Appeal by respondent from order entered 7 March 2001 by Judge
James M. Honeycutt in Alexander County District Court. Heard in
the Court of Appeals 6 June 2002.
No brief filed for petitioner-appellee Alexander County
Department of Social Services.
Womble Carlyle Sandridge & Rice, by Julie Barker Pape, for
Guardian ad Litem, appellee.
Robert E. Campbell, for Darlene Lackey Hall, respondent-
appellant.
MARTIN, Judge.
On 1 December 1999, Diane Denise Hall, a minor child then two
years old, was adjudicated a neglected juvenile based on the
actions of respondent-mother, Darlene Lackey Hall, in engaging in
two physical altercations in the child's presence, and in operating
a motor vehicle, with the child present, after consuming alcohol
and using crack cocaine. The court also ruled that the child was
dependent because respondent-mother was incarcerated and there was
no other adult to care for the child. At a dispositional hearing
on 15 December 1999, the trial court ordered that legal and
physical custody of the minor child be placed with the Alexander
County Department of Social Services, that respondent-mother havesupervised visitation, that respondent-mother have substance abuse
assessment and be subject to random alcohol and drug screening,
that respondent-mother complete parenting classes at the direction
of the Department of Social Services, and that respondent-mother
undergo a psychological assessment. On 8 November 2000, the court
continued legal and physical custody in the Department of Social
Services after concluding that it was contrary to the welfare of
the minor child for her to be returned to the care of respondent-
mother at that time based partly on respondent-mother's substance
abuse assessment.
On 15 November 2000, the court again ordered that the
Department of Social Services continue to have legal and physical
custody of the child with placement authority. The court ordered
that the plan of care would be reunification with respondent-
mother and concurrently termination of parental rights and
adoption. The court ordered respondent-mother to participate in
and complete strengthening classes and that she be re-evaluated at
Foothills Mental Health Center to determine whether she had a need
for medication management and, if so, to submit to random blood
tests to determine compliance. Respondent-mother's appeal from the
15 November 2000 order was dismissed by this Court. In re Hall,
148 N.C. App. 214, 560 S.E.2d 242 (unpublished, COA01-591, 28
December 2001).
On 7 March 2001, a permanency planning hearing was held in
accord with G.S. § 7B-907. The court concluded that termination of
respondent-mother's parental rights would not be in the bestinterests of the child but that the best interests of the minor
would be served by her remaining in the custody of her maternal
aunt, Renee Morron, with whom she had resided since 3 March 2000,
and that her permanent plan of care should be a guardianship with
Renee Morron. The court also ordered that no further efforts
needed to be made to reunify the child and respondent-mother and
ordered that respondent-mother be allowed visitation, but that
respondent-mother not be under the influence of any intoxicating
substance during such visits. Respondent-mother appeals.
By her first assignment of error, respondent-mother asserts
the trial court “abused its discretion in placing legal
guardianship of the minor child with an aunt on the grounds that
there was insufficient evidence to support or justify the court's
ruling.” In the brief, however, respondent-mother's counsel
neither offers argument nor cites authority in support of the
assignment of error; instead he asks that we review the record
pursuant to
Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493,
reh'g denied, 388 U.S. 924, 18 L. Ed. 2d 1377 (1967), and
State v.
Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985) in order to determine
whether prejudicial error exists. We have held, as have a majority
of states, that the right to file an
Anders brief does not extend
to civil proceedings, including a proceeding involving custody of
minors and termination of parental rights with respect to such
minors.
In re Harrison, 136 N.C. App. 831, 526 S.E.2d 502 (2000).
Therefore, respondent-mother's first assignment of error is deemedabandoned and is dismissed. N.C.R. App. P. 28(b)(6).
By her remaining assignment of error, respondent-mother
contends the trial court committed reversible error by appointing,
as her trial counsel in this proceeding, Edward L. Hedrick, IV, who
was also serving as the county attorney for Alexander County at the
time. Although there is no documentation in the record on appeal
that Mr. Hedrick was serving as county attorney when he was
appointed to represent respondent-mother in this proceeding, we
will accept as true such assertion by counsel in the brief.
Counsel was appointed on 17 November 1999. At that time, G.S.
§ 7B-602 stated:
In cases where the juvenile petition alleges
that a juvenile is abused, neglected, or
dependent, the parent has the right to counsel
and to appointed counsel in cases of indigency
unless that person waives the right.
In no
case may the court appoint a county attorney,
prosecutor, or public defender.
N.C. Gen. Stat. § 7B-602 [effective prior to 1 July 2001] (emphasis
added). The statute was amended to delete the last sentence
effective on and after 1 July 2001. The trial court violated the
statute when it appointed the Alexander County attorney to
represent respondent-mother.
No objection was asserted in the trial court to Mr. Hedrick's
appointment at any stage of this proceeding, and respondent-mother
makes no claim that any conflict of interest existed by reason of
her representation by the county attorney or that she was harmed
thereby. She acknowledges the general rule “that failure to assert
a statutory or constitutional right in the trial court is a waiverof that right.”
In re Richard v. Michna, 110 N.C. App. 817, 821,
431 S.E.2d 485, 488 (1993). However, citing
State v. Hucks, 323
N.C. 574, 374 S.E.2d 240 (1988) and
In re Richard, supra, she
contends that where the trial court acts contrary to a statutory
mandate, the error is not waived by her failure to object and that
she is not required to show prejudice because the error should be
deemed prejudicial
per se.
We disagree. Unlike other statutes to
which the waiver exception applies, the last sentence of G.S. § 7B-
602 requires no affirmative act by the court; rather it is a
prohibition. Therefore, we conclude that by her failure to object
to the appointment of the county attorney to represent her in this
proceeding, respondent-mother has waived her right to assert the
appointment as error on appeal.
Moreover, even if the error had not been waived, it is not
prejudicial
per se, and respondent-mother has shown no prejudice
arising from her representation by the county attorney. The cases
upon which respondent-mother relies are distinguishable. In
Hucks,
the defendant was charged with capital murder; the trial court did
not appoint additional assistant counsel as mandated by G.S. § 7A-
450(b1). The Supreme Court held the violation of the express
statutory mandate was prejudicial error
per se. Likewise, in
In re
Richard, where the trial court did not appoint a
guardian ad litem
for a mentally retarded mother who was a respondent in a proceeding
to terminate her parental rights, this Court held that the failure
of the trial court to comply with the statutory mandate of G.S. §
7A-289.23 providing that a guardian
ad litem “shall
be appointed”required remand without a showing of prejudice. In this case,
however, the error asserted is not a violation of the requirement
of G.S. § 7B-602 which mandates the appointment of counsel for an
indigent parent in a juvenile proceeding, rather, it is a violation
of the provision that states that such counsel “may” not be a
county attorney. Under such circumstances, we are persuaded that
prejudice is not presumed and must be shown in order to warrant a
reversal on appeal. Here, respondent-mother has shown no
prejudice; indeed she has not contended that she was prejudiced.
She was not denied the assistance of counsel nor any other
protection mandated by the statute; she was represented by counsel
throughout the proceeding, her attorney had no conflict of
interest, and he cross-examined witnesses and argued to the court
on her behalf. Her assignment of error is overruled.
Finally, respondent attempts to argue that the trial court
abused its discretion with respect to its order specifying that
respondent should have visitation with the minor at least twice
each month for two hours and authorizing the minor's guardian to
approve the time, and location of such visitation. However,
respondent did not assign error to the trial court's order with
respect to visitation. The scope of appellate review is limited to
the assignments of error set out in the record on appeal. N.C.R.
App. P. 10(a). Consequently, the question is not properly before
us and we decline to address it.
Dismissed in part and affirmed in part.
Judges TIMMONS-GOODSON and CAMPBELL concur.
Report per Rule 30(e).
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