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.
Affirmed.
Judges McGEE and GEER concur.
Report per Rule 30(e).
Footnote: 1 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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