In re A.R.D.

BEASLEY, Judge

dissenting.

With regard to the majority’s holding that the trial court did not abuse its discretion by failing to appoint a guardian ad litem for Respondent, I respectfully dissent.

Our general statutes provide that a trial court may appoint a guardian ad litem for a parent in a termination of parental rights case, *508“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) (2009). “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, 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. “However, ‘[a] court’s complete failure to exercise discretion amounts to reversible error.’ ” 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)).

In 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’s orders. DSS initially investigated a report made by Respondent’s father of Respondent’s depression and threats against A.R.D. Respondent had told A.R.D’s grandfather that she had walked by A.R.D’s 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. “show[ed] no visible signs of neglect. She is clean, appropriately dressed and well-nourished. However, what concerns the [c]ourt is the mother’s temper, her emotional imbalance and her extreme resistance to an authority figure such as DSS.” 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.

It is also noteworthy that the trial court qualified Respondent’s ability to testify by finding that she “became extremely belligerent and emotional while testifying at this adjudication hearing” and found “[Respondent’s] resentment and unwillingness to cooperate with DSS [to be] at a level rarely seen by this [c]ourt.” 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.

*509The 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’s behavior. Moreover, there is no indication that the trial court relied on any of the results from the psychological evaluation.

After a review hearing on 10 April 2007, the trial court ordered that A.R.D. be placed in Respondent’s 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,

[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.

This finding makes clear that the trial court was aware that Respondent had previously been involuntarily committed.

On 13 May 2008, DSS filed a petition to terminate Respondent’s parental rights. In the petition, DSS recounted Respondent’s 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 “the combination of [Respondent’s] depression, uncon*510trolled temper, and emotional imbalance has rendered [her] incapable of properly caring for her child and creates an atmosphere of potential danger for the Juvenile.” 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’s “uncontrollable temper” and “emotional imbalance” created a dangerous home environment for A.R.D.

Thus, it is apparent that Respondent’s 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 “emotionally unstable.”

Recently, 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’s parental rights was due to the mother’s “significant mental health issues which impact her ability to parent this child and meet his needs.” 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’s 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’s 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.

In 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’s parental rights based on neglect and the willful failure to make reasonable progress toward correcting the conditions that led to A.R.D.’s removal from the home. The trial court specifically found:

The combination of the mother’s uncontrollable temper, emotional imbalance, dishonest behavior, uncooperative nature and actual specific acts of abuse and neglect as cited hereinabove *511have 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!.]

As we have already discussed, the petition to terminate Respondent mother’s parental rights in this case, as well as the adjudication and disposition orders, cited Respondent mother’s 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’s 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’s psychological evaluation are absent from the record, the trial court considered the opinion of Respondent’s behavioral healthcare counselor that Respondent “suffers from depression and anxiety” in its order terminating her parental rights.

In 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’s findings of fact included the following: “while [the respondent] was testifying in this case, the [c]ourt noted that he was weeping, crying, confounded, agitated”; the respondent was “mentally and emotionally unstable”; and the respondent had threatened to commit suicide. Id. at 262-63, 664 S.E.2d at 586. This Court stated that “these findings raise serious questions as to Respondent’s competency, capacity, and ability to adequately act in his own interest.” 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:

We first recognize that although the trial court made numerous findings of fact that raised doubts as to Respondent’s 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, *512the trial court could not have done so because it did not hold a hearing regarding these issues.
Furthermore, in its adjudication order, the trial court ordered that “[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.]” The trial court also ordered that “the 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.]” Moreover, in its disposition orders, the trial court “suspended] visitation between [Respondent] and [M.H.B.] at this time pending receipt and review of the reports from the Balsam Center by [DSS].” The trial court gave DSS “the discretion ... to start visitation between [M.H.B.] and [Respondent],” 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’s 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’s 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.

Id. at 265-66, 664 S.E.2d at 587-88. In consideration of all the trial court’s concerns regarding the respondent’s ability to act in his own interest, “as reflected in its findings of fact, and the trial court’s subsequent order that Respondent undergo a psychological evaluation,” we reversed the adjudication and disposition orders because the trial court abused its discretion. Id. at 266, 664 S.E.2d at 588.

The instant facts are particularly similar. Importantly, In re M.H.B. referenced a psychological evaluation, like the one ordered here, but the record’s 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 “remain[ed] a threat to harm herself.” These and the remaining findings by the trial court make it apparent that Respondent’s conduct demonstrated a possible inability to ade*513quately act in her own interest and that the court’s conclusion terminating her parental rights was substantially, if not wholly, related to Respondent’s mental and emotional condition. Thus, there appears a reasonable basis to believe that Respondent may be incompetent— “lacking] sufficient capacity to manage [her] own affairs or to make or communicate important decisions concerning [her] person [or] family ... due to mental illness” — or may have diminished capacity— lacking the ability to perform mentally — such that the trial court had a duty to properly inquire into Respondent’s competency. Id. at 262, 664 S.E.2d at 585.

Following 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.