{ "id": 8202545, "name": "IN THE MATTER OF: J.E., Q.D.", "name_abbreviation": "In re J.E.", "decision_date": "2007-05-15", "docket_number": "No. COA06-1335", "first_page": "217", "last_page": "229", "citations": [ { "type": "official", "cite": "183 N.C. App. 217" } ], "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": "631 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636189 ], "year": 2006, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/se2d/631/0061-01" ] }, { "cite": "623 S.E.2d 300", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634604 ], "year": 2005, "pin_cites": [ { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0300-01" ] }, { "cite": "623 S.E.2d 587", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634710 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/623/0587-01" ] }, { "cite": "615 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633272 ], "year": 2005, "pin_cites": [ { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0391-01" ] }, { "cite": "614 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633140 ], "weight": 24, "year": 2005, "pin_cites": [ { "page": "383" }, { "page": "430" }, { "page": "384" }, { "page": "428" }, { "page": "383" }, { "page": "430" }, { "page": "384", "parenthetical": "emphasis supplied" }, { "page": "431" }, { "page": "385" }, { "page": "383" }, { "page": "430" }, { "page": "384", "parenthetical": "emphasis supplied" }, { "page": "384", "parenthetical": "emphasis supplied" }, { "page": "430" }, { "page": "384" }, { "page": "431" }, { "page": "385" }, { "page": "430" }, { "page": "384" }, { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0382-01" ] }, { "cite": "619 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633934, 12633935 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/619/0402-01", "/se2d/619/0402-02" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "178 N.C. 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App. 295", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8377367 ], "year": 2006, "pin_cites": [ { "page": "302-03" } ], "opinion_index": 1, "case_paths": [ "/nc-app/178/0295-01" ] }, { "cite": "175 N.C. App. 32", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8349811 ], "year": 2005, "pin_cites": [ { "page": "37" } ], "opinion_index": 1, "case_paths": [ "/nc-app/175/0032-01" ] }, { "cite": "171 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8437773 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "463" }, { "page": "463" } ], "opinion_index": 1, "case_paths": [ "/nc-app/171/0457-01" ] }, { "cite": "171 N.C. App. 427", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8437587 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/nc-app/171/0427-01" ] } ], "analysis": { "cardinality": 722, "char_count": 27613, "ocr_confidence": 0.749, "pagerank": { "raw": 2.2497309110599426e-07, "percentile": 0.7813413059989212 }, "sha256": "547dcd4c49ed3e79ef8ea98a1769fc68adf91402103c27095f7f83e728f51f30", "simhash": "1:bb4f28ac62cede32", "word_count": 4617 }, "last_updated": "2023-07-14T15:07:58.512650+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JACKSON concurs.", "Judge HUNTER dissents by separate opinion." ], "parties": [ "IN THE MATTER OF: J.E., Q.D." ], "opinions": [ { "text": "TYSON, Judge.\nJ.B. (\u201crespondent\u201d) appeals from order terminating her parental rights to her minor children, J.E. and Q.D. We reverse.\nI. Background\nOn 14 December 1999, respondent gave birth to J.E. On 18 October 2002, Mecklenburg County Youth and Family Services (\u201cYFS\u201d) filed a juvenile petition that alleged J.E. was a neglected and dependent juvenile. A non-secure custody order placed J.E. with her maternal grandmother. YFS presented no evidence in the record to show a guardian ad litem (\u201cGAL\u201d) was appointed to represent J.E. at that time.\nOn 22 October 2002, an initial (7-Day) hearing was conducted and on 29 October 2002 the order from the initial (7-Day) hearing was filed. No GAL was listed as being present at the 7-Day hearing. Although J.E. was returned to respondent\u2019s physical custody, the trial court concluded it was in J.E.\u2019s best interest to remain in YFS\u2019s legal custody.\nOn 16 December 2002, an adjudicatory hearing was conducted and the resulting order was filed later that day. The order states the following persons were present at the hearing: (1) respondent\u2019s attorney; (2) YFS\u2019s attorney; (3) a social worker; (4) an attorney advocate; (5) Sharon McGee (\u201cMcGee\u201d), as GAL for J.E.; and (6) another YFS employee. Respondent was not present at the adjudicatory hearing. J.E. was adjudicated a neglected and dependent juvenile as to respondent. The trial court ordered J.E. removed from respondent\u2019s physical custody and be placed in foster care. The dispositional hearing was calendared for 7 January 2003.\nOn 7 January 2003, a dispositional hearing was conducted and the resulting order was filed later that day. The order indicated the following persons were present at the hearing: (1) respondent; (2) respondent\u2019s attorney; (3) YFS\u2019s attorney; (4) a social worker; (5) an attorney advocate; (6) McGee and Ondine Denice (\u201cDenice\u201d) as GALs for J.E.; and (7) J.E.\u2019s grandparents. The order also references a GAL report. No GAL report is included in the record on appeal. The dispo-sitional hearing was continued to 10 February 2003.\nThe dispositional hearing was conducted on 10 February 2003. The order indicates McGee\u2019s presence as GAL for J.E. Respondent was also present. The trial court concluded it was in J.E.\u2019s best interest to remain in foster care. The trial court did not receive or consider a GAL report in making its determination.\nOn 31 March 2003, a review hearing was conducted. The order states respondent was present and Denice was present as GAL for J.E. The trial court concluded it was in J.E.\u2019s best interest to return to the physical custody of J.E.\u2019s maternal grandmother. Legal custody remained with YFS. The trial court stated it received and considered a GAL report in making its determination. The record on appeal contains no GAL report.\nOn 25 September 2003, a review hearing was conducted and the resulting order was filed on 26 September 2003. The order does not indicate a GAL was present at the hearing. The trial court concluded it was contrary to J.E.\u2019s best interest to return to respondent\u2019s home and physical custody of J.E. was to continue with her maternal grandmother. A permanency planning hearing was scheduled for 2 December 2003. No evidence exists in the record that a hearing was conducted on that date.\nOn 10 July 2003, respondent gave birth to Q.D. On 12 November 2003, YFS filed a juvenile petition that alleged Q.D. was a neglected and dependent juvenile. A non-secure custody order was also filed that placed Q.D. with his maternal grandmother. No evidence exists in the record that a GAL was appointed to represent Q.D. at that time.\nOn 17 November 2003, an initial (7-Day) hearing was conducted and the order from the hearing was filed. The order states that the following people were present at the hearing: (1) respondent; (2) respondent\u2019s attorney; (3) Q.D.\u2019s father; (4) the father\u2019s attorney; (5) GAL administrator, Denice; (6) attorney advocate, Matt McKay (\u201cMcKay\u201d); (7) YFS social workers; (8) Q.D.\u2019s paternal grandmother; (9) a paternal relative of Q.D.; and (10) a YFS attorney. The trial court ordered that paternity of Q.D. be established with the putative father and that placement of Q.D. was to remain with her maternal grandmother. An adjudicatory hearing was scheduled for 15 January 2004.\nOn 12 April 2004, the adjudicatory hearing for Q.D. was held and the resulting order was filed later that day. The order does not recite a GAL as being present at the hearing, but states attorney advocate McKay was present. The case was continued to 6 May 2004 after respondent\u2019s attorney withdrew.\nOn 6 May 2004, the trial court conducted both an adjudicatory hearing for Q.D. and a review hearing for J.E. The resulting order was filed on 8 June 2004. The order states Denice was present, as GAL supervisor. The trial court concluded that Q.D. was a neglected and dependent juvenile. Both Q.D. and J.E. were ordered to remain in YFS\u2019s legal custody with physical placement with their maternal grandmother. The goal for both children remained reunification with respondent.\nOn 2 August 2004, a combined permanency planning/review hearing for Q.D. and J.E. was conducted. The order states Jackie Everdt (\u201cEverdt\u201d) was present as GAL. Respondent was not present, but was represented by an attorney. The permanent plan for J.E. was changed to adoption. The trial court also concluded \u201ctermination of parental rights is in . . . [J.E.\u2019s] best interests!.]\u201d.The permanent plan for Q.D. was changed from reunification with respondent to reunification with his father. A permanent plan review hearing for Q.D. was scheduled for 4 October 2004.\nOn 23 September 2004, YFS filed a petition to terminate respondent\u2019s parental rights to J.E. YFS also petitioned to terminate J.E.\u2019s father\u2019s parental rights. On 28 September 2004, an order was filed that appointed Jodi Pugsley (\u201cPugsley\u201d) as GAL for both J.E. and Q.D. The order also appointed McKay as attorney advocate for both children.\nOn 4 October 2004, a permanency planning hearing was conducted for Q.D. The order recites that Everdt was present as GAL. The permanent plan for Q.D. was changed from reunification with his father to adoption. The trial court also concluded \u201ctermination of parental rights is in . . . [Q.D.\u2019s] best interests[.]\u201d The trial court also ordered YFS to file a petition to terminate parental rights to Q.D. On 17 November 2004, YFS filed a petition to terminate respondent\u2019s parental rights to Q.D. YFS also petitioned to terminate the parental rights of Q.D.\u2019s father.\nOn 17 December 2004, a review hearing for Q.D. was conducted. The order states Everdt was present as GAL. The trial court reiterated \u201ctermination of parental rights is in . . . [Q.D.\u2019s] best interests[.]\u201d\nOn 17 November 2005, a hearing was conducted on the petitions to terminate respondent\u2019s and the childrens\u2019 fathers\u2019 parental rights to J.E. and Q.D. On 19 December 2005, the resulting order was filed. The order recites those present at the hearing as: (1) respondent; (2) respondent\u2019s attorney; (3) Q.D.\u2019s father\u2019s attorney; (4) a GAL for respondent; (5) Mary Guecia (\u201cGuecia\u201d), as GAL; (6) McKay, as attorney advocate; (7) a YFS social worker; and- (8) YFS\u2019s attorney. As GAL, Guecia did not testify at the termination hearing or present a GAL report.\nThe trial court concluded: (1) respondent and the fathers of J.E. and Q.D. neglected the children; (2) J.E. and Q.D. are dependent juveniles; and (3) J.E. and Q.D.\u2019s best interests would be served by terminating respondent\u2019s parental rights and the childrens\u2019 fathers\u2019 parental rights. J.E.\u2019s and Q.D.\u2019s fathers did not appeal. Respondent appeals.\nII. Issues\nRespondent argues the trial court erred by: (1) failing to appoint a GAL for J.E. and Q.D.; (2) allowing an unappointed GAL represent J.E. and Q.D. at the termination hearing when there was no evidence that the appointed GAL had been released by the trial court; (3) appointing a GAL to represent J.E. and Q.D. at the termination hearing who had not represented the children from the time their juvenile petitions alleging neglect had been filed; and (4) concluding it was in J.E.\u2019s and Q.D.\u2019s best interests to terminate respondent\u2019s parental rights.\nIII. Appointment of a Guardian Ad Litem\nIn her first three assignments of error, respondent argues the trial court violated N.C. Gen. Stat. \u00a7 7B-601 and \u00a7 7B-1108. Respondent asserts a GAL should have been appointed from the first petition alleging neglect \u201cinvestigating and determining the best interest of the child[.]\u201d\nN.C. Gen. Stat. \u00a7 7B-601(a) provides in relevant part:\nWhen in a petition a juvenile is alleged to be abused or neglected, the court shall appoint a guardian ad litem to represent the juvenile. When a juvenile is alleged to be dependent, the court may appoint a guardian ad litem to represent the juvenile .... The duties of the guardian ad litem program shall be to make an investigation to determine the facts, the needs of the juvenile, and the available resources within the family and community to meet those needs; to facilitate, when appropriate, the settlement of disputed issues; to offer evidence and examine witnesses at adjudication; to explore options with the court at the dispositional hearing; to conduct follow-up investigations to insure that the orders of the court are being properly executed; to report to the court when the needs of the juvenile are not being met; and to protect and promote the best interests of the juvenile until formally relieved of the responsibility by the court.\n(Emphasis supplied).\nThis Court addressed similar arguments in In re A.D.L., J.S.L., C.L.L., 169 N.C. App. 701, 612 S.E.2d 643, disc. rev. denied, 359 N.C. 852, 619 S.E.2d 402 (2005) and In re R.A.H., 171 N.C. App. 427, 614 S.E.2d 382 (2005).\nA. In re A.D.L.\nIn In re A.D.L., DSS filed a petition alleging the respondent mother\u2019s three children were neglected. 169 N.C. App. at 703, 612 S.E.2d at 641. \u201cThe district court terminated respondent\u2019s parental rights, based on the grounds alleged, by order filed 7 October 2002.\u201d Id. at 704, 612 S.E.2d at 641.\nOn appeal, the respondent argued the trial court\u2019s \u201cdecision [to terminate her parental rights] must be reversed because the court failed to appoint a guardian ad litem for the children.\u201d Id. at 706, 612 S.E.2d at 643. The respondent asserted, \u201cthe record fails to disclose guardian ad litem appointment papers, and accordingly, the district court\u2019s order must be reversed.\u201d Id. This Court stated, \u201cIn order to obtain relief from an order due to a clerical or technical violation, the complaining party must demonstrate how she was prejudiced or harmed by the violation.\u201d Id. (emphasis supplied) (internal citations and quotations omitted).\nThis Court in In re A.D.L. held the respondent had failed to demonstrate any prejudice she suffered by the trial court\u2019s failure to appoint a GAL and overruled the respondent\u2019s assignment of error. 169 N.C. App. at 707, 612 S.E.2d at 643. This Court concluded:\nThe record on appeal does not reflect a guardian ad litem appointment form was filed. However, except for the initial hearing following the entry of the non-secure order to assume custody of the juveniles in August of 2001, the guardian ad litem was noted as present at each and every hearing prior to and including the TPR hearing where she represented the interest of the children. In addition, the guardian ad litem was named in the TPR petition.\nId. (emphasis supplied).\nB. In re R.A.H.\nIn In re R.A.H., DSS filed a petition alleging that the respondent mother\u2019s child was neglected. 171 N.C. App. at 428, 614 S.E.2d at 383. The respondent\u2019s parental rights were terminated to her child based upon a finding of neglect. Id.\nNo GAL was appointed when DSS filed its petition alleging neglect. Id. at 430, 614 S.E.2d at 384. No GAL was appointed until three days after commencement of the termination hearing. Id. On appeal, the respondent asserted the trial court erred by failing to appoint a GAL for the respondent\u2019s child prior to the termination hearing. Id. at 428, 614 S.E.2d at 383.\nWe agreed, and held:\nPursuant to N.C. Gen. Stat. \u00a7 7B-1108(d) and \u00a7 7B-601, there should have been a guardian ad litem investigating and determining the best interests of the child from the first petition alleging neglect . . . through the final determination. There should have been a guardian ad litem representing R.A.H. at the termination hearing who had been involved in the case from the beginning.\nId. at 430, 614 S.E.2d at 384 (emphasis supplied).\nThis Court also addressed the prejudice the respondent suffered and stated, \u201c[Bjecause our polar star in these proceedings is the best interests of the child, we must presume prejudice where, as here, a child was not represented by a guardian ad litem at a critical stage of the termination proceedings.\u201d Id. at 431, 614 S.E.2d at 385.\nThe dissenting opinion attempts to distinguish the holding in In re R.A.H. with In re O.C. & O.B., 171 N.C. App. 457, 463, 615 S.E.2d 391, 396, disc. rev. denied, 360 N.C. 64, 623 S.E.2d 587 (2005), In re E.T.S., 175 N.C. App. 32, 37, 623 S.E.2d 300, 302 (2005), and In re L.A.B., 178 N.C. App. 295, 302-03, 631 S.E.2d 61, 66 (2006).\nIn the cases cited in the dissenting opinion, this Court dealt with the appointment of a GAL for the parent pursuant to N.C.' Gen. Stat. \u00a7 7B-601(b)(l). This is a separate and distinct issue from the case at bar. This Court in In re R.A.H. dealt with the appointment of a GAL for the juvenile pursuant to N.C. Gen. Stat. \u00a7 7B-601(a). 171 N.C. App. at 428, 614 S.E.2d at 383. We determined the best interests of juveniles and the statutes require a GAL to be appointed \u201cfrom the first petition alleging neglect. . . through the final determination.\u201d Id. at 430, 614 S.E.2d at 384 (emphasis supplied). \u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). We are bound by this Court\u2019s previous holding in In re R.A.H. dealing with the precise issue before us.\nC. Analysis\nHere, respondent argues the trial court violated N.C. Gen. Stat. \u00a7 7B-601(a) because no GAL was appointed when YFS filed its petitions that alleged J.E. and Q.D. were neglected. Respondent asserts the violation of the statute prejudiced her, J.E., and Q.D. because no permanent GAL was provided \u201cto protect and promote the best interests\u201d of either child as required by the statutes. N.C. Gen. Stat. \u00a7 7B-601(a). We agree.\nOn 18 October 2002, YFS filed a juvenile petition that alleged J.E. was a neglected and dependent juvenile. On 12 November 2003, YFS filed a juvenile petition that alleged Q.D. was a neglected and dependent juvenile. At neither time did the trial court appoint a GAL. Though different GALs sporadically appeared at different proceedings, no GAL was formally appointed to represent either J.E. or Q.D. until 28 September 2004 when an order was filed, appointing Pugsley as GAL for both children. Pugsley, the only GAL formally appointed, never appeared on either J.E. or Q.D.\u2019s behalf.\nN.C. Gen. Stat. \u00a7 7B-601(a) states, \u201cWhen in a petition a juvenile is alleged to be abused or neglected, the court shall appoint a guardian ad litem to represent the juvenile.\u201d (Emphasis supplied). As this Court stated in In re R.A.H., \u201cthere should have been a [GAL] investigating and determining the best interests of the child from the first petition alleging neglect. . . through the final determination.\u201d 171 N.C. App. at 430, 614 S.E.2d at 384 (emphasis supplied). The trial court violated N.C. Gen. Stat. \u00a7 7B-601(a) by not appointing a GAL to represent either J.E. or Q.D. \u201cfrom the first petition alleging neglect[.]\u201d Id. at 430, 614 S.E.2d at 384.\nRespondent argues both children suffered prejudice and asserts no GAL appointed to represent the children\u2019s interest was present at the hearings even though the best interest determinations for J.E. and Q.D. were being made. Respondent also argues a permanent GAL should have been representing J.E. and Q.D. at the termination hearing, who had been involved in the case from the beginning.\nThis Court has stated, \u201c[B]ecause our polar star in these proceedings is the best interests of the child, we must presume prejudice where ... a child was not represented by a [GAL] at a critical stage of the termination proceedings.\u201d Id. at 431, 614 S.E.2d at 385.\nHere, no GAL was present at the hearings on 22 October 2002, 25 September 2003, and 12 April 2004 where the best interest determinations for J.E. and Q.D. were being made. With no GAL present at any of these critical hearings, respondent, J.E., and Q.D. were prejudiced. Id. Respondent, J.E., and Q.D. were also prejudiced bec\u00e1use \u201cthere should have been a [GAL] representing [the children] at the termination hearing who had been involved in the case from the beginning.\u201d Id. at 430, 614 S.E.2d at 384.\nEvidence in the record shows five different GALs made sporadic appearances for J.E. and Q.D. at different hearings over the three year period. Guecia, who appeared as the children\u2019s GAL at the termination hearing, was never formally appointed and had never previously appeared on their behalf. Pugsley, who was the only GAL actually appointed by the Court for both J.E. and Q.D., never appeared at any hearing on either child\u2019s behalf. With the initial absence of and the multitude of later GALs making sporadic appearances at critical hearings, no GAL was discharging their duty \u201cto protect and promote the best interests of the [children] until formally relieved of the responsibility by the court.\u201d N.C. Gen. Stat. \u00a7 7B-601(a).\nOur review of In re A.D.L. shows the facts in that case are distinguishable from those here. This Court in In re A.D.L. found no prejudice when, \u201cexcept for the initial hearing following the entry of the non-secure order to assume custody of the juveniles . . ., the guardian ad litem was noted as present at each and every hearing prior to and including the TPR hearing where she represented the interest of the children.\u201d 169 N.C. App. at 707, 612 S.E.2d at 643 (emphasis supplied).\nThe record does not show any GAL being present at the hearings on 22 October 2002, 25 September 2003, and 12 April 2004. While the 22 October 2002 hearing was an initial hearing, the other hearings were not. Unlike the facts in In re A.D.L., no GAL was present at some of the hearings subsequent to the initial hearing, when the \u201cbest interest\u201d determinations were made.\nAlso, in In re A.D.L. this Court stated, \u201cthe guardian ad litem was noted as present at each and every hearing[.]\u201d 169 N.C. App. at 707, 612 S.E.2d at 643. Here, at the hearings where a GAL was recited in the order as being present, five different GALs made appearances for J.E. and Q.D. at different hearings over the three year period. Four GALs who made appearances on the children\u2019s behalf had never been appointed. The GAL who was appointed was not present at the termination proceeding and had not been relieved by a court order. N.C. Gen. \"Stat. \u00a7 7B-601(a). Nothing in the record on appeal shows a prior GAL was released before a new GAL was appointed. Id.\nIV. Conclusion\nThe trial court violated N.C. Gen. Stat. \u00a7 7B-601(a) by failing to appoint a GAL to represent either J.E. or Q.D. upon YFS\u2019s filing of a petition alleging neglect. In re R.A.H., 171 N.C. App. at 430, 614 S.E.2d at 384. This failure prejudiced respondent, J.E., and Q.D. because: (1) no GAL was present at the hearings when \u201cbest interest\u201d determinations for J.E. and Q.D. were being made; (2) no permanent GAL was provided \u201cto protect and promote the best interests\u201d of either child; and (3) where a GAL was recited as being present, five different GALs made sporadic appearances for J.E. and Q.D. at different hearings over the three year period. No record of a prior GAL being released and a new GAL being appointed appears. N.C. Gen. Stat. \u00a7 7B-601(a). The trial court\u2019s order terminating respondent\u2019s parental rights is reversed.\nReversed.\nJudge JACKSON concurs.\nJudge HUNTER dissents by separate opinion.", "type": "majority", "author": "TYSON, Judge." }, { "text": "HUNTER, Judge,\ndissenting.\nBecause the majority has inappropriately applied this Court\u2019s holding in In re R.A.H., I respectfully dissent.\nUnder N.C. Gen. Stat. \u00a7 7B-601(a) (2005) \u201c[w]hen in a petition a juvenile is alleged to be abused or neglected, the court shall appoint a guardian ad litem [\u201cGAL\u201d] to represent the juvenile.\u201d In both J.E.\u2019s and Q.D.\u2019s petitions they were alleged to be neglected. The trial court complied with the statute in this case by stating that \u201c[t]he petitioner is informed that the [GAL] Program . . . has been appointed guardian of said childfren] and the attorney advocate for the [GAL] Program has been appointed attorney advocate for the children].\u201d It is undisputed that the children were represented by a GAL at the termination hearing. The only times in which the record reflects that a GAL was not present on behalf of the children occurred during J.E.\u2019s initial seven-day order on 22 October 2002, his review hearing order on 25 September 2003, and Q.D.\u2019s adjudicatory hearing order on 12 April 2004. Even during those hearings, however, the attorney advocate for the GAL program was present. See N.C. Gen. Stat. \u00a7 7B-601(a) (attorney advocate shall \u201cassure protection of the juvenile[s\u2019] legal rights\u201d). Respondent\u2019s parental rights were terminated on 19 December 2005 after a hearing held on 17 November 2005. Thus, the issue before this Court is whether an order terminating parental rights should be affirmed when both children were represented by a GAL at the termination hearing while unrepresented during some hearings not on direct appeal to this Court.\nThis 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 \u201ca child was not represented by a [GAL] at a critical stage of the termination proceedings.\u201d 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\u2019s parental rights were terminated. Id. at 430, 614 S.E.2d at 384. The mother then appealed \u201c[f]rom the order terminating her parental rights\u201d to the child. Id. at 428, 614 S.E.2d at 383.\nIn 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\u2019s lack of representation at prior hearings; to which she did not object nor later appeal, as grounds to overturn the trial court\u2019s 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.\nThis Court has dealt with a similar issue relating to GAL representation of parents facing termination hearings and has held that where a GAL is required, and the trial court fails to appoint one in the proceeding being appealed, this Court must reverse. In re O.C. & O.B., 171 N.C. App. 457, 463, 615 S.E.2d 391, 396 (2005); see also In re E.T.S., 175 N.C. App. 32, 37, 623 S.E.2d 300, 302 (2005); In re L.A.B., 178 N.C. App. 295, 302-03, 631 S.E.2d 61, 66 (2006). Accordingly, this Court has also held that when the trial court fails to appoint a GAL in a prior proceeding not on direct appeal, we will not reverse. In re O.C. & O.B., 171 N.C. App. at 463, 615 S.E.2d at 395. The rationale behind this rule is clear and, in relevant part, is quoted below:\nFirst, [allowing respondents to allege errors based on prior orders] would create uncertainty and render judicial finality meaningless. Termination orders entered three, five, even ten years after the initial adjudication could be cast aside. Secondly, by necessarily tying the adjudication proceedings and termination of parental rights proceedings together, respondent misapprehends the procedural reality of matters within the jurisdiction of the district court: Motions in the cause and original petitions for termination of parental rights may be sustained .irrespective of earlier juvenile court activity.\nId. In short, \u201cthere is no statutory authority for the proposition that the instant order is reversible because of a GAL appointment deficiency that may have occurred years earlier.\u201d Id. at 462, 615 S.E.2d at 395.\nIn the instant case, the hearing in which Q.D. was purportedly unrepresented occurred over a year before the termination hearing, and the hearings in which J.E. was purportedly unrepresented occurred approximately two and three years before the termination hearing. More importantly, the trial court\u2019s 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 \u201ccritical stage\u201d of the termination hearing, I would affirm the trial court as to this issue. As such, I respectfully dissent.\n. Petitioner argues in its brief that respondent\u2019s arguments regarding guardian ad litem representation should be deemed abandoned because the assignments of error relating to that issue were not brought forward before the record on appeal was settled. After the record on appeal was filed, respondent moved to add the only additional assignments of error which are argued on this appeal. This motion was granted. Under North Carolina Rule of Appellate Procedure 9(b)(5), any party may make a motion to this Court to \u201corder additional portions of a trial court record or transcript sent up and added to the record on appeal.\u201d Petitioner had notice of the Rule 9 motion before its brief was filed with this Court, and as such, could have made a Rule 9 motion to amend the record to add any necessary documents needed to address the issue of guardian ad litem representation. Accordingly, the issue is properly before this Court.", "type": "dissent", "author": "HUNTER, Judge," } ], "attorneys": [ "Tyrone C. Wade, for petitioner-appellee Mecklenburg County Youth and Family Services.", "Matt McKay, attorney advocate.", "Betsy J. Wolfenden, for respondent-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF: J.E., Q.D.\nNo. COA06-1335\n(Filed 15 May 2007)\nTermination of Parental Rights\u2014 failure to appoint guardian ad litem for children \u2014 presumption of prejudice\nThe trial court erred by terminating respondent mother\u2019s parental rights based on its failure to appoint a guardian ad litem (GAL) for the minor children from the first petition alleging neglect, because: (1) the Court of Appeals has previously determined that based on the best interests of the child standard, prejudice is presumed when a child was not represented by a GAL at a critical stage of the termination proceedings; (2) N.C.G.S. \u00a7 7B-601(a) provides that the court shah appoint a GAL to represent the juvenile when a petition alleges a juvenile is abused or neglected; (3) the minor children were prejudiced since no GAL was present when the best interest determinations for the children were being made; and (4) with the initial absence of and the multitude of later GALs making sporadic appearances at critical hearings, no GAL was discharging a duty under N.C.G.S. \u00a7 7B-601(a) to protect and promote the best interests of the children until formally relieved of the responsibility by the court.\nJudge Hunter dissenting.\nAppeal by respondent mother from order entered 19 December 2005 by Judge Regan A. Miller in Mecklenburg County District Court. Heard in the Court of Appeals 28 March 2007.\nTyrone C. Wade, for petitioner-appellee Mecklenburg County Youth and Family Services.\nMatt McKay, attorney advocate.\nBetsy J. Wolfenden, for respondent-appellant." }, "file_name": "0217-01", "first_page_order": 249, "last_page_order": 261 }