An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1386

NORTH CAROLINA COURT OF APPEALS

Filed: 7 June 2005

IN THE MATTER OF:
                                        Halifax County< br> S.R.S. and D.N.S.,                            Nos. 03 J 37-38
    Minor Children

    Appeal by respondent from orders entered 13 October 2003 by Judge H. Paul McCoy, Jr. in HaLifax County District Court. Heard in the Court of Appeals 18 May 2005.

    Jeffery L. Jenkins for petitioner-appellee Halifax County Department of Social Services.

    Monique S. Dixon for Guardian ad Litem.

    Janet B. Dudley for respondent-appellee.


    Katharine Chester for respondent-appellant.

    HUNTER, Judge.

    The dispositive issue on appeal is whether the trial court erroneously failed to appoint a guardian ad litem for the mother pursuant to N.C. Gen. Stat. § 7B-602 (2003). After careful review, we vacate the order below and remand for additional proceedings.
    The pertinent facts tend to indicate that on 3 June 2003, D.N.S. was a fourteen year old female and S.R.S. was a fifteen year old female. On 3 June 2003, the Halifax County Department of Social Services (“DSS”) filed a juvenile petition alleging D.N.S. and S.R.S. were neglected and dependent juveniles. Specifically, the petition allegations stated:
        4.    . . .
            B.    The juvenile is a NEGLECTED JUVENILE, in that the juvenile:

            .1.    does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker.

            . . .

            C.    The juvenile is a DEPENDENT JUVENILE, in that:

            . . .

            .2.    the juvenile's parent, guardian, or custodian is unable to provide for the juvenile's care or supervision and lacks an appropriate alternative child care arrangement.

In regards to D.N.S., as factual support for the neglect and dependency allegations, DSS stated in the juvenile petition:
         4.B.    The mother of the juvenile has a history of alcohol abuse and mental illness, which has interfered with her ability to provide proper care, supervision and discipline for the juvenile. Specifically, the mother of the juvenile, when intoxicated, curses the child and calls her names. Furthermore, because of the juvenile's mother's obsessive belief that the juvenile is never clean, the mother has, on at least one (1) occasion, refused to allow the juvenile to sleep in the house. Also the mother has allowed the juvenile to smoke marijuana with her on at least one (1) occasion. The father of the juvenile is disabled, does not live in the home with the juvenile, and is unable to provide care and supervision for the juvenile.

         4.C.    The parents of the juvenile are currently unable to provide care and supervision for the juvenile, as described in the preceding paragraph. The Halifax County Department of Social Services has not been able to determine whether any relatives are currently willing and ableto care for the juvenile, and the juvenile is, therefore, in need of assistance and placement from the Halifax County Department of Social Services.

As to S.R.S., the factual support in the petition indicated:
         4.B.    The mother of the juvenile has a history of alcohol abuse and mental illness, which has interfered with her ability to provide proper care, supervision and discipline for the juvenile. Specifically, the mother of the juvenile, when intoxicated, curses the child and calls her names. The mother of the juvenile allowed the juvenile's eighteen (18) year old boyfriend to move into the home and share a bed with the juvenile. The juvenile is now pregnant by the boyfriend. The father of the juvenile is disabled, does not live in the home with the juvenile, and is unable to provide care and supervision for the juvenile.

         4.C.    The parents of the juvenile are currently unable to provide care and supervision for the juvenile, as described in the preceding paragraph. The Halifax County Department of Social Services has not been able to determine whether any relatives are currently willing and able to care for the juvenile, and the juvenile is, therefore, in need of assistance and placement from the Halifax County Department of Social Services.

In a 13 October 2003 order, D.N.S. and S.R.S. were adjudicated neglected and dependent juveniles. In the 13 October 2003 disposition order, the juveniles' maternal grandmother was given legal custody and guardianship and DSS was relieved of any further responsibility. The mother appeals.
    On appeal, the mother argues the trial court erroneously failed to appoint her a guardian ad litem pursuant to N.C. Gen.Stat. § 7B-602. N.C. Gen. Stat. § 7B-602(b) (2003) 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[.]

Id. 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. (citation omitted). 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. In this case, the juvenile petitions clearly alleged the juveniles were dependent and indicated they were dependent as a result of the mother's mental illness and substance abuse problems. Therefore under N.C. Gen. Stat. § 7B-602, the trial court was required to appoint a guardian ad litem for the mother and the failure to do so was prejudicial error per se.    Furthermore, DSS concedes error occurred in this case by stating in its brief:
            In light of the recent trend in the case law, the petitioner Appellee finds it difficult, at the current stage in our case, to argue that the trial court did not have some duty to at least consider the possibility of appointing [the respondent-mother] a GAL before proceeding to the adjudication and disposition hearings in the case at bar. Since the record is devoid of any mention of the appointment of the GAL issue, the issue was clearly overlooked by the court and all parties, including [the respondent-mother's] attorney, and a reversal seems unavoidable.

Accordingly, we vacate the adjudication and disposition orders and remand for further proceedings.
    As we have concluded the failure to appoint a guardian ad litem for the mother requires new proceedings before the trial court, we do not address the remaining arguments presented by the mother.
    Vacated and remanded for further proceedings.
    Judges HUDSON and GEER concur.
    Report per Rule 30(e).

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