In re J.E.B., 376 N.C. 629 (2021)

There is a dissent
Morgan, J.
  • Facts: There is an underlying abuse and neglect action. DSS filed a petition to terminate respondent mother’s rights. At the TPR hearing, mother’s appointed Rule 17 GAL and court-appointed attorney were present. The attorney sought to withdraw, but his motion was denied. The attorney stated that himself, the GAL, and respondent would determine what strategy they would use to present evidence. At times, the Rule 17 GAL cross-examined witnesses and made a part of the closing argument; mother’s attorney served as counsel during the proceeding. The TPR was granted. Mother appeals arguing the Rule 17 GAL violated G.S. 7B-1101.1(d) – the GAL shall not act as the parent’s attorney – and alternatively, she was denied effective assistance of counsel.
  • In a TPR, parents must be provided with “ ’fundamentally fair procedures’ consistent with the Due Process Clause of the Fourteenth Amendment.” ¶ 10.
  • This is a question of statutory interpretation, which is reviewed de novo. “The goal of statutory interpretation is to determine the meaning that the legislature intended upon the statute’s enactment.” ¶ 11.
  • G.S. 7B-1101.1(a)-(c) provides a parent who is indigent with the right to court-appointed counsel, and a GAL when certain conditions are met.  G.S. 7B-1101.1(d) states “[t]he parent’s counsel shall not be appointed to serve as the guardian ad litem and the guardian ad litem shall not act as the parent’s attorney.” The language is unambiguous. The statutory mandate is that the attorney and GAL for the parent not be the same person so that respondent receives the benefit of both. We do not read the phrase “act as the parent’s attorney” in isolation; the phrase has the same function as the sentence before it that the parent attorney shall not be appointed as the GAL. The statute does not prevent the GAL from conducting cross-examination or presenting arguments before the court – essentially, assist counsel in the presentation of evidence. Further, “respondent’s appointed attorney did not functionally abdicate his responsibilities, leaving the guardian ad litem to ‘act as the parent’s attorney’ in the absence of the parent’s actual legal counsel.” ¶ 14. The statute was not violated.
  • Mother’s claim of ineffective assistance of counsel is unsupported.
  • Dissent:  Although concurring with the majority that the statute requires two separate people, the dissent discusses statutory interpretation. The majority does not follow the fundamental tenet of statutory construction to give the words their plain and simple meaning. Although each person here performed their assigned statutory duties, the GAL also acted as mother’s attorney. There was a violation of the statute resulting in prejudice to mother to warrant a vacate and remand for a new TPR hearing.
Termination of Parental Rights
GAL for Respondent Parent
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