In Re NAL

666 S.E.2d 768
CourtCourt of Appeals of North Carolina
DecidedOctober 7, 2008
DocketCOA08-510
StatusPublished

This text of 666 S.E.2d 768 (In Re NAL) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re NAL, 666 S.E.2d 768 (N.C. Ct. App. 2008).

Opinion

666 S.E.2d 768 (2008)

In the Matter of N.A.L. and A.E.L., Jr., Minor Children.

No. COA08-510.

Court of Appeals of North Carolina.

October 7, 2008.

*769 Lauren Vaughan, Hickory, for petitioner-appellee Caldwell County Department of Social Services.

Pamela Newell Williams, Raleigh, for Guardian ad litem.

Charlotte Gail Blake, Jefferson, for respondent-father.

Judy N. Rudolph, Weaverville, for respondent-mother.

BRYANT, Judge.

L.W.L.[1] (respondent-mother) and A.E.L., Sr. (respondent-father) appeal from an order entered 20 February 2008 terminating their parental rights to N.A.L., and an order entered 27 February 2008 terminating their parental rights to A.E.L., Jr. Respondent-father also appeals from an order entered 30 July 2007 ceasing reunification efforts with A.E.L., Jr. We affirm in part and reverse and remand in part.

*770 The Caldwell County Department of Social Services (DSS) became involved with respondents' family in April of 2004 when N.A.L. was admitted to Caldwell Memorial Hospital due to severe coughing and wheezing. Hospital staff observed respondent-mother's interaction with N.A.L. and were concerned when respondent-mother repeatedly yelled and shouted profanity towards N.A.L., who was only five months old at the time. N.A.L. was admitted to the hospital again in November 2004 and February 2005. On both occasions, hospital staff observed respondent-mother yelling and shouting obscenities towards N.A.L. On 10 February 2005, petitions were filed alleging N.A.L. and A.E.L., Jr. were neglected and dependent juveniles. At the time the petitions were filed, respondent-mother left the home upon DSS' recommendation.

On 30 March 2005, respondent-father obtained a psychological evaluation which indicated he had a Full Scale IQ of 62. The evaluator concluded that respondent-father could not function over time as an adequate parent because of his limited intellect along with a potential for violence and loss of emotional control. The children were adjudicated neglected and dependent on 21 June 2005 based on respondent-mother's interaction with N.A.L. At the dispositional hearing, custody of the children remained with DSS. Respondent-mother was ordered to complete a psychological evaluation and follow any recommendations. Respondent-father was ordered to complete a sex offender specific evaluation because of allegations made by A.E.L., Jr. and to follow all recommendations. Both respondents were ordered to submit to random drug screens, regularly attend counseling and follow all recommendations, and make regular child support payments.

A review order was entered on 20 February 2006 ceasing reunification efforts with respondent-mother but continuing efforts with respondent-father. In a review order entered 17 May 2006, the court ordered respondent-father to obtain suitable housing and for respondent-mother not to reside with respondent-father. A review order entered 30 May 2006, specifically admonished respondent-father that respondent-mother was to have no contact with the children and that any such attempt would "compromise the continuing efforts of reunification with [respondent-father]." The trial court also noted that N.A.L.'s significant medical issues required the children to be placed in separate homes.

In August of 2006, the trial court approved a trial home placement for A.E.L. with respondent-father and continued N.A.L.'s unsupervised visits with respondent-father. Again, the court specifically ordered that respondent-mother should not have any contact with the children. At the review hearing on 13 September 2006, the trial court noted N.A.L's extensive medical problems, including his diagnosis with Nephrotic Syndrome. The trial court found that respondent-father would likely be unable to provide appropriate care for N.A.L. in the near future because of respondent-father's limitations and N.A.L.'s needs. Based on its findings, the trial court ceased reunification efforts with respondent-father as to N.A.L.

On 9 February 2007, as to N.A.L., DSS filed a petition to terminate the parental rights of respondent-mother on the grounds of abuse or neglect, failure to make reasonable progress, incapability to provide proper care, and wilful abandonment. DSS also petitioned to terminate respondent-father's parental rights on the grounds of failure to make reasonable progress and incapability to provide proper care.

On 7 March 2007, the trial court returned custody of A.E.L., Jr. to respondent-father and ceased further reviews. The trial court ordered that respondent-mother have no contact with A.E.L., Jr. "at any time by any means." On 25 April 2007, DSS social workers visited respondent-mother's home and found respondent-father there with A.E.L., Jr. Respondent-father also admitted to allowing A.E.L., Jr. to have contact with respondent-mother on several occasions. DSS filed a new petition and requested and obtained non-secure custody of A.E.L., Jr. On 22 August 2007, the trial court ceased all reunification efforts with respondent-father as to A.E.L., Jr. and changed the permanent plan to adoption.

*771 On 9 November 2007, DSS filed a petition to terminate the parental rights of respondent-mother and respondent-father as to A.E.L., Jr. The petition alleged grounds existed to terminate respondent-mother's parental rights on the basis of abuse or neglect, failure to make reasonable progress, failure to pay a reasonable portion of the cost of care, incapability to provide proper care, wilful abandonment, and her rights to another child have been involuntarily terminated. The petition alleged grounds existed to terminate respondent-father's parental rights on the basis of abuse or neglect, failure to make reasonable progress, incapability to of provide proper care, and his rights to another child have been involuntarily terminated.

On 20 February 2007 and 27 February 2007, the trial court entered orders terminating respondent-mother's and respondent-father's parental rights to N.A.L. and A.E.L., Jr., respectively. Respondent-mother and respondent-father appeal.

On appeal, respondent-mother argues the trial court erred by failing to appoint a guardian ad litem. Respondent-father argues the trial court erred by: (I) terminating his parental rights on the basis of neglect, failure to make reasonable progress, and dependency; (II) finding it in the children's best interest to terminate respondent-father's parental rights; and (III) ceasing reunification efforts between respondent-father and A.E.L., Jr.

Respondent-Mother's Appeal

Respondent-mother argues the trial court erred by failing to appoint a guardian ad litem pursuant to N.C. Gen.Stat. § 7B-1101.1. We agree.

The Juvenile Code Provides:

On motion of any party or on the court's own motion, the court may appoint a guardian ad litem for a parent 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. The parent's counsel shall not be appointed to serve as the guardian ad litem.

N.C. Gen.Stat. § 7B-1101.1(c) (2007) (emphasis supplied). "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.

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Related

In Re Anderson
564 S.E.2d 599 (Court of Appeals of North Carolina, 2002)
In Re Blackburn
543 S.E.2d 906 (Court of Appeals of North Carolina, 2001)
In Re Clark
582 S.E.2d 657 (Court of Appeals of North Carolina, 2003)
In Re Greene
568 S.E.2d 634 (Court of Appeals of North Carolina, 2002)
In re J.A.A.
623 S.E.2d 45 (Court of Appeals of North Carolina, 2005)
In Re of N.A.L.
666 S.E.2d 768 (Court of Appeals of North Carolina, 2008)
In re J.D.
605 S.E.2d 643 (Court of Appeals of North Carolina, 2004)
In re T.L.B.
605 S.E.2d 249 (Court of Appeals of North Carolina, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
666 S.E.2d 768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nal-ncctapp-2008.