In re L.P. ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
    NO. COA13-643
    NORTH CAROLINA COURT OF APPEALS
    Filed:      7 January 2014
    IN THE MATTER OF:
    L.P.                                          Cumberland County
    No. 12 JA 222
    Appeal    by   respondent-father          from     order    entered   20    March
    2013   by     Judge   Edward     A.   Pone      in    Cumberland    County   District
    Court.      Heard in the Court of Appeals 10 December 2013.
    Elizabeth     Kennedy-Gurnee    for     petitioner-appellee,
    Cumberland County Department of Social Services.
    Beth A. Hall for guardian ad litem.
    Peter Wood for respondent-appellant, father.
    McCULLOUGH, Judge.
    Respondent      appeals     from    an    order     adjudicating      his   son,
    L.P., to be an abused and neglected juvenile, and continuing the
    custody of L.P. with the Cumberland County Department of Social
    Services (“DSS”).        For the following reasons, we affirm.
    Respondent      and   the      mother     are     parents     of   L.P.,    born
    November 2011.         On 17 April 2012, DSS filed a juvenile petition
    alleging      that    L.P.   was   an     abused,      dependent,    neglected,     and
    -2-
    seriously      neglected       child.     DSS    alleged        that    L.P.     suffered
    serious injuries inconsistent with accidental trauma.                            DSS took
    nonsecure      custody    of    L.P.    and    placed     him    with    his     maternal
    grandparents.
    The trial court held             a nonsecure custody hearing                on 29
    August 2012, during which respondent’s attorney moved to have a
    guardian ad litem (“GAL”) appointed for respondent pursuant to
    N.C. Gen. Stat. § 7B-602(c).                  In its nonsecure custody order,
    the trial court found that respondent’s attorney had requested a
    GAL “as [respondent] has previously been diagnosed with Bi-Polar
    disorder and receives SSI for the same.”                        The court found “it
    would be appropriate to appoint a Guardian ad Litem for the
    Respondent Father” and entered an order appointing a GAL on the
    day of the nonsecure hearing.
    After    holding     another      nonsecure        custody       hearing     on   9
    January       2013,   the      court     entered     an     order       finding      that
    respondent’s GAL had asked to withdraw because respondent “is
    able to effectively communicate with his counsel and understands
    the nature of these proceedings.”                  By order filed 10 January
    2013, the trial court allowed respondent’s GAL to withdraw based
    upon    the     “judicial       determination      that         GAL    is   no     longer
    necessary.”
    -3-
    The   trial   court     held    an    adjudication   and   disposition
    hearing on 28 and 29 January 2013.                By order filed 20 March
    2013, the trial court adjudicated L.P. an abused and neglected
    juvenile.     The trial court concluded that L.P. should remain in
    the custody of DSS and that respondent and the mother should
    have supervised visitation with L.P.            Respondent appeals.
    Respondent contends the trial court abused its discretion
    when   it    appointed   and    then    later    removed    respondent’s   GAL
    without making sufficient findings.             We disagree.
    Appointment of a guardian ad litem for a parent is governed
    by N.C. Gen. Stat. § 7B-602(c), which provides:
    On motion of any party or on the court’s own
    motion, the court may 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.      The parent’s counsel
    shall not be appointed to serve as the
    guardian ad litem.
    N.C. Gen. Stat. § 7B-602(c) (2011)1.               “Because N.C.G.S. § 7B-
    602(c) employs the term ‘may,’ a trial court’s action pursuant
    1
    We note that Session Law 2013-129, effective for all actions
    filed or pending on or after 1 October 2013, amends section 7B-
    602(c) such that appointment of a GAL is only for a parent who
    is incompetent.   Because the adjudication order was filed in
    this matter before 1 October 2013, the effective date of Session
    Law 2013-129, this action was no longer pending. Therefore, the
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    to this statute is discretionary, and our review is limited to a
    determination of whether the trial court abused its discretion.”
    In re M.H.B., 
    192 N.C. App. 258
    , 261, 
    664 S.E.2d 583
    , 585 (2008)
    (citation omitted).         “A trial court abuses its discretion when
    its   decision    is    ‘manifestly     unsupported      by     reason.’”       
    Id.
    (citation omitted).
    Relying on this Court’s decision in In re A.Y., ___ N.C.
    App. ___, 
    737 S.E.2d 160
    , disc. review denied, ___ N.C. ___, 
    748 S.E.2d 539
     (2013), respondent argues the trial court abused its
    discretion     when    it   appointed    and   then    removed     the    GAL   for
    respondent-father without specifying the role of the GAL.                        In
    A.Y., this Court applied the analysis set out in In re P.D.R.,
    ___ N.C. App. ___, 
    737 S.E.2d 152
     (2012), which involved the
    role of a GAL for a termination of parental rights proceeding
    under   N.C.   Gen.    Stat.   §   7B-1101.1(c)       (2011),    to   a   juvenile
    petition proceeding under N.C. Gen. Stat. § 7B-602(c).
    In A.Y., this Court noted:
    In deciding whether to appoint a parental
    GAL, the court “must conduct a hearing in
    accordance with the procedures required
    under Rule 17 in order to determine whether
    there is a reasonable basis for believing
    that   a  parent  is  incompetent  or   has
    diminished capacity and cannot adequately
    act in his or her own interest.     If the
    new language is not applicable to this appeal.
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    court chooses to exercise its discretion to
    appoint a GAL under N.C. Gen. Stat. § 7B-
    1101.1(c), then the trial court must specify
    the prong under which it is proceeding,
    including findings of fact supporting its
    decision, and specify the role that the GAL
    should play, whether one of substitution or
    assistance.”
    A.Y., ___ N.C. App. at ___, 737 S.E.2d at 165 (quoting P.D.R.,
    __ N.C. App. at ___, 737 S.E.2d at 159).         Respondent argues that
    the adjudication and disposition order should be vacated because
    the trial court did not specify whether the role of respondent’s
    GAL was one of assistance or substitution.         We are not persuaded
    by respondent’s argument.
    In its juvenile petition, DSS did not claim that respondent
    had mental health issues; however, counsel for respondent moved
    to have a GAL appointed at a nonsecure custody hearing.               The
    trial   court’s   nonsecure   custody   order   contains   the   following
    finding of fact pertinent to the issue of appointment of a GAL:
    13.   Attorney Nelson made an oral motion
    requesting that a Guardian ad Litem be
    appointed to the Respondent Father inasmuch
    as he has previously been diagnosed with Bi-
    Polar disorder and receives SSI for the
    same.    The Court finds that it would be
    appropriate to appoint a Guardian ad Litem
    for the Respondent Father and appointed
    Attorney Mona Burke to serve as the Guardian
    ad Litem for the Respondent Father in this
    matter.
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    Respondent is correct that the finding of fact does not
    specifically state the role of attorney Burke.             However, similar
    to the court in A.Y., the court here did not “have the benefit
    of our decision in In re P.D.R., so it did not specify whether
    it was acting under the incompetence prong or the diminished
    capacity prong.”        Id. at ___, 737 S.E.2d at 166.          Nevertheless,
    even if the court were required to specify the prong and the
    GAL’s role pursuant to A.Y. and P.D.R., we find no reversible
    error   because   the    trial    court    ultimately   found    that   neither
    prong applied and entered an order in January 2013 allowing the
    GAL   to   withdraw.      The    January    2013   nonsecure    custody   order
    contains the following finding of fact:
    13.   Attorney Burke was initially appointed
    as Guardian ad Litem for the Respondent
    Father inasmuch as the Respondent Father
    receives Social Security benefits for a
    previous diagnosis of Bi-Polar.    He is not
    currently    prescribed    any    medication.
    Attorney Burke requested that she be allowed
    to withdraw as Guardian ad Litem for the
    Respondent Father inasmuch as the Respondent
    Father is able to effectively communicate
    with his counsel and understands the nature
    of these proceedings.     After conversation
    with the Respondent Father, the Respondent
    Father’s counsel and Respondent Father’s
    Guardian ad Litem, the Court determined that
    it was not necessary for the Respondent
    Father to have a Guardian ad Litem and
    allowed Attorney Burke’s motion to withdraw.
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    Because the trial court allowed the GAL to withdraw, the court’s
    failure to determine the role of the GAL when appointing the GAL
    is   irrelevant      to   the    trial     court’s    adjudication    of     L.P.
    Accordingly, we conclude respondent’s argument is without merit.
    Respondent also asserts the trial court failed to make a
    sufficient inquiry when it allowed the GAL to withdraw.                       Our
    review is limited because respondent has not provided this Court
    with a transcript of the January 2013 nonsecure hearing in which
    the GAL moved to withdraw.               The court’s finding of fact 13,
    however,     shows    that      before    allowing     respondent’s    GAL     to
    withdraw, the trial court heard from respondent’s GAL who had
    worked with respondent since August 2012, respondent’s attorney
    who had represented respondent throughout the case, and from
    respondent himself.          Based upon the trial court’s finding of
    fact, we conclude that the trial court conducted a sufficient
    inquiry to determine whether a GAL was necessary for respondent.
    We conclude that the trial court’s decision to appoint and then
    allow the guardian ad litem to withdraw was not arbitrary or
    manifestly     unsupported      by   reason.         Accordingly,    the   trial
    court’s order adjudicating L.P. an abused and neglected juvenile
    is affirmed.
    Affirmed.
    -8-
    Judges McGEE and DILLON concur.
    Report per Rule 30(e).
    

Document Info

Docket Number: 13-643

Filed Date: 1/7/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021