In re Q.B., 375 N.C. 826 (2020)

  •  Facts: In 2017 in an underlying neglect and dependency case, DSS arranged for mother to complete a psychological evaluation. The evaluation reported mother had an intellectual disability that caused clinical impairment of her functioning (IQ=63). DSS requested a hearing on mother’s need for a Rule 17 GAL. After hearing, the court determined that although mother was low functioning, she was not incompetent and in need of a Rule 17 GAL because she understood the role of the court and parties and the court’s function to determine the juvenile’s status. The child was adjudicated neglected and dependent. Separately, DSS had an adult protective case for mother. In 2018, mother was adjudicated incompetent and a different county DSS was appointed as the guardian of her person (GOP) under G.S. Chapter 35A. Adult Protective Services remained in place and as part of the disposition in the juvenile case, mother was ordered to comply with the APS recommendations. Ultimately, DSS initiated a TPR, and a hearing was held in 2019. The TPR was granted, and mother appeals arguing the court abused its discretion by failing to sua sponte conduct a 2nd inquiry into whether mother required a Rule 17 GAL for the TPR hearing based on new evidence that existed after the first inquiry, including the adjudication of incompetency, appointment of a GOP, and role of APS.
  •  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.
  • Similar to In re T.L.H., 368 N.C. 101 (2015), “the record contains ‘an appreciable amount of evidence tending to show that [respondent] was not incompetent’ at the time of the termination hearing. Sl.Op. at 12. There had been an earlier inquiry where respondent was found to not be incompetent; her competency is supported by her attendance at all the hearings enabling the court to observe her capacity; her testimony at the TPR hearing indicated she understood the nature of the proceeding and she responded in an appropriate and lucid manner to questions about her parenting and her case plan; the social workers testified to respondent’s complying with many of her case plan provisions (e.g., obtain housing, follow APS recommendations, complete a parenting program, attend visits), showing respondent understood what she needed to do to reunify with her daughter; and two months before the TPR hearing, the GOP was changed to a limited guardianship.
  • “Neither mental health limitations nor a low IQ constitute per se evidence of a lack of competency for purposes of Rule 17.” 16. The adjudication of incompetency and appointment of a GOP and an APS services counselor do not mandate a sua sponte competency determination. The role of a GOP and Rule 17 GAL differ; the GAL duties are “solely for purposes of assisting a parent during a particular juvenile proceeding” and are much more limited that the role of a GOP. 17. As a result, the court typically limits the scope of examination of incompetency for the purposes of a Rule 17 GAL appointment to “whether the parent is able to comprehend the nature of the proceedings and aid her attorney in the presentation of her case.” Id. “Thus, it follows that an individual can simultaneously be found incompetent under Chapter 35A yet not require a GAL under Rule 17.” 18. There was no abuse of discretion.
  • There is no requirement in Rule 17(c) that requires a DSS to request a GAL appointment for a respondent parent it believes is incompetent.
Termination of Parental Rights
GAL for Respondent Parent
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