In re D.W.C.

698 S.E.2d 79, 205 N.C. App. 266, 2010 N.C. App. LEXIS 1133
CourtCourt of Appeals of North Carolina
DecidedJuly 6, 2010
DocketNo. COA10-250
StatusPublished
Cited by4 cases

This text of 698 S.E.2d 79 (In re D.W.C.) 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 D.W.C., 698 S.E.2d 79, 205 N.C. App. 266, 2010 N.C. App. LEXIS 1133 (N.C. Ct. App. 2010).

Opinion

HUNTER, JR., Robert N., Judge.

BACKGROUND

Respondent-mother (“Eloise”)1 appeals from the trial court’s order terminating her parental rights to the minor children, D.W.C. (“Donnie”) and J.A.C. (“Johnnie”).

On 8 May 2008, Cleveland County Department of Social Services (“CCDSS”) filed a juvenile petition alleging that Donnie and Johnnie were neglected juveniles, in that they lived in an environment injur[268]*268ious to their welfare. The petition was a response to an incident taking place on 5 May 2008, where police responded to a domestic violence call alleging that respondent-father (“Edward”) and Eloise were abusing alcohol and becoming physically and verbally violent with the minor children in the home. During the incident, Edward was arrested for assault on a female and resisting a public officer. The minor children were one and three years old at the time. The petition filed by CCDSS alleged that the minor children were exposed to domestic violence, substance abuse, and improper supervision in their home.

A kinship care agreement was formed with the maternal grandmother to ensure the safety of the children. Eloise obtained a restraining order to ensure her and the children’s safety following the incident’ on 5 May 2008. However, Eloise dropped the restraining order and married Edward on 6 May 2008 in Rutherford County. The maternal grandmother thereafter advised CCDSS that she could no longer provide care for the children, and asked that an alternative placement be found. CCDSS obtained nón-secure custody of the children on 8 May 2008.

At an adjudication hearing on 21 May 2008, Eloise and Edward stipulated that Donnie and Johnnie were neglected. The trial court entered an order adjudicating the children neglected juveniles on 2 July 2008.

On 20 May 2009, CCDSS filed petitions to terminate Eloise and Edward’s parental rights. CCDSS alleged that grounds existed to terminate parental rights because: (1) Eloise and Edward had neglected the children; (2) Eloise and Edward had willfully left the children in foster care for more than twelve months without showing reasonable progress; and (3) Eloise and Edward had willfully failed to pay a reasonable portion of the cost of care for the juveniles although physically and financially able to do so. The termination of parental rights hearing was held on 16 December 2009. On 15 January 2010, the trial court entered an order terminating Eloise’s and Edward’s parental rights. Only Eloise appeals.

ANALYSIS

I.

Eloise argues that the trial court’s order terminating her parental rights must be reversed because the trial court failed to enter an order appointing a guardian ad litem (“GAL”) for the children: (1) [269]*269when the petition alleging neglect was filed on 8 May 2008, and (2) when Eloise answered the petition to terminate her parental rights. We disagree.

As a preliminary matter, we note that Eloise has filed a notice of appeal only to the trial court’s 15 January 2010 order terminating her parental rights, and accordingly this order is the only order properly before this Court for appellate review. N.C.R. App. P. 3.1(a) (2010) (“[Ejxcept as hereinafter provided by this rule, all other existing Rules of Appellate Procedure shall remain applicable.”); N.C.R. App. P. 3(d) (2010) (“The notice of appeal... shall designate the judgment or order from which appeal is taken and the court to which appeal is taken[.]”); see In re L.B., 187 N.C. App. 326, 332, 653 S.E.2d 240, 244 (2007) (Rule 3.1 is “jurisdictional, and if not complied with, the appeal must be dismissed.”), aff’d, 362 N.C. 507, 666 S.E.2d 751 (2008). Therefore, Eloise’s first argument that a GAL should have been appointed when the petition alleging neglect was filed in May 2008 is dismissed. In re N.B., - N.C. App. -, -, 688 S.E.2d 713, 717 (2009) (“We find that any alleged violation of N.C. Gen. Stat. § 7B-601(a) (2007), with respect to the prior termination hearings, may not be used to challenge the [order terminating parental rights].”).

As to Eloise’s second argument that a GAL should have been appointed when she answered the petition to terminate her parental rights, section 7B-1108 of our General Statutes provides that “[i]f an answer or response denies any material allegation of the petition or motion, the court shall appoint a guardian ad litem for the juvenile to represent the best interests of the juvenile, unless ... a guardian ad litem has already been appointed pursuant to G.S. 7B-601.” N.C. Gen. Stat. § 7B-1108(b) (2009). However, even though appointment of a GAL is mandatory by statute in this situation, this Court has held that “failure of the record to disclose guardian ad litem appointment papers does not necessitate reversal of the district court’s decision,” when the guardian ad litem has carried out her duties under N.C. Gen. Stat. § 7B-601(a). In re A.D.L., 169 N.C. App. 701, 707, 612 S.E.2d 639, 643 (2005).

In In re J.E., 362 N.C. 168, 655 S.E.2d 831 (2008), our Supreme Court overturned a decision by this Court where we reversed an order terminating parental rights based on the holding in In re R.A.H., 171 N.C. App. 427, 614 S.E.2d 382 (2005). The dissent from this Court, adopted by the Supreme Court, distinguished R.A.H.:

[270]*270This Court in In re R.A.H., 171 N.C. App. 427, 614 S.E.2d 382 (2005), held that prejudice will be presumed where “a child was not represented by a [GAL] at a critical stage of the termination proceedings.” Id. at 431, 614 S.E.2d at 385. In that case, the child was not represented by a GAL during the first three and a half days of a termination hearing and the mother’s parental rights were terminated. Id. at 430, 614 S.E.2d at 384. The mother then appealed “[f]rom the order terminating her parental rights” to the child. Id. at 428, 614 S.E.2d at 383.
In the instant case, respondent is also appealing the order terminating her parental rights. Unlike respondent in In re R.A.H., however, respondent in this case points to the children’s lack of representation at prior hearings, to which she did not object nor later appeal, as grounds to overturn the trial court’s termination order. Unlike the child in In re R.A.H., the children in this case were represented at every stage of the termination hearing.
[T]he trial court’s order should be affirmed because the prior orders in which the children were purportedly unrepresented are not on appeal before this Court and because a GAL represented the children during the entire termination proceeding. Thus, because it cannot be said that the children were unrepresented during a “critical stage” of the termination hearing, I would affirm the trial court as to this issue.

In re J.E., 183 N.C. App. 217, 228-29, 644 S.E.2d 28, 34-35 (2007),

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Bluebook (online)
698 S.E.2d 79, 205 N.C. App. 266, 2010 N.C. App. LEXIS 1133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dwc-ncctapp-2010.