{ "id": 8350019, "name": "In re: J.A.A. & S.A.A.", "name_abbreviation": "In re J.A.A.", "decision_date": "2005-12-20", "docket_number": "No. COA05-105", "first_page": "66", "last_page": "76", "citations": [ { "type": "official", "cite": "175 N.C. App. 66" } ], "court": { "name_abbreviation": "N.C. Ct. 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App.", "case_ids": [ 8896289 ], "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0176-01" ] }, { "cite": "408 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "731" } ], "opinion_index": 0 }, { "cite": "330 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510111 ], "year": 1991, "pin_cites": [ { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0093-01" ] } ], "analysis": { "cardinality": 981, "char_count": 23284, "ocr_confidence": 0.735, "pagerank": { "raw": 8.899425353560439e-07, "percentile": 0.978385612443042 }, "sha256": "784346e7e1c244705dfb96c99b78fa6a691ccf1df65f98c658b8fcc45423ac96", "simhash": "1:bf694426362e0512", "word_count": 3813 }, "last_updated": "2023-07-14T22:29:36.119960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and TYSON concur." ], "parties": [ "In re: J.A.A. & S.A.A." ], "opinions": [ { "text": "STEELMAN, Judge.\nRespondent-mother appeals the district court\u2019s order terminating her parental rights to two of her children, J.A. and S.A. For the reasons discussed herein, we affirm.\nBecause respondent-mother has not assigned error to any of the trial court\u2019s findings of fact, they are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Those findings establish the following facts. Respondent-mother is the natural mother of four children, two of whom are the subject of this appeal. The minor children\u2019s legal father was incarcerated during the time the following described events occurred. Their biological father is unknown. Life in the home was one of chaos, drug abuse, and prostitution: Prior to the family\u2019s move to North Carolina, respondent lived in Lee County, Florida with her four children: Christina, Eric, J.A., and S.A. Respondent has a long history of drug abuse. While living in Florida, she would take pills, as well as use cocaine and marijuana with her children, including J.A. In addition, respondent and her daughter Christina engaged in prostitution to support their drug habit. Respondent\u2019s two husbands were abusive and engaged in significant criminal activities. Respondent\u2019s first husband sexually abused Christina, for which he was imprisoned, and her second husband was incarcerated for drug trafficking.\nIn October 2001, respondent\u2019s father died from heart disease. The next month her boyfriend died of leukemia. In December 2001, while at a Christmas party, respondent\u2019s oldest son, Eric, died of a drug overdose. Family members testified they believed respondent owed a neighbor money for drugs and when she failed to pay him he intentionally put an overdose into her son\u2019s drink. Following the funeral, respondent returned home to find a statement to the effect of \u201cJ.A.\u2019s next\u201d spray-painted on the side of their trailer. This was understood to be a threat that if respondent did not pay the money she owed for the drugs, J.A. would be killed. The next day, respondent left Florida and moved the children to Buncombe County, North Carolina.\nWhile respondent\u2019s life was unstable before these deaths, it sharply declined thereafter. In the late night hours of 27 April 2002, the Buncombe County DSS received a telephone call from the minor children who were trying to locate their mother. Respondent had left the home at 10:00 a.m. and had not returned. An officer was dispatched and when he arrived at respondent\u2019s home, he found J.A. and S.A. alone with a registered sex offender, for whom there was an outstanding arrest warrant. It appeared he had been staying at respondent\u2019s home on and off for three weeks. A social worker arrived at approximately 12:30 a.m. She found the condition of the home unsanitary, with no food in the home. The children were dirty and unkempt and had not bathed recently. The social worker testified \u201c[S.A.\u2019s] hair was so dirty it looked wet. Their clothes were dirty [and J.A.] had a foul odor. They appeared to not have been bathed for many days.\u201d\nThe children were immediately removed from the home. The trial court granted DSS non-secure custody. On 6 June 2002, the trial court adjudicated the minor children neglected and dependent. The trial judge entered this order with respondent\u2019s agreement. While in the custody of DSS, J.A. admitted he had sexually abused his sister, S.A., for years. There were also allegations that J.A. had been sexually abused as well, but these claims were not substantiated. While in DSS\u2019s custody, both children had significant emotional problems and had to receive extensive mental health treatment. On numerous occasions, each child was admitted to psychiatric treatment facilities\u2014 S.A. for suicidal tendencies, and J.A. for treatment of bi-polar disorder and aggressive behavior.\nThe trial court ordered respondent to obtain a drug and alcohol assessment, a psychological evaluation, and participate in parenting classes. Respondent failed to comply with this order. Instead, she engaged in prostitution, drug use, and at one time, was admitted to Broughton Hospital for treatment for suicidal ideation. Her treating physician reported respondent most likely did not suffer from a bipolar disorder. Respondent was diagnosed as having antisocial personality disorder because she had cocaine dependency and was deceitful. The trial judge found respondent\u2019s testimony concerning her substance abuse not to be credible. Respondent failed to keep in contact with either child for almost a year. It was not until after DSS filed its petition for termination of her parental rights that respondent began to minimally comply with the court\u2019s order.\nOn 23 June 2004, DSS filed a petition for termination of parental rights to J.A. and S.A. Respondent filed an answer, but the children\u2019s father did not. The petition alleged the following grounds for termination: (1) respondent had neglected the minor children while they were in the care of DSS within the meaning of N.C. Gen. Stat. \u00a7 7B-101 (N.C. Gen. Stat. \u00a7 7B-llll(a)(l); (2) respondent willfully left her children in foster care for more than twelve months without demonstrating she had made reasonable progress to correct the conditions which led to the removal of the children (N.C. Gen. Stat. \u00a7 7B-llll(a)(2)); and (3) respondent willfully failed to pay a reasonable portion of the cost of care for the minor children while they were in the custody of DSS (N.C. Gen. Stat. \u00a7 7B-llll(a)(3)). The matter came on for hearing before the Buncombe County District Court in February 2004. At the hearing, respondent testified that even if the court did not terminate her parental rights to J.A., she did not want him to live with her. The trial court terminated respondent\u2019s parental rights as to both children, finding as a basis each of the three grounds for termination alleged in the petition. The trial court further determined it was in the best interests of both children that respondent\u2019s parental rights be terminated and entered an order providing for such termination. However, respondent did not file a timely notice of appeal of the 22 June 2004 order terminating her parental rights. Respondent filed a petition for writ of certiorari to this Court on 27 April 2005. This Court granted respondent\u2019s petition and allowed her appeal of the order terminating her parental rights.\nTragically, on 11 September 2004, S.A. died in her residential facility when a care provider attempted to restrain her, resulting in her suffocation. Respondent\u2019s sister has qualified as the administrator of S.A.\u2019s estate and filed a wrongful death action. Respondent asserts her appeal of the termination of her parental rights to S.A. is not moot because if she prevails on appeal she would be entitled to the proceeds from the wrongful death action under N.C. Gen. Stat. \u00a7 28A-18-2 and \u00a7 29-15.\nWe first address respondent\u2019s argument that the trial court erred in failing to appoint a guardian ad litem to represent her.\nPursuant to N.C. Gen. Stat. \u00a7 7B-1101(1) (2005):\na guardian ad litem shall be appointed in accordance with the provisions of G.S. 1A-1, Rule 17, to represent a parent ... (1) where it is alleged that a 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.\nSee also In re J.D., 164 N.C. App. 176, 180, 605 S.E.2d 643, 645 (noting the duty of appointment arises when the allegation of incapability under N.C. Gen. Stat. \u00a7 7B-1111(6) is alleged in the petition for termination), disc. review denied, 358 N.C. 732, 601 S.E.2d 531 (2004). In the instant case, the petitions for termination of respondent\u2019s parental rights contained no allegations that respondent was incapable of properly providing care for her children. Rather, the petition alleged the children were neglected within the meaning of N.C. Gen. Stat. \u00a7 7B-1111. Although the petition does contain reference to respondent\u2019s drug abuse and alleged mental illness, the trial court is not required to appoint a guardian ad litem \u201cin every case where substance abuse or some other cognitive limitation is alleged.\u201d In re H.W., 163 N.C. App. 438, 447, 594 S.E.2d 211, 216 (applying N.C. Gen. Stat. \u00a7 7B-602(b)(l)), disc. review denied, 358 N.C. 543, 603 S.E.2d 877 (2004).\nN.C. Gen. Stat. \u00a7 7B-1101 requires that a guardian ad litem be appointed \u201cin accordance with the provisions of G.S. 1A-1, Rule 17 to represent a parent.. ..\u201d This means that where an allegation is made that parental rights should be terminated, the trial court is required to conduct a hearing to determine whether a guardian ad litem should be appointed to represent the parent. An allegation under N.C. Gen. Stat. \u00a7 7B-llll(a)(6) serves as a triggering mechanism, alerting the trial court that it should conduct a hearing to determine whether a guardian ad litem should be appointed. At the hearing, the trial court must determine whether the parents are incompetent within the meaning of N.C. Gen. Stat. \u00a7 35A-1101, such that the individual would be unable to aid in their defense at the termination of parental rights proceeding. The trial court should always keep in mind that the appointment of a guardian ad litem will divest the parent of their fundamental right to conduct his or her litigation according to their own judgment and inclination. Hagins v. Redevelopment Comm., 275 N.C. 90, 102, 165 S.E.2d 490, 498 (1969).\nThis case is distinguishable from In re T.W., 173 N.C. App. 153, 617 S.E.2d 702 (2005) and In re B.M., 168 N.C. App. 350, 607 S.E.2d 698 (2005). In In re T.W., although incapability was not alleged, the respondent specifically requested the court appoint her a guardian ad litem and she underwent psychological evaluation, in which the doctor recommended she be appointed a guardian ad litem. 173 at 155-56, 617 S.E.2d at 703. Despite this, the trial court failed to revisit the guardian ad litem issue during the entire ensuing proceedings. Id. at 159, 617 S.E.2d at 706. In In re B.M., DSS\u2019s petition to terminate the respondents\u2019 parental rights alleged the parents\u2019 incapability as grounds for termination. 168 N.C. App. at 353, 607 S.E.2d at 703. In neither of these cases did the trial court conduct a hearing on whether a guardian ad litem should have been appointed.\nIn this case, neither incapability within the meaning of N.C. Gen. Stat. \u00a7 7B-llll(a)(6) was alleged, nor did respondent request that a guardian ad litem be appointed. The trial court inquired ex meru moto into the issue of whether respondent needed a guardian ad litem appointed after questions concerning her mental condition were brought to the judge\u2019s attention.\nThe fact there was no allegation of incapacity in the petition does not end our inquiry. We must consider whether the trial court had a duty to appoint a guardian ad litem to represent respondent under Rule 17 of the Rules of Civil Procedure.\nRule 17(b)(2) provides:\nIn actions or special proceedings when any of the defendants are . . . incompetent persons, whether residents or nonresidents of this State, they must defend by general or testamentary guardian, if they have any within this State or by guardian ad litem appointed as hereinafter provided; and if they have no known general or testamentary guardian in the State, and any of them have been summoned, the court in which said action or special proceeding is pending, upon motion of any of the parties, may appoint some discreet person to act as guardian ad litem, to defend in behalf of such . . . incompetent persons ....\nN.C. Gen. Stat. \u00a7 1A-1, Rule 17(b)(2) (2005).\nA 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 judge\u2019s attention, which raise a substantial question as to whether the litigant is non compos mentis. Rutledge v. Rutledge, 10 N.C. App. 427, 432, 179 S.E.2d 163, 166 (1971). The trial judge should make such inquiry as soon as possible in order to avoid prejudicing the party\u2019s rights. Id. \u201cWhether the circumstances . . . are sufficient to raise a substantial question as to the party\u2019s competency is a matter to be initially determined in the sound discretion of the trial judge.\u201d Id.\nRutledge and similar cases expanded the trial court\u2019s authority under Rule 17 to determine competency in certain circumstances. This authority was questioned in Culton v. Culton, 96 N.C. App. 620, 622, 386 S.E.2d 592, 593 (1989), which held N.C. Gen. Stat. \u00a7 35A-1101 preempted the Rutledge line of cases, thereby divesting the trial court of jurisdiction to determine a defendant\u2019s competency. On appeal, our Supreme Court reversed Culton on procedural grounds. Culton v. Culton, 327 N.C. 624, 398 S.E.2d 323 (1990). Subsequently, the General Assembly superseded this Court\u2019s holding in Culton by amending N.C. Gen. Stat. \u00a7 35A-1102 to provide that \u201cnothing in N.C. Gen. Stat. \u00a7 35A-1101 shall interfere with the authority of a judge to appoint a guardian ad litem for a party to litigation under Rule 17(b) of the North Carolina Rules of Civil Procedure.\u201d 2003 N.C. Sess. Law ch. 236, \u00a7 4. Chapter 35A of the general statues sets forth the procedure for determining incompetency, which the trial judge must comply with when conducting a competency hearing under Rule 17.\nBefore the termination hearing began, the judge noted the petition did not allege respondent was incapable of providing care for her children and inquired as to whether either party was requesting that a guardian ad litem be appointed for respondent. Counsel responded as follows:\n[Respondent\u2019s Attorney]: Well, there is no allegations here pursuant to 7B-111[1(6)] that she\u2019s incapable, Your Honor. Certainly, we would argue that she has some mental health issues that impact her ability to parent the child but does not make her incapable or incompetent to provide care for the children. She certainly has the ability \u2014 I think she chooses not to do so. That\u2019s not incapable, Your Honor. That\u2019s just not doing it. And so we\u2014 there\u2019s nothing in there that says that she is incompetent or incapable of prosecuting her own case \u2014 not prosecuting \u2014 presenting her own case and assisting her counsel.\n[State\u2019s Attorney]: Yes, Your Honor, I would concur with [respondent\u2019s attorney], that has not been alleged, and I do think that there will be a lot of evidence given about mental issues. But it\u2019s not regarded to her incapacity.\nDuring the trial, counsel for DSS requested that the judge stop the trial and order respondent to submit to a drug test due to her erratic behavior while testifying. The judge immediately stopped the trial. Respondent agreed to take a drug test, which was negative. Respondent stated she had a hyper-type personality. Her attorney acknowledged she was fine and the hearing could continue.\nThe trial court conducted a hearing pursuant to Rule 17 regarding the issue of respondent\u2019s competency. After careful review of the record and transcript, we are unable to say that the trial judge abused her discretion by not appointing a guardian ad litem for respondent.\nRespondent also contends she was denied effective assistance of counsel when her attorney informed the court that she did not need the appointment of a guardian ad litem.\nA parent has a right to counsel in termination of parental rights proceedings. N.C. Gen. Stat. \u00a7 7B-1101 (2005); In re Oghenekevebe, 123 N.C. App. 434, 436, 473 S.E.2d 393, 396 (1996). To prevail in a claim for ineffective assistance of counsel, respondent must show: (1) her counsel\u2019s performance was deficient or fell below an objective standard of reasonableness; and (2) her attorney\u2019s performance was so deficient she was denied a fair hearing. Id.\nCareful review of the record indicates respondent\u2019s attorney vigorously and zealously represented her client. Respondent\u2019s attorney had represented her for many months and was familiar with respondent\u2019s ability to aid in her own defense, as well the idiosyncrasies of her personality. Further, the record contains overwhelming evidence supporting termination of respondent\u2019s parental rights. Therefore, respondent has failed to demonstrate that her trial counsel\u2019s failure to request the appointment of a guardian ad litem denied her a fair trial, the outcome of which is reliable. This argument is without merit.\nNext, respondent contends the trial court erred in finding as grounds for termination that she wilfully left her children in foster care for more than twelve months without making reasonable progress to correct the conditions that led to their removal.\nThe trial court can terminate a respondent\u2019s parental rights upon the finding of one of the grounds enumerated in N.C. Gen. Stat. \u00a7 7B-llll(a). See also In re Brimm, 139 N.C. App. 733, 743, 535 S.E.2d 367, 373 (2000). In the instant case, the trial court cited three grounds for terminating respondent\u2019s parental rights. Respondent only assigned as error one of those grounds. \u201cThe appellant must assign error to each conclusion it believes is not supported by the evidence. N.C.R. App. R 10. Failure to do so constitutes an acceptance of the conclusion and a waiver of the right to challenge said conclusion as unsupported by the facts.\u201d Fran\u2019s Pecans, Inc. v. Greene, 134 N.C. App. 110, 112, 516 S.E.2d 647, 649 (1999). Since respondent does not contest the other two grounds, they are binding on appeal. As only one ground is necessary to support the termination, we need not address whether evidence existed to support termination based on N.C. Gen. Stat. \u00a7 7B-llll(a)(3). This argument is without merit.\nIn respondent\u2019s final argument, she contends the trial court erred in finding it was in the best interests of S.A. to terminate her parental rights when her sister, Loretta D\u2019Souza, was able to take custody of her. We disagree.\nThe trial court is required to conduct a two-part inquiry during a proceeding for termination of parental rights. In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003). First is the adjudicatory phase. Id. In this phase, the court must take evidence, find the facts, and adjudicate the existence or nonexistence of any of the circumstances set forth in N.C. Gen. Stat. \u00a7 7B-1111, which authorizes the termination of the respondent\u2019s parental rights. Id. (citing N.C. Gen. Stat. \u00a7 7B-1109(e)). Second, is the disposition phase, which is governed by N.C. Gen. Stat. \u00a7 7B-1110 (2005). Id. This statute provides that upon a finding:\nthat any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent. . . unless the court shall further determine that the best interests of the juvenile require that the parental rights of the parent not be terminated.\nN.C. Gen. Stat. \u00a7 7B-1110 (2005). The decision to terminate parental rights is vested within the sound discretion of the trial judge and will not be overturned on appeal absent a showing that the judge actions were manifestly unsupported by reason. In Re V.L.B., 168 N.C. App. 679, 684, 608 S.E.2d 787, 791 (2005).\nDuring the adjudicatory phase, the trial court does not consider whether there is a relative who can take custody of the minor child, but focuses on whether there is evidence to support termination on the grounds alleged in the petition. If a fit relative were to come forward and declare their desire to have custody of the child, the court could consider this during the dispositional phase as grounds for why it would not be in the child\u2019s best interests to terminate the respondent\u2019s parental rights.\nAlthough the order does not contain any findings rejecting Mrs. D\u2019Souza outright as a possible placement for S.A., the trial court is not required to make findings of fact on all the evidence presented, nor state every option it considered. Fortis Corp. v. Northeast Forest Products, 68 N.C. App. 752, 753, 315 S.E.2d 537, 538 (1984). Rather, it must only \u201cmake brief, pertinent and definite findings and conclusions about the matters in issue[.]\u201d Id. Just because the trial judge did not mention he considered granting Mrs. D\u2019Souza custody of S.A. does not mean he did not consider it. Further, Mrs. D\u2019Souza testified that while she initially wanted S.A. to live with her, she changed her mind upon learning that S.A. had been suicidal and felt she could not provide her the level of care and attention she needed. Based on this equivocal statement, we cannot say the trial court abused its discretion in not placing S.A. with Mrs. D\u2019Souza rather than terminating respondent\u2019s parental rights. This argument is without merit.\nAFFIRMED.\nJudges HUNTER and TYSON concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Charlotte W. Nallan, for petitioner-appellee Buncombe County Department of Social Services.", "Judy N. Rudolph, for Guardian Ad Litem.", "Carol Ann Bauer for respondent-appellant." ], "corrections": "", "head_matter": "In re: J.A.A. & S.A.A.\nNo. COA05-105\n(Filed 20 December 2005)\n1. Termination of Parental Rights\u2014 guardian ad litem for parent \u2014 incapacity to provide care not alleged\nThe trial court did not err by not appointing a guardian ad litem under N.C.G.S. \u00a7 7B-llll(a)(6) for the parent in a termination of parental rights proceeding where incapability to provide proper care for the children was not alleged and respondent did not request a guardian ad litem.\n2. Mental Illness\u2014 termination of parental rights \u2014 Rule 17\u2014 guardian for parent \u2014 not appointed\nThe trial court did not abuse its discretion by not appointing a guardian ad litem under N.C.G.S. \u00a7 1A-1, Rule 17 for the parent in a termination of parental rights proceeding.\n3. Constitutional Law\u2014 effective assistance of counsel \u2014 termination of parental rights\nA termination of parental rights respondent was not denied effective assistance of counsel when her attorney informed the court that she did not need the appointment of a guardian ad litem. Respondent\u2019s attorney was familiar with respondent and vigorously and zealously represented her; moreover, there was overwhelming evidence supporting termination of respondent\u2019s parental rights.\n4. Termination of Parental Rights\u2014 assignment of error\u2014 only one of three grounds for termination\nOnly one of the grounds in N.C.G.S. \u00a7 7B-llll(a) is necessary to terminate parental rights. Whether there was sufficient evidence to support one of those grounds in this case was not addressed where respondent did not assign error to the other two grounds cited by the trial court.\n5. Termination of Parental Rights\u2014 relative available for custody \u2014 termination not an abuse of discretion\nThe trial court did not abuse its discretion by terminating parental rights when a sister was allegedly able to take custody. Whether a relative can take custody is for the dispositional rather than the adjudicatory phase, the court is not required to make findings on all of the evidence, the court may have considered this issue without mentioning it, and the sister\u2019s statement was equivocal.\nAppeal by respondent from judgment entered 22 June 2004 by Judge Patricia K. Young in Buncombe County District Court. Heard in the Court of Appeals 14 September 2005.\nCharlotte W. Nallan, for petitioner-appellee Buncombe County Department of Social Services.\nJudy N. Rudolph, for Guardian Ad Litem.\nCarol Ann Bauer for respondent-appellant." }, "file_name": "0066-01", "first_page_order": 100, "last_page_order": 110 }