In re M.G.B., ___ N.C. App. ___ (May 7, 2024)
Held:
Affirmed
- Facts: This case involves three siblings, two of whom were adjudicated neglected and one who was adjudicated abused and neglected. The circumstances were that the children were in the custody of their paternal grandmother, lived with their paternal grandmother and father, and one of the children was sexually abused by their father, which was proved in part by both the child and father testing positive for gonorrhea. Grandmother appeals the permanency planning order that found she failed to make progress on her case plan within a reasonable period of time and eliminated reunification with her and ceased reunification efforts including visitation. Grandmother argues for the first time on appeal that the children’s GAL failed to discharge their statutory duties.
- N.C. Rule of Appellate Procedure 10(a)(1) requires a party to timely request, object, or motion the trial court to preserve an issue for appellate review. However, appellate courts have held that when a trial court acts contrary to a statutory mandate that requires the trial judge to (1) take a specific act or (2) direct a courtroom proceeding, the right to appeal is automatically preserved. G.S. 7B-601(a) lists the duties of the GAL and do not mandate the judge to take a specific act other than to appoint the GAL or to direct a courtroom proceeding, such that the issue of whether the GAL performed their duties is not automatically preserved.
- Failure by the GAL to fulfill their statutory duties may require reversal. The children’s GAL adequately discharged their statutory duties. The GAL filed written reports at the adjudication hearing and each permanency planning hearing; made monthly visits with the children and monthly calls with the foster parents; and included in their reports detailed information about the children’s health and well-being, educational development, relationships with their foster parents and themselves and their wishes about remaining in the foster home. The court rejects Grandmother’s argument that the GAL did not maintain more communication with her once the children were removed from her home and the GAL failed to adequately investigate the children’s wishes. G.S. 7B-601(a) provides little guidance as to what a sufficient investigation consists of. Here, over the course of their investigation regarding grandmother, the GAL interviewed grandmother more than once, conducted home visits at grandmother’s house and reviewed DSS reports including visitation records for grandmother and the children. Grandmother was not prejudiced by a lack of additional communication between her and the GAL. Additionally, the GAL investigated the children’s wishes which includes that the two older children loved their foster home and family and the youngest child could not express her wishes. Distinguishing this case from In re J.C.-B., 276 N.C. App. 180 (2021), the children were significantly younger and there were no conflicting recommendations from the children’s service providers regarding their placement. Even if the children had expressed wishes to return to Grandmother, those wishes are not controlling “since the court must yield in all cases to what it considers to be the child’s best interests[.]” Sl. Op. at 37.
Category:
Abuse, Neglect, DependencyStage:
GAL for ChildTopic: