Domestic Relations – Parent & Child – Termination of Parental Rights – Civil Practice – Guardian ad Litem – Duties

In re A.S.Y. (Lawyers Weekly No. 10-07-1217, 16 pp.) (Ann Marie Calabria, J.) Appealed from Orange County District Court. (Page Vernon, J.) N.C. App. Click here for the full text of the opinion.

Holding: The trial court appointed a guardian ad litem for the respondent-mother, who had mental-health issues which continued at the time of the hearing on the petition to terminate her parental rights. Even though the mother did not appear at the hearing, she remained entitled to the services of her GAL; therefore, the trial court erred in granting the GAL’s motion to withdraw.

We vacate the trial court’s order terminating respondent’s parental rights.

DSS’s motion to terminate respondent’s parental rights contained several allegations referencing respondent’s apparent mental illness and also referred to respondent’s bizarre behaviors and mental-health impairments. Since this motion was filed as part of the original neglect and dependency action, the GAL’s appointment pursuant to G.S. § 7B-602(c) was still in effect.

As a result, the GAL continued to assist respondent in preparation for the termination of parental rights (TPR) hearing. However, when respondent failed to appear at the termination hearing, the trial court allowed the GAL to withdraw.

Respondent’s GAL was appointed pursuant to G.S. § 7B-602(c), which explicitly states that “the court may appoint a guardian ad litem for a parent in accordance with G.S. 1A-1, Rule 17.”

Rule 17 contemplates active participation of a GAL in the proceedings for which the GAL is appointed. The active participation of a GAL appointed according to Rule 17 effectively removes any legal disability of the party that is so represented.

A GAL is considered an officer of the court; as such, she has a duty to represent the party she is appointed to represent to the fullest extent feasible and to do all things necessary to secure a judgment favorable to such party. Thus, while in many cases the GAL may fulfill her duties in a TPR proceeding by merely assisting the parent, at times it will be necessary for the GAL to take further action in order to represent the parent to the fullest extent feasible and to secure a judgment favorable to that parent.

The GAL’s powers are coterminous with the beginning and end of the litigation in which he is appointed. Thus, once the trial court determined, in its discretion, that respondent was “incompetent or ha[d] diminished capacity and c[ould not] adequately act in his or her own interest” and appointed her a GAL pursuant to G.S. § 7B-602, it was necessary for respondent to be represented by a GAL throughout the neglect and dependency and TPR proceedings, as long as the conditions that necessitated the appointment of a GAL still existed.

The evidence before the trial court was that the conditions which led to the appointment of respondent’s GAL still existed at the time of the TPR hearing.

Petitioner’s motion to terminate respondent’s parental rights alleged that respondent’s mental illness prevented her from providing the child, “Amanda,” with proper care when they lived together. Additionally, DSS alleged in its motion that respondent appeared to be mentally ill and that she engaged in bizarre behaviors indicating possible mental impairments.

Respondent failed to appear for the TPR hearing. Therefore, it was impossible for respondent’s GAL to assist her during the hearing. However, even in the absence of respondent, the GAL was still required to remain and represent respondent to the fullest extent feasible during the TPR hearing. Instead, the trial court simply allowed the GAL’s motion to withdraw and then failed to appoint a substitute GAL.

The presence and participation of a GAL for respondent was necessary, under Rule 17, for the trial court to “proceed to final judgment, order or decree against any party so represented as effectually and in the same manner as if said party had been under no legal disability. …” N.C. R. Civ. P. 17(e).

Because respondent was initially appointed a GAL pursuant to G.S. § 7B-602 and Rule 17, but not ultimately represented by a GAL during the termination hearing, the order terminating her parental rights to Amanda was invalid.

Amanda’s GAL argues that it was unnecessary for respondent to be represented by a GAL during the termination hearing because respondent was represented by an attorney. However, G.S. § 7B-602(c) explicitly states, “The parent’s counsel shall not be appointed to serve as the guardian ad litem.” Thus, the parent’s counsel and GAL serve different roles during the TPR proceeding.

Since these roles are not interchangeable, the fact that respondent was represented by counsel during the termination hearing is insufficient to correct the trial court’s error.

Vacated and remanded.