IN THE MATTER OF:
A.D.W. Lee County
No. 04 J 15
The Turrentine Group, PLLC, by Karlene Scott-Turrentine, for
respondent-appellant.
Beverly D. Basden, P.C., by Beverly D. Basden, for petitioner-
appellee Lee County Department of Social Services.
Elizabeth Boone for guardian ad litem.
MARTIN, Chief Judge.
Respondent mother appeals from adjudication and disposition
orders of the trial court finding her minor child, A.D.W.,
dependent. We reverse the orders of the trial court.
On 24 March 2004 the Lee County Department of Social Services
(“DSS”) filed a juvenile petition alleging A.D.W. was a neglected
child. Specifically, DSS alleged that:
[Respondent], age 24 was in Dorthea [sic] Dix
Hosp. due to a psychotic break with
schizophrenia. She was transferred to UNC for
labor & delivery. Following the delivery of
her son, the hospital staff & family members
observed psychotic behaviors such as an
inability to attend to the baby's needs, she
was talking with her plate, she became violentw/ family members. She assaulted her sister
and tore out her IV lines. The hospital staff
believe the infant isn't safe with
[respondent]. A 24 hr. aide was w/her in the
hospital to prevent her from harming or
neglecting the baby.
The trial court issued a non-secure custody order the same day. On
7 May 2004, DSS amended the petition to include allegations of
dependency on the grounds that respondent
was taking medication that affected her
ability to care for & supervise the infant.
She was paranoid, hearing voices and sleepy
all the time. She lacked an appropriate child
care arrangement, in that, she denied her
mental illness & did not want to continue
medication. . . .
The case came for hearing before the trial court on 18 May
2004. Upon reviewing the evidence, the trial court adjudicated
A.D.W. dependent and entered a disposition order placing legal
custody of the child with DSS. From the orders of adjudication and
disposition, respondent appeals.
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Respondent first argues the trial court abused its discretion
and committed “plain error” by allowing DSS to amend its petition
to allege dependency. We do not agree.
Section 7B-800 of the North Carolina General Statutes provides
that the trial court “may permit a petition to be amended when the
amendment does not change the nature of the conditions upon which
the petition is based.” N.C. Gen. Stat. § 7B-800 (2003). Here,
the original allegations against respondent focused on her mental
illness and resulting “inability to attend to the baby's needs.”
The additional allegations contained in the subsequent amendedpetition also centered upon respondent's mental illness and added
no new substantive factual allegations against respondent.
Contrary to respondent's contention that the amended petition
changed the conditions upon which the petition was based, the
amended petition merely expanded upon the information contained in
the original petition. Moreover, there is nothing in the record to
indicate that respondent objected to amendment of the petition.
Although respondent argues the trial court committed “plain error”
in allowing amendment of the petition, the plain error rule has
never been expanded to civil cases. See In re Gleisner, 141 N.C.
App. 475, 479, 539 S.E.2d 362, 365 (2000). We find no abuse of
discretion by the trial court in allowing amendment of the juvenile
petition.
Next, respondent argues the trial court erroneously conducted
the adjudication and disposition hearings without appointing a
guardian ad litem for her. We agree.
Section 7B-602(b) of the North Carolina General Statutes
states in pertinent part:
[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[.]
N.C. Gen. Stat. § 7B-602(b) (2003). Section 7B-602 requires theappointment of a guardian ad litem in all 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.” In re H.W., 163 N.C. App. 438, 447, 594 S.E.2d 211,
216, disc. reviews denied, 358 N.C. 543, 599 S.E.2d 46 (2004). The
“failure to appoint a guardian ad litem in any appropriate case is
deemed prejudicial error per se[.]” Id. at 448, 594 S.E.2d at 216;
see also In re L.M.C., __ N.C. App. __, __ S.E.2d __ (filed 7 June
2005) (reversing the trial court's order of guardianship where the
trial court failed to appoint a guardian ad litem for a mother who
had mental health issues, a depressive disorder and borderline
personality disorder, resulting in her child's dependency).
In the instant case, DSS alleged respondent was incapable of
caring for her child because of mental illness, including paranoia
and schizophrenia. Although the trial court noted that respondent
“seem[ed] lucid,” the provisions of section 7B-602 are mandatory.
See N.C. Gen. Stat. § 7B-602 (stating that “a guardian ad litem
shall be appointed”); In re H.W., 163 N.C. App. at 448, 594 S.E.2d
at 216. The trial court therefore erroneously failed to appoint a
guardian ad litem for respondent. We reverse the orders of
adjudication and disposition and remand this case for the
appointment of a guardian ad litem and a new hearing.
Respondent presents several issues regarding the trial court'sfindings of fact and conclusions of law. In light of our
conclusion that the trial court's order must be reversed and this
case remanded for further proceedings, it is unnecessary to address
the remaining issues.
Reversed and remanded.
Judges WYNN and TIMMONS-GOODSON concur.
Report per Rule 30(e).
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