{ "id": 3734149, "name": "IN THE MATTER OF: J.H.K. and J.D.K.", "name_abbreviation": "In re J.H.K.", "decision_date": "2010-07-06", "docket_number": "No. COA10-12", "first_page": "165", "last_page": "174", "citations": [ { "type": "official", "cite": "205 N.C. App. 165" } ], "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": "614 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633140 ], "weight": 10, "year": 2005, "pin_cites": [ { "page": "385" }, { "page": "430" }, { "page": "384" }, { "page": "431-32" }, { "page": "385", "parenthetical": "citation omitted" }, { "page": "385", "parenthetical": "\"The functions of the guardian ad litem and the attorney advocate are not sufficiently similar to allow one to 'pinch hit' for the other when the best' interest of a juvenile is at stake.\"" }, { "page": "385" }, { "page": "385", "parenthetical": "\"[W]e must presume prejudice where, as here, a child was not represented by a guardian ad litem at a critical stage of the termination proceedings.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0382-01" ] }, { "cite": "548 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "570-71" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 620", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11436177 ], "year": 2001, "pin_cites": [ { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0620-01" ] }, { "cite": "608 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "825" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 721", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8472103 ], "year": 2005, "pin_cites": [ { "page": "723" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0721-01" ] }, { "cite": "171 N.C. App. 427", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8437587 ], "weight": 5, "year": 2005, "pin_cites": [ { "page": "432" }, { "page": "431" }, { "page": "431" }, { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0427-01" ] } ], "analysis": { "cardinality": 866, "char_count": 21057, "ocr_confidence": 0.77, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.10951951252756435 }, "sha256": "0cd1b77668b38dbc262bc6161bcb35e760c68fac239812b0513fd19257ca4be0", "simhash": "1:abe292e771c60fc2", "word_count": 3522 }, "last_updated": "2023-07-14T21:30:55.510002+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and STROUD concur." ], "parties": [ "IN THE MATTER OF: J.H.K. and J.D.K." ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nOn 18 September 2008, the trial court terminated respondent-father\u2019s (\u201cMike\u2019s\u201d) parental rights pursuant to N.C. Gen. Stat. \u00a7 7B-llll(a)(l) and (6) (2007). Mike appeals the trial court\u2019s order to this Court and contends, inter alia, that the trial court erred in conducting the termination of parental rights hearing when the minor children\u2019s guardian ad litem (\u201cGAL\u201d) was not physically present. After careful review, we hold that the minor children\u2019s appointed GAL should have attended the termination of parental rights hearing. We accordingly reverse and remand for a new termination of parental rights hearing.\nBACKGROUND\nOn 22 January 2007, police were called to the minor children\u2019s home. Upon arrival, the police observed needles and syringes used for drugs, marijuana, and several knives on a table accessible to the minor children. Officers noted that the washing machine and master bathtub were filled with dirty water, and that there was no food in the home except for a few apples. At this time, the minor children were three and four years old, living with their biological mother (\u201cEva\u201d).\nThe next day, employees from the Guilford County Department of Social Services (\u201cDSS\u201d) visited the home. The DSS workers observed the kitchen in disarray, trash on the floor, debris in the hallways and bedrooms, and no food in the house except for the apples. Eva was in the house when DSS arrived. The minor children were running about unsupervised, and Eva appeared to be under the influence of drugs. When the DSS workers asked Eva to submit to a drug screen, Eva stated that the test would come back positive for cocaine and marijuana. The DSS workers observed needle track marks on Eva\u2019s arms. Mike was not living with Eva at this time.\nDSS placed the minor children with a family friend, and contacted Mike, who was living in a hotel. After meeting with Mike in the lobby of the hotel, DSS told Mike that one of the minor children was ill, and that the child needed to be taken to the doctor.\nOn 25 January 2007, DSS met with Mike. At the meeting, Mike stated that he had not taken the child to the doctor. DSS workers pressed Mike on the reasons why he did not take the child in for medical attention, and Mike became \u201cbelligerent\u201d and cursed at several DSS workers.\nOn 26 January 2007, DSS filed a petition to have the minor children declared neglected and dependent, and Terry Helms was appointed as the minor children\u2019s GAL on 31 January 2007. A hearing was held on 16 March 2007, and based on the events between 22 and 25 January 2007, the trial court adjudicated the minor children neglected and dependent as defined under N.C. Gen. Stat. \u00a7 7B-101 (2007). The minor children were placed in foster care following the hearing. The record shows that Ms. Helms was not present at the hearing, but she did file a report containing her recommendations to the trial court. On 19 March 2007, Mike entered into a case plan for reunification with his children that contained the following requirements: (1) participate in a substance abuse assessment and follow the recommendations, (2) secure appropriate housing, (3) complete a parenting assessment and follow recommendations, (4) participate in parenting classes, (5) participate in Family Preservation Services, (6) submit to random drug screens, and (7) comply with visitation.\nA follow-up hearing was held on 8 June 2007 concerning the minor children. At the hearing, the trial court made the following findings of fact pertaining to Mike\u2019s progress on his case plan.\n2. A petition was filed January 25, 2007, and Adjudication and Disposition was held on March 16, 2007, adjudicating the children neglected and dependent.\n4. The underlying issue was the ongoing substance abuse by the parents in the presence of the children.\n7. It is reported that on March 21, 2007, [Eva] suffered from 3rd degree burns as a result of [Mike] pouring rubbing alcohol on her body and setting her on fire. She was burned on 35% of her body. She was burned down the right side of her body, both legs, on a portion of her back and her hair. Her feet were very swollen as a result of the burn. She required various skin [grafts] as a result of this injury. She also reported that she remembers [Mike] trying to strangle her. [Eva] remained at [the hospital] from March 21, 2007, until March 31, 2007.\n9. [Mike] is currently incarcerated in the High Point Jail. A letter was received from him on May 22, 2007. He is currently participating in ADS through the PRIDE program. He is receiving substance abuse.\nThe trial court further found that Mike had participated in both substance abuse and parenting assessment as required under the case plan, but he had failed to meet any other goals in the plan. Ms. Helms \u25a0did not attend the hearing, but she filed a report with the trial court recommending the minor children\u2019s further placement with their foster parents.\nA Permanency Plan Review Hearing was held on 7 September 2007. Following the hearing, the trial court entered an order stating that the permanent placement plan for the minor children would be adoption with a concurrent effort made toward reunification. Ms. Helms did not attend the hearing, but she filed a report with the trial court recommending a permanent placement of adoption rather than reunification. In November 2007, Mike was released from jail, and he entered into a new case plan with DSS.\nFurther review hearings concerning the minor children were held on 30 November 2007, 7 March 2008, and 30 May 2008. Ms. Helms filed reports for these hearings but she did not attend. On 16 December 2008, the trial court entered orders appointing Karen Moorefield as the minor children\u2019s new GAL. At a review hearing held 17 December 2008, GAL filed no report and Karen Moorefield did not attend the hearing. On 13 March 2009, a review hearing was held; Karen Moorefield did not attend the hearing nor did she file a report with the trial court.\nThe initial petition to terminate. Mike\u2019s parental rights was filed on 15 November 2007, and a second petition was filed in July 2008. In the petition, DSS alleged that grounds existed under subsections (1), (3), and (6) of N.C.G.S. \u00a7 7B-llll(a) to terminate Mike\u2019s parental rights.\nProceedings to terminate Mike\u2019s parental rights were continued several times in 2009. On 14 and 15 July 2009 the hearing began, and after hearing the evidence, the trial court entered an order terminating Mike\u2019s parental rights making the following findings:\n22. While incarcerated in the Guilford County jail, [Mike] completed the PRIDE program; participated in NA/AA classes; did not get any infractions; and was cooperative with the Guilford County Jail until he was discharged on November 2, 2007.\n23. [Mike] cooperated with [DSS] by voluntarily sharing information with the social worker that he used marijuana while incarcerated. Upon release from the Guilford County jail, the father contacted [DSS] and advised that he had been released. He further advised that he would be entering the Prodigal Son Drug Treatment Program on November 5, 2007 at 10:00 a.m.\n25. Following his release from jail and placement on supervised probation, [Mike] began receiving services for his substance abuse issues in a residential drug treatment facility on November 2, 2008, at the Christian Counseling and Wellness Group. This is a possible two year program but can be completed in 12 months.\n26. [Mike\u2019s] case plan was updated to include the condition that he would participate in the Christian Counseling Wellness Group.\n27. During the time [Mike] was in the Christian Counseling Wellness Group, he was in substantial compliance with the case plan as he [was] residing at this facility, he was submitting to drug screens, which were negative, and he obtained a substance abuse assessment through the facility. In addition, he was visiting with the children. He did not participate in a parenting psychological assessment. He began parenting classes but did not complete the program.\n28. In March of 2008, [Mike] left the [Christian] Counseling Wellness Group without successfully completing the program.\n29. After leaving this program, [Mike] did not maintain any contact with [DSS], he did not submit to any drug screens and did not remain in compliance with his case plan.\n30. [Mike] has not visited with the minor children since leaving the residential drug treatment facility on March 25, 2008.\n31. In June, 2008, [Mike] was arrested for violating his probation. He did not contact DSS and let them know of his incarceration. [Mike] admitted to a willful violation of his probation and took an active sentence in September, 2008.\n36. Since the minor children came into custody, [Mike] does well and addresses his substance abuse issues only while incarcerated or in residential treatment.\n37. During the 2 1/2 years or 30 months the children have been in foster care, both parents have had periods of recovery and then relapse and have not had a period of recovery of any significant length in which any substantial progress was made such that the children could be returned to them on even a trial basis.\n38. During the 2 1/2 years the children have been in foster care, both parents have committed criminal charges and the father has willfully violated probation. Each parent has had periods of incarceration in which they are unable to care [for] or even see their children.\n40. Both parents knew of the petitions to terminate their parental rights. Due to the petitions being put on hold, both parents had [a] substantial amount of time to work on their substance abuse, work on their case plan and show they were able to provide a home and proper supervision for their children, but both parents failed to do so within the 30 months the children have been in foster care.\n42. There is a probability of a repetition of neglect if the minor children are returned to [Mike] as he remains incarcerated on charges which occurred after the children were placed in foster care, he relapsed within four months of his release from jail in 2008 and he has not successfully addressed his substance abuse issues except during incarceration or a residential drug treatment program and that was for a period of only four months.\nBased on these findings, the trial court found that grounds existed to terminate Mike\u2019s parental rights under subsections (1) and (6) of N.C.G.S. \u00a7 7B-llll(a). The trial court further found that it was in the best interests of the minor children to terminate Mike\u2019s parental rights. Karen Moorefield filed a two-page report with the trial court in support of terminating Mike\u2019s parental rights, but she was not present at any of the termination of parental rights proceedings. Mike filed a timely notice of appeal.\nANALYSIS\nCiting In re R.A.H., 171 N.C. App. 427, 614 S.E.2d 382 (2005), Mike argues that N.C. Gen. Stat. \u00a7\u00a7 7B-601, -1108 (2007) mandate a GAL\u2019s attendance at a termination of parental rights hearing, and that in this case the trial court erred by conducting the hearing without the minor children\u2019s GAL being present. We agree.\nSection 7B-601 of our General Statutes states:\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. . . . The juvenile is a party in all actions under this Subchapter. . .. 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.\nN.C.G.S. \u00a7 7B-601(a) (emphasis added). Section 7B-1108(b) provides that if a parent\u2019s response to a petition to terminate parental rights \u201cdenies any material allegation of the petition[,] . . . the court shall appoint a guardian ad litem for the juvenile to represent the best interests of the juvenile, unless ... a guardian ad litem has already been appointed pursuant to G.S. 7B-601.\u201d N.C.G.S. \u00a7 7B-1108(b) (emphasis added). If a GAL has already been appointed pursuant to section 7B-601 and appointment of a GAL is also appropriate under section 7B-1108, section 7B-1108(d) further requires:\nthe guardian ad litem appointed under G.S. 7B-601, and any attorney appointed to assist that guardian, shall also represent the juvenile in all proceedings under this Article and shall have the duties and payment of a guardian ad litem appointed under this section, unless the court determines that the best interests of the juvenile require otherwise.\nN.C.G.S. \u00a7 7B-1108(d) (emphasis added).\nThis Court examined these statutes in R.A.H., and held that the failure of the trial court to appoint a GAL prior to the termination of parental rights hearing was prejudicial error. R.A.H., 171 N.C. App. at 432, 614 S.E.2d at 385. In that case, no GAL was appointed pursuant to section 7B-601 upon the filing of a petition of neglect. Id. at 430, 614 S.E.2d at 384. Over five months later, when the termination of parental rights hearing began, the minor child still had no GAL representation, and a GAL was not appointed until three and a half days into the termination of parental rights hearing. Id. In reversing and remanding the case for a new hearing, we observed:\nIn the instant case, the trial court made a valiant effort to correct the error and proceed with the termination hearing by appointing a guardian ad litem immediately once the error was brought to its attention, and offering the newly appointed guardian ad litem the option of recalling witnesses and postponing further hearings in the matter. However, because 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. This is particularly so in light of the fact that the minor child is not capable of understanding and protecting its own rights and interests.\nId. at 431-32, 614 S.E.2d at 385 (citation omitted) (emphasis added).\nIn this case, the minor children were first appointed a GAL following the petition alleging neglect under section 7B-601. From the time of this first appointment through the termination of Mike\u2019s parental rights, Terry Helms, or a properly substituted GAL, was responsible for being the minor children\u2019s representative. See N.C.G.S. \u00a7\u00a7 7B-601, -1108. The minor children were parties in all the hearings taking place in this case prior to the petition to terminate Mike\u2019s parental rights. N.C.G.S. \u00a7 7B-601(a). After the petition was filed to terminate Mike\u2019s parental rights and Mike filed a response, section 7B-1108 mandated that a GAL \u201crepresent the [minor children] in all proceedings].]\u201d N.C.G.S. \u00a7 7B-1108(d) (emphasis added).\nAs we noted in R.A.H., minor children are not capable of protecting their own rights and interests, and an attorney advocate is not \u00e1 sufficient substitute to fill the particular role performed by a GAL. R.A.H., 171 N.C. App. at 431, 614 S.E.2d at 385 (\u201cThe functions of the guardian ad litem and the attorney advocate are not sufficiently similar to allow one to \u2018pinch hit\u2019 for the other when the best' interest of a juvenile is at stake.\u201d). Thus, we do not believe that the General Assembly intended the term \u201crepresent\u201d to merely require a GAL to prepare a report for the trial court to be submitted at the termination of parental rights hearing in lieu of actually appearing in the courtroom.\n\u201cRepresent\u201d means \u201c[t]o serve as the official and authorized delegate or agent for\u201d or \u201c[t]o act as a spokesman for,\u201d The American Heritage Dictionary 1049 (2d ed. 1985); and the word is characterized as \u201c[t]he act or an instance of standing for or acting on behalf of anotherf.]\u201d Black\u2019s Law Dictionary 1328 (8th ed. 2004). Applying these definitions to sections 7B-601 and 7B-1108, it is apparent that these statutes require a GAL to \u201cact\u201d and be a \u201cspokesman\u201d for: (1) the minor child\u2019s health, safety, and welfare outside the courtroom; and (2) the minor child\u2019s best interests in the courtroom. See N.C.G.S. \u00a7\u00a7 7B-601, -1108. Inside the courtroom, the GAL has a duty \u201cto 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; [and] ... to report to the court when the needs of the juvenile are not being met[.]\u201d N.C.G.S. \u00a7 7B-601(a) (emphasis added). When a petition to terminate parental rights is filed and disputed by the parent, GALs are required to \u201crepresent the juvenile in all proceedings].]\u201d N.C.G.S. \u00a7 7B-1108(d).\nLooking at these statutory duties, it is patently clear that a GAL\u2019s representation goes far beyond a written report addressed to the trial court at a termination of parental rights hearing. The GAL is obligated to be an active \u201cagent\u201d inside the courtroom and to vigorously promote a minor child\u2019s best interests. Given that a minor child is a party in all proceedings under section 7B-601, a GAL needs to be intimately familiar with a minor child\u2019s case, and be present to offer evidence, examine witnesses, explore options, and report to the trial court when a minor child\u2019s case comes on for a hearing. N.C.G.S. \u00a7 7B-601(a). When a petition to terminate parental rights is filed against a minor child\u2019s parent, the GAL is required to be an \u201cagent\u201d and a \u201cspokesman\u201d for a minor child\u2019s best interests in \u201call proceedings.\u201d N.C.G.S. \u00a7 7B-1108(d). We can imagine no set of circumstances in which a GAL can be an agent satisfactorily performing these duties without being present in the courtroom when a minor child\u2019s fate is being determined in the trial court.\nThe fundamental premise underlying our holding in R.A.H. was that a minor child needs GAL representation at every \u201ccritical stage of the termination proceedings.\u201d R.A.H., 171 N.C. App. at 431, 614 S.E.2d at 385. Here, we can conceive of no weightier \u201ccritical stage\u201d than the severance of a minor child\u2019s bond with his or her biological parent. It is at these most tender moments that a minor child needs the person charged with actively promoting their best interests\u2014 their representative. The plain meaning of \u201crepresent\u201d includes an element of physical presence under sections 7B-601 and 7B-1108, and we conclude that these statutes mandate a GAL\u2019s physical presence at a termination of parental rights hearing. Since the minor children\u2019s GAL in this case did not attend the termination of parental rights hearing pursuant to section 7B-1008, we must presume prejudice as this Court did in R.A.H. R.A.H., 171 N.C. App. at 431, 614 S.E.2d at 385 (\u201c[W]e 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). Accordingly, we reverse, and remand this case for a new hearing to be conducted with the minor children\u2019s GAL in attendance.\nReversed and remanded.\nJudges McGEE and STROUD concur.\n. Appellee Guardian ad litem argues that Mike waived this argument, and therefore review here is not proper under Rule 10 of the North Carolina Rules of Appellate Procedure. This Court, however, has held that section 7B-1108 is \u201cintended to protect the best interests of the child,\u201d and that a parent\u2019s failure to object under this statute will not preclude appellate review. In re J.L.S., 168 N.C. App. 721, 723, 608 S.E.2d 823, 825 (2005); see In re Fuller, 144 N.C. App. 620, 622, 548 S.E.2d 569, 570-71 (2001). Though these cases deal with the consequences of failure to appoint a GAL instead of the GAL\u2019s failure to attend a hearing, we find the reasoning of these cases to be applicable to the case sub judice. Appellee\u2019s argument is therefore overruled.", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." } ], "attorneys": [ "Janet K. Ledbetter for respondent-father appellant.", "Mercedes O. Chut for Guilford County Department of Social Services petitioner appellee.", "Smith, James, Rowlett, and Cohen, by Margaret F. Rowlett for Guardian ad litem appellee." ], "corrections": "", "head_matter": "IN THE MATTER OF: J.H.K. and J.D.K.\nNo. COA10-12\n(Filed 6 July 2010)\nTermination of Parental Rights\u2014 minors\u2019 guardian ad litem required to be at hearing\nThe trial court erred by conducting a termination of parental rights hearing when the minor children\u2019s guardian ad litem (GAL) was not physically present as required by N.C.G.S. \u00a7 7B-1108. The case was reversed and remanded for a new hearing with the GAL in attendance.\nAppeal by respondent-father from order entered 18 September 2009 by Judge Polly D. Sizemore in Guilford County District Court. Heard in the Court of Appeals 28 April 2010.\nJanet K. Ledbetter for respondent-father appellant.\nMercedes O. Chut for Guilford County Department of Social Services petitioner appellee.\nSmith, James, Rowlett, and Cohen, by Margaret F. Rowlett for Guardian ad litem appellee." }, "file_name": "0165-01", "first_page_order": 193, "last_page_order": 202 }