365 N.C. 533
N.C.2012Background
- Mecklenburg County DSS filed a juvenile petition in Oct 2008 alleging neglect and dependency; non-secure custody was ordered.
- A mental health evaluation was ordered in Feb 2009 but respondent failed to appear; GAL appointed July 2009.
- In Aug 2009, court adjudicated neglect and dependency with reunification goal and concurrent adoption; September 2009 permanency found no progress.
- Petitioner sought to terminate parental rights in Nov 2009; GAL appointed again for the TPR hearing.
- TPR hearing began May 13, 2010; respondent sought to withdraw with counsel but court denied; she proceeded pro se with GAL present.
- After lunch, GAL questioned the court’s competency inquiry; court conducted a more thorough inquiry and found respondent competent to waive counsel; TPR terminated Sept 2010; Court of Appeals vacated, holding §15A-1242 applied; this Court reversed and remanded to decide GAL role.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| GAL role in TPR proceedings | Petitioner: GAL substitution requires consent before waiver. | Respondent: GAL role is assistance; waiver decision rests with respondent. | GAL role to be decided on remand; cannot resolve here. |
| Applicability of § 15A-1242 to TPR | Petitioner: § 15A-1242 applies via criminal standard to TPR. | Respondent: § 15A-1242 not applicable to TPR; WAIVER standards do not transfer. | § 15A-1242 has no application to termination of parental rights. |
Key Cases Cited
- In re Ernst & Young, LLP, 363 N.C. 612 (N.C. 2009) (statutory interpretation standard de novo)
- Fowler v. Valencourt, 334 N.C. 345 (N.C. 1993) (statutory interpretation framework; plain meaning governs)