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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF: D.D.Y.
Filed: 5 July 2005
Child Abuse and Neglect-_failure to appoint guardian ad litem for parent--mental illness
The trial court erred by failing to sua sponte appoint a guardian ad litem (GAL) for
respondent mother under N.C.G.S. § 7B-602 in light of her alleged mental illness before finding
her minor child to be abused, neglected, and dependent, because: (1) N.C.G.S. § 7B-602
provides that a GAL shall be appointed if the juvenile is alleged to be dependent and the parent
is incapable as a result of mental illness of providing the proper care and supervision of the
juvenile; (2) the amended petition in this case alleges that the minor child is a dependent juvenile
and that respondent's behavior is in part the result of mental illness; (3) the court's findings
indicated that respondent was incapable as a result of her mental illness of providing for the
proper care and supervision of the minor child; and (4) although this case is not a termination of
respondent's parental rights, the ruling reaches the same effect when the minor child was placed
with his maternal grandmother and respondent was not allowed any visitation or communication
with the minor child.
Appeal by respondent mother from orders entered 17 July 2003
and 22 August 2003 by Judge Alma L. Hinton and orders entered 15
October 2003 by Judge H. Paul McCoy, Jr., in Halifax County
District Court. Heard in the Court of Appeals 12 April 2005.
Jeffery L. Jenkins, for petitioner-appellee Halifax County
Department of Social Services.
The Turrentine Group, PLLC, by Karlene Scott-Turrentine, for
Deborah Greenblatt, for Amicus Curiae ACLU of North Carolina
and Carolina Legal Assistance.
Seth H. Jaffe, for Amicus Curiae ACLU-NCLF Legal Foundation,
Respondent appeals from orders entered 17 July 2003, 22 August
2003, and 15 October 2003. The trial court found respondent's
minor child (D.D.Y.) to be abused, neglected, and dependent. D.D.Y. was placed in the custody of the Halifax County Department
of Social Services (DSS), who placed him with his maternal
grandmother. Respondent was not allowed any contact or visitation
with her son. We reverse and remand.
D.D.Y. was born on 20 October 1989. D.D.Y.'s biological
father is unknown. Respondent and D.D.Y. have lived with friends
and respondent's biological family for several years. In late
1996, respondent moved to North Carolina. DSS received a report on
7 July 2003 alleging sexual abuse of D.D.Y. by respondent and filed
an amended petition alleging D.D.Y. was an abused, neglected, and
dependent child on 6 August 2003. DSS's petition was based on
allegations that respondent: (1) sexually fondled D.D.Y.; (2) was
sleeping in the same bed with D.D.Y.; (3) had washed D.D.Y.'s fruit
with Clorox and put Clorox in his drinking water; (4) fought with
D.D.Y., leaving bruises on him; and (5) made D.D.Y. wear gloves at
times so he could not touch anything with his bare hands.
On 8 July 2003, Esterine Pitt, a social worker with DSS, met
with respondent and prepared a safety assessment. DSS sent a
letter to respondent on 9 July 2003 requesting her cooperation with
an examination and interview of D.D.Y. at the Tedi Bear Child
Advocacy Center in Greenville, North Carolina. On 11 July 2003,
DSS filed a petition alleging respondent obstructed or interfered
with its investigation by refusing to allow D.D.Y. to go to the
Tedi Bear Center without respondent being present. Respondent was
ordered to cease obstruction and interference of DSS'sinvestigation on 17 July 2003. An ex parte order dated 25 July
2003 placed D.D.Y. into the nonsecure custody of DSS. Throughout
the process, respondent repeatedly refused or waived appointed
counsel. During the hearings, respondent participated in the
proceedings by cross-examining witnesses, testifying on her own
behalf, introducing documents as exhibits, and objecting to
The trial court entered an order continuing nonsecure custody
and placed D.D.Y. in the home of his maternal grandmother in
Maryland. Respondent was initially allowed supervised visitation
A psychological evaluation of D.D.Y. was conducted on 4 August
2003. The evaluation did not produce any evidence of sexual abuse,
but produced other evidence that respondent: (1) punched D.D.Y. in
the eyes; (2) would chase D.D.Y. with a knife thinking D.D.Y was a
man named Darryl who was controlled by the devil; (3) told
D.D.Y. Darryl's family was going to die and she was going to buy
a gun and kill his family and that she would kill [D.D.Y.] to get
to 'Darryl;' and (4) undressed in front of D.D.Y. and walked
around the house naked while she cooked and cleaned.
The trial court reviewed the placement order on 15 August 2003
and found the nonsecure order should continue. However, the court
ordered no visitation or communication to occur between respondent
and D.D.Y. The trial court held an adjudication hearing on 3
October 2003 and entered an order on 15 October 2003 finding that
D.D.Y. was abused, neglected, and dependent. Custody andguardianship of D.D.Y. was given to his maternal grandmother and
any visitation and communication rights to respondent were denied.
Respondent appeals. Within the notices of appeal, respondent again
specifically waived her right to counsel.
Respondent argues the trial court committed plain and
reversible error by: (1) failing to appoint a guardian ad litem
for respondent sua sponte; (2) finding as fact respondent
obstructed or interfered with DSS's investigation; (3) abusing
its discretion in ordering respondent to transport D.D.Y. to the
Tedi Bear Center and erred by holding her in contempt when she was
unable to provide transportation; (4) finding D.D.Y. in substantial
risk of physical injury; and (5) ordering supervised visitation and
later prohibiting visitation and eliminating reunification efforts.
III. Guardian ad Litem Appointment
Respondent argues the trial court was under a duty to appoint
a guardian ad litem (GAL) sua sponte in light of her alleged
mental illness. DSS argues the case at bar does not terminate
parental rights under N.C. Gen. Stat. § 7B-1111 and respondent
should not be appointed a GAL. We agree with respondent.
N.C. Gen. Stat. § 7B-602(b)(1) (2003) provides when a petition
is filed by DSS alleging abuse, neglect and/or dependancy:
(b) . . . 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 asthe 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 . . . .
Citing In re Estes, respondent argues this Court has held she
is entitled to a guardian ad litem and the trial court's failure to
appoint one is reversible error. 157 N.C. App. 513, 518, 579
S.E.2d 496, 499, disc. rev. denied, 357 N.C. 459, 585 S.E.2d 390
(2003). In In re Estes, we stated:
[t]he dispositive issue on appeal is whether
the trial court could properly terminate
respondent's parental rights without
appointing a guardian ad litem to represent
respondent at the termination hearing where
the petition or motion to terminate parental
rights alleged, and the evidence supporting
such allegations tended to show, that
respondent was incapable of providing proper
care and supervision to the child due to
mental illness. Because we conclude that
section 7B-1101 requires the trial court to
appoint a guardian ad litem in such instances,
we reverse the order of the trial court.
157 N.C. App. at 515, 579 S.E.2d at 498. Under the facts before
us, DSS has not filed a petition to terminate respondent's parental
In In re L.M.C., DSS alleged the respondent mother's child to
be dependent and removed L.M.C. from the custody of the respondent
mother. 170 N.C. App. 676, ___, ___ S.E.2d ___, ___ (June 7, 2005)
(No. COA04-912). We stated:
As explained in In re H.W., 163 N.C. App. 438,
447, 594 S.E.2d 211, 216 (2004), N.C. Gen.
Stat. § 7B-602 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 or guardian 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.'
Id. at ___, ___ S.E.2d at ___ (citation omitted). We held because
DSS alleged the respondent mother's child to be dependent and the
trial court's documents and findings indicated the respondent
mother had mental health issues, the trial court erred in failing
to appoint a GAL for her. Id. at ___, ___ S.E.2d at ___. We
vacated and remanded the case, stating [t]he 'failure to appoint
a guardian ad litem in any appropriate case is deemed prejudicial
error per se . . . .' Id. at ___, ___ S.E.2d at ___ (quotation
Under N.C. Gen. Stat. § 7B-602, a GAL shall be appointed if
the juvenile is alleged to be dependent and the parent is
incapable as a result of . . . mental illness . . . of providing
the proper care and supervision of the juvenile. Here, DSS's
original petition did not allege dependency. However, the amended
petition alleges D.D.Y is a dependent juvenile, in that his
parent . . . is unable to provide for [his] care or supervision
and lacks an appropriate alternative child care arrangement. The
amended petition alleges respondent's behavior is in part the
result of mental illness and states, [a]s a result of her
untreated mental illness, the [respondent] is not able to provide
proper care, supervision, discipline, housing and physical
necessities for the juvenile . . . . At the time of the hearings, the trial court was on notice of
respondent's alleged mental conditions. The trial court made
references to and questioned respondent's mental condition in
several of its orders. The amended petition on 6 August 2003
stated, behavior of the mother of the juvenile . . . is, in part,
the result of mental illness. On 15 October 2003, [t]he court
specifically [found] that [respondent] suffers from some emotional
or mental disorder which significantly impairs her ability to
parent her child appropriately. The court's findings indicate
respondent was incapable as a result of her mental illness of
providing for the proper care and supervision [of D.D.Y]. N.C.
Gen. Stat. § 7B-602.
Here, as in In re L.M.C., DSS's petition alleges: (1) D.D.Y.
is a dependent juvenile; and (2) respondent cannot provide the
necessary care and supervision D.D.Y. needs as a result of
respondent's mental condition. Under the facts before us, a GAL
should have been appointed. The trial court's failure to do so is
'prejudicial error per se.' In re L.M.C., 170 N.C. App. at ___,
___ S.E.2d at ___ (quotation omitted).
Although this case is not a termination of respondent's
parental rights, the trial court's ruling reaches the same effect.
Exclusive custody of D.D.Y. was placed with his maternal
grandmother and not with respondent. Respondent is not allowed any
visitation or communication with D.D.Y. The trial court found in
the custody order that [respondent] suffers from some emotional or
mental disorder and used this finding to adjudicate D.D.Y. as anabused, neglected, and dependent juvenile. Based on the trial
court's findings of fact and conclusions of law, D.D.Y. was placed
into the legal custody of his maternal grandmother. We note that
during the proceedings where respondent waived her right to
counsel, the trial court took notice of respondent's mental illness
yet failed to appoint a GAL.
Under N.C. Gen. Stat. § 7B-602, the trial court shall
appoint a GAL where it is alleged the juvenile is dependent in
that the parent has a mental illness and is incapable of providing
for the proper care and supervision of the juvenile. The statute
is not limited to an appointment of a GAL only in termination of
parental rights cases. The trial court erred in not appointing a
GAL sua sponte for respondent.
The trial court is under a statutory duty to appoint a GAL
when a petition alleges a child is dependent and the parent can
not offer proper care for their child based on mental illness or
other conditions listed in N.C. Gen. Stat. § 7B-602(b)(1). In
light of our decision on this issue, we do not address respondent's
remaining assignments of error. The trial court's orders are
reversed and we remand for appointment of a GAL for respondent and
a new hearing.
Reversed and remanded.
Judges WYNN and ELMORE concur.
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