365 N.C. 171
N.C.2011Background
- DSS filed a juvenile petition January 25, 2007, alleging neglect and dependency; a nonsecure custody order placed custody with DSS.
- A GAL (Terry Helms) and an attorney advocate (Donna Wright) were appointed shortly after; dispositional hearing on March 16, 2007 found the juveniles neglected and dependent.
- TPR petitions were filed November 15, 2007 and a second round July 31, 2008; Karen Moorefield replaced Helms as GAL on December 16, 2008; Wright continued as attorney advocate.
- TPR hearing occurred July 14–15, 2009; trial court terminated parental rights citing father's limited compliance, incarcerations, and ongoing substance abuse concerns; court found a likelihood of repetition of neglect and best interests favored termination.
- Court of Appeals held GAL non-attorney volunteer must be physically present at TPR hearing; NC Supreme Court reversed, holding GAL program represents the juvenile and nonlawyer GAL volunteers need not appear in court if the program fulfills its duties.
- Statutory framework (7B-601, 7B-1108, 7B-1200) authorizes a GAL program with a nonlawyer volunteer, an attorney advocate, and program staff; representation is through the GAL program rather than mandatory in-court appearance by the volunteer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the nonlawyer GAL volunteer must be physically present at a TPR hearing. | Father argues GAL must be present. | GAL program argues representation occurs via the GAL team and reports. | No; GAL representation satisfies the statute without requiring in-court presence. |
| Whether the statutory scheme requires in-court appearance by the GAL volunteer at a TPR hearing. | Court of Appeals deemed presence essential for representation. | Statutes permit representation by the GAL program and attorney advocate acting in court. | Yes, representation is satisfied through the GAL program's duties and team, not mandatory appearance by the volunteer. |
Key Cases Cited
- In re J.H.K., N.C.App. , 695 S.E.2d 162 (2010) (Court of Appeals finding GAL must be present; reversed by supreme court)
- In re R.A.H., 171 N.C.App. 427, 614 S.E.2d 382 (2005) (distinguishes GAL representation concepts)
- In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981) (traditional GAL authority to defend minors; use of counsel)
- Hamlin v. Hamlin, 302 N.C. 478, 276 S.E.2d 381 (1981) (proximate relationship between representation and counsel)
- New Hanover Cnty. v. Sidbury, 225 N.C. 679, 36 S.E.2d 242 (1945) (historical view of representation and appearance)