In re A.P.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-674
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
IN THE MATTER OF:
A.P. Durham County
No. 11 J 98
Appeal by Respondent-Father from orders entered 20 February
2012 and 20 February 2013 by Judge Brian C. Wilks in District
Court, Durham County. Heard in the Court of Appeals 7 January
2014.
Assistant County Attorney Bettyna Belly Abney for
Petitioner-Appellee Durham County Department of Social
Services.
Sandlin & Davidian, PA, by Debra A. Griffiths, for Guardian
ad Litem.
J. Thomas Diepenbrock for Respondent-Appellant Father.
McGEE, Judge.
Respondent-Father appeals from the district court’s orders
ceasing reunification and terminating his parental rights as to
his daughter (“the child”). We affirm.
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Respondent-Father and Respondent-Mother are the parents of
the child, born 8 February 2011. On 24 March 2011, the Durham
County Department of Social Services (“DSS”) filed a juvenile
petition alleging that the child was a neglected and dependent
juvenile. DSS took nonsecure custody of the child.
In a separate action, H.B., the father of Respondent-
Father, filed a petition in Superior Court, Durham County for
guardianship of Respondent-Father. The Clerk of Court of Durham
County, pursuant to Chapter 35A of the North Carolina General
Statutes, found Respondent-Father “incompetent to a limited
extent” and appointed H.B. as guardian of the person for
Respondent-Father in an order filed 7 April 2011.
By order filed 22 August 2011, the trial court adjudicated
the child a neglected and dependent juvenile. The trial court
also found that Respondent-Father’s whereabouts were unknown.
At that time, paternity had not yet been officially established,
and Respondent-Father was referred to as the “putative”
Respondent-Father. The trial court held subsequent permanency
planning hearings and, on 20 February 2012, the trial court
ceased reunification efforts with putative Respondent-Father.
DSS filed a motion to terminate the parental rights of
Respondent-Mother and Respondent-Father, as the putative father,
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in April 2012, alleging failure of putative Respondent-Father to
establish paternity, legitimate, or provide substantial
financial support to the child, and abandonment. In July 2012,
Respondent-Father was located at the Durham County Jail and was
personally served with a summons and petition. A paternity test
conducted in August 2012 confirmed Respondent-Father as the
father of the child.
Respondent-Father informed DSS that H.B. was his guardian.
DSS amended its motion to terminate parental rights in October
2012. DSS alleged that the Durham County Clerk of Superior
Court had found Respondent-Father to be incompetent to a limited
extent; that Respondent-Father sustained a traumatic brain
injury in a car accident; and that due to the head trauma,
Respondent–Father had been diagnosed with psychotic disorder,
mood disorder, and mild mental retardation. DSS added as
grounds for termination neglect, and that Respondent-Father was
incapable of providing for the proper care and supervision of
the child such that the child was a dependent child pursuant to
N.C. Gen. Stat. § 7B-1111(a)(6) (2011).
On 5 December 2012, the trial court held a pre-trial
hearing on the motion to terminate Respondent-Father’s parental
rights. Counsel for Respondent-Father moved to dismiss the
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motion to terminate based upon lack of personal jurisdiction
over Respondent-Father. The trial court ordered that the motion
to dismiss be heard on 10 December 2012 and set the termination
hearing for 11 December 2012.
At the motion to dismiss hearing, the trial court heard
arguments from counsel, denied the motion, and stated that “the
case will proceed to hearing [on the termination motion]
tomorrow morning.” At the hearing, counsel for Respondent-
Father orally moved for the appointment of a guardian ad litem
(“GAL”) for Respondent-Father pursuant to Chapter 7B of the
North Carolina General Statutes, in light of Respondent-Father’s
diminished capacity. The trial court denied the motion, stating
“there is a limited guardian ad litem1 appointed in the case.
The case will not be delayed at this late date[.]”
When the termination hearing was called the next morning,
the GAL for the minor child asked the trial court to “clarify
for the record” its ruling on the motion for the appointment of
a GAL for Respondent-Father. The trial court quoted from N.C.
Gen. Stat. § 7B-1101.1(c) and then stated:
Considering [7B-1101.1(c)] and the fact that
the Court may appoint, there are some
1
The trial court refers to H.B. as a “limited guardian ad
litem.” The trial court should have simply referred to H.B. as
Respondent-Father’s “guardian.”
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instances in which the Court does not have
to appoint, pursuant to that statute. And
the Court finds that this is one of those
situations where the father already has a
Guardian ad Litem appointed, a limited
Guardian ad Litem appointed, that being his
father [H.B] who was properly served,
pursuant to the hearing yesterday, properly
served with the motion to terminate parental
rights. He was served with that motion on
November the 1st. He was appointed as a
limited guardian on April 7th, 2011, before
the Honorable Archie Smith, the Clerk of
Durham County Court. Mr. Smith made
findings of fact, appointed him as a limited
Guardian ad Litem of [Respondent-Father] and
made specific findings. The Court has no
record that that guardianship has been
terminated, so [H.B.] is still a limited
guardian for [Respondent-Father]. Because
he has a limited guardian, and because 7B-
1101.1(c) says that the Court may appoint,
the Court does not find that an additional
guardian is needed in this particular case,
because one already exists for [Respondent-
Father].
The trial court proceeded with the termination hearing. By
order filed 20 February 2013, the trial court terminated
Respondent-Father’s parental rights. Respondent-Father appeals.
In his sole argument on appeal, Respondent-Father contends
the trial court erred by not inquiring into his competency and
by not appointing a GAL. We disagree.
Appointment of a GAL for a parent in a termination of
parental rights proceeding is governed by N.C. Gen. Stat. § 7B-
1101.1 (2011). Subsection (c) of the statute provides:
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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-1101.1(c) (2011) (emphasis added). Rule 17
states in relevant part:
In actions or special proceedings when any
of the defendants are . . . incompetent
persons, . . . they must defend by general
or testamentary guardian, if they have any
within this State or by guardian ad litem
appointed as hereinafter provided; and if
they have no known general or testamentary
guardian in the State, and any of them have
been summoned, the court in which said
action or special proceeding is pending,
upon motion of any of the parties, may
appoint some discreet person to act as
guardian ad litem, to defend in behalf of
such . . . incompetent persons[.]
N.C. Gen. Stat. § 1A-1, Rule 17(b)(2) (2013). When the
incompetent person already has a general guardian, the trial
court still has the discretion to appoint a GAL if the trial
court determines such appointment “expedient.”
Notwithstanding the provisions of
subsections (b)(1) and (b)(2), a guardian ad
litem for an . . . incompetent person may
be appointed in any case when it is deemed
by the court in which the action is pending
expedient to have the . . . incompetent
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person so represented, notwithstanding such
person may have a general or testamentary
guardian.
N.C.G.S. § 1A-1, Rule 17(b)(3).
In the present case, Respondent-Father had a general
guardian at all times relevant to this matter. Pursuant to Rule
17, no appointment of a GAL was required. Though the trial
court had the discretion to appoint a GAL notwithstanding
Respondent-Father’s general guardian, we find no abuse of
discretion in the trial court’s decision not to do so.
Accordingly, the trial court’s order terminating Respondent-
Father’s parental rights is affirmed.
Affirmed.
Judges McCULLOUGH and DILLON concur.
Report per Rule 30(e).