause or condition that renders the [respondent] unable or unavailable to parent the juvenile and the [respondent] lacks an appropriate alternative child care arrangement.\u201d Id.\nN.C. Gen. Stat. \u00a7 7B-1101(1) (2003) requires appointment of a guardian ad litem for the respondent where \u201cit is alleged that [the respondent\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 This Court has previously held that the requirement of N.C. Gen. Stat. \u00a7 7B-1101(1) is mandatory, and that a respondent does not lose the right to assert an error based upon a violation of N.C. Gen. Stat. \u00a7 7B-1101(1) by failing to request a guardian ad litem him or herself. See In re Estes, 157 N.C. App. 513, 517-18, 579 S.E.2d 496, 499 (citing In re Richard v. Michna, 110 N.C. App. 817, 821-22, 431 S.E.2d 485, 488 (1993)), disc. review denied, 357 N.C. 459, 585 S.E.2d 390 (2003).\nIn the instant case, as detailed above, the petition to terminate respondent\u2019s parental rights specifically alleged that sufficient grounds exist to terminate respondent\u2019s parental rights pursuant to N.C. Gen. Stat. \u00a7 7B-llll(a)(6). The petition alleged that Kate was a dependent juvenile and that there was a reasonable probability that respondent would remain incapable to provide for her care, in that respondent \u201cuses crack cocaine\u201d and \u201chad not followed through with any drug treatment programs since\u201d Kate\u2019s birth. However, despite these allegations, the trial court failed to appoint a guardian ad litem to represent respondent. We conclude that the trial court erred.\nPetitioner contends that respondent is not entitled to a new trial because she has failed to demonstrate she was prejudiced by the trial court\u2019s error. In support of this contention, petitioner asserts that, prior to trial, it informed both the trial court and respondent that it would not proceed with termination pursuant to N.C. Gen. Stat. \u00a7 7B-llll(a)(6). However, we note that petitioner concedes that \u201cthe record does not reflect that statement verbatim, nor was the intent reduced to writing.\u201d Petitioner nevertheless maintains that respondent has failed to demonstrate prejudicial error because the trial court did not terminate respondent\u2019s parental rights pursuant to N.C. Gen. Stat. \u00a7 7B-llll(a)(6). In support of this contention, petitioner relies on In re Dhermy, 161 N.C. App. 424, 429, 588 S.E.2d 555, 559 (2003), in which this Court concluded that \u201calthough [the petitioner] should have formally dismissed Subsection 7B-llll(a)(6) as a ground for termination prior to the hearing, [the] respondent was not prejudiced by [the trial court\u2019s failure to appoint a guardian ad litem] since [the ground] was not pursued by [the petitioner] at the hearing or found as a ground for termination by the trial court.\u201d However, we note that in this Court\u2019s second opinion in Dhermy, we rejected this contention and reversed the trial court order terminating the respondent\u2019s parental rights, concluding that \u201cthe statutory mandate for appointment of a guardian ad litem was violated despite the trial court not terminating [the] respondent\u2019s parental rights based on juvenile dependency.\u201d In re J.D., 164 N.C. App. 176, 182, 605 S.E.2d 643, 646, disc. review denied, 358 N.C. 732, 601 S.E.2d 531 (2004). We offered the following analysis for our conclusion:\nWhile neglect was the ground . . . pursued during the termination hearing and ultimately found by the trial court as the basis for terminating respondent\u2019s parental rights, there was nevertheless some evidence that tended to show that respondent\u2019s mental health issues and the child\u2019s neglect were so intertwined at times as to make separation of the two virtually, if not, impossible. In fact, in its order regarding adjudication, the trial court found that a doctor\u2019s psychological assessment of respondent was credible in that respondent\u2019s \u201cpsychological problems can negatively impact on her ability to be an adequate parent and caretaker. Further, that [respondent] was and is emotionally regressed and parenting would be a challenge to her.\u201d Moreover, the trial court considered respondent\u2019s mental health issues in its disposition order by stating that\nthe respondent mother cannot provide a safe and permanent home for the minor child as she lacks any insight into her own significant mental health issues, how her failure to protect her daughter damaged her daughter, that she helped to create the neglectful and abusive environment, and how this has been detrimental to her daughter.\nRespondent therefore should have had a guardian ad litem act on her behalf at the termination hearing.\nId. (alterations in original).\nIn the instant case, although the trial court terminated respondent\u2019s parental rights based upon those grounds listed in N.C. Gen. Stat. \u00a7 7B-llll(a)(l) and (7), the record tends to show that the trial court considered respondent\u2019s ongoing substance abuse and mental illness in determining whether to terminate her parental rights. As detailed above, in the order terminating respondent\u2019s parental rights, the trial court found as fact that respondent \u201chas a long history of use of crack cocaine and alcohol\u201d and \u201cwas diagnosed as suffering from cocaine dependency, alcohol abuse, with depression with psychotic features, post traumatic stress disorder and paranoid personality disorder.\u201d Furthermore, the trial court noted respondent\u2019s \u201ccontinue[d] cocaine use\u201d when determining whether she had \u201cfail[ed] to show reasonable progress under the circumstances in correcting the conditions that led to [Kate\u2019s] removal[.]\u201d Finally, the trial court based its conclusion that it was in Kate\u2019s best interests to terminate respondent\u2019s parental rights upon a report which stated:\nAlthough she can function well, [respondent] has what [a psychologist] has characterized as severe mental illness. She abuses both crack cocaine and alcohol. . . . [Respondent\u2019s] paranoid personality disorder appears to keep her from trusting the very people who could help her. [Respondent] has never been debriefed by the psychologist as to the results of her evaluation 18 months ago so she has never been told about her own mental illness directly and from a credible source.\nIn light of the foregoing, we conclude that evidence of respondent\u2019s mental health and substance abuse was \u201cso intertwined\u201d with evidence supporting the grounds of termination relied upon by the trial court that \u201cat times . . . separation of the two [was] virtually, if not, impossible.\u201d J.D., 164 N.C. App. at 182, 605 S.E.2d at 646. Therefore, we hold that respondent was entitled to an appointed guardian ad litem, and accordingly, we reverse the trial court order terminating respondent\u2019s parental rights, and we remand the case for appointment of a guardian ad litem and a new trial.\nReversed and Remanded.\nJudges MCCULLOUGH and STEELMAN concur.\n. For the purposes of this opinion we will refer to the minor child by the pseudonym \u201cKate.\u201d", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Lunday A. Riggsbee for petitioner-appellee Chatham County Department of Social Services.", "Richard E. Jester for respondent-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF: K.R.S.\nNo. COA04-1381\n(Filed 7 June 2006)\nTermination of Parental Rights\u2014 guardian ad litem for mother \u2014 appointment required\nA termination of parental rights was remanded for appointment of a guardian ad litem for the mother, and for a new trial, where the petition alleged grounds for termination under N.C.G.S. \u00a7 7B-llll(a)(6) in that respondent uses crack cocaine, has not followed through with drug treatment, and would probably remain incapable of providing care for the child. Although the termination was on other grounds, the evidence supporting the grounds was intertwined and inseparable.\nAppeal by respondent from order entered 17 May 2004 by Judge Charles Anderson in Chatham County District Court. Heard in the Court of Appeals 12 May. 2005.\nLunday A. Riggsbee for petitioner-appellee Chatham County Department of Social Services.\nRichard E. Jester for respondent-appellant." }, "file_name": "0643-01", "first_page_order": 673, "last_page_order": 679 }