In re L.P. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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.”
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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.
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Judges McGEE and DILLON concur.
Report per Rule 30(e).