In re N.K., 375 N.C. 805 (2020)

  • Facts: There is an underlying neglect and dependency action. Ultimately, DSS files a petition to TPR, which is granted. Mother appeals. One of her challenges is that the court failed to conduct a competency hearing of mother on its own motion to determine whether she needed a Rule 17 GAL.
  • The standard of review for whether an inquiry concerning a respondent parent’s incompetency and whether a GAL should be appointed is an abuse of discretion. Substantial deference to the trial court is appropriate given that the trial judge interacts with the litigant and has a better basis for assessing that litigant’s mental condition versus an appellate court’s review of a cold, written record. The evaluation of competency involves more than a diagnosis by a mental health professional. The litigant’s behavior and lucidity demonstrate the litigant’s understanding of the situation and ability to assist their attorney and address important issues.
  • G.S. 7B-1101.1(c) authorizes the appointment of a Rule 17 GAL for a respondent parent who is incompetent. Looking to the definition of G.S. 35A-1101(7), an incompetent adult “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, intellectual disability, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or similar cause or condition.” Sl.Op. at 6.
  • A trial just must inquire into the litigant’s competency when there is a substantial question about the litigant’s competency.
  • Although the respondent mother did not testify at the TPR hearing, she was present for the hearings in the underlying neglect and dependency action as well as the TPR hearing, giving the judge ample opportunity to observe her demeanor and behavior throughout the proceedings.
  • The record contains ample evidence showing mother was not incompetent, such as her entering into a service agreement with DSS; participating in negotiating a stipulation regarding the juvenile’s status as neglected and dependent; verified the answer to the TPR petition; served as her own payee for her social security benefits; acknowledged her need for treatment, expressed a preference for certain providers, and participated in treatment programs; attend visits; was consistently available to the court, DSS, and the child’s GAL; and expressed a preference for her child to be placed with relatives.
  • There was no abuse of discretion for failing to conduct an inquiry into whether a GAL was needed.

This case was remanded on an ICWA issue.

Termination of Parental Rights
GAL for Respondent Parent
Hearing on Competency
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