An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1463


Filed: 7 October 2003


JESSE BIKMAN                        Buncombe County
JOANNA BIKMAN,                        No. 01 J 124
    minor children.

    Appeal by respondent mother from judgment and order filed 21 August 2001 by Judge Earl J. Fowler, Jr. in Buncombe County District Court. Heard in the Court of Appeals 21 August 2003.

    John C. Adams for petitioner-appellee Buncombe County Department of Social Services.

    Attorney Advocate Judy N. Rudolph for guardian ad litem-appellee Lynn Eddy.

    Maitri “Mike” Klinkosum for respondent-appellant.

    BRYANT, Judge.

    Barbara Bikman (respondent) appeals an adjudication judgment and dispositional order entered 21 August 2001 concluding that respondent's children were dependent and neglected under N.C. Gen. Stat. § 7B-101(9) and (15).
    On 7 May 2001, the Buncombe County Department of Social Services filed a juvenile petition alleging that respondent's two minor children were dependent and neglected. Pursuant to N.C. Gen. Stat. § 7B-602(a), respondent was appointed counsel to represent her during the court proceedings. On 15 June 2001, respondent's counsel filed a motion to withdraw, stating he could not provide effective representation because he and respondent “ha[d]differences regarding the handling of this case.” The motion was granted, and a new attorney was appointed to represent respondent. On 27 June 2001, respondent's second counsel also filed a motion to withdraw, stating as the ground that respondent “no longer desire[d] for the undersigned to represent her.” The trial court granted the motion. But finding respondent, who “may not be able to make rational decisions” because of her borderline personality disorder, “unable to adequately represent her interests in this matter,” the trial court appointed Ed Hensley as respondent's guardian ad litem.
    At the adjudication hearing, at which respondent did not appear, Mr. Hensley, as her guardian ad litem, advised the trial court of respondent's wish to be represented by counsel during the proceeding. The trial court denied the request, finding respondent to be “well represented” by Mr. Hensley, and commenced the hearing. In the portion of the trial court's August 21 adjudication judgment and dispositional order pertinent to this appeal, the trial court found:
        2.    That [respondent] . . . was not present in [c]ourt. [A] social worker for the Buncombe County Department of Social Services[] had informed [respondent] of this court date, but [respondent] stated . . . that she had no intention of being at this hearing. [Respondent] has waived her right to further legal counsel by firing all attorneys whom the [trial] [c]ourt has appointed for her. Due to her apparent incapacity and absence from the State, Ed Hensley was appointed Guardian ad Litem for [respondent] and was present.

    The dispositive issue on appeal is whether respondent was adequately represented at the adjudication and disposition hearing.
    In her brief to this Court, respondent argues that she, through her guardian ad litem, clearly asserted her right to counsel at the hearing. Petitioner, on the other hand, contends that, as found by the trial court, respondent waived her right to appointed counsel by releasing her two prior attorneys and, in any event, respondent was adequately represented in court by Mr. Hensley.
    N.C. Gen. Stat. § 7B-602(a) provides that: “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.”
N.C.G.S. § 7B-602(a) (2001).   (See footnote 1)  Accordingly, in the absence of a waiver, respondent was entitled to be represented by counsel; however, because we conclude that Mr. Hensley assumed the role of counsel at the hearing, we need not address whether respondent's prior rejection of her court-appointed counsel constituted a waiver under the statute. See In re Clark, 303 N.C. 592, 598-99, 281 S.E.2d 47, 52-53 (1981) (where guardian ad litem was a licensed attorney and actively defended the client's interests, therespondent was “in fact represented by competent and conscientious counsel and therefore [was] in no way deprived of the right to counsel”).   (See footnote 2) 
    In this case, the trial court heard evidence and gave Mr. Hensley, a licensed and experienced attorney, the opportunity to examine the witnesses. Mr. Hensley did not call any witnesses on respondent's behalf but did present to the court a letter respondent had written in response to this action. Mr. Hensley also made a closing argument at the end of the hearing, requesting the trial court to only make a determination on temporary custody and further recommending supervised visitation. In light of these facts, respondent was represented by counsel and her assignment of error is overruled.
    Judges McGEE and GEER concur.
    Report per Rule 30(e).

Footnote: 1
    As parents thus have a statutory right to counsel in juvenile abuse, neglect, and dependency cases under North Carolina law, the constitutional analysis relied on in the briefs of petitioner and the guardian ad litem for respondent's children is of no consequence to the outcome of this case. See also N.C.G.S. § 7B- 1101 (2001) (parents have right to counsel in termination of parental rights case).
Footnote: 2
    We note that Clark was decided based on events that occurred before the enactment of the statutory right to counsel in juvenile abuse, neglect, dependency, and termination of parental rights cases. The analysis, however, remains applicable today because our Supreme Court's holding did not rest on whether a right to counsel existed outside a statutory mandate but focused on whether, assuming such a right existed, the right to counsel had been violated. The Supreme Court discussed the role of a guardian ad litem and the specific actions taken by the guardian ad litem in that case and concluded the respondent-mother was not deprived of her right to counsel because she had been represented throughout the proceeding by her guardian ad litem, who was also a licensed attorney. See Clark, 303 N.C. at 597-99, 281 S.E.2d at 51-53.

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