Matter of Guynn

437 S.E.2d 532, 113 N.C. App. 114, 1993 N.C. App. LEXIS 1317
CourtCourt of Appeals of North Carolina
DecidedDecember 21, 1993
Docket9224DC1114
StatusPublished
Cited by3 cases

This text of 437 S.E.2d 532 (Matter of Guynn) 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
Matter of Guynn, 437 S.E.2d 532, 113 N.C. App. 114, 1993 N.C. App. LEXIS 1317 (N.C. Ct. App. 1993).

Opinion

*116 McCRODDEN, Judge.

In this appeal, both parents urge reversal of the judgment on several bases. We shall consider the mother’s contention (I) that the trial court erred in finding that there was clear, cogent, and convincing evidence that she was incapable of providing proper care and supervision of the child due to her mental illness. Additionally, we shall review the contention of both respondents (II) that the court erred in failing to interpret section 7A-289.32(7) to require, as a condition precedent to termination, that the agency establish diligent efforts to remedy the parents’ mental deficiencies and reunite the family before DSS may terminate their parental rights. Finally, our opinion will address the father’s argument (III) that the court erred in refusing to compel discovery from the guardian ad litem.

I.

DSS’s action to terminate respondents’ parental rights requires proof that the parents, because of mental retardation or mental illness, are incapable of providing for the proper care and supervision of the minor child and that there is a reasonable possibility that such incapacity will continue throughout the minority of the child. N.C.G.S. § 7A-289.32(7). N.C. Gen. Stat. § 7A-289.30(e) (1989) requires that the trial court base its findings of fact on “clear, cogent and convincing evidence,” a requirement which establishes an intermediate standard of proof, greater than the preponderance of the evidence standard, but less than the requirement of proof beyond a reasonable doubt. In re Montgomery, 311 N.C. 101, 109-110, 316 S.E.2d 246, 252 (1984). Once a petitioner has established by clear, cogent, and convincing evidence one of the grounds for termination listed in N.C.G.S. § 7A-289.32, the trial court has the discretion to terminate parental rights. N.C. Gen. Stat. § 7A-289.31(a) (1989); id. at 110, 316 S.E.2d at 252. In a termination case in which the appealing party raises questions about the evidence, our task is to review the evidence to determine whether there is clear, cogent, and convincing evidence to support the findings of fact and to decide whether those findings support the conclusions of law. Id. at 111, 316 S.E.2d at 253.

Evidence presented at the termination hearing tended to show the following. The minor child was born 6 January 1990 in Boone, North Carolina. DSS became involved with the minor child on 10 January 1990, after a neglect complaint was filed alleging that *117 the child was not being fed properly. DSS visited the parents’ home about 11:00 a.m. to find the child unattended, crying, and sucking her fingers. DSS found no formula in the house and learned that neither parent had fed the child since 3:00 a.m. When formula was provided to the respondents, neither parent could properly mix it.

The minor child was hospitalized on 22 January 1990 at Watauga County Hospital for failure to thrive because she had lost forty percent of her birth weight. She remained in the hospital until 7 February 1990. The child was diagnosed with a mild form of pyloric stenosis, a condition in which a stomach muscle did not properly function, causing her to vomit. During the child’s hospitalization, the hospital staff instructed respondents on parenting skills and observed their interaction with the minor child. The hospital staff observed only marginal bonding between the parents and the minor child, noting that the parents did not provide adequate cuddling, comforting, or eye contact with the child. Instead, they observed the parents watching television.

After being discharged from the hospital, the child remained at the respondents’ home until DSS was summoned there because respondents were fighting and the mother was suicidal. The mother was subsequently hospitalized on 27 March 1990, in the psychiatric ward of Cannon Memorial Hospital in Banner Elk, and the parents voluntarily placed the minor child in foster care. Following the mother’s release from Cannon Hospital on 9 April 1990, the child was returned to her parents on 12 April 1990. In April 1990, the mother informed DSS that they cou}d “keep the damn[ed] baby,” and then on 19 April 1990, the child was removed from respondents’ home and custody was awarded to DSS because DSS was concerned for the child’s safety.

DSS set up a visitation schedule for the child to visit respondents in their home. When the visits were at the parents’ home, they often failed to interact with the child, slept during the visit, and terminated the visit early. Beginning on 6 June 1990, visitation occurred in the office of the guardian ad litem in Boone. Neither respondent asked to visit the child from 26 September 1990 until 3 January 1991, at which time DSS initiated a visit because the child was being moved out of county. The mother had the opportunity to attend the 3 January 1991 visit, but failed to do so. The father visited the child but interacted with her only minimally. *118 Furthermore, he failed to ask any questions about the child’s development or well-being.

Three subsequent visits took place, on 19 March 1991, 1 May 1991, and 17 July 1991. DSS initiated the 19 March visit and both parents attended. During this visit, the parents made no effort to hold the child and again failed to ask questions about their daughter. Respondents requested the 1 May visit, and the father initiated the last visit on 17 July 1991. For the 17 July visit, he agreed to plan the entire visit, i.e., the activities and meals. Nonetheless, he brought no food, water, or diapers for the child and failed to check her diaper throughout the six-hour visit. His interaction with the child was inappropriate in that he carried her everywhere, even though she was able to walk.

During the hearing for termination of respondents’ parental rights, the mother was not present on the 12 and 14 November 1992 sessions, claiming she was suffering from stress and anxiety. She later admitted that she had not visited a doctor and chose not to be present at the hearing.

The trial judge made findings and concluded that the mother, due to mental illness, was incapable of providing proper care and supervision of the minor child. She now contests the trial court’s findings and conclusions, arguing that there was not clear, cogent, and convincing evidence supporting its determination. We find, however, that there was clear, cogent, and convincing evidence supporting the court’s findings. In addition to the overview of evidence presented above, there was further evidence that the mother has been under the care of a psychotherapist since 1986 and has frequently used the emergency services of New River Mental Health. Some of these emergency contacts involved suicide threats. On 27 September 1991, the mother came to New River Mental Health’s emergency room, saying that she was upset and drinking again. She complained of difficulty in sleeping, eating, and functioning, and called herself a “timebomb.” On 25 October 1991, the mother again came to New River Mental Health and reported that she felt the tug of Satan and needed the child’s father to help her. She further reported, “Sometimes I see the devil’s face and must tell him to back down.”

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Cite This Page — Counsel Stack

Bluebook (online)
437 S.E.2d 532, 113 N.C. App. 114, 1993 N.C. App. LEXIS 1317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-guynn-ncctapp-1993.