In the Matter of T.T.

641 S.E.2d 344, 182 N.C. App. 145, 2007 N.C. App. LEXIS 489
CourtCourt of Appeals of North Carolina
DecidedMarch 6, 2007
DocketNo. COA06-117.
StatusPublished

This text of 641 S.E.2d 344 (In the Matter of T.T.) 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 the Matter of T.T., 641 S.E.2d 344, 182 N.C. App. 145, 2007 N.C. App. LEXIS 489 (N.C. Ct. App. 2007).

Opinion

JACKSON, Judge.

On 24 July 2003, the New Hanover County Department of Social Services ("DSS") filed a juvenile petition alleging that T.T. and A.T. were neglected and dependent as to both their mother ("respondent") and father.1 The allegations serving as the basis for the petition alleged that "neither parent has a suitable or appropriate place for the children and in that both parents abuse alcohol and perhaps other substances and in that [respondent] is afflicted with mental illness, including depression and borderline personality *345disorder." The juveniles initially came into DSS' care after respondent left them with a caretaker while she attempted to find stable housing. The caretaker with whom the juveniles were left subsequently became unable to keep the children and contacted DSS.

At an adjudication hearing held 25 September 2003, the children were adjudicated neglected and dependent based upon both of their parents' substance abuse problems, their mother's mental illness, and the parents' failure to provide a stable home for them. At this hearing, the children were placed into the custody of paternal relatives of the children's sibling. Over the course of the next year and a half, the juveniles remained in the custody and care of the sibling's paternal relatives, while respondent attempted to make progress on her case plan with DSS, her mental health issues, and her substance abuse problems.

At a hearing held 24 June 2004, the trial court changed the permanent plan for the juveniles from reunification with one of their parents, to that of adoption. A permanency planning review hearing was held one year later on 2 June 2005, and at this hearing, the trial court changed the permanent plan for the juveniles to guardianship with the sibling's paternal relatives with whom the juveniles had been living since the initiation of this action. In its order, the trial court ruled "[t]hat visitation by the parents with the children is in the discretion of the Guardians of the Persons." Further reviews of the case were waived, however the matter may be reviewed upon a motion by any party. Respondent appeals from this permanency planning order in which the permanent plan for the children was changed from adoption to guardianship.

Respondent first contends the trial court erred in failing to sua sponte appoint a guardian ad litem for her pursuant to North Carolina General Statutes, section 7B-602(b)(1). Section 7B-602(b) provides in pertinent part:

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[.]

N.C. Gen.Stat. § 7B-602(b)(1) (2003). As we explained in In re H.W., 163 N.C.App. 438, 594 S.E.2d 211, disc. review denied, 358 N.C. 543, 603 S.E.2d 877 (2004), section 7B-602

requires the appointment of a guardian ad litem only in cases where (1) it is alleged that a juvenile is dependent; and (2) the juvenile's dependency is alleged to be caused by a parent or guardian being "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."

Id. at 447, 594 S.E.2d at 216 (emphasis omitted) (citation omitted). "The `failure to appoint a guardian ad litem in any appropriate case is deemed prejudicial error per se [.]'" In re L.M.C., 170 N.C.App. 676, 679, 613 S.E.2d 256, 258 (2005) (quoting H.W., 163 N.C.App. at 448, 594 S.E.2d at 216).

In the instant case, the juvenile petition alleged that T.T. and A.T. were dependent juveniles who were "in need of placement in that neither parent has a suitable or appropriate place for the children and in that both parents abuse alcohol and perhaps other substances and in that [respondent] is afflicted with mental illness, including depression and borderline personality disorder." While the juvenile petition did not specifically state that the juveniles' dependency was based upon respondent's incapability to care for them due to her substance abuse problems and mental illness, the record before this Court shows that the trial court considered evidence and found as much. In the adjudication order signed 25 September 2003, the trial court specifically found:

That both parents have problems of substance abuse which have impaired their *346abilities to provide the basic necessities for the children and proper care and supervision of the children. That [respondent's] ability to care and provide for her children is also adversely affected by [respondent's] depression and borderline personality disorder.

This exact finding of fact was also included in the review order signed 11 December 2003, the permanency planning hearing order signed 24 June 2004, and the permanency planning review order signed 9 December 2004. Moreover, in the permanency planning review order at issue in the instant case, the trial court found that DSS "maintains that [respondent's] mental health problems also impair her effective parenting of the children." The trial court repeatedly took notice of respondent's mental illness, yet failed to appoint a guardian ad litem. Therefore, the trial court was on notice from the initiation of this case that respondent was alleged to have serious mental health issues which DSS and the trial court felt impacted her ability to properly care and supervise T.T. and A.T. See In re D.D.Y., 171 N.C.App. 347, 352, 621 S.E.2d 15

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603 S.E.2d 877 (Supreme Court of North Carolina, 2004)
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Bluebook (online)
641 S.E.2d 344, 182 N.C. App. 145, 2007 N.C. App. LEXIS 489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-tt-ncctapp-2007.