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In re J.R.W.

Court of Appeals of North Carolina

November 18, 2014

IN THE MATTER OF: J.R.W

Heard in the Court of Appeals 27 October 2014.

Appeal by Respondent-mother from order entered 27 March 2014 by Judge Angela C. Foster in Guilford County District Court, No. 12 JB 382.

Mercedes O. Chut for Petitioner Guilford County Department of Health and Human Services.

Peter Wood for Respondent-mother.

Ellis & Winters LLP, by Lenor Marquis Segal, for guardian ad litem.

STEPHENS, Judge. Judges GEER and MCCULLOUGH concur.

OPINION

Page 117

STEPHENS, Judge.

Respondent-mother (" Respondent" ) appeals from an order terminating her parental rights[1] to her minor child, " Joey." [2] Respondent does not challenge the order itself; instead, she argues that the trial court abused its discretion by conducting the termination proceedings without first holding a hearing to determine whether a guardian ad litem (" GAL" ) should have been appointed for her. After careful review of the record and in light of the recent revisions to N.C. Gen. Stat. § 7B-1101.1, which governs when a guardian ad litem must be appointed for a parent in a termination of parental rights (" TPR" ) hearing, we hold that the trial court did not abuse its discretion by not inquiring into Respondent's

Page 118

competency prior to holding the TPR hearing.

Facts and Procedural History

The record indicates that since 2008, Respondent has lost custody of six children, including Joey, due to a combination of Respondent's substance abuse issues, unstable housing, unemployment, and mental health problems. Prior to this matter, Respondent's parental rights were involuntarily terminated as to her three oldest children, and she relinquished her parental rights to her fourth child. On 13 July 2012, the Guilford County Department of Social Services (" DSS" )[3] obtained nonsecure custody of Joey and his twin brother two days after their birth and filed petitions alleging they were neglected and dependent juveniles. After a hearing on 22 August 2012, the trial court entered an adjudication and dispositional order in which it concluded Joey and his brother were dependent juveniles, but dismissed the allegation of neglect. The court continued custody of Joey and his brother with DSS, directed DSS to continue to make reasonable efforts toward reunification of Joey and his brother with Respondent and their father, established case plans for Respondent and the father, and directed Respondent and the father to comply with their case plans and cooperate with DSS. The day after the hearing, Joey's brother died from an acute respiratory infection while in foster care.

Respondent initially worked with DSS on her case plan, and on 16 May 2013, the trial court appointed a GAL to assist her in the juvenile proceedings pursuant to the then-extant version of N.C. Gen. Stat. § 7B-1101.1(c), which provided for a GAL to be appointed for a parent " 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." N.C. Gen. Stat. § 7B-1101.1(c) (2011). While the record does not specifically indicate why a GAL was appointed here, there is no indication that substantial questions arose regarding Respondent's competency to participate in these proceedings.[4] Moreover, when Respondent's GAL filed a motion to withdraw on 19 September 2013, he indicated that he had been appointed only in an assistive capacity, and was withdrawing in light of our General Assembly's enactment of Session Law 2013-129, which eliminated the assistive GAL role for respondents with diminished capacity in TPR cases effective 1 October 2013. The trial court subsequently granted the motion to withdraw, although, perhaps due to a clerical error, it left several pre-printed boxes unchecked in its findings of facts and conclusions of law. Consequently, the court's order did not explicitly indicate: (1) whether there were ...


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