IN THE SUPREME COURT OF NORTH CAROLINA
2021-NCSC-2
No. 99A20
Filed 5 February 2021
IN THE MATTER OF: J.E.B., II
On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) to review an order
terminating respondent’s parental rights entered on 21 October 2019 by Judge John
K. Greenlee in District Court, Gaston County. Heard in the Supreme Court on 11
January 2021.
Elizabeth Myrick Boone for petitioner-appellee Gaston County Department of Health and Human Services.
Brian C. Bernhardt for appellee Guardian ad Litem.
Garron T. Michael for respondent-appellant mother.
EARLS, Justice.
¶1 Respondent-mother appeals from an order entered by Judge John K. Greenlee
in District Court, Gaston County, on 21 October 2019 terminating her parental rights
in J.E.B., II (Jason).1 Respondent argues that she was denied a fundamentally fair
termination proceeding because her guardian ad litem conducted examinations of
some witnesses and, at one point, presented legal arguments on respondent’s behalf.
In respondent’s view, these actions violated N.C.G.S. § 7B-1101.1, which establishes
1 A pseudonym is used to protect the identity of the juvenile and for ease of reading. IN RE J.E.B., II
Opinion of the Court
the right of a parent to appointed counsel and, in certain circumstances, to a guardian
ad litem in a termination of parental rights proceeding. It further provides that “[t]he
parent’s counsel shall not be appointed to serve as the guardian ad litem and the
guardian ad litem shall not act as the parent’s attorney.” N.C.G.S. § 7B-1101.1(d)
(2019). Because the trial court properly appointed respondent a guardian ad litem
and an attorney, both of whom carried out appropriate roles in this matter, we
conclude the statute was not violated and we affirm the trial court’s order.
I. Background
¶2 Jason was placed in the temporary nonsecure custody of the Gaston County
Department of Health and Human Services, Division of Social Services (DSS) on 22
November 2017 following a forensic interview during which Jason disclosed that he
had been sexually abused by his father’s roommate and physically abused by his
father. Prior to that point, both respondent and Jason’s father had been involved with
DSS as a result of concerns of substance abuse and domestic violence.
¶3 On 27 March 2018, the trial court entered an adjudication order placing Jason
in the legal custody of DSS. The termination order indicates that, at a disposition
hearing on 24 April 2018, the trial court ordered respondent to complete a case plan
with the following components:
a) Refrain from using/abusing all illegal/mind altering substances;
b) Complete an updated Mental Health and Substance IN RE J.E.B., II
Abuse Assessment;
c) Follow any recommendations from the Mental Health and Substance Abuse Assessments;
d) Submit to drug screens as requested;
e) Complete parenting classes;
f) Obtain and maintain safe, appropriate, and stable housing;
g) Obtain a Psychological Assessment;
h) Attend visitations with the juvenile, demonstrate effective parenting skills and display appropriate communication skills in presence of the juvenile;
i) Sign all consents necessary;
j) Refrain from any criminal activity.
The trial court subsequently found that Respondent failed to enter into a case plan,
despite being ordered to do so by the court. The trial court changed Jason’s primary
permanent plan from reunification to adoption in an order filed 9 November 2018,
following a hearing on 16 October 2018. Respondent was ultimately served with a
termination petition alleging that Jason was a neglected juvenile, that respondent
had willfully left Jason in foster care for more than twelve months without making
reasonable progress to correct the circumstances that led to his removal from the
home, and that respondent was incapable of properly caring for Jason.
¶4 At the beginning of the termination proceeding, respondent’s appointed
attorney, Mr. Kakassy, unsuccessfully attempted to withdraw on the basis of IN RE J.E.B., II
noncooperation, indicating that he had been unable to communicate with respondent
and that she did not wish him to continue representing her. The court denied Mr.
Kakassy’s request to withdraw. In doing so, the court stated the following:
All right. [Respondent,] Mr. Kakassy has been on your underlying case for some period of time, was appointed on this in June. He is very familiar with your case and your situation. You have a Guardian Ad Litem that’s been appointed, Mr. Hargett. Both are fully capable, professional attorneys to assist you in this and are fully capable of doing that. So, any motion to have a new attorney appointed or release Mr. Kakassy is denied.
Later, Mr. Kakassy again protested that he would have difficulty proceeding and the
trial court stated that Mr. Hargett, respondent’s guardian ad litem, was “welcome to
ask questions and examine [respondent]” and stated that the group—Mr. Kakassy,
Mr. Hargett, and respondent—could determine among themselves what strategy to
use to present evidence.
¶5 During the proceeding, Mr. Kakassy and Mr. Hargett worked together to
represent respondent. At various points, Mr. Hargett cross-examined witnesses,
including respondent. At various points, Mr. Kakassy objected on respondent’s behalf.
At the end of the adjudication stage of the proceeding, Mr. Kakassy requested that
DSS dismiss the dependency ground for termination of respondent’s parental rights
and Mr. Hargett argued on respondent’s behalf regarding the remaining two grounds.
During the best interests phase of the proceeding, Mr. Kakassy conducted the direct
examination of respondent’s only witness. IN RE J.E.B., II
¶6 In an order entered on 21 October 2019, the trial court determined that
grounds existed to terminate respondent’s parental rights with respect to Jason.
Respondent filed the instant appeal and argued that Mr. Hargett’s actions violated a
statutory mandate that a parent’s guardian ad litem “shall not act as the parent’s
attorney.” See N.C.G.S. § 7B-1101.1(d). Respondent also asserts in the alternative
that, if we do not reverse the termination order on that basis, she received ineffective
assistance of counsel. On a motion filed by DSS, respondent’s original appeal was
dismissed by order of this Court on 7 May 2020. We allowed respondent’s petition for
a writ of certiorari by order on the same date.
II. Standard of Review
¶7 Generally, when this Court reviews a trial court’s order terminating parental
rights, we review “to determine whether the trial court made sufficient factual
findings to support its ultimate findings of fact and conclusions of law, regardless of
how they are classified in the order.” In re Z.A.M., 374 N.C. 88, 97, 839 S.E.2d 792,
798 (2020). Factual findings are sufficient if they “are supported by clear, cogent and
convincing evidence” in the record. In re Montgomery, 311 N.C. 101, 111, 316 S.E.2d
246, 253 (1984). Here, respondent raises a question of statutory interpretation, which
we review de novo. Town of Pinebluff v. Moore Cnty., 374 N.C. 254, 255–56, 839
S.E.2d 833, 834 (2020) (citing Applewood Props., LLC v. New S. Props., LLC, 366 N.C.
518, 522, 742 S.E.2d 776, 779 (2013)). IN RE J.E.B., II
III. Analysis
¶8 Respondent raises two arguments on appeal. First, she argues that she was
denied a fundamentally fair termination proceeding because her appointed guardian
ad litem acted as her attorney. In the alternative, she argues that her appointed
counsel provided ineffective assistance. We address each argument in turn.
A. Guardian ad litem
¶9 In a hearing to determine the termination of parental rights, “[t]he parent has
the right to counsel, and to appointed counsel in cases of indigency, unless the parent
waives the right.” N.C.G.S. § 7B-1101.1(a). In certain circumstances, the parent may
also be appointed a guardian ad litem. N.C.G.S. § 7B-1101.1(b)–(c). If a guardian ad
litem is appointed for the parent, “[t]he parent’s counsel shall not be appointed to
serve as the guardian ad litem and the guardian ad litem shall not act as the parent’s
attorney.” N.C.G.S. § 7B-1101.1(d). Respondent urges us to interpret subsection (d)
to mean that a guardian ad litem shall not perform the functions of an attorney, so
that the statute is violated where a guardian ad litem conducts examinations or
performs similar acts. DSS, on the other hand, argues that the statute merely
precludes one person from being appointed both as a parent’s counsel and as a
parent’s guardian ad litem.
¶ 10 A parent whose rights are considered in a termination of parental rights
proceeding must be provided “with fundamentally fair procedures” consistent with IN RE J.E.B., II
the Due Process Clause of the Fourteenth Amendment. In re Murphy, 105 N.C. App.
651, 653, 414 S.E.2d 396, 397 (quoting Santosky v. Kramer, 455 U.S. 745, 754, 102 S.
Ct. 1388, 1395 (1982)), aff’d per curiam, 332 N.C. 663, 422 S.E.2d 577 (1992).
Respondent argues that the trial court violated the statute and rendered the
proceeding fundamentally unfair by “permitting [her guardian ad litem] to act in the
role of [her] parent attorney throughout the termination proceeding.” As a result, we
must consider whether the actions of respondent’s guardian ad litem amounted to
acting as the parent’s attorney within the meaning of the statute.
¶ 11 “The goal of statutory interpretation is to determine the meaning that the
legislature intended upon the statute’s enactment.” State v. Rankin, 371 N.C. 885,
889, 821 S.E.2d 787, 792 (2018). When the meaning is clear from the statute’s plain
language, we “give effect to the plain meaning of the statute, and judicial construction
of legislative intent is not required.” Winkler v. N.C. State Bd. of Plumbing, 374 N.C.
726, 730, 843 S.E.2d 207, 210 (2020) (citation omitted). However, when the language
is ambiguous, we must ascertain the General Assembly’s intent. Id. “The intent of
the General Assembly may be found first from the plain language of the statute, then
from the legislative history, the spirit of the act and what the act seeks to accomplish.”
Rankin, 371 N.C. at 889, 821 S.E.2d at 792 (citation omitted). When we are
determining legislative intent, “the words and phrases of a statute must be
interpreted contextually, in a manner which harmonizes with the other provisions of IN RE J.E.B., II
the statute and which gives effect to the reason and purpose of the statute.” Burgess
v. Your House of Raleigh, Inc., 326 N.C. 205, 215, 388 S.E.2d 134, 140 (1990).
¶ 12 Here, the statute’s text is not ambiguous because the text bears only one
meaning. See Winkler, 374 N.C. at 732, 843 S.E.2d at 212 (describing an ambiguous
statute as one “equally susceptible of multiple interpretations”); State v. Conley, 374
N.C. 209, 214, 839 S.E.2d 805, 808 (2020) (concluding that a statute’s language is
ambiguous because it “could reasonably be construed” in two ways). The statute
provides that “[t]he parent’s counsel shall not be appointed to serve as the guardian
ad litem and the guardian ad litem shall not act as the parent’s attorney.” N.C.G.S. §
7B-1101.1(d). In its preceding subsections, the statute establishes a parent’s right to
counsel and provides for the appointment of a guardian ad litem in certain
circumstances. N.C.G.S. § 7B-1101.1(a)–(c). It is clear to us, reading the language in
context, that the statutory mandate of subsection 7B-1101.1(d) that “[t]he parent’s
counsel shall not be appointed” as the guardian ad litem and that “the guardian ad
litem shall not act” as the parent’s attorney requires that the parent’s counsel and
the parent’s guardian ad litem not be the same person so that the respondent parent IN RE J.E.B., II
receives the benefit of both.2 It does not, as respondent suggests, prevent a guardian
ad litem from conducting cross-examinations or presenting an argument directly to
the trial court.
¶ 13 In urging the opposite result, respondent focuses, as does the dissent, on the
phrase “act as the parent’s attorney” to the exclusion of the rest of the statute.
“However, this Court does not read segments of a statute in isolation.” Rhyne v. K-
Mart Corp., 358 N.C. 160, 188, 594 S.E.2d 1, 20 (2004). We similarly do not read
portions of a sentence in isolation. The statute’s statement that the guardian ad litem
“shall not act” as the parent’s attorney has the same function in the statute as the
similar phrase, appearing in the same sentence, that the parent’s attorney “shall not
be appointed” as the guardian ad litem. The two parts of the sentence mirror each
other to fulfill the statute’s dual purposes—ensuring a parent’s right to counsel and
providing those in need with a guardian ad litem. The provision of a guardian ad
litem does not satisfy the statute’s mandate of the parent’s right to counsel just as
the provision of counsel does not satisfy the statute’s mandate for a guardian ad litem
when a parent requires one. If the General Assembly had intended a different
2 While there is no need to resort to the history of the statute to interpret its meaning
here, it is worth noting that this provision was adopted in 2005 after concerns were expressed about potential conflicts of interest if the same person were to serve simultaneously in both roles for a parent. See In re K.L.S., 635 S.E.2d 536, 2006 N.C. App. LEXIS 2128, at *12 (2006) (unpublished) (stating that effect of N.C.G.S. § 7B-1101.1 (2005) was to prevent the trial court from appointing the same person as both a parent’s attorney and guardian ad litem). The history of its enactment further supports our understanding of the statute’s plain meaning. IN RE J.E.B., II
meaning it would have used different language. For example, the General Assembly
could have, but did not, prohibit a guardian ad litem from “furnishing the services of
a lawyer or lawyers” on behalf of a parent in a termination of parental rights
proceeding. See N.C.G.S. § 84-4 (prohibiting persons not licensed as attorneys from
holding themselves out as competent to “furnish[ ] the services of a lawyer or lawyers”
and prohibiting such persons from “perform[ing] for or furnish[ing] to another legal
services”). Instead, the General Assembly stated that the guardian ad litem “shall
not act as the parent’s attorney” in the same sentence that it stated that the parent’s
attorney “shall not be appointed to serve as the guardian ad litem.” N.C.G.S. § 7B-
1101.1(d).
¶ 14 In the instant case, the proceedings did not violate the statute. A thorough
review of the record reveals that respondent’s counsel maintained control of the
respondent’s case, actively made strategic decisions regarding how best to protect
respondent’s interests, and served as respondent’s counsel throughout the
proceeding. For example, Mr. Kakassy, respondent’s appointed attorney, began the
proceeding by informing the trial court that respondent did not want him to represent
her and that she preferred a different appointed attorney. The trial court denied his
request to withdraw, further demonstrating that all present recognized that Mr.
Kakassy was respondent’s attorney and that Mr. Kakassy was acting in that capacity
throughout the proceeding. At appropriate times, Mr. Kakassy objected on IN RE J.E.B., II
respondent’s behalf. After DSS closed its case-in-chief regarding the existence of
grounds for termination, it was Mr. Kakassy who informed the trial court that
respondent had no further witnesses for that portion of the proceeding. When the
time came for legal arguments on the existence of grounds for termination, Mr.
Kakassy directed the argument, first securing the dismissal of one ground for
termination and informing the trial court that Mr. Hargett would present an
argument on the remaining two grounds. During the best interests phase of the
proceeding, Mr. Kakassy controlled the presentation of evidence for respondent and
conducted the direct examination of respondent’s only witness. When Mr. Hargett
examined witnesses or otherwise performed trial functions, the transcript reveals
that he did so either at the express direction of or in apparent coordination with Mr.
Kakassy. Where, as here, respondent’s appointed attorney did not functionally
abdicate his responsibilities, leaving the guardian ad litem to “act as the parent’s
attorney” in the absence of the parent’s actual legal counsel, there is no violation of
N.C.G.S. § 7B-1101.1(d).
B. Ineffective assistance of counsel
¶ 15 Respondent briefly argues, in the alternative, that she was denied effective
assistance of counsel because Mr. Kakassy was not sufficiently involved in the
proceeding. For the same reasons that we have rejected respondent’s argument
pursuant to N.C.G.S. § 7B-1101.1(d), we also reject this argument. The record reflects IN RE J.E.B., II
that, far from being uninvolved, Mr. Kakassy was engaged throughout the proceeding
and utilized the assistance of Mr. Hargett, who is also an attorney, to better serve
respondent. While respondent also claims that Mr. Hargett was unprepared to assist
Mr. Kakassy, her claim is unsupported by the record.
IV. Conclusion
¶ 16 The parent in a termination of parental rights proceeding has a right to
counsel. N.C.G.S. § 7B-1101.1(a). When that parent also qualifies for representation
by a guardian ad litem, the parent must be able to receive the benefit of both counsel
and the guardian ad litem. To this end, the statute makes clear that the same person
may not serve in both roles. N.C.G.S. § 7B-1101.1(d). However, where a parent has
been afforded both an attorney and a guardian ad litem, the statute is not violated
where, as here, the parent’s counsel acts as the parent’s attorney and the guardian
ad litem assists counsel in the presentation of the case to ensure that the parent is
effectively represented. Respondent has not shown that the proceeding below was
fundamentally unfair. Accordingly, we affirm the trial court’s order terminating
respondent’s parental rights in Jason.
AFFIRMED. Justice MORGAN dissenting.
¶ 17 I respectfully disagree with my distinguished colleagues of the majority upon
their arrival at the unfortunate conclusion in this case which manifests their startling
willingness to forsake the most fundamental tenet of statutory construction:
assigning to words their plain and simple meaning. I sharply disagree with the
majority’s stunning departure from this bedrock of statutory interpretation which is
exacerbated by the circuitous approach employed by my fellow justices to justify this
deviation. In construing the clear words of the statutory provision at issue in a direct
and appropriate manner, I would conclude that the trial court erred in its
interpretation of subsection 7B-1101.1(d) of the General Statutes of North Carolina—
the statutory provision at issue in the present case—which constituted a violation of
the statute, causing sufficient prejudice to respondent-mother so as to warrant the
vacation of the trial court’s order and a remand to the trial court for a new
termination of parental rights hearing.
¶ 18 The first sentence of N.C.G.S. § 7B-1101.1(d) reads as follows: “The parent’s
counsel shall not be appointed to serve as the guardian ad litem and the guardian ad
litem shall not act as the parent’s attorney.” N.C.G.S. § 7B-1101.1(d) (2019). In
understanding a court’s proper role in the accurate interpretation of our Legislature’s
statutory enactments, this Court stated in its decision in Brown v. Flowe that
[t]o determine legislative intent, a court must analyze the IN RE J.E.B., II
Morgan, J., dissenting
statute as a whole, considering the chosen words themselves, the spirit of the act, and the objectives the statute seeks to accomplish. First among these considerations, however, is the plain meaning of the words chosen by the legislature; if they are clear and unambiguous within the context of the statute, they are to be given their plain and ordinary meanings. The Court’s analysis therefore properly begins with the words themselves.
349 N.C. 520, 522, 507 S.E.2d 894, 895–96 (1998) (citations omitted).
¶ 19 “When the language of a statute is clear and unambiguous, there is no room
for judicial construction, and the courts must give it its plain and definite meaning.”
Lemons v. Old Hickory Council, Boy Scouts of Am., Inc., 322 N.C. 271, 276, 367 S.E.2d
655, 658 (1988).
¶ 20 In applying the general standards of accurate statutory construction which are
specified in Brown to the entirety of N.C.G.S. § 7B-1101.1, it is apparent that the
intent of the Legislature was to afford a parent whose parental rights were subject to
termination with the right to an attorney, with the opportunity for the trial court’s
appointment of a guardian ad litem for a parent who is deemed to be incompetent,
with the fees of these two separate persons to be borne by the Office of Indigent
Defense Services upon a determination by the court that the parent is indigent. See
N.C.G.S. § 7B-1101.1(a)–(f). The objectives of N.C.G.S. § 7B-1101.1 involve the
provision of persons to the parent to separately represent the parent’s legal interests
and the parent’s special individualized interests, with a permeating spirit of the IN RE J.E.B., II
fullness of the protection of the rights of a mother or a father whose parental rights
to a child or to children are in peril of being terminated.
¶ 21 Consistent with this identification and analysis of its companion subsections,
N.C.G.S. § 7B-1101.1(d) is indicative of the accomplishment of the same objectives
and representative of the same spirit when considering the Legislature’s selection of
the particular words “[t]he parent’s counsel shall not be appointed to serve as the
guardian ad litem and the guardian ad litem shall not act as the parent’s attorney.”
N.C.G.S. § 7B-1101.1(d). Just as with the other provisions of N.C.G.S. § 7B-1101.1, in
analyzing the statute as a whole as mandated by our decision in Brown, subsection
(d) evinces an expectation in its plain and simple language that the parent’s counsel
will represent the parent’s legal interests, the parent’s guardian ad litem will
represent the parent’s special individualized interests, and such a demarcation of
authority and responsibility is clear for the two separate persons from the
Legislature’s clear and direct language.
¶ 22 It is obvious to me in the instant case that respondent-mother’s counsel Mr.
Kakassy was not appointed to serve as her guardian ad litem; consequently, there is
compliance with N.C.G.S. § 7B-1101.1(d) by the trial court. It is also obvious to me in
the instant case—as it is to the Court members in the majority as well—that
respondent-mother’s guardian ad litem, Mr. Hargett, acted as her attorney;
consequently, in my view, there is a violation of N.C.G.S. § 7B-1101.1(d) by the trial IN RE J.E.B., II
court. During the termination of parental rights hearing, the record shows that
respondent-mother’s guardian ad litem conducted five of the six examinations of
witnesses on behalf of respondent-mother and made legal arguments to the trial court
in his capacity as a licensed attorney. The majority opinion itself acknowledges that
(1) “[a]t various points, Mr. Hargett cross-examined witnesses, including respondent”
and (2) “Mr. Hargett argued on respondent’s behalf regarding the remaining two
grounds [for termination of parental rights].”
¶ 23 Unequivocally, the examination of witnesses and the rendition of legal
arguments on the record in a court of general jurisdiction in the State of North
Carolina constitutes the actions of an attorney. In the present case, since the
guardian ad litem for respondent-mother, at a minimum, performed these acts
attributable to an attorney in the course of a termination of parental rights hearing.
I would conclude that the trial court violated the mandate of N.C.G.S. § 7B-1101.1(d)
that “the guardian ad litem shall not act as the parent’s attorney.” In applying the
well-established principles of statutory construction generally articulated in Brown
and specifically addressed in Lemons with regard to clear and unambiguous
language, the analysis of N.C.G.S. § 7B-1101.1 as a whole, the chosen words of the
Legislature throughout N.C.G.S. § 7B-1101.1 including subsection (d), the spirit of
the statute, and the objectives that N.C.G.S. § 7B-1101.1 seeks to accomplish, I am
compelled to dissent from the majority’s view as to its interpretation of N.C.G.S. § IN RE J.E.B., II
7B-1101.1(d) with respect to the application of this statutory provision in the present
case and the conclusion ultimately reached by the majority to affirm the trial court’s
order which terminated respondent-mother’s parental rights.
¶ 24 I agree with the majority that the text of N.C.G.S. § 7B-1101.1(d) “is not
ambiguous because the text bears only one meaning.” I also concur with the majority
that this statutory provision “requires that the parent’s counsel and the parent’s
guardian ad litem not be the same person so that the respondent parent receives the
benefit of both.” However, the majority’s correct identification of these important
premises becomes eroded by the majority’s faulty assumptions and approaches which
are built upon these premises.
¶ 25 At the outset of its opinion, the majority summarized its conclusion that “the
statute was not violated and we affirm the trial court’s order” because “the trial court
properly appointed respondent a guardian ad litem and an attorney, both of whom
carried out appropriate roles in this matter.” The majority erroneously presumes that
the trial court’s appointment of one person as the parent’s counsel and another person
as the parent’s guardian ad litem comports with N.C.G.S. § 7B-1101.1(d), so long as
the counsel is performing legal responsibilities and the guardian ad litem is
performing the responsibilities of the guardian ad litem. I concede that each person
was performing his assigned statutory responsibilities; however, the guardian ad
litem was acting as the parent’s attorney in addition to performing his IN RE J.E.B., II
responsibilities as the guardian ad litem, and as stated by the majority, the statutory
language of N.C.G.S. § 7B-1101.1(d) “is not ambiguous because the text bears only
one meaning,” to wit: the guardian ad litem shall not act as the parent’s attorney. In
an effort to blunt the effect of the plain and simple meaning of the statute’s express
prohibition against the guardian ad litem’s ability to act as the parent’s attorney, the
majority discerns “that respondent’s counsel maintained control of the respondent’s
case, actively made strategic decisions regarding how best to protect respondent’s
interests, and served as respondent’s counsel throughout the proceeding.” Even
assuming arguendo that this depiction is true, the trial court’s allowance of the
guardian ad litem to become a second attorney for the parent in the performance of
legal responsibilities during the hearing, despite the ongoing status of respondent-
mother’s appointed counsel as the parent’s attorney of record, contravenes the
provision of N.C.G.S. § 7B-1101.1(d) that “the guardian ad litem shall not act as the
parent’s attorney.” “It is well established that the word ‘shall’ is generally imperative
or mandatory when used in our statutes.” Morningstar Marinas/Eaton Ferry, LLC v.
Warren Cnty., 368 N.C. 360, 365, 777 S.E.2d 733, 737 (2015) (extraneity omitted).
¶ 26 The majority compounds its inconsistent statutory construction of the first
sentence of N.C.G.S. § 7B-1101.1(d) in its endeavor to validate the guardian ad litem’s
sanctioned ability to engage in, as the majority states, “conducting cross-
examinations or presenting an argument directly to the trial court” by equating the IN RE J.E.B., II
first phrase of the sentence that “[t]he parent’s counsel shall not be appointed to serve
as the guardian ad litem” with the second phrase of the sentence that “the guardian
ad litem shall not act as the parent’s attorney.” The majority opines that “[t]he two
parts of the sentence mirror each other to fulfill the statute’s dual purposes—
ensuring a parent’s right to counsel and providing those in need with a guardian ad
litem.” While this statutory construction of the first sentence of N.C.G.S. § 7B-
1101.1(d) represents another glimmer of the majority’s occasional remembrances and
applications in this case of the principles of statutory construction which this Court
has espoused in Brown, Lemons, and Morningstar Marinas, nonetheless the repeated
inconsistencies of the majority’s statutory construction remain which cause it to
reiterate that the guardian ad litem here was allowed to conduct cross-examinations
and present arguments directly to the trial court, despite the “mirror” images of the
two phrases in the first sentence of N.C.G.S. § 7B-1101.1(d) that include the
proscription that “the guardian ad litem shall not act as the parent’s attorney.”
¶ 27 A final approach which the majority has employed to authenticate its concept
of statutory construction in the present case is the introduction of inappropriate,
extraneous verbiage and considerations which obfuscate the plain and simple
meaning of the statutory provision at issue. For example, the majority concludes that
“the statute is not violated where, as here, the parent’s counsel acts as the parent’s
attorney and the guardian ad litem assists counsel in the presentation of the case to IN RE J.E.B., II
ensure that the parent is effectively represented.” This recapitulation of N.C.G.S. §
7B-1101.1(d) by the majority more resembles a convenient recast of the clear and
direct words of the statutory provision’s first sentence, “[t]he parent’s counsel shall
not be appointed to serve as the guardian ad litem and the guardian ad litem shall
not act as the parent’s attorney.” “It is a well-settled principle of statutory
construction that where a statute is intelligible without any additional words, no
additional words may be supplied.” State v. Camp, 286 N.C. 148, 151, 209 S.E.2d 754,
756 (1974). Similarly, the majority adeptly repositions the standard set by the
unadulterated directness of the statutory language at issue by restating it as follows:
“[w]here, as here, respondent’s appointed attorney did not functionally abdicate his
responsibilities, leaving the guardian ad litem to ‘act as the parent’s attorney’ in the
absence of the parent’s actual legal counsel, there is no violation of N.C.G.S. § 7B-
1101.1(d).” “When the language of a statute is clear and unambiguous, there is no
room for judicial construction and the courts must give the statute its plain and
definite meaning, and are without power to interpolate, or superimpose, provisions
and limitations not contained therein.” In re Banks, 295 N.C. 236, 239, 244 S.E.2d
386, 388–89 (1978).
¶ 28 In conclusion, the trial court’s statement on the record of the hearing to both
respondent-mother’s appointed counsel, Mr. Kakassy, and respondent-mother’s
appointed guardian ad litem, Mr. Hargett, that “y’all are both kind of acting as IN RE J.E.B., II
counsel for [respondent-mother] today” was a patently obvious recognition by the trial
court that Mr. Hargett, albeit serving as the parent’s guardian ad litem, was being
allowed by the trial court to act as counsel for the parent. In this regard, the trial
court violated N.C.G.S. § 7B-1101.1(d) by permitting the guardian ad litem to act as
the parent’s attorney. Due to my conclusion that the trial court’s error was sufficiently
prejudicial to respondent-mother so as to warrant the vacation of the trial court’s
order terminating respondent-mother’s parental rights and a remand to the trial
court for a new termination of parental rights hearing, I would not reach respondent-
mother’s alternative argument that her appointed attorney rendered ineffective
assistance of counsel. In my view, respondent-mother’s ability to present her position
in the termination hearing was unduly compromised by the trial court’s
contravention of N.C.G.S. § 7B-1101.1(d), which included the appointed guardian ad
litem’s inability to fully focus upon his responsibilities as contemplated by the plain
and simple words of the statute because of the trial court’s express authorization for
the guardian ad litem to act as the parent’s attorney.
¶ 29 In light of the reasons which I have cited and discussed, I respectfully dissent.