Appeal by respondent from judgment entered 18 December 2003 by
Judge Susan R. Burch in Guilford County District Court. Heard in
the Court of Appeals 3 February 2005.
David A. Perez for petitioner-appellee.
Rebekah W. Davis for respondent-appellant.
TIMMONS-GOODSON, Judge.
Respondent appeals an order of the trial court terminating his
parental rights to J.L.S. For the reasons stated herein, we
reverse the order of the trial court.
Petitioner and respondent were never married. Petitioner gave
birth to J.L.S. on 24 March 1998. On 19 June 1999, petitioner
married a man who subsequently decided to adopt J.L.S. In February
2003, petitioner contacted respondent and asked him to allow
petitioner's husband to adopt J.L.S., an action that would require
respondent to surrender his parental rights. In March 2003,
petitioner's attorney sent respondent an adoption consent form.
Respondent did not return the form. On 22 May 2003, petitioner
filed the underlying petition to terminate parental rights based onwillful abandonment and respondent's failure to establish paternity
judicially or legitimate the child. Respondent filed a response on
the day of the termination hearing. A guardian ad litem was not
appointed to represent the minor child.
At the termination hearing, after hearing testimony from both
parties, the trial judge ruled from the bench that grounds for
termination existed and that the best interests of J.L.S. would be
served by terminating respondent's parental rights. The trial
court consequently entered an order of termination on 18 December
2003. It is from this order that respondent appeals.
Respondent argues that the trial court erred by (I) failing to
appoint a guardian ad litem for J.L.S.; (II) entering two findings
of fact not supported by clear and convincing evidence; (III)
finding as fact that respondent willfully abandoned J.L.S.; (IV)
finding as fact that respondent failed to establish paternity,
failed to legitimate the child and failed to provide substantial
financial support; and (V) abusing its discretion in applying the
best interest of the child standard.
While respondent asserts five issues on appeal, the
dispositive issue in the case is whether the trial court erred by
failing to appoint a guardian ad litem for J.L.S. pursuant to N.C.
Gen. Stat. § 7B-1108 where respondent filed a response to the
petition on the day of the hearing. We hold that the trial court
erred. In termination of parental rights cases, the respondent must
file an answer within thirty days after service of the summons and
petition. N.C. Gen. Stat. § 1A-1, Rule 12(a)(1) (2003) (“A
defendant shall serve his answer within 30 days after service of
the summons and complaint upon him.”).
Upon the failure of a respondent parent to
file written answer to the petition or written
response to the motion within 30 days after
service of the summons and petition . . . the
court may issue an order terminating all
parental and custodial rights of that parent
with respect to the juvenile.
N.C. Gen. Stat. § 7B-1107 (2003).
The trial court may, in its discretion, appoint a guardian ad
litem in any termination of parental rights case “when the court
finds it would be in the best interests of the juvenile.” N.C.
Gen. Stat. § 7B-600(a) (2003). However, in cases where the
respondent files a response denying any material allegation of the
petition, the trial court is required to “appoint a guardian ad
litem to represent the best interests of the juvenile.” N.C. Gen.
Stat. § 7B-1108(b) (2003). Where the trial court fails to appoint
a guardian ad litem in accordance with § 7B-1108(b), it is an error
constituting grounds for reversal of the trial court's order on
appeal.
See generally In Re Fuller, 144 N.C. App. 620, 548 S.E.2d
569 (2001).
In
Fuller, the respondent argued on appeal that the trial
court failed to appoint a guardian ad litem pursuant to § 7B-
1108(b).
144 N.C. App. at 621, 548 S.E.2d at 570. However, the
respondent failed to object to the issue at trial, and thereforewas in violation of Appellate Procedure Rule 10(b)(1) by raising
the issue on appeal.
In deciding
Fuller, this Court was guided by
In Re Barnes, a case decided under a prior similar statute in which
“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.” 97 N.C. App.
325, 326, 388 S.E.2d 237, 238 (1990). In
Barnes, we suspended the
Appellate Rules and accepted the appeal.
97 N.C. App. at 327, 388
S.E.2d at 238. In
Fuller this Court held that G.S. § 7B-1108(b)
was intended to protect the best interests of the child and the
failure by the trial court to appoint a guardian ad litem to
represent “the intended beneficiary” of the statute was reversible
error. 144 N.C. App. at 623, 548 S.E.2d at 571. We remanded the
case to the trial court “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).” 144 N.C.
App. at 623, 548 S.E.2d at 571.
In the present case, the record establishes that respondent
filed his response on the day of the hearing. While we recognize
petitioner's frustration regarding the last minute response, we
refuse to penalize the minor child. This is so especially in light
of the nature of these proceedings where one natural parent is
seeking to terminate the parental rights of the other natural
parent. As in
Fuller, we conclude that a guardian ad litem is
necessary to ensure that the best interests of J.L.S. are
adequately represented. Pursuant to
Barnes and
Fuller, the orderof termination is reversed and the case is remanded for appointment
of a guardian ad litem and a new termination proceeding.
REVERSED.
Judges BRYANT and LEVINSON concur.
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