In re S.D.H., _ N.C. App. _ (November 5, 2024)

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Held:

Vacated and Remanded

Facts: Paternal grandparents were ordered legal custody of Respondent-Father’s two minor children by Virginia and North Carolina courts (the juveniles have different mothers who are not parties to this appeal). Grandparents (Petitioners) filed a petition to terminate Respondent-Father’s parental rights based on neglect, nonsupport, and willful abandonment. An attorney was appointed in the dual role as GAL and attorney advocate for the children. Petitioners and Respondent presented evidence at the hearing, but the GAL did not testify, submit written reports, or make recommendations to the court. The GAL did present an argument as attorney advocate. The trial court adjudicated the grounds to TPR and found termination to be in the children’s best interests. Father appeals the disposition, arguing that the trial court abused its discretion by ruling termination to be in the children’s best interest absent any evidence presented by the GAL.
Appellate review of a trial court’s determination of a juvenile’s best interest at the dispositional stage of a TPR action is reviewed for abuse of discretion. G.S. 7B-1110(a) requires the trial court to consider factors and make written findings regarding those that are relevant in its best interest analysis.
Whether a trial court followed a statutory mandate is a question of law automatically preserved for appeal and reviewed de novo. “A statutory mandate that automatically preserves an issue for appellate review is one that, either: (1) requires a specific act by a trial judge; or (2) leaves no doubt that the legislature intended to place the responsibility on the judge presiding at the trial, or at specific courtroom proceedings that the trial judge has authority to direct.” Sl. Op. at 12 (citation omitted). G.S. 7B-1108 requires the appointment of a GAL in two circumstances, one of which applies here: when an answer is filed that denies a material allegation in the TPR petition. The GAL ensures the juvenile’s best interests are represented in a contested TPR proceeding. The duties of a GAL are prescribed by G.S. 7B-601(a) and require the GAL to make an investigation to determine the best interests of the child and offer evidence recommending the best course of action to the court. The attorney advocate is a separate and distinct role responsible for providing legal advice and assistance to the GAL representing the minor child. “When ‘a child [is] not represented by a guardian ad litem at a critical stage of the termination proceedings,’ we ‘must presume prejudice.’ ” Sl. Op. at 14 (citing In re R.A.H., 171 N.C. App. 427, 431 (2005)). In those instances, the appropriate action is for the trial court to terminate the hearing and set a new hearing date giving an appointed GAL sufficient time to perform their statutorily prescribed duties.
The trial court abused its discretion by ruling on disposition absent evidence from the GAL. The court of appeals agreed with Father’s argument that the trial court failed to comply with a statutory mandate as the “the Juvenile Code imposes an implicit duty upon the trial court to ensure the role(s) of the guardian ad litem are performed as required by statute.” Sl. Op. at 16. “In juvenile cases where a guardian ad litem is required, a trial court cannot properly consider all relevant criteria set out in Section 7B-1110(a) where it wholly lacks evidence from the guardian ad litem for the juveniles.” Sl. Op. at 19. The GAL in a termination proceeding must provide evidence to aid the court in determining the child’s best interests and to provide a basis for appellate review. The court makes this case analogous to In re R.A.H., 171 N.C. App. 427, where the GAL was not appointed by the trial court until four days into the TPR hearing, and therefore no pretrial investigation was completed or reports produced for the record. In In re R.A.H., the court of appeals held that the juvenile’s best interest was not represented by the GAL at a critical stage of the proceeding, prejudice was presumed, and a new hearing was ordered to give the GAL sufficient time to perform their duties. Here, the record provides no evidence of a pre-trial investigation or prepared reports submitted by the GAL to the court to consider in its disposition ruling. The court of appeals held that the trial court could not have reached a reasoned decision absent evidence from the GAL. As in In re R.A.H., the trial court should have terminated the proceeding, instructed the GAL to perform its duties, and set a later hearing to allow the GAL to investigate and develop best interest recommendations for the court to make a reasoned decision at disposition. The court of appeals remanded the case for a new disposition hearing and did not consider Father’s argument that the trial court failed to consider relevant best interest factors.