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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 1 May 2007
In the Matter of:
C.H., Durham County
A Minor Child. No. 99 J 21
Appeal by Respondent mother from order entered 30 March 2006
by Judge James T. Hill in Durham County District Court. Heard in
the Court of Appeals 22 February 2007.
Annick Lenoir-Peek for Respondent-Appellant.
Cathy L. Moore for Petitioner-Appellee.
Respondent-Appellant (Respondent) is the mother of C.H., the
juvenile who is the subject of this appeal. In a juvenile petition
filed 2 February 1999, the Durham County Department of Social
Services (DSS) alleged that C.H. was dependent and neglected.
Specifically, DSS alleged that
e. [C.H.] has been diagnosed as an autistic
child . . . [and] is in need of mental health
services and medication management.
[Respondent] minimizes the child's behaviors
and need for services . . . [and] has
discontinued in home family services in the
past. The child's behaviors include hitting
and lashing out.
f. [Respondent] and [C.H.] live in the home of
the maternal grandmother [R.]H. [Respondent]
leaves the day to day care of [C.H.] to [R.]H.
and leaves the home for hours and days at a
time. But for [R.]H.,[C.H.] would be in need
g. Upon information and belief, [Respondent]
suffers from a mental condition. She may havea pervasive developmental disorder which
interferes with her day to day living and
judgment. She is very rigid in her thinking
and her actions.
h. [Respondent] controls the conditions of the
home by her behavior. The home is dirty and
cluttered with clothes and at times has
roaches and other insects. [Respondent] has
piles of clothing in the halls and in the
bedrooms to where . . . three fourths of the
house is unlivable to the detriment of [C.H.]
[R.H.] has attempted to clear out the home;
however, [Respondent] will not let her throw
away the clothing or store the clothing.
By order filed 5 May 1999, upon motion of Respondent's attorney
(See footnote 1)
and pursuant to Rule 17 of the North Carolina Rules of Civil
Procedure, the Honorable Elaine O'Neal appointed a guardian ad
litem for Respondent. After an adjudicatory hearing held 21 May
and 3 June 1999, the Honorable Kenneth C. Titus determined that
C.H. was dependent and neglected, ordered C.H. placed in the legal
custody of DSS, and granted DSS the authority to place C.H. in a
therapeutic community. By order filed 8 March 2000, Judge Titus
continued legal custody of C.H. with DSS, ordered that C.H. shall
continue to receive mental health treatment with treatment
decisions to be made by the Durham Center[,] and relieved the
assigned guardian ad litem for Respondent of further
This case then continued in Durham County District Court for
regular review hearings. After a permanency planning hearing, inan order filed 15 October 2003, the Honorable James T. Hill changed
the permanent plan for C.H. to guardianship/custody [with] a court
appointed caretaker[,] and ordered that DSS is relieved of
further reunification efforts at this time. In February 2005,
C.H. was placed in a therapeutic foster home under the care of
Elaine and Donald Winstead. By order filed 25 January 2006, Judge
Hill ordered the Winsteads appointed legal guardians for . . .
[C.H.] as the permanent plan and that DSS continues to be
relieved of reunification efforts with [Respondent]. Following a
28 February review hearing, in an order filed 30 March 2006, Judge
Hill ordered that the Winsteads continue to be appointed legal
guardians for the child, that DSS continues to be relieved of
reunification efforts with [Respondent][,] and that [t]here shall
be no further reviews [in this matter] unless upon the filing of a
motion by a party as circumstances warrant. From this order,
Respondent appeals. For the reasons which follow, we reverse the
order of the trial court.
By her first argument, Respondent contends that the trial
court erred by failing to sua sponte
appoint a guardian ad litem
assist her after the 8 March 2000 order of Judge Titus relieving
her original guardian ad litem
of further responsibilities on her
behalf. As set out below and based on recent decisions of this
Court, we agree.
As Respondent concedes, at the onset of this case, the
Juvenile Code did not require the trial court to appoint a guardianad litem
for Respondent. That is because, when the juvenile
petition was filed in this case, N.C. Gen. Stat. § 7B-602 required
only the appointment of legal counsel and made no mention of a
guardian ad litem
for parents in juvenile proceedings. N.C. Gen.
Stat. § 7B-602 (1999). However, under Rule 17 of the North
Carolina Rules of Civil Procedure, once the trial court was made
aware of a substantial question regarding Respondent's mental
condition, it had a duty to inquire into the competency of
Respondent. See In re J.A.A.
, 175 N.C. App. 66, 623 S.E.2d 45
(2005). Having made such an inquiry in this case upon motion of
Respondent's trial counsel, Judge O'Neal appointed a guardian ad
for Respondent pursuant to Rule 17.
Additionally, the statute in effect at the time of the
permanency planning order from which Respondent appeals does not
mandate the appointment of a guardian ad litem
for a parent, but
instead leaves the decision of whether a guardian ad litem
necessary to the discretion of the trial court. That statutory
provision, however, does not apply here. See
N.C. Gen. Stat. § 7B-
602(c) (2005) (applicable to petitions or actions filed on or after
October 1, 2005
, and allowing a trial judge to appoint a guardian
ad litem for a parent in accordance with G.S. 1A-1, Rule 17, if the
court determines that there is a reasonable basis to believe that
the parent is incompetent or has diminished capacity and cannot
adequately act in his or her own interest).
Pertinent to our inquiry is the amendment to N.C. Gen. Stat.
§ 7B-602 enacted during the pendency of this case which, undercertain circumstances, mandates the appointment of a guardian ad
for a parent. This amendment applies to cases filed and
as of 1 January 2002, and provides in relevant part as
In addition to the right to appointed counsel
. . ., 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
(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
N.C. Gen. Stat. § 7B-602(b)(1) (2001) (emphasis added). In In re
, 163 N.C. App. 438, 447, 594 S.E.2d 211, 216 (citing In re
, 157 N.C. App. 513, 579 S.E.2d 496, disc. review denied
N.C. 459, 585 S.E.2d 390 (2003)), disc. review denied
, 358 N.C.
543, 599 S.E.2d 46, 603 S.E.2d 877 (2004), this Court determined
a trial court need not appoint a guardian ad
litem pursuant to G.S. § 7B-602(b)(1) unless
(1) the petition specifically alleges
dependency; and (2) the majority of the
dependency allegations tend to show that a
parent or guardian is incapable as the result
of some debilitating condition listed in the
statute of providing for the proper care and
supervision of his or her child.
As noted above, by order filed 5 May 1999, pursuant to Rule 17 of
the North Carolina Rules of Civil Procedure, Judge O'Neal appointed
a guardian ad litem
for Respondent based on Respondent's allegedincompetency. Subsequently, by order filed 8 March 2000, Judge
Titus, without explanation, relieved Respondent's guardian ad litem
of all further responsibility. The record is void of any evidence
that the trial court was asked to revisit this issue again.
Clearly, however, this case remained pending when section 7B-602
was amended. Further, in In re T.T.
, ___ N.C. App. ___, ___ S.E.2d
___ (Mar. 6, 2007) (COA06-117), this Court found reversible error
when the trial court knew of the parent's mental illness, based
dependency findings on such illness, and nevertheless failed to sua
appoint a guardian ad litem
to assist the parent.
In this case, we believe that the standard espoused in H.W.
controls, and that, consequently, the trial court erred by
failing to sua sponte
appoint a guardian ad litem
(See footnote 2)
The juvenile petition specifically alleges dependency, and the
majority of the dependency allegations tend to show that
Respondent's incapability of providing proper care or supervision
of C.H. results from a debilitating mental condition. In
particular, the allegations that (1) Respondent suffers from a
mental condition . . . which interferes with her day to day living
and judgment[,] (2) Respondent minimizes [C.H.'s] behaviors and
need for services . . . [and] has discontinued in home family
services in the past[,] (3) Respondent leaves the day to day careof [C.H.] to [R.]H. and leaves the home for hours and days at a
time[,] and (4) Respondent controls the conditions of the home by
her behavior all implicate Respondent's mental condition and the
impact it has on C.H.'s status as a dependent juvenile.
More importantly, like the trial court in T.T.
, the trial
court in this case was keenly aware of Respondent's mental
condition. This is apparent from the trial court's repeated
references to Respondent's mental health and the directives the
trial court provided to Respondent in court orders. For example,
in an order filed 13 March 2002, the court directed Respondent to
continue treatment with UNC Psychiatry and follow up with any
treatment recommendations. By orders filed 17 September 2002, 15
October 2003, 3 March 2004, and 27 July 2004, Respondent was
instructed to continue with treatment at The Durham Center and
follow the recommendations of this treatment, including
recommendation to take medication to control hoarding/collecting
behavior and help her clean out the home. Finally, by order filed
25 January 2006, the court ordered Respondent to
take the actions needed to correct the
conditions that led to the removal of the
child from the home,
including: . . . cooperat[ing] with her own
case management services and mental health
treatment, and take medication, if prescribed;
work with [C.H.'s] treatment plan as required
and demonstrate the ability to meet the
child's special needs.
From these orders, it is clear that the trial court was cognizant
of Respondent's mental condition and had an elevated level of
concern that prompted the court to order Respondent to seektreatment from mental health professionals, but nevertheless failed
to appoint the statutorily required guardian ad litem
Gen. Stat. § 7B-602 (2001). This failure constituted 'prejudicial
error per se
[.]' In re L.M.C.
, 170 N.C. App. 676, 679, 613 S.E.2d
256, 258 (2005) (quoting H.W.
, 163 N.C. App. at 448, 594 S.E.2d at
216 (citation omitted)); accord T.T.
. Accordingly, the 30
March 2006 permanency planning order of the trial court is
reversed. This case is remanded for the appointment of a guardian
for Respondent and a new review hearing.
(See footnote 3)
Respondent next contends that the trial court erred by relying
on DSS court reports and failing to make independent findings of
fact required at the end of the permanency planning hearing.
Although we remand this case under Respondent's first argument, for
instructive purposes and for purposes of judicial economy, we have
chosen to address this issue. We find Respondent's argument
Under North Carolina law,
[a]t any permanency planning review, the court
shall consider information from the parent,
the juvenile, the guardian, any foster parent,
relative or preadoptive parent providing care
for the child, the custodian or agency with
custody, the guardian ad litem, and any other
person or agency which will aid it in the
N.C. Gen. Stat. § 7B-907(b) (2005). When conducting a juvenile
proceeding, the trial court is permitted to consider all materials,including written reports, that have been submitted in connection
with the proceeding, but must make independent findings of fact
from all the evidence, including testimony offered at the hearing
as well as previously prepared reports and court summaries. In re
, 165 N.C. App. 509, 598 S.E.2d 658 (2004).
The independent findings of fact required to be made by the
trial court are dependent on the result of the hearing:
At the conclusion of the hearing, if the
juvenile is not returned home, the court shall
consider the following criteria and make
written findings regarding those that are
(1) Whether it is possible for the
juvenile to be returned home
immediately or within the next six
months, and if not, why it is not in
the juvenile's best interests to
(2) Where the juvenile's return home is
unlikely within six months, whether
legal guardianship or custody with a
relative or some other suitable
person should be established, and if
so, the rights and responsibilities
which should remain with the
(3) Where the juvenile's return home is
unlikely within six months, whether
adoption should be pursued and if
so, any barriers to the juvenile's
(4) Where the juvenile's return home is
unlikely within six months, whether
the juvenile should remain in the
current placement or be placed in
another permanent living arrangement
(5) Whether the county department of
social services has since the
initial permanency plan hearing made
reasonable efforts to implement the
permanent plan for the juvenile;
(6) Any other criteria the court deems
N.C. Gen. Stat. § 7B-907(b). In In re J.C.S.
, 164 N.C. App. 96,
106, 595 S.E.2d 155, 161 (2004), overruled on other grounds by In
, 359 N.C. 539, 614 S.E.2d 489 (2005), superceded by
statute as stated in In re A.B.
, ___ N.C. App. ___, 635 S.E.2d 11
(2006), this Court determined that this section of the Juvenile
Code does not require a permanency planning order to contain a
formal listing of the § 7B-907(b)(1)-(6) factors, as long as the
trial court makes findings of fact on the relevant § 7B-907(b)
factors[.] In addition to the required findings under section 7B-
907(b), under certain circumstances N.C. Gen. Stat. § 7B-907(d)
In the case of a juvenile who is in the
custody or placement responsibility of a
county department of social services, and has
been in placement outside the home for 12 of
the most recent 22 months . . . the director
of the department of social services shall
initiate a proceeding to terminate the
parental rights of the parent unless the court
(1) The permanent plan for the juvenile
is guardianship or custody with a
relative or some other suitable
(2) The court makes specific findings
why the filing of a petition for
termination of parental rights is
not in the best interests of the
N.C. Gen. Stat. § 7B-907(d) (2005).
In his permanency planning order, Judge Hill made the
following relevant findings of fact:
4. The child has been in DSS custody for six
years. Due to [C.H.'s] autism and the mother's
limitations, the mother is not able to care
for [C.H.] on a day-to-day basis. 5. The child has been placed with the foster
parents since February 2005, and she is doing
well in this home.
. . . .
10. The foster parent, Ms. Winstead, provides
[C.H.] with a very basic structured routine in
order for her to function.
11. Ms. Winstead is willing to continue to be
appointed guardian for the child only if some
changes are made in the visitation schedule as
it places too many demands on the family and
too many disruptions on the child. She is
requesting visitation be two times a month and
. . . .
13. There continue to be no family members who
have come forward to be considered as
guardians for [C.H.]
14. As further findings of fact, the Court
adopts the DSS court summary which is
incorporated herein as if fully set forth.
. Based on the history of the case and the
prior orders, it is not possible for the
child, [C.H.], to be returned to the home
immediately nor is it likely within the next
six months. Termination of parental rights is
not an appropriate plan for the child due to
her need for a structured therapeutic
placement and her attachment to the family.
Guardianship to a court-appointed caretaker is
an appropriate plan for [C.H.] The concurrent
plan is guardianship with a relative.
. To implement the permanent plan DSS has
made the efforts as described in the court
. The child has lived with the guardians
for a year. The placement is stable and
continuing. The guardians are willing to be
the permanent guardians for the child. They
understand the legal significance of being
guardians and have sufficient financial
resources with the guardianship subsidy to
provide for the needs of the child. Neither
the interests of the child nor any other party
require[s] further statutory reviews. All
parties have been advised that the matter may
be brought back for review at any time by thefiling of a motion by a party or the Court
upon its own motion.
The trial court also made a conclusion of law that would have been
better labeled a finding of fact in that it stated:
4. Durham DSS has made reasonable efforts to
implement the permanent plan. The permanent
plan was implemented by appointing Mr. and
Mrs. Winstead as guardians for the child on
November 1, 2005.
These findings are sufficient to meet the requirements under N.C.
Gen. Stat. §§ 7B-907(b) and (d). In particular, we hold that (1)
the requirements under section 7B-907(b)(3) are met by findings of
fact  and ; (2) the requirements under section 7B-907(b)(4)
are met by findings of fact 5, 10, 11, , and ; and (3) the
requirements under section 7B-907(b)(5) are met by finding of fact
14 and conclusion of law 4. Additionally, the trial court made
sufficient independent findings of fact as required by N.C. Gen.
Stat. § 7B-907(b)(1). Specifically, we hold that the trial court's
findings of fact 4 and , referencing the history of the case,
C.H.'s special needs, and Respondent's struggles to improve her
ability to care for C.H., provide the basis upon which Judge Hill
relied in determining that it was not in C.H.'s best interests to
return home. Finally, the requirements under section 7B-907(b)(2)
are met by findings of fact 11, 13, , and , and a
conclusion of law that determined it is in the best interests of
the child that she have regular visitation with [Respondent]. See
J.C.S., 164 N.C. App. at 106, 595 S.E.2d at 161 (finding sufficient
findings of fact under section 7B-907(b)(2) where the trial courtfound that the children should remain in their current foster care
placement, with respondent continuing to have visitation rights).
With regard to section 7B-907(d), we believe that the
requirements under section 7B-907(d)(1) are met by findings of fact
 and , and the requirements under section 7B-907(d)(2) are
met by finding of fact . We thus overrule Respondent's
assignments of error related to the trial court's findings of fact.
For the reasons stated, the order of the trial court is
reversed for failure to appoint the statutorily required guardian
ad litem, and this case is remanded for further proceedings in
accordance with this opinion.
REVERSED AND REMANDED.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).
Respondent was represented continuously by the same attorney
in all proceedings in the trial court, including the permanency
planning hearing which resulted in the order at issue on this
appeal. Upon Respondent's notice of appeal, the North Carolina
Appellate Defender's office was appointed to prosecute the appeal.
Respondent gave notice of appeal from the trial court's order
entered 30 March 2006. Therefore, that is the only order before
this Court on appeal. Since Respondent did not timely give notice
of appeal from any previous order in this case, we do not address
the necessity of the participation of a guardian ad litem
previous hearings or the legitimacy of those orders.
See footnote 2, supra
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