{ "id": 8169917, "name": "IN THE MATTER OF: T.T. and A.T.", "name_abbreviation": "In re T.T.", "decision_date": "2007-03-06", "docket_number": "No. COA06-117", "first_page": "145", "last_page": "149", "citations": [ { "type": "official", "cite": "182 N.C. App. 145" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "621 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634400 ], "year": 2005, "pin_cites": [ { "page": "652" } ], "opinion_index": 0, "case_paths": [ "/se2d/621/0647-01" ] }, { "cite": "639 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637502 ], "year": 2007, "pin_cites": [ { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/se2d/639/0023-01" ] }, { "cite": "614 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633182 ], "year": 2005, "pin_cites": [ { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0579-01" ] }, { "cite": "621 S.E.2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634269 ], "year": 2005, "pin_cites": [ { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/se2d/621/0015-01" ] }, { "cite": "613 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632932 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "258", "parenthetical": "quoting H.W., 163 N.C. App. at 448, 594 S.E.2d at 216" }, { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/se2d/613/0256-01" ] }, { "cite": "603 S.E.2d 877", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631955 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/603/0877-01" ] }, { "cite": "358 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631460, 12631464, 12631499, 12631468, 12631471, 12631472, 12631474 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/599/0040-01", "/se2d/599/0042-03", "/se2d/599/0907-01", "/se2d/599/0043-01", "/se2d/599/0045-01", "/se2d/599/0046-01", "/se2d/599/0048-02" ] }, { "cite": "179 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1971, "pin_cites": [ { "page": "849" }, { "page": "849" }, { "page": "849" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 545", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554881 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "552" }, { "page": "552" }, { "page": "552" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0545-01" ] }, { "cite": "174 N.C. App. 517", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352485 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "522" }, { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0517-01" ] }, { "cite": "181 N.C. App. 174", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8373277 ], "year": 2007, "pin_cites": [ { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0174-01" ] }, { "cite": "171 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8436871 ], "year": 2005, "pin_cites": [ { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0341-01" ] }, { "cite": "171 N.C. App. 347", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8436928 ], "year": 2005, "pin_cites": [ { "page": "352" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0347-01" ] }, { "cite": "170 N.C. App. 676", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9006577 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "679", "parenthetical": "quoting H.W., 163 N.C. App. at 448, 594 S.E.2d at 216" }, { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0676-01" ] }, { "cite": "594 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "216", "parenthetical": "emphasis omitted" }, { "page": "216" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 438", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8918351 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0438-01" ] } ], "analysis": { "cardinality": 490, "char_count": 10908, "ocr_confidence": 0.751, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20107195438807438 }, "sha256": "b35e887b64e35c41d9b234bde532de87c62b5e2759467a8b528c95789a01354b", "simhash": "1:67f34e6e52641f56", "word_count": 1794 }, "last_updated": "2023-07-14T22:32:14.097428+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and STEELMAN concur." ], "parties": [ "IN THE MATTER OF: T.T. and A.T." ], "opinions": [ { "text": "JACKSON, Judge.\nOn 24 July 2003, the New Hanover County Department of Social Services (\u201cDSS\u201d) filed a juvenile petition alleging that T.T. and A.T. were neglected and dependent as to both their mother (\u201crespondent\u201d) and father. The allegations serving as the basis for the petition alleged that \u201cneither 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.\u201d The juveniles initially came into DSS\u2019 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.\nAt an adjudication hearing held 25 September 2003, the children were adjudicated neglected and dependent based upon both of their parents\u2019 substance 'abuse problems, their mother\u2019s mental illness, and the parents\u2019 failure to provide a stable home for them. At this hearing, the children were placed into the custody of paternal relatives of the children\u2019s sibling. Over the course of the next year and a half, the juveniles remained in the custody and care of the sibling\u2019s paternal relatives, while respondent attempted to make progress on her case plan with DSS, her mental health issues, and her substance abuse problems.\nAt 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\u2019s paternal relatives with whom the juveniles had been living since the initiation of this action. In its order, the trial court ruled \u201c[t]hat visitation by the parents with the children is in the discretion of the Guardians of the Persons.\u201d 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.\nRespondent 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)(l). Section 7B-602(b) provides in pertinent part:\nIn 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:\n(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 juvenilef.]\nN.C. Gen. Stat. \u00a7 7B-602(b)(l) (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\nrequires the appointment of a guardian ad litem only in cases where (1) it is alleged that a juvenile is dependent; and (2) the juvenile\u2019s dependency is alleged to be caused by a parent or guardian being \u201cincapable 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.\u201d\nId. at 447, 594 S.E.2d at 216 (emphasis omitted) (citation omitted). \u201cThe \u2018failure to appoint a guardian ad litem in any appropriate case is deemed prejudicial error per se[.\\ \u201d 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).\nIn the instant case, the juvenile petition alleged that T.T. and A.T. were dependent juveniles who were \u201cin 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.\u201d While the juvenile petition did not specifically state that the juveniles\u2019 dependency was based upon respondent\u2019s 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:\nThat both parents have problems of substance abuse which have impaired their abilities to provide the basic necessities for the children and proper care and supervision of the children. That [respondent\u2019s] ability to care and provide for her children is also adversely affected by [respondent\u2019s] depression and borderline personality disorder.\nThis 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 \u201cmaintains that [respondent\u2019s] mental health problems also impair her effective parenting of the children.\u201d The trial court repeatedly took notice of respondent\u2019s 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, 18 (2005).\nThus, as the juveniles were alleged to be dependent, based in part upon respondent\u2019s mental illness, we hold respondent was entitled to have a guardian ad litem appointed for her, and the trial court\u2019s failure to do so is \u201cprejudicial error per se.\u201d L.M.C., 170 N.C. App. at 679, 613 S.E.2d at 258. We therefore reverse the trial court\u2019s order, and remand for the appointment of a guardian ad litem for respondent and a new review hearing.\nRespondent next argues the trial court erred in ordering that visitation between respondent and the juveniles was \u201cin the discretion of the Guardians of the Person.\u201d \u201cAlthough our resolution of the guardian ad litem issue is dispositive of this appeal, because the same issue may again arise upon rehearing, in the interest of judicial economy we have elected to examine the merits of respondent\u2019s argument.\u201d In re C.B., 171 N.C. App. 341, 346, 614 S.E.2d 579, 582 (2005).\nNorth Carolina General Statutes, section 7B-905 provides in pertinent part that:\nAny dispositional order under which a juvenile is removed from the custody of a parent, guardian, custodian, or caretaker, or under which the juvenile\u2019s placement is continued outside the home shall provide for appropriate visitation as may be in the best interests of the juvenile and consistent with the juvenile\u2019s health and safety.\nN.C. Gen. Stat. \u00a7 7B-905(c) (2003). This Court repeatedly has held that both the awarding of custody of a child and the award of visitation rights constitute the exercise of a judicial function. In re L.B., 181 N.C. App. 174, 192, 639 S.E.2d 23, 32 (2007); In re E.C., 174 N.C. App. 517, 522, 621 S.E.2d 647, 652 (2005); In re Custody of Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844, 849 (1971). \u201cTo give the custodian of the child authority to decide when, where and under what circumstances a parent may visit his or her child could result in a complete denial of the right and in any event would be delegating a judicial function to the custodian.\u201d Stancil, 10 N.C. App. at 552, 179 S.E.2d at 849. Thus, a trial court is not permitted to grant the privilege of visitation to the discretion of the guardian of the juveniles, as was done in the instant case. E.C., 174 N.C. App. at 522, 621 S.E.2d at 652.\nWhen the trial court has failed to make any findings of fact that the parent either has forfeited his or her right to visitation or that it is in the juvenile\u2019s best interest that visitation with the parent be denied, the trial court \u201c \u2018should safeguard the parent\u2019s visitation rights by a provision in the order defining and establishing the time, placef,] and conditions under which such visitation rights may be exercised.\u2019 \u201d Id. (quoting Stancil, 10 N.C. App. at 552, 179 S.E.2d at 849). In the instant case, the trial court\u2019s order makes no such findings of fact. Therefore, we hold the trial court erred by failing to include an appropriate visitation plan in its permanency planning review order. On remand, the trial court is ordered to make sufficient findings of fact regarding respondent\u2019s right to visitation with T.T. and A.T. Should visitation be found to be in the best interest of the juveniles, the trial court is ordered to provide a \u201cminimum outline of visitation, such as the time, place, and conditions under which visitation may be exercised.\u201d Id. at 523, 621 S.E.2d at 652.\nIn light of our decision on respondent\u2019s need for a guardian ad litem, we do not address her final assignment of error.\nReversed and remanded with instructions.\nJudges WYNN and STEELMAN concur.\n. The juveniles\u2019 mother is the sole appellant in the instant case.", "type": "majority", "author": "JACKSON, Judge." } ], "attorneys": [ "Julia Talbutt, for New Hanover County Department of Social Services, petitioner-appellee. \u25a0", "Regina Floyd-Davis, for Guardian ad Litem.", "Lisa Skinner Lefler, for respondent-mother-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF: T.T. and A.T.\nNo. COA06-117\n(Filed 6 March 2007)\n1. Child Abuse and Neglect\u2014 parent \u2014 substance abuse and mental health issues \u2014 guardian ad litem\nA guardian ad litem should have been appointed for the mother of juveniles adjudicated neglected and dependent, even though the petition did not specifically state that the juveniles\u2019 dependency was based upon respondent mother\u2019s incapability to care for them due to her substance abuse and mental illness, where the record shows that the court considered evidence and found that the juveniles\u2019 dependency was based in part on respondent\u2019s lack of capacity to care for them due to substance abuse and mental illness.\n2. Child Abuse and Neglect\u2014 neglected juveniles \u2014 visitation \u2014 judicial function \u2014 delegation to guardian erroneous\nAlthough the appeal was decided on other grounds, the trial court erred by ordering in a permanency planning order for neglected juveniles that visitation with their mother would be in the discretion of the guardians. The award of custody and visitation rights is a judicial function.\nAppeal by respondent from an order entered 29 June 2005 by Judge Shelly S. Holt in New Hanover County District Court. Heard in the Court of Appeals 6 February 2007.\nJulia Talbutt, for New Hanover County Department of Social Services, petitioner-appellee. \u25a0\nRegina Floyd-Davis, for Guardian ad Litem.\nLisa Skinner Lefler, for respondent-mother-appellant." }, "file_name": "0145-01", "first_page_order": 177, "last_page_order": 181 }