In re H.B.

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1474

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

IN THE MATTER OF: Johnston County

H.B., H.C., N.D., B.D. Nos. 11 JT 166-69

Appeal by respondent from orders entered 23 October 2013 by

Judge Paul A. Holcombe, III, in Johnston County District Court.

Heard in the Court of Appeals 28 April 2014.

Holland & O’Connor, P.L.L.C., by Jennifer S. O’Connor, for

petitioner-appellee Johnston County Department of Social

Services.

Marie H. Mobley for guardian ad litem.

Mercedes O. Chut for respondent-appellant mother.

McCULLOUGH, Judge.

Respondent appeals from orders terminating her parental

rights as to the minor children H.B. (born in 2001), H.C. (born

in 2003), N.D. (born in 2008), and B.D. (born in 2009)

(collectively “the juveniles”).1 We affirm.

I. Background

1

The court also terminated the parental rights of H.B.’s

biological father, B.C., and H.C.’s biological father, M.H. The

father of N.D. and B.D. (hereafter “Mr. D.”) relinquished his

parental rights on or about 14 August 2013.

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The Johnston County Department of Social Services (“DSS”)

filed juvenile petitions on 2 December 2011, seeking

adjudications of neglect and dependency as to each child.2 The

petitions alleged that respondent’s husband (“Mr. D.”) had

returned to the home from prison in July 2011, having been

convicted of sexually abusing his step-daughter, H.C., when she

was six years old. Respondent had allowed Mr. D. to return to

the home without engaging in sex offender treatment, in

violation of her 2010 case plan. The petitions further alleged

a series of domestic violence incidents between respondent and

Mr. D. in the juveniles’ presence between October and December

2011. When DSS attempted to take the juveniles into non-secure

custody, respondent nearly drove her car into one of the

vehicles containing her children. She then grabbed one social

worker by the neck and arm and punched a second social worker in

the face, all in front of the juveniles.

The district court adjudicated the juveniles neglected and

dependent on 7 March 2012. It ceased reunification efforts as

to respondent on 14 September 2012, and changed the juveniles’

permanent plan to adoption by order signed 9 January 2013.

DSS filed petitions to terminate respondent’s parental

2

DSS filed an amended petition as to H.B. on 4 January 2012,

adding information about her biological father.

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rights on 6 February 2013, alleging three grounds for

termination: (1) neglect; (2) lack of reasonable progress to

correct the conditions that led to the juveniles’ out-of-home

placement during the twelve months that immediately preceded the

petition’s filing; and (3) failure to pay a reasonable portion

of the juveniles’ cost of care during the six months immediately

preceding the petition’s filing. N.C. Gen. Stat. § 7B-

1111(a)(1)-(3) (2013). After a hearing on 25 September 2013,

the court entered orders terminating respondent’s parental

rights on 23 October 2013. The court adjudicated the existence

of each of the three grounds for termination alleged by DSS and

concluded that terminating respondent’s parental rights would

serve the juveniles’ best interests. Respondent filed timely

notice of appeal from these orders.

II. Discussion

On appeal, respondent argues that the trial court erred by

(A) failing to conduct an inquiry as to whether respondent

needed a guardian ad litem and (B) erroneously choosing to

terminate her parental rights at the dispositional stage of the

proceedings.

A. Appointment of a Guardian Ad Litem

Respondent first claims the district court violated N.C.

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Gen. Stat. § 7B-1101.1(c) (2011)3 by failing to inquire sua

sponte into the need to appoint a guardian ad litem (“GAL”) for

respondent in the termination proceedings. At the time of the

termination hearing, N.C. Gen. Stat. § 7B-1101.1(c) authorized

the appointment of a GAL on motion of a party, or the court’s

own motion, “if the court determines that there is a reasonable

basis to believe that the parent is incompetent or has

diminished capacity and cannot adequately act in his or her own

interest.” N.C. Gen. Stat. § 7B-1101.1(c) (2011). Whether to

inquire into a parent’s need for a GAL is a decision left to the

district court’s sound discretion, based on the circumstances

known to the court. In re J.A.A. & S.A.A., 175 N.C. App. 66,

72, 623 S.E.2d 45, 49 (2005).

North Carolina defines “[i]ncompetent adult” as one who

“lacks sufficient capacity to manage the adult’s own affairs or

to make or communicate important decisions concerning the

adult’s person, family, or property whether the lack of capacity

is due to mental illness, mental retardation, . . . similar

cause or condition.” N.C. Gen. Stat. § 35A-1101(7) (2013). By

contrast,

3

Respondent notes that N.C. Gen. Stat. § 7B-1101.1(c) was amended

effective 1 October 2013 by 2013 N.C. Sess. Laws 129, § 25 (June

19, 2013), but cites the version in effect at the time of the

termination hearing on 25 September 2013.

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[t]he phrase “diminished capacity,” . . . is

used primarily in the criminal law context

and is defined as “[a]n impaired mental

condition-short of insanity-that is caused

by intoxication, trauma, or disease and that

prevents a person from having the mental

state necessary to be held responsible for a

crime.” However, our Court has also defined

“diminished capacity” in the juvenile

context as a “lack of ‘ability to perform

mentally.’”

In re M.H.B., 192 N.C. App. 258, 262, 664 S.E.2d 583, 585-86

(2008) (citations omitted). “In other words, a person with

diminished capacity is not incompetent, but may have some

limitations that impair their ability to function.” In re

P.D.R., __ N.C. App. __, __, 737 S.E.2d 152, 158 (2012).

On motion of respondent’s counsel, the district court

appointed GAL Scott Corl “to assist the [respondent] in

representation in this matter” on 2 February 2012, prior to

entering the adjudications of neglect and dependency on 7 March

2012. See N.C. Gen. Stat. § 7B-602(c) and (e) (2011).4 On 7 May

2012, the court appointed respondent a new GAL, Aleta Ballard,

replacing Mr. Corl. Respondent’s GAL attended proceedings in

this cause through a permanency planning review hearing

scheduled for 15 June 2013. No further attendance by the GAL is

4

Effective 1 October 2013, N.C. Gen. Stat. § 7B-602(c) was

amended, and (e) was repealed by 2013 N.C. Sess. Laws 192, §§

17, 41 (June 19, 2013).

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reflected in the record on appeal; nor does the record indicate

why her participation stopped.

By appointing a GAL merely to assist respondent, rather

than to serve in a substitutive capacity, the district court

exercised its then-existing authority under N.C. Gen. Stat. §

7B-602(c) and (e) to appoint a GAL for a parent with diminished

capacity. See In re P.D.R., __ N.C. App. at __, 737 S.E.2d at

158. We find nothing in the record to suggest respondent was

incompetent.5 Indeed, respondent acknowledges that the “[f]acts

in the record” are suggestive of diminished capacity, rather

than incompetency. She contends, however, that the district

court’s 23 October 2013 orders include “numerous findings which

indicate the continuing presence of diminished capacity” at the

time of the termination hearing. Because “[n]othing in the

record indicates that [her] need for a GAL had lessened[,]”

respondent argues that the “court’s failure to conduct an

inquiry on the need for a GAL is reversible error per se.”

In 2013 N.C. Sess. Laws 129 (June 13, 2013), our General

Assembly enacted amendments to Article 11 of the Juvenile Code

5

Respondent’s December 2011 psychological evaluation found “no

indication . . . of delusions, thought disorder or

hallucinations” and found respondent to be “alert and fully

oriented” and possessed of “well developed” language skills,

“logical and goal directed” thought processes, and good “powers

of attention and concentration[.]”

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which apply to all cases pending on or filed after 1 October

2013. 2013 N.C. Sess. Laws 129, §§ 32, 41. Section 32 of the

law deleted the language in N.C. Gen. Stat. § 7B-1101.1(c)

allowing the court to appoint a GAL for a parent with diminished

capacity. Subsection (c) now provides as follows: “On motion

of any party or on the court's own motion, the court may appoint

a guardian ad litem for a parent who is incompetent in

accordance with G.S. 1A-1, Rule 17.” N.C. Gen. Stat. § 7B-

1101.1(c) (2013). The session law also repealed N.C. Gen. Stat.

§ 7B-1101.1(e), which listed the forms of assistance a GAL could

provide to a parent. 2013 N.C. Sess. Laws 129, § 32.

As amended, N.C. Gen. Stat. § 7B-1101.1 no longer

authorizes the appointment of a GAL of assistance for a parent

with diminished capacity. The statute now contemplates only the

appointment of a GAL of substitution for a parent who is

incompetent, consistent with N.C. R. Civ. P. 17. N.C. Gen.

Stat. § 7B-1101.1(c).

To the extent respondent challenges the district court’s

failure to inquire into her need for a GAL of assistance based

on the evidence of diminished capacity, we conclude her appeal

is moot. Article 11 of the Juvenile Code no longer authorizes

the appointment of a GAL of assistance for a parent in a

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termination proceeding. Because the amendments enacted by 2013

N.C. Sess. Laws 192 apply to any future proceedings in this

cause, the district court would no longer have the authority to

conduct the inquiry sought by respondent under N.C. Gen. Stat. §

7B-1101.1(c), if the cause were remanded. Cf. Davis v. Zoning

Board of Adjustment of Union County, 41 N.C. App. 579, 582, 255

S.E. 2d 444, 446 (1979) (finding that “all questions raised have

been rendered moot by the amendments to the Union County Zoning

Ordinance”).

To the extent respondent faults the court for failing to

inquire into her competency, we find no abuse of discretion.

There is no indication that respondent was incompetent at any

time during these proceedings. Nor did DSS allege dependency as

a ground for terminating her parental rights. See In re S.R.,

207 N.C. App. 102, 109, 698 S.E.2d 535, 540 (2010).

Accordingly, this assignment of error is overruled.

B. Termination of Parental Rights

Respondent next claims the district court erred at the

dispositional stage of the proceedings by choosing to terminate

her parental rights. We disagree.

After adjudicating the existence of one or more grounds for

termination under N.C. Gen. Stat. § 7B-1111(a), the court must

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determine at disposition “whether terminating the parent’s

rights is in the juvenile’s best interest.” N.C. Gen. Stat. §

7B-1110(a) (2013). Subsection 7B-1110(a) provides that in

making this determination,

In each case, the court shall consider the

following criteria and make written findings

regarding the following that are relevant:

(1) The age of the juvenile.

(2) The likelihood of adoption of the

juvenile.

(3) Whether the termination of parental

rights will aid in the accomplishment

of the permanent plan for the juvenile.

(4) The bond between the juvenile and the

parent.

(5) The quality of the relationship between

the juvenile and the proposed adoptive

parent, guardian, custodian, or other

permanent placement.

(6) Any relevant consideration.

N.C. Gen. Stat. § 7B-1110(a). “We review the trial court’s

determination that a termination of parental rights is in the

best interest of the juvenile for an abuse of discretion.” In

re S.R., 207 N.C. App. at 110, 698 S.E.2d at 541. “‘Abuse of

discretion exists when the challenged actions are manifestly

unsupported by reason.’” Id. (quoting Barnes v. Wells, 165 N.C.

App. 575, 580, 599 S.E.2d 585, 589 (2004)).

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We reject as frivolous respondent’s claim that the district

court “completely bypass[ed] the dispositional phase” prescribed

by N.C. Gen. Stat. § 7B-1110 (2013). A proceeding for

termination of parental rights consists of an adjudicatory stage

under N.C. Gen. Stat. § 7B-1109 (2013) and a dispositional stage

under N.C. Gen. Stat. § 7B-1110 (2013). It is well established,

however, that

[t]he trial court need not conduct a

separate and distinct hearing for each stage

. . . and may hear adjudicatory and

dispositional evidence concurrently,

provided that it applies the appropriate

standard of proof at each stage. Moreover,

evidence heard or introduced throughout the

adjudicatory stage, as well as any

additional evidence, may be considered by

the court during the dispositional stage.

In re M.A.I.B.K., 184 N.C. App. 218, 224-25, 645 S.E.2d 881, 886

(2007) (internal citations and quotations omitted).

Here, at the conclusion of the evidence on adjudication,

the court made clear that “[w]e are having a bifurcated hearing”

and allowed the parties to present additional evidence and

argument as to “the best interest inquiry” at disposition. The

court granted DSS’s request to consider the evidence from the

adjudicatory stage of the hearing for purposes of disposition.

It also received a written report prepared by the juveniles’ GAL

addressing each of the factors prescribed by N.C. Gen. Stat. §

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7B-1110(a). Respondent declined the opportunity to offer

dispositional evidence. After hearing the parties’ arguments,

the court proceeded “to consider and determine the best interest

of the juvenile[s] under 7B-1110.” It announced specific

findings as to the juveniles’ ages, their likelihood of

adoption, whether termination would assist in accomplishing

their permanent plan, and the juveniles’ bond with respondent

and their current caretakers. See N.C. Gen. Stat. § 7B-

1110(a)(1)-(5). Upon “considering all the particular issues,

including its previous findings,” the court concluded that

termination of respondent’s parental rights “is in the best

interest of these children[.]” The court’s written orders

reiterate these findings and conclusions in compliance with the

statute. Respondent’s suggestion that the court somehow

circumvented the dispositional stage of the hearing is patently

false.

Respondent also challenges the court’s finding that the

juveniles are adoptable. See N.C. Gen. Stat. § 7B-1110(a)(2).

Specifically, she claims there is “no evidence” to support the

following finding as to H.C.:

The Court finds that a possible adoptive

placement has been located for the juvenile

and there is a likelihood that the juvenile

will be adopted. The Court recognizes that

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the juvenile has had some issues that

warrant her placement in therapeutic

[foster] care[;] however these issues are

not such that they would prevent the

juvenile from being adopted.

We review dispositional findings only to determine if they “are

supported by competent evidence,” in which case “they are

conclusive on appeal.” In re Weiler, 158 N.C. App. 473, 477,

581 S.E.2d 134, 137 (2003) (citations omitted).

The GAL reported to the court that each juvenile’s

“likelihood of adoption is high.” The DSS caseworker, Elizabeth

Gore, testified that H.C. was in a level 2 therapeutic foster

home due to the mental health and behavioral issues she

experienced as a victim of sexual abuse. Ms. Gore deemed it

“very likely” that H.C. and her siblings would be adopted and

averred that, “including [H.C.], the current [foster] homes are

interested in providing permanency, if available.” This

evidence fully supports the court’s finding.

Respondent also challenges the finding that five-year-old

N.D. “has flourished since being in the same home as her

siblings.” The GAL reported that N.D. and B.D. were “adjusting

well” to their foster home. Likewise, Ms. Gore described their

relationship with the foster parents as follows:

It’s really strong. Even though [N.D.] and

[B.D] have only been placed since July 20th,

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they had been visiting with the family since

March, so a relationship has developed over

time with that [and] with the visits as

well, but they have a close relationship.

They have a bond. They refer to the foster

parents as Mom and Dad.

Respondent’s exception is overruled.

Finally, respondent challenges the findings that H.B. and

H.C. “ha[ve] not asked about [respondent]” since their contact

with her ceased in December 2012. Respondent points to the

following testimony by Ms. Gore on this issue:

Q. When was the last time the children had a

visit with [respondent]?

A. It was November of 2012.

Q. And since that time, have the children

displayed any negative behaviors or

inquired about [respondent] as a result of

the visits being terminated?

A. The older children will ask questions.

The younger children do not.

Assuming arguendo that these findings are not supported by the

evidence, we conclude the error is harmless. See generally In

re Estate of Mullins, 182 N.C. App. 667, 670-71, 643 S.E.2d 599,

601 (2007) (“In a non-jury trial, where there are sufficient

findings of fact based on competent evidence to support the

trial court's conclusions of law, the judgment will not be

disturbed because of other erroneous findings which do not

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affect the conclusions.”) (internal citation and quotation marks

omitted). The court’s findings under N.C. Gen. Stat. § 7B-

1110(a)(4) acknowledged that “a bond did exist with

[respondent]” for both H.B. and H.C. but noted that each child

had “made progress since ceasing contact with [her.]” In light

of the girls’ strong bond with their prospective adoptive

parents, the fact that H.B. and H.C. had asked Ms. Gore about

respondent would not affect an assessment of their best

interests.

Having reviewed each of respondent’s arguments related to

disposition, we hold that the district court did not abuse its

discretion in concluding that termination of respondent’s

parental rights was in the best interests of the juveniles. The

court’s orders are hereby affirmed.

Affirmed.

Judges HUNTER, Robert C., and GEER concur.

Report per Rule 30(e).