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