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Domestic Relations — Parent & Child – Termination of Parental Rights – Parental Guardian ad Litem – Judge’s Discretion

In re T.L.H. (Lawyers Weekly No. 15-06-0598, 18 pp.) (Sam Ervin IV, J.) Appealed from Guilford County District Court (Tabatha Holliday, J.) On appeal from a divided panel of the N.C. Court of Appeals. N.C. S. Ct.

Holding: Given the coherent manner in which respondent testified at the permanency planning hearing and the other indications in the record tending to show that she was aware of and able to appropriately participate in the termination-of-parental-rights proceedings, we cannot conclude that the trial court abused its discretion when it failed to inquire further into the mother’s competency and the necessity of appointing a guardian ad litem for her.

We reverse the Court of Appeals’ decision (which had reversed the termination of parental rights order and remanded for a determination as to whether respondent was entitled to the appointment of a guardian ad litem).

Effective for juvenile proceedings filed or pending on or after Oct. 1, 2013, the General Assembly amended G.S. § 7B-1101.1(c) to authorize the appointment of a parental guardian ad litem “for a parent who is incompetent in accordance with … Rule 17” of the North Carolina Rules of Civil Procedure.

The differences between the standard used in determining competence and the standard used in determining whether a parent’s parental rights are subject to termination for incapability prevent us from concluding that the existence of an allegation that a parent’s parental rights are subject to termination for incapability necessitates an inquiry into the parent’s competence for purposes of the appointment of a substitutive guardian ad litem, even if the party initiating the termination proceeding suggests that such an inquiry would be appropriate.

Although the trial court’s termination order noted respondent’s mental health difficulties, it also focused on her apparent unwillingness to make the changes necessary to permit her to regain custody of her child. Thus, the termination decision rested on considerations other than respondent’s diagnosable mental health conditions.

Although further inquiry into respondent’s competence might have been advisable, we cannot say the trial court abused its discretion in declining to conduct such an inquiry.

Reversed.


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