Held:

Affirmed

There is a dissent

by Tyson, J.

Facts: Based on the conditions of Mother’s home, DSS filed a petition alleging the child neglected and obtained nonsecure custody. The child was placed with Petitioners and adjudicated neglected. Mother was granted visitation and ordered to follow DSS’s recommendations for reunification, including a mental health assessment, parenting and anger management classes, and obtaining and maintaining stable housing. Guardianship was awarded to Petitioners and Petitioners ultimately filed to TPR. Mother’s counsel filed a motion to appoint a Rule 17 GAL to assist Mother in the proceedings. The trial court granted the motion without further inquiry, which the court of appeals held was not an abuse of discretion. In re K.W., 282 N.C. App. 734 (2022) (unpublished). Mother’s rights were terminated based on willful abandonment and willful failure to pay for the child’s care. Mother appeals, arguing that the appointment of a Rule 17 GAL makes Mother incompetent to take willful action constituting abandonment. The court affirmed the trial court’s adjudication of the ground of willful abandonment and did not review Mother’s challenge to the other ground adjudicated.
Appellate courts review a TPR to determine “whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the conclusions of law.” Sl. Op. at 5 (citation omitted). Conclusions of law are reviewed de novo.
G.S. 7B-1111(a)(7) allows a trial court to TPR when “[t]he parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition.” Willfulness requires purpose and deliberation. “[A] trial court presented with evidence indicating that a mentally ill parent has willfully abandoned his or her child must make specific findings of fact to support a conclusion that such behavior illustrated the parent’s willful intent rather than symptoms of a parents diagnosed mental illness.” Sl. Op. at 8, quoting In re A.L.L., 376 N.C. 99, 111-12 (2020). The appointment of a Rule 17 GAL “is not based on a person’s legal incompetence” and, unlike a Chapter 35A adult guardian, the role of a Rule 17 GAL is limited to “assisting a parent during a particular juvenile proceeding . . .” Sl. Op. at 6 (citation omitted).
The trial court’s conclusion that Mother willfully abandoned the child during the determinative six months preceding the petition is supported by the findings. Binding findings include that Mother failed to consistently contact the child despite having the ability to do so; had not visited the child during the seven-month period preceding the petition; and had visited the child only once during a 14-month period. Appointment of a Rule 17 GAL to assist Mother during the TPR proceedings does not make her legally incompetent. Petitioners did not make any allegations in the petition as to Mother’s mental illness or concerns for Mother’s mental health, and the substance of Mother’s only mental health report, completed during the underlying proceedings, was not discussed at the TPR hearing. The trial court was not required to make any specific findings as to Mother’s conduct under In re A.L.L. since Mother’s conduct was not evidenced or argued to be a manifestation of any severe mental illness. Mother testified that she had not reached out to arrange visitation during a seven-month period due to Facebook and phone problems; Mother’s mother testified that Mother was caring for another child during another five-month period where Mother missed visitation; and both Mother and Mother’s mother testified that Mother was working and maintained a home, and though Mother’s mother was the payee of Mother’s Supplemental Security Income, Mother was given the funds and used them as needed.
Dissent: The findings do not support the conclusion of willful abandonment. Mother had been diagnosed with a moderate intellectual disability, mild persistent depressive disorder, and low intellectual functioning and adaptive skills. The trial court failed to make any findings that Mother’s behavior was willful rather than symptoms of a diagnosed mental illness, as required by In re A.L.L. Additionally, relying on In re E.G.R., 288 N.C. App. 191 (2023) (unpublished) (applying In re A.L.L. to the ground of willful failure to make reasonable progress), the trial court must make findings under In re A.L.L. to determine whether Mother’s conduct in failing to provide the cost of care was willful or symptomatic of an illness. The trial court failed to make these findings and therefore the court’s conclusion of willful failure to provide the cost of care is unsupported. The TPR order should be vacated and remanded for further findings on Mother’s capacity and competence for willful conduct.