Domestic Relations Parent & Child – Parent’s Right to Counsel – Waiver – Guardian ad Litem – Assistant Capacity — Reunification Efforts – Cessation

In re A.Y. (Lawyers Weekly No. 13-07-0037, 22 pp.) (Martha A. Geer, J.) Appealed from New Hanover County District Court (Melinda H. Crouch, J.) N.C. App.

Holding: Even without the benefit of our decision in In re P.D.R. (Dec. 18, 2012), the trial court found that the respondent-mother “understands and appreciates the consequences of her decision to appear pro se and comprehends the nature of the proceedings.” The court also found that the mother “has demonstrated the mental fitness” to waive her right to counsel. The record shows that a guardian ad litem was appointed for the mother, not because of concerns about her competency, but because personality issues impaired her ability to interact with others involved in the proceeding; furthermore, both the trial court and the GAL understood the GAL to be functioning in an assistive, rather than a substitution, role. Therefore, the mother had the capacity to waive counsel.

We affirm the trial court’s order that DSS cease reunification efforts. However, we reverse and remand the order’s waiver of further review hearings.

The trial court’s questioning of the mother and her GAL established that the mother’s waiver of counsel was knowing and voluntary.

Even though, in finding of fact eight, the trial court incorrectly found that, during a verbal altercation between the mother and the respondent-father, the GAL and a social worker contemplated calling 911, the rest of the trial court’s findings are sufficient to support its decision to cease reunification efforts. Those findings establish that verbal aggression and significant conflict between the parents was continuing, including two significant episodes only three months before the hearing, and the parents had not successfully engaged in couples therapy. The mother herself had made only limited progress on her treatment goals and had a pattern of poor parenting. Finally, the conflict and domestic violence continued to have a detrimental effect on the child’s physical and emotional well-being.

Given the trial court’s binding findings of fact and the supported portion of finding of fact eight, we cannot conclude that the unsupported portions of finding of fact eight were material to the trial court’s decision to cease reunification efforts. Consequently, we find no error in the trial court’s decision to cease reunification efforts and award guardianship to the paternal grandparents.

Finally, where the trial court failed to make the findings required by G.S. § 7B-906(b), we must reverse its waiver of future review hearings. We remand for the trial court to reconsider whether future review hearings are needed and to make appropriate findings of fact to support its decision.

Affirmed in part, reversed and remanded in part.