Appeal by guardian
ad litem from order dated 14 January 2000 by Judge Kimberly S. Ta
ylor
in Iredell County District Court. Heard in the Court of Appeals 19 December 2000.
Thomas R. Young for petitioner-appellee Iredell County Department of Social Services.
Andrea D. Edwards attorney advocate for guardian ad litem-appellant.
Homesley, Jones, Gaines, Homesley & Dudley, by L. Ragan Dudley and J. Franklin Mock,
II, for respondent-appellee.
GREENE, Judge.
The guardian ad litem (the GAL) for the minor child appeals a 14 January 2000 order in favor
of the Respondent-father (Respondent) denying the motion to dismiss Respondent's appeal.
The Iredell County Department of Social Services (DSS) filed a petition on 17 March 1999,
to terminate the parental rights of Respondent to his minor daughter, and the GAL was appointed
for the minor child on 19 March 1999. DSS alleged Respondent neglected and willfully abandoned
the child. Respondent filed a response to the petition on 7 May 1999, denying the allegations set out
in the petition. On 2 September 1999, the Iredell County District Court entered an order terminating
Respondent's parental rights to his daughter. On 13 August 1999, Respondent filed notice of appeal
from the order terminating his parental rights and served the notice of appeal on DSS. Respondent,
however, did not serve the notice of appeal on the GAL. On 2 December 1999, DSS and the GAL
filed a joint motion to dismiss Respondent's appeal because Respondent failed to serve the GAL
with the notice of appeal. On 14 January 2000, the trial court filed an order denying the motion to
dismiss the appeal, stating “it is unclear that the [GAL] is a party to the foregoing Termination ofParental Rights proceeding.”
______________________________
The issue is whether a guardian
ad litem, appointed for the child in a termination of parental
rights case, must be served with a copy of the notice of appeal from an order terminating a parent's
parental rights in the child.
In a termination of parental rights proceeding, the taking of an appeal is governed by N.C.
Gen. Stat. § 7A-289.34 (1995).
(See footnote 1)
N.C.R. App. P. 3(b)(1). North Carolina General Statute § 7A-
289.34 is silent on any requirement for the service of a written notice of appeal and, thus, the Rules
of Civil Procedure govern. N.C.G.S. § 1A-1, Rule 1 (1999);
In re Bullabough, 89 N.C. App. 171,
179, 365 S.E.2d 642, 646 (1988) (because a termination of parental rights proceeding is civil in
nature, it is governed by the Rules of Civil Procedure unless otherwise provided). The Rules of Civil
Procedure provide “every written notice . . . shall be served upon each of the parties.” N.C.G.S. §
1A-1, Rule 5(a) (1999). A party is by definition “those by or against whom a legal suit is brought.”
Black's Law Dictionary 1122 (6th ed. 1990). Those persons or agencies authorized to file a petition
for termination of parental rights are limited by statute and are known as petitioners. N.C.G.S. § 7A-
289.24 (1995).
(See footnote 2)
The department of social services to whom the trial court has given custody of a
child is a proper petitioner.
(See footnote 3)
N.C.G.S. § 7A-289.24(3) (1995).
(See footnote 4)
The person or persons against whomthe petition is filed are known as respondents. N.C.G.S. § 7A-289.27(a) (1995). <
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(See footnote 5)
A respondent
includes the parents of the child, any person “judicially appointed as guardian of the person of the
child” and the child if the child is “12 years of age or older at the time the petition is filed.”
Id. A
guardian
ad litem is not a respondent in a termination of parental rights proceeding and, thus, not a
party to the proceeding.
In summary, a guardian
ad litem for a child in a termination of parental rights proceeding
may, in some instances, be a petitioner, but there is no statutory authority for that guardian
ad litem
to be a respondent or party.
In this case, the GAL did not file or join in the filing of the petition and, thus, was not a party
to the termination of parental rights proceeding and not entitled to notice of Respondent's notice of
appeal of the order terminating his parental rights. The order of the trial court denying the GAL's
motion to dismiss the appeal must therefore be affirmed.
(See footnote 6)
Affirmed.
Judges WALKER and FULLER concur.
Footnote: 1 &n
bsp;
We acknowledge the guardian
ad litem is entitled to a copy
of the termination of parental rights order, N.C. Gen. Stat. §
7A-289.31(c2) (1995), (repealed by Session Laws 1998-202, s. 5,
effective July 1, 1999. See now § 7B-1110(d)), and it would seem
the guardian
ad litem, in order to act in the best interests of
the child, should be entitled to a copy of any notice of appeal
from that order. We further note, however, our Legislature has
not vested the guardian
ad litem with the right to appeal from
the entry of an order terminating or failing to terminate
parental rights. N.C.G.S. § 7A-289.34. Again, it would appear
the guardian
ad litem should be granted this right and, indeed,
we note the guardian
ad litem has the right to appeal from the
removal or failure to remove a child from the custody of a parent
who has been found to have abused or neglected a child. N.C.G.S.
§ 7A-667 (1995) (repealed by Session Laws 1998-202, s. 5,
effective July 1, 1999. See now
N.C.G.S. § 7B-1002 (1999)).
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