1. Child Abuse and Neglect--psychological testing of parents--willful noncompliance
The trial court did not err in a child abuse and neglect case by finding that respondent
parents' noncompliance with court orders requiring psychological testing of the parents was
willful and not due to their financial circumstances, and by ordering DSS to cease reunification
efforts with respondents because: (1) respondent mother received disability payments from
Social Security; (2) respondent father received no income, provided no explanation to the trial
court as to why he did not work, and there was nothing in the record to indicate that respondent
father was unable to work; and (3) evidence was presented that respondent mother was able to
produce $600 to post bond when respondent father was arrested for larceny sometime after the
psychological testing was ordered by the court, even though she claimed she borrowed the
money from neighbors.
2. Child Abuse and Neglect--reunification_-findings of fact
The trial court did not fail to make the requisite findings of fact as required by N.C.G.S. §
7B-907 in a child abuse and neglect case to support its order ceasing reunification efforts with
respondent parents, because: (1) the trial court expressly designated its 20 August 2002 order as
a regularly scheduled review and placed the matter on the 17 September 2002 calendar for a
permanency planning hearing, and thus, the trial court was not conducting, nor was it required to
conduct, a permanency planning hearing as specified in N.C.G.S. § 7B-907 at that time; and (2) a
trial court may order DSS to cease reunification efforts with a natural parent during a regularly
scheduled review if it makes certain written findings of fact under N.C.G.S. § 7B-907(b), and the
required written findings were made.
3. Guardian and Ward--guardian ad litem-_dependency-_parent's substance abuse
The trial court did not err in a child abuse and neglect case by failing to appoint a
guardian ad litem for respondent father, because: (1) the trial court does not need to appoint a
guardian ad litem under N.C.G.S. § 7B-602(b)(1) unless the petitioner specifically alleges
dependency and the majority of the dependency allegations tend to show that a parent or
guardian is incapable as the result of some debilitating condition listed in the statute of providing
for the proper care and supervision of his child; (2) in this case, the petition did not specifically
allege dependency as a result of respondent's substance abuse, nor did the majority of the
petition's allegations against respondent focus on his alleged substance abuse as the cause of the
children's dependency; and (3) the majority of the dependency allegations in this case focused
on respondent's alleged abuse and neglect as exhibited by his noncompliance with court-ordered
domestic violence counseling and a pattern of abuse against his wife and other children, which
did not tend to show incapacity by respondent as defined by the statute.
4. Guardian and Ward--guardian ad litem-_timely appointment--incompetent person
The trial court did not err in a child abuse and neglect case by allegedly failing to make a
timely appointment a guardian ad litem for respondent mother, because: (1) N.C.G.S. § 7B-
602(b)(1) does not require reversal where the court makes an appointment sometime after the
actual commencement of the action unless that appointment is so untimely that it results in
prejudice to the incompetent person's case; and (2) assuming arguendo that N.C.G.S. § 7B-602(b)(1) required the appointment of a guardian ad litem for respondent in this case, the trial
court's one and a half month delay in appointing a guardian ad litem did not cause prejudice to
respondent's case.
Davidson County Department of Social Services, by Staff
Attorney Charles E. Frye, III, for petitioner-appellee.
Nancy R. Gaines, for respondent-appellant mother.
Katherine Chester, for respondent-appellant father.
Laura B. Beck, for the Guardian ad Litem.
MARTIN, Chief Judge.
Respondent-mother and respondent-father are the parents of
H.W., born 12 November 1995, and R.W., born 23 February 1998. On
22 June 2001, the Davidson County Department of Social Services
(“DSS”) filed a petition alleging the minor children were neglected
and dependent. Nonsecure custody of the children was given to DSS,
and on 31 August 2001, following hearings conducted on 24 July, 7
August, and 13 August 2001, the trial court found, inter alia, that
on 18 April 1991, respondent-father had been convicted of
feloniously abusing the twenty-month-old son of his girlfriend
resulting in the child suffering a closed head injury, brain
damage, numerous bruises on his body, and permanent paralysis; that
respondent-mother suffered domestic violence from respondent-father
and had mental limitations which caused her to receive disability
payments; and that respondent-father suffered from blackouts,uncontrollable bouts of anger, and loss of memory. The trial court
concluded the children were living in an environment injurious to
their welfare and adjudicated the children to be neglected.
Respondents were granted supervised visitation with the children
for one hour per week and the matter was placed on the 27 August
2001 calendar for disposition.
Several hearings were scheduled and continued over the next
four months. During this time, respondents underwent counseling
and participated in supervised visitation with the children. In
addition, DSS provided services and recommended treatment options
to respondents in an effort to reunite the family.
On 25 January 2002, DSS filed additional petitions alleging
the children were abused, neglected, and dependent. In light of
these newly filed petitions, disposition of the 13 August 2001
adjudication of neglect was continued several more times. The
record does not indicate whether disposition was ever conducted for
the 13 August 2001 adjudication of neglect.
On 19 February 2002, the court heard and denied a motion by
respondent-mother for substitute counsel. On 11 March 2002, the
court allowed a motion by respondent-mother's attorney to withdraw
and appointed a Guardian ad Litem for respondent-mother, due to her
cognitive limitations.
On 17 May 2002, after hearings conducted on 25 April, 9 May,
and 17 May 2002, the trial court entered adjudication and
disposition orders for the 25 January 2002 petitions. It found,
inter alia, that respondent-father continued to deny responsibilityfor the previous felony child abuse conviction and for any acts of
domestic violence against respondent-mother; that the juvenile,
R.W. had been observed eating feces and that he claimed that his
“Da” would put it in his mouth whenever he had an accident in his
pants; that the juvenile, H.W., would become sick and wet her bed
almost every time prior to visitation with respondents; that a
Child Mental Health Evaluation Program had been completed and it
concluded that the children had been physically and emotionally
abused by respondents and that respondents lacked the insight,
motivation, and ability to work with professionals to correct the
problem; and that respondent-mother, due to her cognitive
limitations, was unable to protect her children, intervene on their
behalf, or be truthful with professionals about what was occurring
in the home. The trial court adjudicated the juvenile, R.W., to be
abused and neglected, and it adjudicated the juvenile, H.W., to be
neglected. Visitation with respondent-parents was ordered to be
“at the discretion of the juvenile's (sic) therapists.”
Respondent-father was ordered to complete the Abusers' Intervention
Program and undergo a sexual disorders specific evaluation;
respondent-mother was ordered to complete a full-scale
psychological evaluation; and both parents were ordered to
cooperate with DSS in locating funds to pay for the court ordered
evaluations. The permanent plan of care for the children was
decreed to be a concurrent plan of reunification with respondent-
parents and guardianship with a relative. No appeal was taken from
that order. On 20 August 2002, the trial court conducted a regularly
scheduled review of the matter and considered a motion from
respondent-mother for visitation with the children. The trial
court found, inter alia, that respondent-parents had wilfully
failed to complete the previously ordered evaluations; that the
children's circumstances improved significantly after visitation
with the respondent-parents ceased on 12 March 2002; and that
efforts to reunite the family were inconsistent with the children's
health, safety, and need for a permanent home within a reasonable
period of time. It denied respondent-mother's motion for
visitation with the children and ordered that the permanent plan of
care for the children be changed to a concurrent plan of
guardianship with a relative and termination of parental rights and
adoption. The matter was placed on the 17 September 2002 calendar
for a permanency planning hearing. Respondents appeal from this
order.
______________________
Respondents present arguments supporting four of the ten
assignments of error contained in the record on appeal. The
remaining assignments of error are deemed abandoned. N.C. R. App.
P. 28(a).
[1] In their first and fourth assignments of error,
respondents argue the trial court's finding of fact #4 was not
supported by competent evidence in the record and the trial court
erred when it ordered DSS to cease reunification efforts with
respondents based on their financial inability to comply with courtorders. Because we find competent evidence in the record to
support the trial court's finding of fact #4 that respondents'
noncompliance with court orders was not due to their financial
circumstances, we find no error in either respect.
A trial court's findings of fact are conclusive if supported
by competent evidence in the record. In re Isenhour, 101 N.C. App.
550, 553, 400 S.E.2d 71, 73 (1991). Finding of fact #4 states:
4. That counsel for Respondent-Mother made a
motion at this hearing that the Davidson
County Department of Social Services be
required to pay for court ordered
psychological testing of the Respondent-
Parents due to their indigency. The Court
does not accept their excuses for the failure
to obtain such evaluations and notes that the
Respondent-Father does not work; is not
receiving disability; and was able to borrow
funds from neighbors in order to post bond to
be released on a pending charge of felony
larceny. The Court finds that the failure of
the Respondent-Parents to obtain said
evaluations is not due to their financial
circumstances but rather to their
unwillingness to either cooperate with the
Davidson County Department of Social Services
or to comply with the directives of this
Court.
Respondents claim their indigence prevented them from
complying with the court ordered psychological testing, which was
estimated to cost approximately $600 for respondent-father and
between approximately $550 and $750 for respondent-mother. Ms.
Gould, the DSS social worker, testified that she had worked to find
an agency who would conduct the testing for free, but was unable to
do so. She testified that respondents made no efforts to assist in
this endeavor. Evidence received at hearing indicated thatrespondent-mother received disability payments from Social Security
due to her mental limitations, which she used to support herself
and respondent-father. Respondent-father received no income and
provided no explanation to the trial court, upon inquiry, as to why
he did not work. Furthermore, there is nothing in the record to
indicate that respondent-father is unable to work. The trial court
found it significant that when respondent-father was arrested for
larceny in Guilford County sometime after the psychological testing
was ordered by the court, respondent-mother was able to produce
$600, which she claims she borrowed from neighbors, to post bond.
The evidence was sufficient to support the trial court's finding
that respondent-parents wilfully failed to comply with a court
order and that such noncompliance was not due to their financial
circumstances. Accordingly, we overrule respondents' assignments
of error.
[2] Next, respondents argue the trial court did not make the
requisite findings of fact as required by G.S. § 7B-907 to support
its order ceasing reunification efforts with respondent-parents.
This argument has no merit.
N.C. Gen. Stat. § 7B-907(a) (2003) requires the trial court to
conduct a permanency planning hearing within 12 months of an
initial order removing custody from a parent or guardian. The
statute defines a permanency planning hearing as follows:
(a) In any case where custody is removed from
a parent, guardian, custodian, or caretaker,
the judge shall conduct a review hearing
designated as a permanency planning hearing
within 12 months after the date of the initial
order removing custody, and the hearing may becombined, if appropriate, with a review
hearing required by G.S. 7B-906. The purpose
of the permanency planning hearing shall be to
develop a plan to achieve a safe, permanent
home for the juvenile within a reasonable
period of time.
Id.
At the conclusion of the permanency planning hearing, if the
juvenile is not returned home, the trial court must consider the
following criteria and make written findings regarding those that
are relevant:
(1) Whether it is possible for the juvenile to
be returned home immediately or within the
next six months, and if not, why it is not in
the juvenile's best interests to return home;
(2) Where the juvenile's return home is
unlikely within six months, whether legal
guardianship or custody with a relative or
some other suitable person should be
established, and if so, the rights and
responsibilities which should remain with the
parents;
(3) Where the juvenile's return home is
unlikely within six months, whether adoption
should be pursued and if so, any barriers to
the juvenile's adoption;
(4) Where the juvenile's return home is
unlikely within six months, whether the
juvenile should remain in the current
placement or be placed in another permanent
living arrangement and why;
(5) Whether the county department of social
services has since the initial permanency plan
hearing made reasonable efforts to implement
the permanent plan for the juvenile;
(6) Any other criteria the court deems
necessary.
N.C. Gen. Stat. § 7B-907(b) (2003). In this case, the trial court expressly designated its 20
August 2002 order as a regularly scheduled review and placed the
matter on the 17 September 2002 calendar for a permanency planning
hearing. Thus, the trial court was not conducting, nor was it
required to conduct, a permanency planning hearing as specified in
G.S. § 7B-907 at that time. Instead, the court was conducting a
review hearing as required by G.S. § 7B-906. N.C. Gen. Stat. § 7B-
906 (2003) (requiring regularly scheduled reviews by the trial
court whenever custody is removed from a parent or guardian).
A trial court may order DSS to cease reunification efforts
with a natural parent during a regularly scheduled review if it
makes written findings of fact that:
(1) Such [reunification] efforts clearly would
be futile or would be inconsistent with the
juvenile's health, safety, and need for a
safe, permanent home within a reasonable
period of time;
(2) A court of competent jurisdiction has
determined that the parent has subjected the
child to aggravated circumstances as defined
in G.S. 7B-101;
(3) A court of competent jurisdiction has
terminated involuntarily the parental rights
of the parent to another child of the parent;
or
(4) A court of competent jurisdiction has
determined that: the parent has committed
murder or voluntary manslaughter of another
child of the parent; has aided, abetted,
attempted, conspired, or solicited to commit
murder or voluntary manslaughter of the child
or another child of the parent; or has
committed a felony assault resulting in
serious bodily injury to the child or another
child of the parent.
N.C. Gen. Stat. § 7B-507(b) (2003). The required findings were
made by the trial court in its order and after careful review, we
hold that such findings are supported by competent evidence in the
record. Respondents' assignment of error is overruled.
Finally, respondents argue the trial court erred in failing to
appoint a guardian ad litem for the respondent-father, and failing
to make a timely appointment of a guardian ad litem for
respondent-mother pursuant to G.S. § 7B-602(b)(1). We disagree.
[3] Respondents first argue that G.S. § 7B-602(b)(1) required
the appointment, sua sponte, of a guardian ad litem for respondent-
father in this case. N.C. Gen. Stat. § 7B-602(b)(1) (2003) states
that where a petition alleges that a juvenile is abused, neglected,
or dependent:
(b) In addition to the right to appointed
counsel set forth above, a guardian ad litem
shall be appointed in accordance with the
provisions of G.S. 1A-1, Rule 17, to represent
a parent in the following cases:
(1) Where it is alleged that the juvenile
is a dependent juvenile within the
meaning of G.S. 7B-101 in that the parent
is incapable as the result of substance
abuse, mental retardation, mental
illness, organic brain syndrome, or any
other similar cause or condition of
providing for the proper care and
supervision of the juvenile[.]
This provision was enacted in 2001 and is applicable to actions
filed on or after 1 January 2002. 2001 N.C. Sess. Laws 2001-208,
s. 2. When construing the meaning of a newly enacted statute, our
Supreme Court stated in Fowler v. Valencourt, 334 N.C. 345, 348,
435 S.E.2d 530, 532 (1993) (citations omitted): [T]he Court must first ascertain the
legislative intent to assure that the purpose
and intent of the legislation are carried out.
To make this determination, we look first to
the language of the statute itself. If the
language used is clear and unambiguous, the
Court does not engage in judicial construction
but must apply the statute to give effect to
the plain and definite meaning of the
language.
Respondents appeal from an order reviewing the disposition of
juvenile petitions filed on 25 January 2002. The petitions alleged
that the children were dependent juveniles as defined by G.S. § 7B-
101 in that they were abused and neglected by respondents. There
is no allegation in the petitions that the children were dependent
“as the result of [respondent-father's] substance abuse, mental
retardation, mental illness, organic brain syndrome, or any other
similar cause or condition. . . .” N.C. Gen. Stat. § 7B-
602(b)(1)(2003). However, the neglect allegations do contain an
allegation of substance abuse by respondent-father.
Respondent-father argues that these allegations are sufficient
to trigger the appointment of a guardian ad litem pursuant to G.S.
§ 7B-602(b)(1). We first note that G.S. § 7B-602(b)(1) is narrow
in scope and does not require the appointment of a guardian ad
litem in every case where dependency is alleged, nor does it
require the appointment of a guardian ad litem in every case where
substance abuse or some other cognitive limitation is alleged. To
be sure, we look to the language of the statute itself which
requires the appointment of a guardian ad litem only in cases where
(1) it is alleged that a juvenile is dependent; and (2) the
juvenile's dependency is alleged to be caused by a parent orguardian being “ incapable as the result of substance abuse, mental
retardation, mental illness, organic brain syndrome, or any other
similar cause or condition of providing for the proper care and
supervision of the juvenile.” N.C. Gen. Stat. § 7B-
602(b)(1)(2003)(emphasis added). Thus, a trial court need not
appoint a guardian ad litem pursuant to G.S. § 7B-602(b)(1) unless
(1) the petition specifically alleges dependency; and (2) the
majority of the dependency allegations tend to show that a parent
or guardian is incapable as the result of some debilitating
condition listed in the statute of providing for the proper care
and supervision of his or her child. See In re Estes, 157 N.C.
App. 513, 518, 579 S.E.2d 496, 499, disc. review denied, 357 N.C.
459, 585 S.E.2d 390 (2003) (interpreting an analogous provision for
the appointment of a guardian ad litem at a termination of parental
rights proceeding).
In this case, the petition did not specifically allege
dependency as a result of respondent-father's substance abuse, nor
did the majority of the petition's allegations against respondent-
father focus on his alleged substance abuse as the cause of the
children's dependency. Rather, the majority of the dependency
allegations in this case focused on the respondent-father's alleged
abuse and neglect as exhibited by his noncompliance with court-
ordered domestic violence counseling and a pattern of abuse against
his wife and other children. Such allegations do not tend to show
incapacity by respondent-father as defined by the statute and thus,G.S. § 7B-602(b)(1) did not require the appointment of a guardian
ad litem for respondent-father in this case.
[4] Respondents next argue the trial court erred by delaying
the appointment of a guardian ad litem for respondent-mother
pursuant to G.S. § 7B-602(b)(1) and that such delay resulted in
prejudice to her. Assuming, arguendo, that G.S. § 7B-602(b)(1)
required the appointment of a guardian ad litem for respondent-
mother in this case, we conclude the trial court's one and a half
month delay in appointing a guardian ad litem was not prejudicial
to her and thus, reject respondents' argument.
N.C. Gen. Stat. § 7B-602(b)(1) (2003) states “a guardian ad
litem shall be appointed in accordance with the provisions of G.S.
[§] 1A-1, Rule 17.” Rule 17 directs that “[w]hen an insane or
incompetent person is defendant and service by publication is not
required,” a guardian ad litem should be appointed for that person
“prior to or at the time of the commencement of the action.” N.C.
Gen. Stat. § 1A-1, Rule 17(c)(4) (2003).
We first must determine whether failure to appoint a guardian
ad litem prior to or at the commencement of the action pursuant to
Rule 17 is prejudicial error per se. See Richard v. Michna, 110
N.C. App. 817, 822, 431 S.E.2d 485, 488 (1993)(holding that failure
to comply with the clear mandate of a statute is prejudicial error
per se). While the appointment of a guardian ad litem is clearly
mandatory under G.S. § 7B-602(b) and thus, failure to appoint a
guardian ad litem in any appropriate case is deemed prejudicial
error per se, see In re Estes, 157 N.C. App. 513, 515, 579 S.E.2d496, 498, disc. review denied, 357 N.C. 459, 585 S.E.2d 390
(2003)(holding that reversal was required where a trial court
failed to appoint a guardian ad litem at a termination of parental
rights proceeding pursuant to an analogous statutory provision), we
find that the clear mandate of the statute does not require
reversal where the court makes an appointment sometime after the
actual commencement of the action unless that appointment is so
untimely that it results in prejudice to the incompetent person's
case.
In this case, the petition alleging abuse, neglect, and
dependency was filed on 25 January 2002 and at that time,
respondent-mother was represented by counsel. A guardian ad litem
was not appointed for respondent-mother until 11 March 2002.
During the time between the filing of the petition and the
appointment of a guardian ad litem, no proceedings occurred except
a motion by respondent-mother for substitute counsel which was
heard and denied by the trial court. Before the adjudication and
disposition hearings held on 25 April, 9 May, and 17 May 2002, and
the regularly scheduled review hearing, from which respondent
appeals, held on 20 August 2002, a guardian ad litem had been
appointed and appeared with respondent-mother at every stage.
Respondents do not contend, nor is there any evidence in the record
to show, that respondent-mother was not adequately assisted by her
guardian ad litem at these hearings.
From this evidence, we are persuaded that respondent-mother
was adequately represented by the guardian ad litem at everycritical stage of the case. Thus, the one and a half month delay
in appointing a guardian ad litem for respondent-mother did not
cause prejudice to her case. Accordingly, we overrule respondents'
assignment of error.
Affirmed.
Judges TIMMONS-GOODSON and LEVINSON concur.
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