Appeal by respondent from order entered 22 March 2000 by Judge
William G. Hamby, Jr. in District Court, Cabarrus County. Heard in
the Court of Appeals 22 May 2001.
Margaret B. Markey for petitioner-appellee.
Baucom & Robertson, by Scott C. Robertson, for respondent-
appellant.
TIMMONS-GOODSON, Judge.
David Wayne Fuller, Sr. (“respondent”) appeals an order
terminating his parental rights pursuant to section 7B-1100 et seq.
of our General Statutes. Upon review of the record and arguments
of counsel, we reverse the termination order and remand for
proceedings de novo.
The facts pertinent to the appeal are as follows: David Wayne
Fuller, Jr. (“the juvenile”), born 7 November 1991, is the son of
respondent and Arrah Elizabeth Kline (“petitioner”). Petitioner
and respondent were married on 18 August 1990 and subsequently
divorced on 25 January 1994. Petitioner was awarded legal custodyof the juvenile, who now resides with petitioner and his stepfather
in Cabarrus County, North Carolina.
On 20 July 1999, petitioner, represented by counsel, filed a
petition seeking to terminate respondent's parental rights based on
grounds which included abandonment and failure to maintain support.
Respondent, also represented by counsel, filed an answer, denying
several of the material allegations set forth in the petition. At
no time before or during the termination proceedings below did the
trial court appoint a guardian ad litem for the juvenile or
otherwise insure his representation. Following a trial in the
matter, the trial court concluded that the best interests of the
juvenile would be served by terminating respondent's parental
rights and consequently entered an order of termination on 22 March
2000. Respondent now appeals.
The dispositive issue on appeal is whether the trial court
erred by terminating respondent's parental rights without
appointing a guardian ad litem to represent the interests of the
juvenile. Section 7B-1108(b) of the North Carolina General
Statutes provides: “If an answer denies any material allegation of
the petition [seeking termination], the court
shall appoint a
guardian ad litem for the juvenile to represent the best interests
of the juvenile . . . .” N.C. Gen. Stat. § 7B-1108(b) (1999)
(emphasis added). Because respondent denied material allegations
set forth in the petition, the trial court's failure to appoint a
guardian ad litem clearly violated section 7B-1108(b).
Petitioner acknowledges on appeal that the trial court erredin failing to appoint a guardian ad litem for the juven
ile, but
argues that the court's order should not be reversed because
respondent failed to object to the violation of section 7B-1108(b)
at trial. We disagree.
The North Carolina General Assembly recently enacted Section
7B-1108(b),
(See footnote 1)
and as such, our appellate courts have yet to examine
whether the statute mandates reversal for noncompliance, where a
court's violation of the statute was not objected to at trial.
However, in
In re Barnes, 97 N.C. App. 325, 388 S.E.2d 237 (1990),
this Court examined the propriety of the statute which preceded
section 7B-1108(b) and which contained substantially the same
language. We find
Barnes dispositive of the issue presented by the
present appeal.
The
Barnes Court was concerned with section 7A-289.29(b) of
the North Carolina General Statutes which stated: “If an answer
denies any material allegation of the petition, the court shall
appoint a guardian ad litem for the child to represent the best
interests of the child . . . .” N.C. Gen. Stat. § 7A-289.29(b)
(1990) (repealed by 1998 N.C. Sess. Laws ch. 202, effective Jan. 1,
1999). In
Barnes, as in the present case
, the trial court failed
to appoint a guardian ad litem for the minor child. However, in
violation of North Carolina's Rules of Appellate Procedure,
respondent failed to object to the trial court's failure to complywith section 7A-289.29(b) during the termination proceedings or to
assign error to that noncompliance on appeal.
Despite the respondent's failure to comply with our appellate
rules, the
Barnes Court was “unwilling[]” to dismiss the appeal for
appellate rule violations because “the termination statute
requir[ed] that termination proceed only in the best interests of
the child . . . , and the child aged twenty-two months, a party to
the proceeding, was not represented and obviously could not enter
the required objections at trial or in the appellate record.”
Id.
at 326, 388 S.E.2d at 238. The Court, therefore, suspended the
Appellate Rules and accepted the appeal pursuant to its authority
under Rule 2 of our Rules of Appellate Procedure.
Barnes, 97 N.C.
App. at 327, 388 S.E.2d at 238; N.C.R. App. P. 2.
Concerning the merits of the appeal, the Court concluded that
the trial court had indeed violated “[the] statutory mandate” of
section 7A-289.29.
Id. at 327, 388 S.E.2d at 238. The Court
further found that “where the respondent, as here, was represented
by counsel, 'fundamental fairness require[ed] that the minor child
be represented by counsel.'”
Id. (quoting
In re Clark, 303 N.C.
592, 600-01, 281 S.E.2d 47, 53 (1981)). Accordingly, the Court
reversed the order of termination and remanded for the appointment
of a guardian ad litem and for new termination proceedings.
Id. at
327, 388 S.E.2d at 239 (citation omitted).
We are persuaded by the
Barnes decision that the same
disposition is required in the case
sub judice for the trialcourt's violation of section 7B-1108(b).
(See footnote 2)
In contravention of a
statutory scheme intended to preserve the best interest of the
minor child,
see N.C. Gen. Stat. § 7B-1100(3), the trial court
failed to appoint a guardian ad litem to represent the party who is
the intended beneficiary of section 7B-1108(b). Like the minor
child in
Barnes, the nine-year-old juvenile in the present case,
who coincidentally did not attend the termination hearing, was
unable to lodge objections to the trial court's error in the
proceeding below or on appeal.
Accordingly, despite respondent's noncompliance with our
rules, we too are unwilling to forgo reversal based upon a
violation of section 7B-1108(b). Therefore, in accordance with
Barnes, we suspend our appellate rules to reverse the termination
order in the present case.
See N.C.R. App. P. 2. We further
remand the case for appointment of a guardian ad litem for the
juvenile and for the trial court to conduct appropriate
de novo
proceedings not inconsistent with section 7B-1108(b) and this
opinion. Reversed and Remanded.
Judges GREENE and BRYANT concur.
Footnote: 1