IN THE MATTER OF: N.K.
No. 54A20
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 11 December 2020
Appeal pursuant to
Danielle De Angelis for petitioner-appellee Davidson County Department of Social Services.
Chelsea K. Barnes for appellee Guardian ad Litem.
Jeffrey L. Miller for respondent-appellant mother.
Respondent-mother Amber K. appeals from the trial court‘s order terminating her parental rights in her son N.K.1 After careful review of respondent-mother‘s challenges to the trial court‘s order in light of the record and the applicable law, we conclude that, while the trial court correctly applied North Carolina law in terminating respondent-mother‘s parental rights in Ned, this case should be remanded to the District Court, Davidson County, for further proceedings intended to ensure compliance with the Indian Child Welfare Act.2
I. Factual Background
On 26 February 2018, within a week after his birth, the Davidson County Department of Social Services filed a petition alleging that Ned was a neglected and dependent juvenile and obtained the entry of an order taking Ned into nonsecure custody. In its petition, DSS alleged that respondent-mother had tested positive for the presence of marijuana at the time of Ned‘s birth; that respondent-mother had a history of substance abuse problems; that respondent-mother had untreated mental health problems; that Ned had an older full sibling and two older half siblings, all of whom had been taken into the custody of the Davie County Department of Social Services based upon reports of improper supervision and abuse; that respondent-mother had been charged with assaulting a child under twelve; and that there were concerns about domestic violence between the parents.
In advance of the hearing to be held for the purpose of considering the merits of the
The DSS petition came on for an adjudication hearing on 28 March 2018. At that time, DSS and Ned‘s parents entered into a stipulation with DSS that certain facts existed and that Ned could be adjudicated to be a neglected and dependent juvenile. On 25 April 2018, Judge Mary F. Paul (now Covington) entered an order finding Ned to be a neglected and dependent juvenile. After a dispositional hearing held on 25 April 2018, Judge Paul entered a dispositional order on 29 May 2018 ordering that Ned remain in DSS custody, establishing a visitation plan, and ordering respondent-mother to comply with the provisions of her service agreement.
After a review and permanency planning hearing on 5 September 2018, Judge Covington entered an order on 28 November 2018 finding that respondent-mother had stopped attending mental health and substance abuse treatment in June 2018, had resumed the use of impairing substances, and had not reengaged in mental health and substance abuse treatment despite promising DSS that she would do so. In addition, Judge Covington found that respondent-mother‘s housing had been unstable; that she had failed to take advantage of referrals relating to housing, income support, and employment; that she had failed to participate in a scheduled parenting capacity assessment; that she had acknowledged the occurrence of incidents of physical aggression against the father that had resulted in the entry of a protective order against her; and that she had violated the protective order, resulting in the institution of new criminal charges against her. On the other hand, Judge Covington found that respondent-mother had attended the majority of her scheduled visits with Ned and had remained in contact with DSS. In light of these findings, Judge Covington ordered that Ned remain in DSS custody, established “a primary plan of termination of parental rights and adoption and a secondary plan of reunification with a parent,” reduced the amount of visitation that respondent-mother was entitled to have with Ned, and ordered respondent-mother to comply with the provisions of her service agreement.
Another review and permanency planning hearing was held on 6 March 2019. In an order entered on 18 April 2019, Judge Covington changed the permanent plan for Ned to “a primary plan of termination of parental rights and adoption and a secondary plan of guardianship with a court approved caretaker” and relieved DSS from the necessity for making any further efforts to reunify Ned with respondent-mother. Finally, Judge Covington reduced the amount of visitation that respondent-mother was entitled to have with Ned even further.
On 23 April 2019, DSS filed a petition seeking to terminate respondent-mother‘s parental rights in Ned based upon neglect,
The termination petition came on for hearing before the trial court on 24 October 2019. On 12 November 2019, the trial court entered an order terminating respondent-mother‘s parental rights in Ned. In its termination
II. Substantive Legal Analysis
A. Competency Inquiry
In seeking relief from the trial court‘s termination order before this Court, respondent-mother begins by arguing that the trial court had abused its discretion by failing to conduct an inquiry regarding her competency on its own motion for purposes of determining whether she was entitled to the appointment of a guardian ad litem. A parent‘s entitlement to the appointment of a guardian ad litem in juvenile proceedings, including those involving a request for the termination of parental rights, is governed by
“A 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‘s attention [that] raise a substantial question as to whether the litigant is non compos mentis.” In re T.L.H., 368 N.C. 101, 106, 772 S.E.2d 451, 455 (2015) (quoting In re J.A.A., 175 N.C. App. 66, 72, 623 S.E.2d 45, 49 (2005)). “[T]rial court decisions concerning both the appointment of a guardian ad litem and the extent to which an inquiry concerning a parent‘s competence should be conducted are reviewed on appeal using an abuse of discretion standard.” Id. at 107, 772 S.E.2d at 455. “An [a]buse of discretion results where the court‘s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.‘” Id. (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)).
In In re T.L.H., this Court specifically addressed “the extent to which a trial court must inquire into a parent‘s competence to determine whether it is necessary to appoint a guardian ad litem for that parent despite the absence of any request that such a hearing be held or that a parental guardian ad litem be appointed.” Id. at 102, 772 S.E.2d at 452. After acknowledging the applicability of the abuse of discretion standard to the issue under consideration, we explained that the trial court should be afforded substantial deference in deciding whether an inquiry into a litigant‘s competence ought to be undertaken given that it “actually interacts with the litigant whose competence is alleged to be in question and has, for that reason, a much better basis for assessing the litigant‘s mental condition than that available to the members of an appellate court, who are limited to reviewing a cold, written record.” Id. at 108, 772 S.E.2d at 456.
As a result, when the record contains an appreciable amount of evidence tending to show that the litigant whose mental condition is at issue is not incompetent, the trial court should not, except in the most extreme instances, be held on appeal to have abused its discretion by failing to inquire into that litigant‘s competence.
Id. at 108-09, 772 S.E.2d at 456.
In spite of the significant mental health issues disclosed in the record before us in that case, we held in In re T.L.H. that “sufficient evidence tending to show that [the] respondent was not incompetent existed to obviate the necessity for the trial court to conduct a competence inquiry before proceeding with the termination hearing.” Id. at 109, 772 S.E.2d at 456. In reaching this conclusion,
In our recent decision in In re Z.V.A., 373 N.C. 207, 835 S.E.2d 425 (2019), this Court applied the framework delineated in In re T.L.H. in holding that the trial court “did not abuse its discretion when it did not conduct an inquiry into [the respondent‘s] competency.” Id. at 211, 835 S.E.2d at 429. In reaching this result, we reasoned that, despite the respondent‘s low intelligence quotient, she had been diagnosed with only a “mild intellectual disability” in light of her demonstrated ability to work and to attend school. Id. at 210, 835 S.E.2d at 429. In addition, we noted that the existence of sufficient evidentiary support for the trial court‘s findings that the respondent had developed adaptive skills that lessened the impact of her disability and had engaged in portions of her case plan “d[id] not suggest [the respondent‘s] disability rose to the level of incompetence so as to require the appointment of a guardian ad litem to safeguard [the respondent‘s] interests.” Id. at 211, 835 S.E.2d at 429.
In attempting to distinguish this case from In re T.L.H. and In re Z.V.A., respondent-mother argues that the reason for our decision to give deference to the trial court, which revolved around the trial court‘s opportunity to observe the party whose competence is at issue on a first-hand basis, was “not helpful or decisive” in this case because respondent-mother did not testify at the termination hearing. In addition, respondent-mother argues that the record fails to contain sufficient evidence to support a finding that respondent-mother was not incompetent, with respondent-mother emphasizing the existence of evidence tending to show that she had significant mental health problems and failed to comply with the provisions of her service agreement as indicative of her lack of judgment and her inability to manage her own affairs. We do not find respondent-mother‘s arguments to be persuasive.
As an initial matter, we note that, even though the record contains no indication that respondent-mother testified before the trial court, it clearly shows that respondent-mother was present for the pre-adjudicatory, adjudicatory, and dispositional hearings; for the subsequent review and permanency planning hearings; and for the termination hearing. As a result, Judge Covington and the trial court had ample opportunity to gauge respondent-mother‘s competence by observing her demeanor and behavior in court throughout the progress of the underlying neglect proceeding and the termination proceeding, making it completely appropriate for us to give deference to their failure to inquire into respondent-mother‘s competence.
Secondly, in spite of the fact that respondent-mother suffered from untreated mental health problems and had tested “in the range typically associated with a diagnosis of Mild Intellectual Deficits[,]“the record contains an appreciable amount of evidence tending to show that respondent-mother was not incompetent. According to the undisputed evidence and the trial court‘s unchallenged findings of fact, respondent-mother acknowledged the existence of her mental health and substance abuse problems at a relatively early stage and took steps to begin treatment for those problems. In addition, respondent-mother entered into a service agreement with DSS that was intended to address the reasons that led to Ned‘s placement in DSS custody and participated in negotiating a stipulation with DSS concerning the existence of certain facts and Ned‘s status as a neglected and dependent
After examining the record before us in this case, we do not believe that this case involves the sort of “extreme instance” in which a trial judge would have abused his or her discretion by failing to inquire on his or her own motion into the extent, if any, to which respondent-mother was entitled to the appointment of a guardian ad litem. In re T.L.H., 368 N.C. at 109, 772 S.E.2d at 456.
We do not . . . wish to be understood as holding that the trial court would have had no basis for inquiring into respondent[-mother]‘s competence in light of her history of serious mental health conditions. A trial court would have been well within the bounds of its sound discretion to conclude that respondent[-mother]‘s lengthy history of serious mental illness raised a substantial question concerning her competence sufficient to justify further inquiry. In fact, such an inquiry in this case might well have been advisable.
Id. at 111–12, 772 S.E.2d at 458. On the other hand, given the opportunity that Judge Covington and the trial court had to observe respondent-mother in court and the appreciable amount of evidence in the record tending to show that respondent-mother was not incompetent, “we are unable to conclude that the trial court could not have had a reasonable basis for reaching the opposite result[.]” Id. at 112, 772 S.E.2d at 458. For that reason, we hold that, in this case, the trial court did not abuse its discretion by failing to conduct an inquiry into the issue of whether a guardian ad litem should have been appointed for respondent-mother.
B. Analysis of the Trial Court‘s Termination Order
A termination of parental rights proceeding is conducted using a two-stage process that consists of an adjudicatory stage and a dispositional stage.
1. Grounds for Termination
In respondent-mother‘s view, the trial court erred by determining that her parental rights were subject to termination for neglect,
A parent‘s parental rights in a child are subject to termination pursuant to
In deciding whether a child is neglected for purposes of terminating parental rights, the dispositive question is the fitness of the parent to care for the child at the time of the termination proceeding. In the event that a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, requiring the petitioner in such circumstances to show that the child is currently neglected by the parent would make termination of parental rights impossible. In such circumstances, the trial court may find that a parent‘s parental rights in a child are subject to termination on the grounds of neglect in the event that the petitioner makes a showing of past neglect and a likelihood of future neglect by the parent. When determining whether future neglect is likely, the trial court must consider evidence of changed circumstances occurring between the period of past neglect and the time of the termination hearing. A parent‘s failure to make progress in completing a case plan is indicative of a likelihood of future neglect.
In re M.A., 374 N.C. 865, 869–70, 844 S.E.2d 916, 920–21 (2020) (cleaned up).3
The trial court concluded that respondent-mother‘s parental rights in Ned were subject to termination for neglect based upon a determination that respondent-mother “ha[d] neglected [Ned] within the meaning of
returned to the care of [respondent-mother].” In support of this determination, the trial court made detailed findings of evidentiary fact, including findings that Ned had previously been determined to be a neglected juvenile on 25 April 2018 and that respondent-mother had made little progress toward completing the requirements of the service agreement that she had entered into with DSS. More specifically, the trial court found that respondent-mother had failed to address her mental health, substance abuse, and domestic violence problems; that she had failed to establish and maintain safe and appropriate housing; and that her failures to adequately address those problems demonstrated that there was a likelihood that Ned would be neglected in the future in the event that he was returned to her care.
Although respondent-mother has not challenged any specific finding of fact contained in the trial court‘s termination order as lacking in sufficient evidentiary support and, on the contrary, concedes that the trial court‘s findings are supported by “some form of evidence,” she does argue that, since the trial court‘s findings resemble language found in findings of fact set out in other orders and in the reports that were admitted into evidence at the termination hearing and since these earlier findings and the report language were predicated upon the use of lower standards of proof than the clear, cogent, and convincing standard of proof that is applicable in termination proceedings, they should not have been used to support the findings that the trial court made in the termination order.
As this Court recognized in In re T.N.H., the “trial court may take judicial notice of findings of fact made in prior orders, even when those findings are based on a lower evidentiary standard because[,] where a judge sits without a jury, the trial court is presumed to have disregarded any incompetent evidence and relied upon the competent evidence.” Id. at 410, 831 S.E.2d at 60. On the other hand, we have also held that “the trial court may not rely solely on prior court orders and reports but must receive some oral testimony at the hearing and make an independent determination regarding the evidence presented.” Id. At the termination hearing, the trial court took judicial notice of the underlying adjudicatory and dispositional orders, allowed the admission of reports from the DSS and Ned‘s guardian ad litem into evidence, and heard live testimony from the social worker responsible for overseeing Ned‘s case. After carefully reviewing the record, including the orders and reports that were made part of the record and the live testimony that was received at the termination hearing, we are satisfied that the findings of fact addressing the issue of whether respondent-mother‘s parental rights in Ned were subject to termination are proper in form and have adequate evidentiary support.
In addition, respondent-mother argues that the trial court erred by concluding that her parental rights in Ned were subject to termination for neglect on the grounds that the trial court had failed to consider whether her poverty and mental health difficulties adversely affected her ability to care for Ned. More specifically, respondent-mother argues that the trial court had failed to make adequate findings of fact concerning the issue of whether her poverty and mental health problems were the sole reasons for her neglect of Ned and that the existence of these conditions “explain[s] and excuse[s] the facts used by the court for its grounds in termination.” Once again, we do not find this argument persuasive.
Respondent-mother is, of course, correct in arguing that “her parental rights are not subject to termination in the event that her inability to care for her children rested solely upon poverty-related considerations[.]” In re M.A., 374 N.C. at 881, 844 S.E.2d at 927 (citing
Similarly, respondent-mother asserts that the trial court‘s findings do not support a determination that her parental
mother‘s failure to comply with her case plan was willful is not relevant to establish this ground for termination.” In re Z.K., 375 N.C. 370, 373, 847 S.E.2d 746, 748 (2020). On the contrary, we note that this Court held several decades ago that, “[i]n determining whether a child is neglected, the determinative factors are the circumstances and conditions surrounding the child, not the fault or culpability of the parent,” In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 252 (1984), and that, “[w]here the evidence shows that a parent has failed or is unable to adequately provide for his child‘s physical and economic needs, whether it be by reason of mental infirmity or by reason of willful conduct on the part of the parent, and it appears that the parent will not or is not able to correct those inadequate conditions within a reasonable time, the court may appropriately conclude that the child is neglected.” Id. (emphasis added). As a result, we conclude that respondent-mother‘s assertion that a parent‘s parental rights in a child may not be terminated on the basis of neglect in the event that the parent‘s inability to provide adequate care for that child stems from mental health problems rests upon a misapprehension of well-established North Carolina law.
Thus, we hold that the trial court‘s unchallenged findings of fact establish that Ned had previously been found to be a neglected juvenile and that the neglect that Ned had previously experienced was likely to recur in the event that he was returned to respondent-mother‘s care given her failure to adequately address her substance abuse, mental health, and domestic violence problems and to obtain appropriate housing. As a result, given that the existence of a single ground for termination suffices to support the termination of a parent‘s parental rights in a child, In re A.R.A., 373 N.C. at 194, 835 S.E.2d at 421, we further hold that the trial court did not err as a matter of North Carolina law in determining that respondent-mother‘s parental rights in Ned were subject to termination for neglect pursuant to
2. Dispositional Determination
In her final challenge to the substance of the trial court‘s termination order, respondent-mother argues that the trial court erred by determining that the termination of her parental rights would be in Ned‘s best interests. In determining whether the termination of a parent‘s parental rights would be in a child‘s best interests,
[l]he court may consider any evidence, including hearsay evidence as defined in
[N.C.]G.S. [§]8C-1, Rule 801 , that the court finds to be relevant, reliable, and necessary to determine the best interests of the juvenile. In each case, the court shall consider the following criteria and make written findings regarding the following that are relevant:
- The age of the juvenile.
- The likelihood of adoption of the juvenile.
- Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
- The bond between the juvenile and the parent.
- The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
- Any relevant consideration.
In this case, the trial court made findings concerning each of the factors enumerated in
In view of the fact that respondent-mother has not challenged the trial court‘s dispositional findings as lacking in sufficient evidentiary support, those findings are binding upon this Court for purposes of appellate review. In re T.N.H., 372 N.C. at 407, 831 S.E.2d at 58. Instead, respondent-mother argues that the trial court abused its discretion at the dispositional phase of this termination proceeding by failing to make findings of fact concerning respondent-mother‘s poverty and mental health problems. In addition, respondent-mother argues that the fact that she did not have a strong bond with Ned stemmed from the limited visitation that she had been authorized to have with her child and that the trial court had erred by failing to consider whether the implementation of an alternative plan of guardianship that included continued visitation intended to preserve the family unit would be in Ned‘s best interests. Once again, we do not find respondent-mother‘s arguments to be persuasive.
Aside from asserting that her poverty and mental health problems had contributed to the existence of the conditions that had led to the trial court‘s determination that her parental rights in Ned were subject to termination, respondent-mother has failed to explain how the issues of poverty and mental health were related to the dispositional decision that the trial court was required to make at the second stage of this proceeding. Moreover, we are unable to see how the factors upon which respondent-mother relies in support of this aspect of her argument support a reversal of the trial court‘s dispositional decision. As an additional matter, we note that this Court has rejected arguments that the trial court commits error at the dispositional stage of a termination of parental rights proceeding by failing to explicitly consider non-termination-related dispositional alternatives, such as awarding custody of or guardianship over the child to the foster family, by reiterating that “the paramount consideration must always be the best interests of the child.” In re J.J.B., 374 N.C. 787, 795, 845 S.E.2d 1, 6 (2020); see also In re Z.A.M., 374 N.C. 88, 100–01, 839 S.E.2d 792, 800–01 (2020); In re Z.L.W., 372 N.C. 432, 438, 831 S.E.2d 62, 66 (2019). As we have previously explained,
[w]hile the stated policy of the Juvenile Code is to prevent “the unnecessary or inappropriate separation of juveniles from their parents,”
N.C.G.S. § 7B-100(4) (2017) , we note that “the best interests of the juvenile are of paramount consideration by the court and . . . when it is not in thejuvenile‘s best interest to be returned home, the juvenile will be placed in a safe, permanent home within a reasonable amount of time,” id. § 7B-100(5) (2017) (emphasis added); see also In re Montgomery, 311 N.C. at 109, 316 S.E.2d at 251 (emphasizing that “the fundamental principle underlying North Carolina‘s approach to controversies involving child neglect and custody [is] that the best interest of the child is the polar star“).
In re Z.L.W., 372 N.C. at 438, 831 S.E.2d at 66.
After having made sufficient findings of fact concerning the dispositional factors enumerated in
C. Indian Child Welfare Act
In her brief before this Court, respondent-mother argues that the trial court erred by terminating her parental rights in Ned in the absence of a showing of compliance with the requirements of ICWA.
[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the . . . termination of parental rights to[] an Indian child shall notify the parent or Indian custodian and the Indian child‘s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.
The Department of the Interior adopted binding regulations in order to ensure the
If there is reason to know the child is an Indian child, but the court does not have sufficient evidence to determine that the child is or is not an “Indian child,” the court must:
(1) Confirm, by way of a report, declaration, or testimony included in the record that the agency or other party used due diligence to identify and work with all of the Tribes of which there is reason to know the child may be a member (or eligible for membership), to verify whether the child is in fact a member (or a biological parent is a member and the child is eligible for membership) . . . .
In her brief, respondent-mother argues the trial court failed to comply with requirements of ICWA in light of the fact that it had been reported at an early stage of the proceedings that Ned might be an Indian child through his maternal grandmother in upstate New York. Although respondent-mother acknowledges that DSS sent inquiries to a number of tribes and received a response from the Eastern Band of Cherokee Indians that Ned was neither a member nor eligible for membership in the tribe, she argues that the question of whether Ned was an Indian child by virtue of his New York ancestry remained unresolved throughout the entire course of the proceedings before the trial court and that, until a determination has been made concerning the issue of whether Ned is an Indian child as a result of his potential affiliation with a tribe in New York, the trial court had failed to comply with the requirements of ICWA. We conclude that respondent-mother‘s argument has merit.
As the record reflects, Judge Jimmy L. Myers, who addressed the issue of whether Ned should be held in nonsecure custody early in the juvenile proceedings, was aware that Ned had “possible Native American heritage through [respondent-mother‘s] maternal grandmother” as early as the date upon
A nonsecure custody report submitted by DSS on 7 March 2018 indicated “[an] Indian Child Welfare Act application has been submitted in reference to the respondent[-]mother‘s grandmother‘s Indian heritage.” In a report submitted on 25 April 2018 in connection with the initial dispositional hearing, DSS stated that Ned was not subject to ICWA given that DSS had “sent the necessary ICWA inquiry letters,” that it had received a response from the Eastern Band of Cherokee Indians indicating that Ned was neither a registered member nor eligible to register as a member of the tribe, and that DSS was “waiting for responses to the remaining inquiries.” The same information was contained in reports that DSS submitted in connection with permanency planning and review hearings held in August 2018 and March 2019.
In an order entered following the 6 March 2019 review and permanency planning hearing, Judge Covington found that “[t]he minor child is not an Indian child according to the information reported by [DSS,]” that “[t]he minor child is not a member of the Eastern Band of Cherokee Indians,” and that “[DSS] is awaiting responses from other tribes.” The report that DSS submitted in connection with a May 2019 permanency planning and review hearing contained no additional information, so the trial court reiterated Judge Covington‘s earlier finding that “[t]he minor child is not an Indian child” in the order that was entered as a result of the 29 May 2019 hearing. The trial court‘s termination order did not address the extent to which the efforts in which DSS had engaged resulted in adequate compliance with ICWA‘s notice requirements.
As was the case in In re E.J.B., 375 N.C. at 103, 846 S.E.2d at 477, “the trial court had reason to know that an Indian child might be involved in this case. In addition, given that the notices that DSS sent to the relevant tribes are not contained in the record, we have no basis for determining whether they complied with the requirements for the contents of such notices set out in
III. Conclusion
Thus, for the reasons set forth above, we hold that the trial court did not err by failing to make inquiry on its own motion into the issue of whether a guardian ad litem should have been appointed for respondent-mother
REMANDED.