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1. Child Abuse and Neglect--failure to appoint guardian ad litem for parent--mental illness
The trial court erred by adjudicating respondent mother's minor daughter as dependent and neglected without appointing respondent a guardian ad litem as required by N.C.G.S. § 7B- 602 and the case is remanded for a new trial, because: (1) the neglect and dependency petition specifically alleged dependency as a ground for adjudication, and the petition twice referred to respondent's mental health issues and referenced respondent's alleged sexual abuse of her own four-year-old son; and (2) petitioner cites no authority for the proposition that the allegation of the petition must be specific to trigger the requirements of N.C.G.S. § 7B-602, and various witnesses testified regarding respondent's mental illness.
2. Evidence--court reports--child neglect adjudication
The trial court did not err by incorporating into the child neglect adjudication order two court reports filed by a social worker and a guardian ad litem program supervisor, because: (1) the trial court's order specifically states the court reports were accepted into evidence for disposition purposes and not adjudication purposes; and (2) the court reports were introduced into evidence after the trial court moved to the disposition stage of the proceedings, and N.C.G.S. § 7B-901 provides that the court may consider written reports or other evidence concerning the needs of the juvenile during the disposition hearing and allows the parties an opportunity to present evidence and to advise the court concerning the disposition they believe to be in the best interests of the juvenile.
Dean W. Hollandsworth for petitioner-appellee New Hanover
County Department of Social Services.
Regina Floyd-Davis for guardian ad litem-appellee.
Lisa Skinner Lefler for respondent-appellant.
Respondent-mother (respondent) appeals the trial court orderadjudicating her minor daughter, Christine, (See footnote 1) dependent and neglected. Because the trial court erred by failing to appoint a guardian ad litem for respondent, we reverse the trial court order and remand the case for a new trial.
The facts and procedural history pertinent to the instant appeal are as follows: On 15 November 2002, New Hanover County Department of Social Services (petitioner) filed a Juvenile Petition alleging that Christine was a neglected juvenile, in that she lived in an environment injurious to her welfare. In support of this allegation, petitioner asserted that respondent had been charged in Onslow County with multiple charges of 1st degree rape, sexual offense, indecent liberties with a minor, incest, and contributing to the delinquency of a minor, with the alleged victim being respondent's four-year-old son and Christine's older brother, Ronald. (See footnote 2) Petitioner further asserted that Orange County Department of Social Services had substantiated sexual abuse arising out of these incidents, and that respondent was alleged to have mental health issues.
The petition also alleged that Christine was a dependent juvenile. In support of this allegation, petitioner asserted that respondent is alleged to suffer from mental health issues [and] is charged criminally for sexually assaulting her son . . . .
On 14 January 2004 and 4 February 2004, the trial court heardargument and received evidence from the parties. On 29 April 2004, the trial court entered an order containing the following pertinent findings of fact:
6. [Respondent] has been charged in Onslow County with multiple counts of rape, incest, sexual offense, and indecent liberties with a minor arising from the sexual abuse incidents with her son, [Ronald]. Such charges were recently referred to the grand jury but have not been tried as of yet.
7. The sexual abuse of [Ronald] by [respondent] was substantiated by the Orange County Department of Social Services, as was his physical abuse at age two, also by [respondent]. Such substantiation of sexual abuse took into account the report of Donna Potter and Dr. Dana Leinenweber of the Center for Child and Family Health and the disclosures of the child to various persons.
. . . .
15. [Respondent] suffers from mental health issues, not by the testimony of a psychologist or therapist but by her own testimony and that of other witnesses, including [Ronald], Debra Reuben and [Christine's father]. [Ronald] testified as to her aberrant sexual behavior towards him, which the Court finds as fact, [Christine's father] testified as to her depression and mood swings, as did Ms. Reuben, citing strange interactions between [respondent] and [Christine] in visitation and incidents of voice changes during phone conversations with [respondent]. Also, [respondent's] accounts of a twin fetus being born dead with [Christine] along with other testimony by her observed by the Court, raises issues of her mental stability.
. . . .
17. [Christine] was dependent at the time of the Juvenile petition due to [respondent's] inability to provide a safe home for her due to her pending criminal charges and mental health issues . . . .
. . . .
19. The Court Report dated January 14, 2004, and prepared by Debra Reuben, social worker with New Hanover County Department of Social Services, was accepted into evidence by the Court for disposition purposes and is incorporated by reference hereto.
20. The Court Report dated January 14, 2004, and prepared by Leslie B. Wilder, Guardian ad Litem program supervisor, was accepted into evidence by the Court for disposition purposes and is incorporated by reference hereto.
Based in part upon these findings of fact, the trial court concluded as a matter of law that Christine was a dependent and neglected juvenile as defined by N.C. Gen. Stat. § 7B-101(9) and (15). After concluding that it was in Christine's best interests to do so, the trial court placed Christine in her father's custody, denied respondent visitation, and allowed petitioner to cease efforts to reunite Christine with respondent. Respondent appeals.
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