In re A.Y.

737 S.E.2d 160, 225 N.C. App. 29, 2013 WL 149869, 2013 N.C. App. LEXIS 67
CourtCourt of Appeals of North Carolina
DecidedJanuary 15, 2013
DocketNo. COA12-80
StatusPublished
Cited by7 cases

This text of 737 S.E.2d 160 (In re A.Y.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re A.Y., 737 S.E.2d 160, 225 N.C. App. 29, 2013 WL 149869, 2013 N.C. App. LEXIS 67 (N.C. Ct. App. 2013).

Opinion

GEER, Judge.

Respondent mother appeals from the trial court’s order ceasing reunification efforts and granting guardianship of the minor child A.Y. (“Ava”)1 to the child’s paternal grandparents. Respondent mother primarily argues that the trial court erred in allowing her to proceed pro se. She contends that because the court had appointed respondent mother a guardian ad litem (“GAL”), only the GAL, acting in a substitutive capacity, could waive counsel. Under this Court’s recent decision on remand from the Supreme Court in In re P.D.R., L.S.R., J.K.R., 224 N.C. App. 460, 737 S.E.2d 152 (2012), we hold that even though the trial court did not specify whether the GAL was to serve in a substitutive or assistive capacity, a review of the record indicates that the GAL was intended to be assistive only. We hold that the trial court conducted a sufficient inquiry to determine that her waiver was proper.

We affirm the trial court’s order to the extent it ceased reunification efforts and granted guardianship of Ava to her grandparents. We reverse and remand, however, with respect to the order’s waiver of further review hearings.

Facts

The New Hanover County Department of Social Services (“DSS”) first became involved with respondent mother in January 2010 due to a 911 domestic violence call. Between January 2010 and May 2010, there were at least four 911 calls because of domestic violence. On 3 May 2010, an incident of domestic violence led to respondent mothers obtaining a Domestic Violence Protective Order against respondent father.

On 7 May 2010, DSS filed a juvenile petition alleging that then five-year-old Ava was a neglected juvenile due to her parents’ failure to provide proper care and supervision and their exposing Ava to a risk of physical and emotional injury. DSS gained non-secure custody and placed Ava with her paternal grandparents on 12 May 2010.

The trial court appointed counsel for respondent mother on 19 May 2010 and appointed a GAL for respondent mother pursuant to [31]*31N.C. Gen. Stat. § 7B-620(c) on 25 June 2010. During the adjudication hearing on 14 July 2010, respondent mother’s court-appointed attorney sought to withdraw, and respondent mother requested to proceed pro se. Respondent mother’s GAL agreed with the attorney’s request to withdraw given a personality conflict between respondent mother and the attorney. However, both DSS and respondent mother’s GAL objected to respondent mother’s request to proceed pro se on the grounds that it would not be in respondent mother’s best interest. The trial court denied the request, appointed a substitute attorney, and ordered respondent mother to undergo a psychological evaluation.

Respondent mother underwent the psychological evaluation on 4 August 2010. That evaluation indicated that respondent mother had “average to high average” intelligence and “scored very high on a measure of common sense, moral reasoning, and judgment.” According to the psychologist, these findings “raise [d] the question of the need for a Guardian Ad Litem” because such “scores suggest that she has the cognitive abilities to understand situations and their consequences!)]” The evaluation also concluded that respondent mother was “somewhat dysfunctional and has made, and continues to make, poor decisions”; continues to use marijuana without any plans to quit; and although she “recogniz[és] how problematic [respondent father] is as a parent and his bad influence on her, she nevertheless continues to interact with him even after obtaining a restraining order.” The psychologist concluded that “her poor decision making is not due to cognitive limitations, but rather it is due to characterological (personality) features.”

By order entered 29 September 2010, the trial court adjudicated Ava neglected based on a stipulation of the parties. The dispositional hearing was held 25 October 2010, at which time respondent father was again residing with respondent mother. The court found that returning custody to either parent was premature due to allegations of neglect, substance abuse, and domestic violence. The court ordered, among other things, for respondent mother to “complete Empowerment Groups” and that the Domestic Violence Protective Order be dismissed so that the parents could undergo couples counseling.

At a permanency planning review hearing held on 10 March 2011, the trial court ordered DSS to continue reunification efforts and for each parent to continue therapy and parenting education classes. Respondent parents began couples counseling in May 2011, but during the second session two weeks later, respondent parents had a verbal [32]*32altercation that became so aggressive that the therapist considered calling 911.

On 2 June 2011, respondent mother’s second attorney filed a motion to withdraw. On the same day, respondent mother signed a waiver of the right to assistance of counsel. At the start of the permanency planning review hearing on 8 August 2011, the trial court, after reviewing this Court’s decision in In re P.D.R., L.S.R., J.K.R., 212 N.C. App. 326, 713 S.E.2d 60 (2011), rev’d and remanded, 365 N.C. 533, 723 S.E.2d 335 (2012), questioned respondent mother and her GAL regarding respondent mother’s decision to waive counsel and represent herself:

THE COURT: Okay. [Respondent mother], you understand that this matter is on for a review hearing in the juvenile case that was filed alleging that your daughter was neglected? Do you understand that?
[RESPONDENT MOTHER]: [No audible response}.
THE COURT: And you’ll need to answer out loud because because we record these proceedings.
[RESPONDENT MOTHER]: Yes.
THE COURT: Okay. And do you understand that you have a right to represent yourself in this matter?
[RESPONDENT MOTHER]: Yes.
THE COURT: And that if you cannot afford an attorney, one can be appointed to represent you?
[RESPONDENT MOTHER]: Yes.
THE COURT: And that previously you had Beth Bryant [phonetic] represent you and had represented you as provisional counsel all the way through to the last court appearance that you had. Is that correct?
[RESPONDENT MOTHER]: Yes.
THE COURT: And you had requested to represent yourself at the last court appearance. Is that correct?
[RESPONDENT MOTHER]: Yes.
[33]*33THE COURT: And do you understand that, representing yourself, you have to understand the process, and the procedural aspects of the case, not just the factual aspects of the case?
[RESPONDENT MOTHER]: Yes.
THE COURT: And at some point early in this process, the Department of Social Services had requested and the Court had appointed a Guardian Ad Litem for you?
[RESPONDENT MOTHER]: Yes.

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Cite This Page — Counsel Stack

Bluebook (online)
737 S.E.2d 160, 225 N.C. App. 29, 2013 WL 149869, 2013 N.C. App. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ay-ncctapp-2013.