An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.


NO. COA04-1243

NORTH CAROLINA COURT OF APPEALS

Filed: 5 July 2005

IN THE MATTER OF:

A.D.W.                    Lee County            
                            No. 04 J 15

    Appeal by respondent from orders entered 9 June 2004 by Judge George R. Murphy in Lee County District Court. Heard in the Court of Appeals 13 June 2005.

    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.
    ________________________________________________________
    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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