In re A.H.-G., ___ N.C. App. ___ (December 17, 2025)
Held:
Affirmed
There is a dissent
in part by Collins, J.
- Facts: Mother appeals adjudication and disposition orders concluding her infant abused and neglected based on nonaccidental injuries the child sustained and continuing custody with DSS. Mother is an unemancipated 16-year-old who is subject to a juvenile delinquency petition involving related felonies. Due to Mother’s age, Mother was appointed a Rule 17 GAL prior to the first hearing on the need for continued nonsecure custody. Mother’s GAL was present at the adjudication hearing. DSS called Mother to testify at the hearing and Mother’s counsel objected, based on mother’s minor status and GAL representation. Mother’s GAL was not asked whether Mother should waive her Fifth Amendment right against self-incrimination. The trial court overruled the objection and explained to Mother her rights, including that she could refuse to answer any question that would be incriminating in the delinquency case. Mother acknowledged the court’s explanation, did not ask any questions about her rights when given the opportunity, and subsequently testified for one hour, refusing to answer only one question based on her Fifth Amendment right. Mother argues the trial court committed reversible error by allowing Mother to decide whether to waive her Fifth Amendment right against self-incrimination while she was appointed a Rule 17 GAL.
- Appellate courts review a trial court’s compliance with a statutory mandate de novo.
- G.S. 7B-602(b) requires appointment of a Rule 17 GAL to represent a minor parent who is not married or emancipated, whereby the GAL “stand[s] in the place of” the minor parent who is “presumed by law not to have the requisite capacity to handle their own affairs[,]” such that “[t]he presence and active participation of a GAL appointed according to the provisions of Rule 17 effectively removes any legal disability of the party . . .” Sl. Op. at 8, 10 (citations omitted). “While a Rule 17 GAL appointed to a minor parent ‘divest[s] the parent of their fundamental right to conduct his or her litigation according to their own judgment and inclination’ . . . a Rule 17 GAL’s role is to act ‘as a guardian of procedural due process for the parent, to assist in explaining and executing her rights . . . to the fullest extent feasible and to do all things necessary to secure a judgment favorable to such party,’ which is dependent on the individual facts of the case[.]” Sl. Op. at 9 (citation omitted). Looking to guardianship under G.S. Chapter 35A as instructive for GALs who have a more limited scope and duration, the court of appeals states that to the extent possible a Rule 17 GAL should allow the minor parent to participate in all decisions which affect the minor parent.
- The trial court did not err by allowing Mother to determine whether to assert her Fifth Amendment right. The record shows Mother’s GAL was present at the hearing, did not speak when the court gave Mother a statement of her rights, and was not asked whether Mother should waive her Fifth Amendment right. However, Mother’s counsel objected, the trial court fully explained to Mother her right to remain silent, and Mother affirmatively acknowledged the explanation. During Mother’s testimony, Mother asserted the right when she refused to answer one question relating to one of the child’s injuries. Similar to In re W.K., 376 N.C. 269 (2020), Mother has not shown on appeal what actions her Rule 17 GAL could have taken to secure a decision more favorable beyond the actions of her attorney. Requiring the GAL to also object is “not a feasible step to act as guardian of Mother’s due process rights[.]” Sl. Op. at 14.
- The court of appeals noted that Mother’s GAL was appointed only by virtue of her age, that the record contained no indication that Mother lacked competency to understand the trial court’s explanation of her right to remain silent, and Mother exercised the right during her testimony. A Rule 17 GAL should preserve the opportunity for the incompetent person (here due to age of minority) to exercise rights that are within the understanding and judgment and allow “for the possibility of error to the same degree as is allowed to persons who are not incompetent.” Sl. Op. at 9 (quoting G.S. 35A-1201(a)(5)).
- Absent additional evidence such as an order defining the guidelines of the GAL’s appointment or record discussions between the GAL and Mother, the reviewing court “will not presume error from a silent record.” Sl. Op. at 16 (citation omitted).
- Dissent in part: The trial court erred by allowing Mother to waive her right to remain silent without the active participation of her appointed GAL. Appellate precedent requires active participation of a GAL in the proceedings such that the GAL rather than Mother must decide whether Mother will waive her constitutional rights. The record does not show that Mother’s Rule 17 GAL participated in any manner. The record does not indicate Mother’s GAL filed an answer or participated in the adjudication hearing, including not speaking when the trial court gave Mother a statement of her rights or when Mother was compelled to testify.
Category:
Abuse, Neglect, DependencyStage:
GAL for Respondent ParentTopic: