In re M.H.B.

664 S.E.2d 583, 192 N.C. App. 258, 2008 N.C. App. LEXIS 1534
CourtCourt of Appeals of North Carolina
DecidedAugust 19, 2008
DocketNo. COA08-337.
StatusPublished
Cited by12 cases

This text of 664 S.E.2d 583 (In re M.H.B.) 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 M.H.B., 664 S.E.2d 583, 192 N.C. App. 258, 2008 N.C. App. LEXIS 1534 (N.C. Ct. App. 2008).

Opinion

McGEE, Judge.

The biological father of M.H.B. (Respondent) appeals from adjudication and disposition orders finding M.H.B. to be abused and neglected. For the reasons set forth below, we reverse and remand.

The Swain County Department of Social Services (DSS) received a report from Memorial Mission Hospital of possible child abuse regarding M.H.B. on 25 June 2007. In response to the report, DSS filed a petition on 27 June 2007 alleging that M.H.B. was abused and neglected. DSS alleged M.H.B. had suffered multiple broken ribs, hemorrhaging of the eyes, internal bleeding, and bruises on her chest that were the result of the intentional acts and/or improper care of both Respondent and M.H.B.'s biological mother, who is not a party to this appeal. The trial court entered an order for nonsecure custody on 27 June 2007, placing custody of M.H.B. with DSS.

The trial court held a hearing on 24 September 2007 and entered an order adjudicating M.H.B. to be an abused and neglected juvenile on 22 October 2007. In its adjudication order, the trial court ordered, in part, that "[Respondent] ... shall submit to a psychological evaluation and results of the same shall be made available unto [DSS] and the Guardian ad litem for [M.H.B.]" The trial court also ordered that "the Balsam Center shall allow [DSS] and the Guardian ad litem and other parties hereto access to and copies of any and all mental health records of the Balsam Center concerning [Respondent]." The trial court held a disposition hearing on 22 October 2007 and entered a disposition order on 18 December 2007, continuing custody of M.H.B. with DSS, but authorizing a trial home placement of M.H.B. with her biological mother in the residence of the maternal grandparents. The trial court entered a revised disposition order on 28 December 2007. As to visitation, both the 18 and 28 December 2007 disposition orders provided as follows:

That visitation with [M.H.B.] by [Respondent] ... shall be at time and places set by [DSS] within its discretion. However, the Court suspends visitation between [Respondent] and [M.H.B.] at this time pending receipt and review of the reports from the Balsam Center by [DSS]. In addition, [Respondent] shall Undergo a drug screen before he has any visitation. Further the Court leaves in the discretion of [DSS] to start visitation between [M.H.B.] and [Respondent] after [DSS] receives and reviews such records concerning [Respondent] from the Balsam Center and after [Respondent] undergoes a drug screen. Any [and] all visitation between [Respondent] and [M.H.B.] shall be supervised.

Respondent father appeals.

Respondent argues the trial court erred by failing to appoint a guardian ad litem to represent him.1 During proceedings held on *585petitions for abuse, neglect, or dependency, the Juvenile Code presently provides:

On motion of any party or on the court's own motion, the court may appoint a guardian ad litem for a parent in accordance with [N.C. Gen.Stat. §] 1A-1, Rule 17, 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-602(c) (2007); see also N.C. Gen.Stat. § 1A-1, Rule 17 (2007).

Our research has revealed no published case interpreting N.C.G.S. § 7B-602(c), which was added to N.C.G.S. § 7B-602 in 2005, and which applies to petitions filed on or after 1 October 2005. Prior to enactment of N.C.G.S. § 7B-602(c), N.C. Gen.Stat. § 7B-602(b) (2003) provided that a trial court was required to appoint a guardian ad litem for a parent who was a minor and

[w]here 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[.]

N.C. Gen.Stat. § 7B-602(b) (2003). Under the new provision, which applies in the present case, a trial court is required to appoint a guardian ad litem for a parent only when the parent is a minor. N.C. Gen.Stat. § 7B-602(b) (2007). However, in addition, the new provision permits any party to file a motion requesting the trial court to appoint a guardian ad litem for a parent in any neglect, abuse, or dependency proceeding where "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.G.S. § 7B-602(c). N.C.G.S. § 7B-602(c) also allows the trial court to appoint a guardian ad litem on its own motion pursuant to these same criteria. Because N.C.G.S. § 7B-602(c) employs the term "may," a trial court's action pursuant to this statute is discretionary, and our review is limited to a determination of whether the trial court abused its discretion. See Loren v. Jackson, 57 N.C.App. 216, 219, 291 S.E.2d 310, 312 (1982). A trial court abuses its discretion when its decision is "manifestly unsupported by reason." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). However, "[a] court's complete failure to exercise discretion amounts to reversible error." State v. McVay, 174 N.C.App. 335, 340, 620 S.E.2d 883, 886 (2005); see also State v. Bartlett, 153 N.C.App. 680, 685, 571 S.E.2d 28, 31 (2002) (recognizing that "[w]here the trial court fails to exercise its discretion, ... such failure constitutes reversible error").

Our Court has also held that a trial court "has a duty to inquire into the competency of a litigant in a civil proceeding where `circumstances are brought to [the trial court's] attention, which raise a substantial question as to whether the litigant is non compos mentis.'" In re S.N.H., 177 N.C.App. 82, 87-88, 627 S.E.2d 510, 514 (2006) (quoting In re J.A.A., 175 N.C.App. 66

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

Related

In re: A.T. & E.T.
Court of Appeals of North Carolina, 2025
In re: P.T.W.
794 S.E.2d 843 (Court of Appeals of North Carolina, 2016)
In re: R.D.
Court of Appeals of North Carolina, 2015
In re T.L.H.
772 S.E.2d 451 (Supreme Court of North Carolina, 2015)
In re J.M.
Court of Appeals of North Carolina, 2014
In re H.B.
Court of Appeals of North Carolina, 2014
In re L.P.
Court of Appeals of North Carolina, 2014
In re P.D.R.
737 S.E.2d 152 (Court of Appeals of North Carolina, 2012)
In re A.R.D.
204 N.C. App. 500 (Court of Appeals of North Carolina, 2010)
In Re MHB
664 S.E.2d 583 (Court of Appeals of North Carolina, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
664 S.E.2d 583, 192 N.C. App. 258, 2008 N.C. App. LEXIS 1534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mhb-ncctapp-2008.