In re A.T., ___ N.C. App. ___ (November 5, 2025)
Held:
Affirmed in Part; Vacated in Part.
Remanded in part
- Facts: Respondent Father appeals the order terminating his parental rights on the ground of neglect. The children were removed from Father and Mother and adjudicated neglected based on concerns for the parents’ mental health, substance use, employment and housing. Both parents were ordered to undergo comprehensive psychological evaluations as part of their case plan. Father’s evaluation indicated diagnoses of cannabis use disorder and either bipolar disorder or schizoaffective disorder, but also indicated Father was not subject to cognitive limitations or learning disabilities. During permanency planning a continuance order was entered sua sponte finding there was cause to appoint a Rule 17 Guardian ad Litem (GAL) for both parents. Both parents and their appointed GALs appeared at a subsequent permanency planning hearing where the court identified parents’ mental health, housing, substance use, and employment remained barriers to reunification. DSS filed TPR motions for both parents and their rights were ultimately terminated. Father argues the trial court abused its discretion in appointing a Rule 17 GAL without notice or conducting an inquiry to determine his incompetency. Mother did not appeal her Rule 17 GAL appointment.
- The court of appeals recognized Father did not preserve the constitutional issue for appeal and neither Father nor the children’s GAL addressed preservation in their appellate briefs. The court of appeals invoked Rule 2 of the Rules of Appellate Procedure to review Respondent-Father’s argument, noting this as an exceptional circumstance given the nature of the appointment of Father’s GAL – sua sponte in a continuance order – which made it impossible for Father to contemporaneously object.
- Trial court decisions to appoint a GAL for a parent and inquiries concerning a parent’s competence are reviewed on appeal for abuse of discretion.
- G.S. 7B-1101.1(c) allows the trial court to appoint a Rule 17 GAL for an incompetent parent on motion of any party or the court’s own motion. Courts looks to the definition of incompetent adult in G.S. 35A-1101(7). “[E]vidence of mental health problems is not per se evidence of incompetence to participate in legal proceedings.” Sl. Op. at 9 n.8 (citation omitted). Appointment of a GAL “divest[s] the parent of their fundamental right to conduct his or her litigation according to their own judgment and inclination.” Sl. Op. at 7 (citation omitted). Appellate precedent requires a parent to have knowledge or notice that a motion seeking appointment of a GAL for the parent is being made before the appointment may be made.
- The trial court abused its discretion by appointing a GAL for Father without providing Father notice and an opportunity to be heard on the issue. Additionally, the trial court’s decision appeared to be based solely on Father’s phycological evaluation without any further evidence or inquiry of Father’s competence to participate in the proceedings. The TPR order as to Respondent-Father is vacated and remanded for a new hearing.
- The court of appeals rejected the argument of the children’s GAL that Respondent-Father has diminished capacity and therefore the GAL was acting in an assistive rather than substitutive role. Those distinctions were removed by the General Assembly in 2013 and the statute now only authorizes the appointment of a GAL, which acts in a substitutive capacity, for an incompetent adult. Sl. Op. at 8 n.7.
Category:
Termination of Parental RightsStage:
GAL for Respondent ParentTopic:
Hearing on Competency