In re C.B.

614 S.E.2d 579, 171 N.C. App. 341
Court of Appeals of North Carolina·Decided July 5, 2005·No. No. COA04-1166.·Published·Cited by 7 cases

Opinion

TIMMONS-GOODSON, Judge.

Respondent-mother ("respondent") appeals the trial court order adjudicating her minor daughter, Christine,1 dependent and neglected. Because the trial court erred by failing to appoint a guardian ad litem for respondent, we reverse the trial court order and remand the case for a new trial.

The facts and procedural history pertinent to the instant appeal are as follows: On 15 November 2002, New Hanover County Department of Social Services ("petitioner") filed a Juvenile Petition alleging that Christine was a neglected juvenile, in that she lived in an environment injurious to her welfare. In support of this allegation, petitioner asserted that respondent had been charged in Onslow County "with multiple charges of 1st degree rape, sexual offense, indecent liberties with a minor, incest, and contributing to the delinquency of a minor," with the alleged victim being respondent's four-year-old son and Christine's older brother, Ronald.2 Petitioner further asserted that Orange County Department of Social Services had "substantiated sexual abuse" arising out of these incidents, and that respondent was "alleged to have mental health issues."

The petition also alleged that Christine was a dependent juvenile. In support of this allegation, petitioner asserted that respondent "is alleged to suffer from mental health issues [and] is charged criminally for sexually assaulting her son. . . ."

On 14 January 2004 and 4 February 2004, the trial court heard argument and received evidence from the parties. On 29 April 2004, the trial court entered an order containing the following pertinent findings of fact:

6. [Respondent] has been charged in Onslow County with multiple counts of rape, incest, sexual offense, and indecent liberties with a minor arising from the sexual abuse incidents with her son, [Ronald]. Such charges were recently referred to the grand jury but have not been tried as of yet.

7. The sexual abuse of [Ronald] by [respondent] was substantiated by the Orange County Department of Social Services, as was his physical abuse at age two, also by [respondent]. Such substantiation of sexual abuse took into account the report of Donna Potter and Dr. Dana Leinenweber of the Center for Child and Family Health and the disclosures of the child to various persons.

. . . .

15. [Respondent] suffers from mental health issues, not by the testimony of a psychologist or therapist but by her own testimony and that of other witnesses, including [Ronald], Debra Reuben and [Christine's father]. [Ronald] testified as to her aberrant sexual behavior towards him, which the Court finds as fact, [Christine's father] testified as to her depression and mood swings, as did Ms. Reuben, citing strange interactions between [respondent] and [Christine] in visitation and incidents of voice changes during phone conversations with [respondent]. Also, [respondent's] accounts of a twin fetus being born dead with [Christine] along with other testimony by her observed by the Court, raises issues of her mental stability.

. . . .

17. [Christine] was dependent at the time of the Juvenile petition due to [respondent's] inability to provide a safe home for *581her due to her pending criminal charges and mental health issues. . . .

. . . .

19. The Court Report dated January 14, 2004, and prepared by Debra Reuben, social worker with New Hanover County Department of Social Services, was accepted into evidence by the Court for disposition purposes and is incorporated by reference hereto.

20. The Court Report dated January 14, 2004, and prepared by Leslie B. Wilder, Guardian ad Litem program supervisor, was accepted into evidence by the Court for disposition purposes and is incorporated by reference hereto.

Based in part upon these findings of fact, the trial court concluded as a matter of law that Christine was a dependent and neglected juvenile as defined by N.C. Gen.Stat. § 7B-101(9) and (15). After concluding that it was in Christine's best interests to do so, the trial court placed Christine in her father's custody, denied respondent visitation, and allowed petitioner to cease efforts to reunite Christine with respondent. Respondent appeals.

The dispositive issue on appeal is whether the trial court erred by failing to appoint a guardian ad litem to represent respondent. Because we conclude that respondent was entitled to an appointed guardian ad litem, we reverse the trial court order and remand the case for a new trial.

N.C. Gen.Stat. § 7B-602 (2003) provides in pertinent part as follows:

(b) In addition to the right to appointed counsel . . ., a guardian ad litem shall be appointed in accordance with the provisions of G.S. 1A-1, Rule 17, to represent a parent in the following cases:

(1) Where it is alleged that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101 in that the parent is incapable as the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other similar cause or condition of providing for the proper care and supervision of the juvenile[.]

This Court has previously noted that N.C. Gen.Stat. § 7B-602(b) "is narrow in scope and does not require the appointment of a guardian ad litem in every case where dependency is alleged, nor does it require the appointment of a guardian ad litem in every case where substance abuse or some other cognitive limitation is alleged." In re H.W., 163 N.C.App. 438, 447, 594 S.E.2d 211, 216, disc. review denied, 358 N.C. 543, 599 S.E.2d 46 (2004). Instead, we have concluded that N.C. Gen.Stat. § 7B-602(b)(1) requires appointment of a guardian ad litem only where "(1) the petition specifically alleges dependency; and (2) the majority of the dependency allegations tend to show that a parent or guardian is incapable as the result of some debilitating condition listed in the statute of providing for the proper care and supervision of his or her child." Id.

Free access — add to your briefcase to read the full text and ask questions with AI

In re C.B., 614 S.E.2d 579, 171 N.C. App. 341 (N.C. Ct. App. 2005).

614 S.E.2d 579 (In re C.B.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

In re A.S.Y.
208 N.C. App. 530 (Court of Appeals of North Carolina, 2010)
In the Matter of T.T.
641 S.E.2d 344 (Court of Appeals of North Carolina, 2007)
In re K.H.
627 S.E.2d 478 (Court of Appeals of North Carolina, 2006)
In re A.L.G.
619 S.E.2d 561 (Court of Appeals of North Carolina, 2005)
In Re CB
614 S.E.2d 579 (Court of Appeals of North Carolina, 2005)