Termination of Parental Rights--guardian at litem for child--timeliness of appointment
The termination of respondent's parental rights was reversed and remanded because a
guardian ad litem was not appointed for the child in a timely fashion. There should have been a
guardian ad litem investigating and determining the best interests of the child from the first
petition alleging neglect through the final determination; it was not sufficient that an attorney
advocate was appointed for her or that the attorney advocate was appointed as the guardian at
litem during the hearing. The functions of the attorney advocate and guardian ad litem are not
sufficiently similar to allow one to substitute for the other when the best interests of the juvenile
are at stake.
David A. Perez, for petitioner-appellee.
Rebekah W. Davis, for respondent-appellant.
STEELMAN, Judge.
Respondent appeals from the termination of her parental rights
to R.A.H., the youngest of her three children. On 11 June 1998
respondent's three children were taken from her custody by Randolph
County Department of Social Services. Petitioner stipulated that
she had “engaged in action or inaction which resulted in or
contributed to [R.A.H.] experiencing severe developmental
deficiencies.” Based on this stipulation, the trial court
determined that R.A.H. was a neglected juvenile under N.C. Gen.
Stat. § 7A-517(21)(1999) by order entered 10 June 1999. On 9 March 2000 the permanent plan was changed to adoption.
On 23 August 2002 respondent's parental rights were terminated
based on a finding of neglect and that respondent had left R.A.H.
in foster care for more than 12 months without demonstrating
reasonable progress pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) and
(2) (2003). From the order terminating her parental rights to
R.A.H., respondent appeals. Other relevant facts will be discussed
below.
In her second argument, respondent contends that the trial
court erred in failing to appoint a guardian ad litem for R.A.H.
prior to the termination hearing and in accordance with N.C. Gen.
Stat. § 7B-1108. We agree.
N.C. Gen Stat 7B-1108(b) (2004) states: “The appointment,
duties, and payment of the guardian ad litem shall be the same as
in G.S. 7B-601 ....” N.C. Gen Stat 7B-601(a)(2004) states: “When
in a petition a juvenile is alleged to be abused or neglected, the
court shall appoint a guardian ad litem to represent the juvenile.”
Additionally: “The appointment shall terminate when the permanent
plan has been achieved for the juvenile and approved by the court.”
Id. Further:
In every case where a nonattorney is appointed
as a guardian ad litem, an attorney shall be
appointed in the case in order to assure
protection of the juvenile's legal rights
throughout the proceeding. The duties of the
guardian ad litem program shall be to make an
investigation to determine the facts, the
needs of the juvenile, and the available
resources within the family and community to
meet those needs; to facilitate, when
appropriate, the settlement of disputed
issues; to offer evidence and examinewitnesses at adjudication; to explore options
with the court at the dispositional hearing;
to conduct follow-up investigations to insure
that the orders of the court are being
properly executed; to report to the court when
the needs of the juvenile are not being met;
and to protect and promote the best interests
of the juvenile until formally relieved of the
responsibility by the court.
Id. N.C. Gen. Stat. § 7B-1108(d) states:
If a guardian ad litem has previously been
appointed for the juvenile under G.S. 7B-601,
and the appointment of a guardian ad litem
could also be made under this section, the
guardian ad litem appointed under G.S. 7B-601,
and any attorney appointed to assist that
guardian, shall also represent the juvenile in
all proceedings under this Article and shall
have the duties and payment of a guardian ad
litem appointed under this section, unless the
court determines that the best interests of
the juvenile require otherwise.
In the instant case, no guardian ad litem was appointed
pursuant to N.C. Gen. Stat. § 7B-601, even though the 1 September
2000 petition alleged neglect, and respondent's parental rights
were terminated based in part on a finding of neglect. We note
that though the record does not contain these petitions, it is
clear from the order entered 10 June 1999 that petitions filed 11
and 14 June 1998 also alleged neglect. It does not appear that any
permanent guardian ad litem was appointed pursuant to these earlier
petitions, though there is reference in the 10 June 1999 order to
“Gale Miller, Volunteer Guardian Ad Litem.”
Inexplicably, an attorney advocate was appointed 8 January
2001 pursuant to N.C. Gen. Stat. § 7B-601(a). No guardian ad litem
was appointed, even though appointment of an attorney advocate,
whose job is to give legal advice to the guardian ad litem, is onlynecessary if the appointed guardian ad litem is not an attorney
licensed in North Carolina. Id. The termination hearing began 13
February 2001 (the pre-trial conference was held 9 February 2001)
and was scattered over 13 days ending 31 July 2001. The attorney
advocate, who had been present at all these dates, was appointed as
guardian ad litem 27 February 2001, after three and a half days of
testimony. Thus, until that date, there was no guardian ad litem
making an “investigation to determine the facts, the needs of the
juvenile, and the available resources within the family and
community to meet those needs; to facilitate, when appropriate, the
settlement of disputed issues,” or attending to any of the other
duties mandated by N.C. Gen. Stat. § 7B-601.
Pursuant to N.C. Gen. Stat. § 7B-1108(d) and § 7B-601, there
should have been a guardian ad litem investigating and determining
the best interests of the child from the first petition alleging
neglect in June 1998 through the final determination. There should
have been a guardian ad litem representing R.A.H. at the
termination hearing who had been involved in the case from the
beginning. If the guardian ad litem was not an attorney licensed
in North Carolina, there should have also been an attorney advocate
providing the guardian ad litem legal assistance on behalf of
R.A.H.
When a child is permanently taken from its parents' custody
through a termination proceeding without a guardian ad litem ever
having been appointed to represent the child, the matter must be
remanded for appointment of a guardian ad litem and a newtermination proceeding conducted. In re J.L.S., __ N.C. App. __,
__, 608 S.E.2d 823, 824-25 (2005); In re Fuller, 144 N.C. App. 620,
622-23, 548 S.E.2d 569, 571 (2001). Undecided by our case law is
the appropriate remedy when a guardian ad litem for a minor child
is not appointed at the time mandated by statute, but is appointed
at a later date.
In the instant case there was no representative of R.A.H.
performing the duties required by N.C. Gen. Stat. § 7B-601 until
four days into the termination hearing. Petitioner argues that
R.A.H. was adequately represented because she had an attorney
advocate in court representing her on those days before a guardian
ad litem was appointed, and that because the attorney advocate was
appointed as the guardian ad litem, no prejudice resulted.
The guardian ad litem and the attorney advocate perform
distinct and separate roles under the juvenile code. “'The
appointment of the guardian ad litem is to protect the interest of
the infant defendant at every stage of the proceeding.' 7 Strong's
N.C. Index 3d, Infants § 9, p. 202.” In re Clark, 303 N.C. 592,
598, 281 S.E.2d 47, 52 (1981). In the instant case, a guardian ad
litem should have been appointed after the initial petition
alleging neglect pursuant to N.C. Gen. Stat. § 7B-601. This
guardian ad litem would then have been involved at all stages of
the proceeding, interviewing the child, the parents, and any other
persons relevant to the proceedings. The guardian ad litem would
have been working with all parties to both determine what course of
action was in the best interests of the child, and how best topursue that course of action. The guardian ad litem's position is
very “hands on,” and thus the guardian ad litem has the opportunity
to acquire intimate knowledge pertinent to the best interests of
the child.
The attorney advocate, on the other hand, is not required to
conduct field investigation, or interview witnesses. In the
instant case, the attorney advocate had not interviewed the child
or respondent before the termination hearing. The job of the
attorney advocate is to provide legal advice and assistance to the
guardian ad litem in representing the minor child. The attorney
advocate is not charged with making the determination of what is in
the best interest of the child. N.C. Gen. Stat. § 7B-
601(a)(attorney advocate shall “assure protection of the juvenile's
legal rights”)(emphasis added).
In the instant case, the trial court made a valiant effort to
correct the error and proceed with the termination hearing by
appointing a guardian ad litem immediately once the error was
brought to its attention, and offering the newly appointed guardian
ad litem the option of recalling witnesses and postponing further
hearings in the matter. However, because our polar star in these
proceedings is the best interests of the child, In re Montgomery,
311 N.C. 101, 109, 316 S.E.2d 246, 252 (1984), we must presume
prejudice where, as here, a child was not represented by a guardian
ad litem at a critical stage of the termination proceedings. This
is particularly so in light of the fact that the minor child is not
capable of understanding and protecting its own rights andinterests. The functions of the guardian ad litem and the attorney
advocate are not sufficiently similar to allow one to “pinch hit”
for the other when the best interest of a juvenile is at stake.
The trial court should have terminated the hearing, appointed a
guardian ad litem for R.A.H., and set a new hearing date giving the
guardian ad litem sufficient time to become familiar with the case
and make the relevant inquiries and investigations. We hold that
the violation of the mandates of N.C. Gen. Stat. §§ 7B-1108 and 7B-
601 in this case require reversal of the order, and remand for a
new termination hearing.
We do not address respondent's remaining arguments.
REVERSED AND REMANDED.
Judges WYNN and HUDSON concur.
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