{ "id": 4177086, "name": "IN THE MATTER OF: A.R.D.", "name_abbreviation": "In re A.R.D.", "decision_date": "2010-06-15", "docket_number": "No. COA10-153", "first_page": "500", "last_page": "513", "citations": [ { "type": "official", "cite": "204 N.C. App. 500" } ], "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": "646 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638863 ], "year": 2007, "pin_cites": [ { "page": "635", "parenthetical": "Steelman, J. dissenting" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0631-01" ] }, { "cite": "628 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635608, 12635609, 12635610 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/628/0760-01", "/se2d/628/0760-02", "/se2d/628/0760-03" ] }, { "cite": "615 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633351 ], "year": 2005, "pin_cites": [ { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0704-01" ] }, { "cite": "666 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641932 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "771" }, { "page": "771" } ], "opinion_index": 0, "case_paths": [ "/se2d/666/0768-01" ] }, { "cite": "664 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641631 ], "weight": 7, "year": 2008, "pin_cites": [ { "page": "588" }, { "page": "586", "parenthetical": "internal quotation marks omitted" }, { "page": "586" }, { "page": "586" } ], "opinion_index": 0, "case_paths": [ "/se2d/664/0583-01" ] }, { "cite": "623 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634685 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0045-01" ] }, { "cite": "655 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "parenthetical": "adopting the reasoning of the Court of Appeals dissent" } ], "opinion_index": 0 }, { "cite": "362 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149944 ], "year": 2008, "pin_cites": [ { "parenthetical": "adopting the reasoning of the Court of Appeals dissent" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0167-01" ] }, { "cite": "184 N.C. 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App. 335, 340, 620 S.E.2d 883, 886 (2005)" }, { "page": "586" }, { "page": "586" }, { "page": "587" }, { "page": "587-88" }, { "page": "588" }, { "page": "585" } ], "opinion_index": 1, "case_paths": [ "/se2d/664/0583-01" ] }, { "cite": "623 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634685 ], "year": 2005, "pin_cites": [ { "page": "49", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/se2d/623/0045-01" ] }, { "cite": "174 N.C. App. 335", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352005 ], "year": 2005, "pin_cites": [ { "page": "340" } ], "opinion_index": 1, "case_paths": [ "/nc-app/174/0335-01" ] }, { "cite": "179 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "166" } ], "opinion_index": 1 }, { "cite": "10 N.C. App. 427", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554213 ], "year": 1971, "pin_cites": [ { "page": "432" } ], "opinion_index": 1, "case_paths": [ "/nc-app/10/0427-01" ] }, { "cite": "193 N.C. App. 114", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4162350 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "119" } ], "opinion_index": 1, "case_paths": [ "/nc-app/193/0114-01" ] }, { "cite": "192 N.C. App. 258", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159961 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "261", "parenthetical": "quoting State v. McVay, 174 N.C. App. 335, 340, 620 S.E.2d 883, 886 (2005)" }, { "page": "262" } ], "opinion_index": 1, "case_paths": [ "/nc-app/192/0258-01" ] }, { "cite": "175 N.C. App. 66", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8350019 ], "year": 2005, "pin_cites": [ { "page": "72", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/nc-app/175/0066-01" ] } ], "analysis": { "cardinality": 1042, "char_count": 32512, "ocr_confidence": 0.729, "pagerank": { "raw": 7.500188514851265e-08, "percentile": 0.44645575861758735 }, "sha256": "18ce2d25eebe0a034e9799462a062b576c264fe47988d7fc80f166e60da814c1", "simhash": "1:abe2d6e2b6ff88d2", "word_count": 5146 }, "last_updated": "2023-07-14T20:38:54.150336+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUNTER concurs.", "Judge Beasley dissents in a separate opinion." ], "parties": [ "IN THE MATTER OF: A.R.D." ], "opinions": [ { "text": "MARTIN, Chief Judge.\nRespondent-mother appeals from the trial court\u2019s order terminating her parental rights to juvenile A.R.D. Respondent-mother contends the trial court abused its discretion by failing to appoint a guardian ad litem for her, and contends the trial court failed to conduct the termination hearing within ninety days of the filing of the petition to terminate her parental rights. We affirm.\nThe Alleghany County Department of Social Services (\u201cDSS\u201d) became involved with this family when A.R.D.\u2019s maternal grandfather (\u201cgrandfather\u201d) contacted DSS to report respondent-mother\u2019s erratic behavior. Respondent-mother had told the grandfather that she \u201cwas going to put A.R.D. in the trash, cut her up and put her in the garbage disposal and that she hated A.R.D.\u201d A social worker responded to the report with a home visit on 16 October 2006, and respondent-mother still appeared very depressed and resentful. On the same date, DSS filed a petition alleging that A.R.D. was neglected and lived in an environment injurious to her welfare. The district court entered an order for nonsecure custody, and placed A.R.D. with the grandfather.\nOn 7 November 2006, the district court entered an order adjudicating A.R.D. abused and neglected. The district court found that A.R.D. \u201cshows no visible signs of neglect. She is clean, appropriately dressed and well-nourished. However, what concerns the Court is the mother\u2019s temper, her emotional imbalance and her extreme resistance to an authority figure such as DSS.\u201d The district court ordered that A.R.D. remain in DSS custody and in the current placement with the grandfather, and that respondent-mother be evaluated by a psychiatrist or psychologist and comply with treatment recommendations. Respondent-mother agreed, in a consent order entered 17 January 2007, to comply with terms of her case plan.\nAfter a review hearing on 10 April 2007, the district court ordered that A.R.D. be placed in respondent-mother\u2019s physical custody for a trial placement, and that respondent-mother continue to comply with mental health services and parenting classes. The next day, respondent-mother called DSS and stated that she could not care for A.R.D. because of her own conflicts with the grandfather. When respondent-mother learned that A.R.D. would be placed in foster care and a social worker came to remove A.R.D. from the home, respondent-mother screamed at the social worker, attempted to block the car from leaving the home, and had to be restrained by law enforcement. In an order entered 14 May 2007, the district court continued A.R.D. in foster care, but did not relieve DSS of reunification efforts.\nIn a court report prepared 19 June 2007, DSS noted that respondent-mother had completed anger management and parenting classes, obtained income, and completed one session of family counseling. DSS, however, noted that the conflict between respondent-mother and the grandfather prevented respondent-mother from adequately parenting A.R.D. On 20 November 2007, the district court entered a permanency planning order. The district court found that respondent-mother had served a written relinquishment of her parental rights on DSS, and ordered that the permanent plan for A.R.D. be changed to termination of parental rights.\nOn 13 May 2008, DSS filed a petition to terminate respondent-mother\u2019s parental rights. In the petition, DSS recounted respondent-mother\u2019s history of emotional outbursts and erratic behavior. DSS alleged that \u201c[t]he combination of [respondent-mother\u2019s] depression, uncontrollable temper, and emotional imbalance has rendered [her] incapable of properly caring for her child and creates an atmosphere of potential danger for the Juvenile.\u201d\nAs grounds for termination, DSS alleged that A.R.D. was a neglected juvenile, that A.R.D. had lived outside the home for more than twelve months and respondent-mother had failed to make reasonable progress toward correcting the conditions that led to her removal, that respondent-mother had not provided any financial support for A.R.D. while A.R.D. had been placed outside the home, that A.R.D. was dependent and that respondent-mother was incapable of providing proper care, and that respondent-mother had willfully abandoned A.R.D. On 29 May 2008, the district court entered an order in which it concluded that respondent-mother was unable to identify A.R.D.\u2019s father and ordered that the father be served by publication. The father has not been a party to these proceedings.\nOn 8 July 2008, respondent-mother filed an answer to the termination petition, in which she denied most of the allegations and counterclaimed for custody of A.R.D. DSS responded to the counterclaim on 21 July 2008. In a review order entered on 14 October 2008, the district court noted that reunification efforts ceased on or about 30 October 2007. The district court found that respondent-mother had completed anger management and parenting classes and obtained income, but DSS still considered her \u201cemotionally unstable.\u201d The permanent plan for A.R.D. remained termination of respondent-mother\u2019s parental rights and adoption.\nIn a report dated 2 April 2009, the guardian ad litem for A.R.D. reported that respondent-mother had cut off contact with DSS and the guardian ad litem and refused to provide her address or phone number. The guardian ad litem reported that A.R.D. needed \u201cemotional security,\u201d and that respondent-mother \u201chas consistently showed [sic] signs of emotional instability and poor judgment.\u201d The case came on for adjudication hearings on 7 January 2009, 11 March 2009, and 12 May 2009. Respondent-mother testified on her own behalf at the 12 May 2009 hearing.\nOn 26 June 2009, the trial court entered an adjudication order in which it concluded that grounds existed to terminate respondent-mother\u2019s parental rights based on neglect and the willful failure to make reasonable progress toward correcting the conditions that led to A.R.D.\u2019s removal from the home. The trial court specifically found:\nThe combination of the mother\u2019s uncontrollable temper, emotional imbalance, dishonest behavior, uncooperative nature and actual specific acts of abuse and neglect as cited hereinabove have rendered the mother incapable of properly caring for her child, has created an atmosphere of potential danger for the Juvenile and establish by clear cogent and convincing evidence that her parental rights should be terminated[.]\nAfter a disposition hearing on 12 August 2009, the trial court entered a 25 August 2009 disposition order in which it adopted the salient findings of fact from the adjudication order, made some additional findings, and concluded that it was in A.R.D.\u2019s best interests to terminate respondent-mother\u2019s parental rights. Respondent-mother appeals.\nWe first address respondent-mother\u2019s argument that the trial court abused its discretion by failing to appoint her a guardian ad litem. We disagree.\nOur General Statutes provide that a trial court may appoint a guardian ad litem for a parent in a termination of parental rights case \u201cif 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.\u201d N.C. Gen. Stat. \u00a7 7B-1101.1(c) (2009).\n\u201cA 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.\u201d 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. Id. \u201cIt is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion.\u201d White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). This Court has also reviewed findings of diminished capacity for abuse of discretion. In re M.H.B., 192 N.C. App. 258, 266, 664 S.E.2d 583, 588 (2008). \u201cA ruling committed to a trial court\u2019s discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.\u201d White, 312 N.C. at 777, 324 S.E.2d at 833.\nUnder N.C.G.S. \u00a7 35A-1101, an incompetent adult is defined as\nan adult. . . who lacks sufficient capacity to manage the adult\u2019s own affairs or to make or communicate important decisions concerning the adult\u2019s 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.\nN.C. Gen. Stat. \u00a7 35A-1101 (2009). Likewise, \u201cour Court has also defined diminished capacity in the juvenile context as a lack of ability to perform mentally.\u201d In re M.H.B., 192 N.C. App. at 262, 664 S.E.2d at 586 (internal quotation marks omitted). We conclude that the record does not evidence any circumstance which would call into question respondent-mother\u2019s mental competence, her ability to perform mentally, or to act in her own interest.\nRespondent-mother testified at the disposition hearing that she was doing some work at the ambulance base and in home health care, and that she worked at a convenient store. At the adjudication hearing, she testified that she provided in home health care to two patients, one of whom had dementia, and that she had a clean work history with both patients. She testified that she was working toward her EMT license.\nRespondent-mother likens her case to In re N.A.L. & A.E.L., Jr., 193 N.C. App. 114, 666 S.E.2d 768 (2008), where this Court found error in failing to appoint a guardian ad litem for respondent-mother where \u201cthe allegations made by DSS and the diagnosis of respondent-mother\u201d indicated \u201cproblems in controlling her anger outbursts; her significant tendency to be aggressive towards others;\u201d her low IQ; a personality disorder; and Borderline Intellectual Functioning. Id. at 118-19, 666 S.E.2d at 771. The trial court, in the case sub judice, mentions respondent-mother\u2019s \u201cemotional imbalance\u201d and states that \u201c[respondent-mother] admits that her psychiatric evaluation found her to \u2018have a flare for dramatic behavior,\u2019 be easily excited, be prone to emotional outbursts, be overly sensitive to the opinions of others and be impulsive and rebellious.\u201d There was also anecdotal evidence of some erratic behavior by respondent-mother presented at the hearing. However, none of this evidence amounts to a diagnosis of a mental health issue or indicates that respondent-mother was unable to handle her own affairs. Therefore, we conclude that the trial court did not abuse its discretion in failing to inquire as to respondent-mother\u2019s competency, and overrule this assignment of error.\nThe dissent notes the trial court\u2019s various findings of fact about respondent-mother\u2019s erratic behavior, including that she was involuntarily committed after an incident where she had to be subdued by the police. The dissent believes that this behavior evidences a mental condition that resembles that of the parents in In re N.A.L. & A.E.L., Jr., 193 N.C. App. 114, 666 S.E.2d 768 (2008), and In re M.H.B., 192 N.C. App. 258, 664 S.E.2d 583 (2008). We believe that one critical distinguishing factor between In re N.A.L. and In re M.H.B. and the current case is the existence of a diagnosis of a mental illness. In In re M.H.B., the trial court notes that the father alleged he suffered from posttraumatic stress disorder and had been diagnosed as being manic depressive and bipolar. In re M.H.B., 192 N.C. App. at 262-63, 664 S.E.2d at 586. The trial court further found that the father had received mental health treatment and was back on his medication for his mental illness. Id. In addition, the trial court noted that the father did not know why he was at the adjudication hearing. Id. Likewise, in In re N.A.L., the mother was \u201cdiagnosed as having Personality Disorder NOS and Borderline Intellectual Functioning.\u201d In re N.A.L., 193 N.C. App. at 118, 666 S.E.2d at 771. Additionally, we note that although the dissent points out singular similarities between the three cases such as the fact that the father in In re M.H.B. threatened to commit suicide and the trial court in the case sub judice believed that respondent-mother may harm herself, when viewing the totality of the circumstances, the parents in In re N.A.L. and In re M.H.B. showed significant evidence of incapacity that respondent-mother does not. Id.; M.H.B., 192 N.C. App. at 263, 664 S.E.2d at 586. We reemphasize that respondent-mother in the case sub judice was able to testify on her own behalf at both the 12 May 2009 adjudication and the disposition hearing, and there was no evidence to suggest that respondent-mother was diagnosed with any mental health disorder. In fact, respondent-mother answered \u201cNo,\u201d when she was asked at the 12 May 2009 hearing, \u201c[Pjrior to this action being brought have you ever been diagnosed by a mental health professional as [having] any kind of \u2014 mental health disorder?\u201d\nAlthough, as the dissent notes, the mother was ordered to undergo a psychological evaluation, the results of the evaluation do not appear in the record, and any use of those results in our review as evidence that she was incompetent would be purely speculative. The mere fact that the trial court ordered an evaluation is not dis-positive in itself, especially because the consent order makes it clear that the evaluation and following of the recommendations were part of a plan so that respondent-mother could resume visitation. As respondent-mother had made threats to harm A.R.D. in the past, it would be prudent to require a psychological evaluation before visitation was resumed. In any event, as we have noted here, doubting respondent-mother\u2019s ability to parent A.R.D. does not necessarily indicate to the trial court that respondent-mother was incapable of handling her affairs.\nRespondent-mother\u2019s remaining argument is that the trial court failed to enter the termination order within ninety days of the filing of the petition to terminate her parental rights. \u201cThe hearing on the termination of parental rights shall be conducted ... no later than 90 days from the filing of the petition or motion unless the judge pursuant to subsection (d) of this section orders that it be held at a later time.\u201d N.C. Gen. Stat. \u00a7 7B-1109(a) (2009). Section (d) provides that \u201c[continuances that extend beyond 90 days after the initial petition shall be granted only in extraordinary circumstances when necessary for the proper administration of justice, and the court shall issue a written order stating the grounds for granting the continuance.\u201d N.C. Gen. Stat. \u00a7 7B-1109(d). Time limitations in the juvenile code are not jurisdictional, and the appellant bears the burden of proving any delay was prejudicial. See In re C.L.C., K.T.R., A.M.R. & E.A.R., 171 N.C. App. 438, 443, 615 S.E.2d 704, 707 (2005), aff\u2019d per curiam, disc. review improvidently allowed, 360 N.C. 475, 628 S.E.2d 760 (2006).\nIn this case, DSS filed the petition to terminate respondent-mother\u2019s parental rights on 13 May 2008. The first adjudication hearing was not held until 7 January 2009, well beyond the ninety day statutory time period. Respondent-mother asserts that she was prejudiced because she was not allowed additional visitation with A.R.D. and because the trial court did not proceed on her motion to modify custody presented in her counterclaim. We conclude that additional visits -with A.R.D. or a custody hearing would not have changed the ultimate outcome of the termination proceeding. Respondent-mother presented no evidence that she had rectified the situation which led to A.R.D.\u2019s removal in the ninety days between 13 May 2008 and 13 August 2008, or between 13 August 2008 and the hearing on 7 January 2009. Thus, the trial court possessed the requisite grounds to terminate parental rights on all three dates and respondent-mother was not prejudiced by the delay in the proceeding. See In Re J.M.Z., R.O.M., R.D.M. & D.T.F., 184 N.C. App. 474, 480, 646 S.E.2d 631, 635 (2007) (Steelman, J. dissenting) (stating that there was a lack of prejudice because \u201c[n]o assertion [was] made that had [respondent-mother] been allowed visitation that she would have been able to demonstrate that she had rectified\u201d the circumstances which led to her children\u2019s removal), rev\u2019d and remanded per curiam, 362 N.C. 167, 655 S.E.2d 832 (2008) (adopting the reasoning of the Court of Appeals dissent). Thus, we find no prejudicial error and overrule this assignment of error.\nAffirmed.\nJudge HUNTER concurs.\nJudge Beasley dissents in a separate opinion.", "type": "majority", "author": "MARTIN, Chief Judge." }, { "text": "BEASLEY, Judge\ndissenting.\nWith regard to the majority\u2019s holding that the trial court did not abuse its discretion by failing to appoint a guardian ad litem for Respondent, I respectfully dissent.\nOur general statutes provide that a trial court may appoint a guardian ad litem for a parent in a termination of parental rights case, \u201cif 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.\u201d N.C. Gen. Stat. \u00a7 7B-1101.1(c) (2009). \u201cA 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.\" In re J.A.A. & S.A.A., 175 N.C. App. 66, 72, 623 S.E.2d 45, 49 (2005) (emphasis added) (citing Rutledge v. Rutledge, 10 N.C. App. 427, 432, 179 S.E.2d 163, 166 (1971)). Whether to conduct such an inquiry is in the sound discretion of the judge. Id. \u201cHowever, \u2018[a] court\u2019s complete failure to exercise discretion amounts to reversible error.\u2019 \u201d In re M.H.B., 192 N.C. App. 258, 261, 664 S.E.2d 583, 585 (2008) (quoting State v. McVay, 174 N.C. App. 335, 340, 620 S.E.2d 883, 886 (2005)).\nIn this case, although Respondent was able to testify at the adjudication and disposition hearings, our review of the record makes it clear that her mental health was paramount to the allegations against her and her ability to comply with the trial court\u2019s orders. DSS initially investigated a report made by Respondent\u2019s father of Respondent\u2019s depression and threats against A.R.D. Respondent had told A.R.D\u2019s grandfather that she had walked by A.R.D\u2019s bed and struck it because she hated A.R.D. and that she was going to throw A.R.D. in the trash. On 7 November 2006, the trial court entered an order adjudicating A.R.D. abused and neglected. The trial court found that A.R.D. \u201cshow[ed] no visible signs of neglect. She is clean, appropriately dressed and well-nourished. However, what concerns the [c]ourt is the mother\u2019s temper, her emotional imbalance and her extreme resistance to an authority figure such as DSS.\u201d In fact, the trial court found that when DSS returned with a deputy sheriff pursuant to a Non-Secure Custody Order, Respondent assaulted the deputy and then came toward him with a kitchen knife.\nIt is also noteworthy that the trial court qualified Respondent\u2019s ability to testify by finding that she \u201cbecame extremely belligerent and emotional while testifying at this adjudication hearing\u201d and found \u201c[Respondent\u2019s] resentment and unwillingness to cooperate with DSS [to be] at a level rarely seen by this [c]ourt.\u201d The trial court ordered that A.R.D. remain in DSS custody and in the current placement with the maternal grandfather, and that Respondent be evaluated by a psychiatrist or psychologist and comply with treatment recommendations. On 16 January 2007, Respondent agreed, in a consent order, to comply with the terms of her case plan.\nThe only reference in the record to the evaluation results is in the petition to terminate parental rights, which mentions that Respondent submitted to the evaluation but did not follow the recommendations. There is no evidence in the record of the results of the psychological evaluation or a potential diagnosis for Respondent\u2019s behavior. Moreover, there is no indication that the trial court relied on any of the results from the psychological evaluation.\nAfter a review hearing on 10 April 2007, the trial court ordered that A.R.D. be placed in Respondent\u2019s physical custody for a trial placement and that Respondent continue to comply with mental health services and parenting classes. In its order dated 1 May 2007, in finding of fact 7, the trial court found that the next day,\n[o]n April 11 the mother called DSS to state that she could not take care of the Juvenile and that the problems between her and her father were so great that she could not take care of her daughter. DSS made the decision to place the Juvenile in foster care rather than return the Juvenile to the grandfather so as to improve the relationship between [Respondent] and her father. When [Respondent] learned that the Juvenile was going to foster care she lost control of her temper, screamed at the social worker, went to the car containing the Juvenile trying to open the door and even put her feet in front of the car tires to prevent the vehicle from moving. Eventually, law enforcement officers had to be called to subdue her in shackles. As a result of this episode [Respondent] was involuntarily committed to Broughton for one week. This episode convinces the [c]ourt that [Respondent] still retains deep emotional problems and instability. Her comments made about harming her daughter which led to the original removal from her home . . . and this episode convinces the [c]ourt that [Respondent] remains a threat to harm herself, her child or someone else and that further counseling and treatment are needed.\nThis finding makes clear that the trial court was aware that Respondent had previously been involuntarily committed.\nOn 13 May 2008, DSS filed a petition to terminate Respondent\u2019s parental rights. In the petition, DSS recounted Respondent\u2019s history of emotional outbursts and erratic behavior, and alleged that although Respondent had completed court-ordered psychological evaluation, she had failed to complete recommended counseling. DSS alleged that \u201cthe combination of [Respondent\u2019s] depression, uncontrolled temper, and emotional imbalance has rendered [her] incapable of properly caring for her child and creates an atmosphere of potential danger for the Juvenile.\u201d Later review orders contain findings that Respondent remained emotionally and mentally unstable despite treatment. Subsequently, in both the adjudication and disposition orders, the trial court found that Respondent\u2019s \u201cuncontrollable temper\u201d and \u201cemotional imbalance\u201d created a dangerous home environment for A.R.D.\nThus, it is apparent that Respondent\u2019s ongoing mental instability was a central cause contributing to the termination of her parental rights. In a review order entered on 14 October 2008, the trial court ordered DSS to cease reunification efforts. The trial court found that Respondent had completed anger management and parenting classes but DSS still considered her \u201cemotionally unstable.\u201d\nRecently, this Court addressed this issue in a case with similar determinative facts. See In re N.A.L. & A.E.L., Jr., 193 N.C. App. 114, 666 S.E.2d 768 (2008). In In re N.A.L., the juvenile was alleged to be dependent, and the termination of the mother\u2019s parental rights was due to the mother\u2019s \u201csignificant mental health issues which impact her ability to parent this child and meet his needs.\u201d Id. at 119, 666 S.E.2d at 771 (internal quotation marks omitted). Our Court concluded that the trial court should have inquired into the respondent-mother\u2019s competency and determined that she was in need of a guardian ad litem. Id. at 119, 666 S.E.2d at 771-72. This determination was based on the following facts: (1) the petition specifically alleged the respondent\u2019s incapability of providing proper care and supervision for her child; (2) the respondent had problems controlling anger outbursts and had a significant tendency to be aggressive towards others, including her child; and (3) a psychological assessment diagnosed the respondent as having a personality disorder and below average intellectual functioning. Id. at 119, 666 S.E.2d at 771.\nIn the case sub judice, on 26 June 2009, the trial court entered an adjudication order in which it concluded that grounds existed to terminate Respondent\u2019s parental rights based on neglect and the willful failure to make reasonable progress toward correcting the conditions that led to A.R.D.\u2019s removal from the home. The trial court specifically found:\nThe combination of the mother\u2019s uncontrollable temper, emotional imbalance, dishonest behavior, uncooperative nature and actual specific acts of abuse and neglect as cited hereinabove have rendered the mother incapable of properly caring for her child, has created an atmosphere of potential danger for the Juvenile and establish by clear cogent and convincing evidence that her parental rights should be terminated!.]\nAs we have already discussed, the petition to terminate Respondent mother\u2019s parental rights in this case, as well as the adjudication and disposition orders, cited Respondent mother\u2019s continuing mental and emotional instability as a reason for terminating her parental rights. In most of its substantive orders throughout the pendency of this matter, the trial court made findings of fact regarding Respondent\u2019s lack of emotional stability and uncontrollable temper. Like In re N.A.L., the petition in this case specifically alleged that Respondent was incapable of properly caring for her child and created an atmosphere of potential danger due to her depression, uncontrollable temper, and emotional imbalance. Respondent exhibited problems controlling her angry and emotional outbursts on several occasions, including displays of aggression towards DSS and her child. While the results of Respondent\u2019s psychological evaluation are absent from the record, the trial court considered the opinion of Respondent\u2019s behavioral healthcare counselor that Respondent \u201csuffers from depression and anxiety\u201d in its order terminating her parental rights.\nIn another similarly situated case, In re M.H.B. the respondent claimed to suffer from posttraumatic stress disorder and to have been diagnosed as manic depressive and bipolar. In re M.H.B., 192 N.C. App. at 262, 664 S.E.2d at 586. The trial court\u2019s findings of fact included the following: \u201cwhile [the respondent] was testifying in this case, the [c]ourt noted that he was weeping, crying, confounded, agitated\u201d; the respondent was \u201cmentally and emotionally unstable\u201d; and the respondent had threatened to commit suicide. Id. at 262-63, 664 S.E.2d at 586. This Court stated that \u201cthese findings raise serious questions as to Respondent\u2019s competency, capacity, and ability to adequately act in his own interest.\u201d Id. at 264, 664 S.E.2d at 587. In concluding that the trial court abused its discretion in failing to hold a hearing as to these questions, we reasoned:\nWe first recognize that although the trial court made numerous findings of fact that raised doubts as to Respondent\u2019s competency, capacity, and ability to adequately act in his own interest, the trial court did not make any findings resolving those doubts in favor of a finding that Respondent was competent and had the capacity and ability to adequately act in his own interest. In fact, the trial court could not have done so because it did not hold a hearing regarding these issues.\nFurthermore, in its adjudication order, the trial court ordered that \u201c[Respondent] . . . shall submit to a psychological evaluation and results of the same shall be made available unto [DSS] and the Guardian ad litem for [M.H.B.]\u201d The trial court also ordered that \u201cthe Balsam Center shall allow [DSS] and the Guardian ad litem and other parties hereto access to and copies of any and all mental health records of the Balsam Center concerning [Respondent.]\u201d Moreover, in its disposition orders, the trial court \u201csuspended] visitation between [Respondent] and [M.H.B.] at this time pending receipt and review of the reports from the Balsam Center by [DSS].\u201d The trial court gave DSS \u201cthe discretion ... to start visitation between [M.H.B.] and [Respondent],\u201d but only after DSS received and reviewed psychological records concerning Respondent from the Balsam Center. These orders demonstrate that the trial court had concerns regarding Respondent\u2019s competency and capacity that were serious enough to cause the trial court to order Respondent to undergo a psychological evaluation. The trial court even suspended Respondent\u2019s visitation rights pending a psychological evaluation. However, despite these concerns, the record does not show that the trial court considered appointment of a guardian ad litem for Respondent during the adjudication hearing.\nId. at 265-66, 664 S.E.2d at 587-88. In consideration of all the trial court\u2019s concerns regarding the respondent\u2019s ability to act in his own interest, \u201cas reflected in its findings of fact, and the trial court\u2019s subsequent order that Respondent undergo a psychological evaluation,\u201d we reversed the adjudication and disposition orders because the trial court abused its discretion. Id. at 266, 664 S.E.2d at 588.\nThe instant facts are particularly similar. Importantly, In re M.H.B. referenced a psychological evaluation, like the one ordered here, but the record\u2019s lack of any report or diagnosis resulting therefrom did not preclude this Court from considering conduct of the respondent which suggested mental illness or inability to act in his own interest. Also, where threats of suicide by the respondent in In re M.H.B. appear to have been a weighty factor in our decision, the trial court in this case likewise noted that the episode of 11 April 2007 convinced it that Respondent \u201cremain[ed] a threat to harm herself.\u201d These and the remaining findings by the trial court make it apparent that Respondent\u2019s conduct demonstrated a possible inability to adequately act in her own interest and that the court\u2019s conclusion terminating her parental rights was substantially, if not wholly, related to Respondent\u2019s mental and emotional condition. Thus, there appears a reasonable basis to believe that Respondent may be incompetent\u2014 \u201clacking] sufficient capacity to manage [her] own affairs or to make or communicate important decisions concerning [her] person [or] family ... due to mental illness\u201d \u2014 or may have diminished capacity\u2014 lacking the ability to perform mentally \u2014 such that the trial court had a duty to properly inquire into Respondent\u2019s competency. Id. at 262, 664 S.E.2d at 585.\nFollowing our holdings in In re N.A.L. and In re M.H.B., I would reverse and remand for a hearing to determine whether Respondent was in need of a guardian ad litem. See In re N.A.L., 193 N.C. App. at 119, 666 S.E.2d at 772. While I would not hold that the trial court abused its discretion in failing to appoint Respondent a guardian ad litem, I would hold that the trial court did abuse its discretion by failing to conduct an inquiry into whether Respondent needed a guardian ad litem. Id.", "type": "dissent", "author": "BEASLEY, Judge" } ], "attorneys": [ "Pamela Newell, for Guardian ad Litem.", "Susan J. Hall, for respondent-mother." ], "corrections": "", "head_matter": "IN THE MATTER OF: A.R.D.\nNo. COA10-153\n(Filed 15 June 2010)\n1. Termination of Parental Rights\u2014 guardian ad litem for parent \u2014 not appointed\nThe trial court did not abuse its discretion by not appointing a guardian ad litem for respondent mother in a termination of parental rights hearing where there was no evidence presented of any circumstance which would call into question respondent-mother\u2019s mental competence, her ability to perform mentally, or to act in her own interest.\n2. Termination of Parental Rights\u2014 termination order \u2014 not timely entered \u2014 not prejudicial\nThere was no prejudicial error in a termination of parental rights action by the trial court\u2019s failure to enter the termination order within ninety days of the filing of the petition to terminate her parental rights. Additional visits with the child or a custody hearing would not have changed the ultimate outcome of the termination proceeding.\nJudge BEASLEY dissenting.\nAppeal by respondent from order entered 25 August 2009 by Judge Mitchell McLean in Alleghany County District Court. Heard in the Court of Appeals 25 May 2010.\nPamela Newell, for Guardian ad Litem.\nSusan J. Hall, for respondent-mother." }, "file_name": "0500-01", "first_page_order": 524, "last_page_order": 537 }