In re Interest of N. T.

355 Ga.App. 205

843 S.E.2d 877

In the INTEREST OF N. T., a child.

A20A0118

Court of Appeals of Georgia.

May 26, 2020

Randee J. Waldman, for Appellant.

Sherry Boston, District Attorney, Jason Matthew Rea, Assistant District Attorney, for appellee.

Brown, Judge.

After 16-year-old N. T.¹ entered an admission to stabbing a neighbor in the head with a kitchen knife, the Juvenile Court of DeKalb County adjudicated him delinquent for aggravated assault.² Following the adjudication, the juvenile court entered a restitution order, requiring N. T. to pay restitution in the amount of $28,516.16 for medical bills incurred by the victim. N. T. appeals, contending that the juvenile court (1) improperly appointed his delinquency attorney to serve as his guardian ad litem during the restitution hearing, and (2) erred in ordering $28,516.16 in restitution because N. T. lacks the present and future ability to pay this amount. For the reasons that follow, we affirm.³

The facts presented at the disposition hearing show that the victim was walking home late on the evening of January 28, 2019, when he saw N. T. and two other boys knocking on his front door. The three boys approached the victim, began hitting him, and tried to take his hat. After the victim dropped his phone and fell to the ground, the boys beat him up. The victim ran to his apartment and called his friends. When the victim opened the door for his friends, two of the boys grabbed him and held him while N. T. stabbed him in the head. The victim and N. T. lived in the same apartment complex and had seen each other around the complex before the stabbing. The juvenile court adjudicated N. T. delinquent, committed him to the custody of the Department of Juvenile Justice ("DJJ"), and sentenced him to 36 months, with 15 months in restrictive custody, followed by 23 months "under intensive supervision."

At the subsequent restitution hearing, the juvenile court, over objection, appointed N. T.’s delinquency attorney to act as his guardian ad litem after his parents, who had notice of the hearing, did not attend. The State presented uncontroverted evidence that the victim incurred medical bills in the amount of $28,516.64. N. T. also testified at the hearing, stating that he does not have a bank account, has never had a job, and does not own a car or a house, but that he has experience with computers and would like to find work as a software engineer. The juvenile court entered a restitution order, ordering N. T. to pay restitution in the amount of $28,516.16, with payments to begin three months after his release from restrictive custody. The order further specified that "[a]ny payments the victim receives from the Victim's Compensation Fund shall be credited to the amount of restitution owed by [N. T.]."

1. In a compound enumeration of error, N. T. alleges that the juvenile court (a) erred in appointing his delinquency attorney to serve as his guardian ad litem during the restitution hearing, despite the attorney's objection, and (b) abused its discretion in denying his request to continue the restitution hearing until his parents or a DJJ representative could be present to better serve his interests. With respect to the former contention, N. T. contends that the juvenile court (i) failed to determine whether an appropriate parent, guardian, or legal custodian was available to serve N. T.’s best interest; (ii) failed to ascertain whether the appointment of a guardian ad litem was in N. T.’s best interests; and (iii) prevented counsel from performing her required duties to N. T. as guardian ad litem, namely assessing his best interests and determining whether a conflict existed between her duty as counsel and N. T.’s best interests.

(a) OCGA § 15-11-2 (35) defines "guardian ad litem" as "an individual appointed to assist the court in determining the best interests of a child." In delinquency proceedings, the juvenile court

shall appoint a guardian ad litem whenever: (1) An alleged delinquent child appears before the court without his or her parent, guardian, or legal custodian; (2) It appears to the court that a parent, guardian, or legal custodian of an alleged delinquent child is incapable or unwilling to make decisions in the best interests of such child with respect to proceedings under this article such that there may be a conflict of interest between such child and his or her parent, guardian, or legal custodian; or (3) The court finds that it is otherwise in a child's best interests to do so.

OCGA § 15-11-476 (a). Subsection (b) of that Code section further provides that "[t]he role of a guardian ad litem in a delinquency proceeding shall be the same role as provided for in all dependency proceedings under Article 3 of this chapter." OCGA § 15-11-476 (b). In dependency proceedings under Article 3 of Chapter 11, the General Assembly has expressly approved of the dual appointment that occurred here: "An attorney for an alleged dependent child may serve as such child's guardian ad litem unless or until there is conflict of interest between the attorney's duty to such child as such child's attorney and the attorney's considered opinion of such child's best interests as guardian ad litem." OCGA § 15-11-104 (b). As this Court has recognized, "the fundamental duty of both a guardian ad litem and an attorney is to act in the best interests of the party whom they represent." In the Interest of A. P. , 291 Ga. App. 690, 691 (1), 662 S.E.2d 739 (2008).

With this framework in mind, we are unpersuaded by N. T.’s claims for several reasons. First, the law allows the juvenile court to appoint a guardian ad litem when a delinquent child appears before the court without his or her parent, guardian, or legal custodian. In N. T.’s view, the juvenile court was required to find his parents incapable or unwilling to participate in order to appoint a guardian ad litem, but the statute does not require such a finding; it is enough that the child appears without his or her parent, guardian, or legal custodian. Here, the transcript of the restitution hearing reflects that N. T.’s parents were not present even though the State had served them with notice of the hearing. Additionally, both parents were present during the disposition hearing with an interpreter when the juvenile court continued the restitution hearing for 30 days, and, therefore, should have known that the restitution hearing was imminent.

Second, there is no requirement that the juvenile court ascertain whether a representative from DJJ (N. T.’s legal custodian) was present in the courtroom and/or capable or willing to make decisions in N. T.’s best interests.⁴ As set out above, a juvenile court is given broad discretion to appoint a guardian ad litem if it is otherwise in a child's best interests to do so, even in the presence of a parent, guardian, or legal custodian. While the juvenile court did not make the specific findings identified by N. T., a "trial judge is presumed to know the law and presumed to faithfully and lawfully perform the duties devolved upon it by law. And this Court will not presume that the trial court committed error where that fact does not affirmatively appear." (Citation and punctuation omitted.) In the Interest of I. W. , 304 Ga. App. 225, 229 (3), 695 S.E.2d 739 (2010). In this case, we may presume that the juvenile court concluded that N. T.’s delinquency attorney would best serve as his guardian ad litem during the restitution hearing for the purpose of assisting the court in determining what was in his best interests irrespective of DJJ's presence and/or representative capabilities.

Lastly, N. T.’s contention fails because he cannot show that an actual conflict existed. An attorney can serve as both a guardian ad litem and legal representative "unless or until there is conflict of interest between the attorney's duty to such child as such child's attorney and the attorney's considered opinion of such child's best interests as guardian ad litem." (Emphasis supplied.) OCGA § 15-11-104 (b). See In the Interest of J. N. , 344 Ga. App. 409, 410, 810 S.E.2d 191 (2018). See also In the Interest of W. L. H. , 292 Ga. 521, 528 (3), 739 S.E.2d 322 (2013) (Hunstein, C. J., dissenting) (noting that Formal Advisory Opinion No. 10-2 (2012) provides that "[w]hen the same person serves in a dual role as the attorney and guardian ad litem for the child and ‘an irreconcilable conflict’ arises between the child's express wishes and the attorney's considered opinion of the child's best interests, ... the attorney must withdraw from his or her role as the child's guardian ad litem"). Aside from arguing that counsel's hasty appointment as guardian ad litem precluded counsel from assessing whether a conflict of interest existed, N. T. has failed to identify what if any conflict of interest existed or how he was harmed by the dual appointment.⁵ Without such a showing this argument fails. See generally Weems v. State , 268 Ga. 515, 516-517 (3), 491 S.E.2d 325 (1997) (trial court did not err in refusing to disqualify co-defendant's counsel where defendant failed to show how he was harmed by any purported conflict); In the Interest of R. J. , 308 Ga. App. 702, 709 (4), 708 S.E.2d 626 (2011) (rejecting mother's claim that children's interests were not adequately represented during termination hearing where children were represented by guardian ad litem and mother failed to establish harm).

(b) We find no merit in N. T.’s claim that the juvenile court abused its discretion in denying his motion for a continuance. The record reflects that at the close of the disposition hearing, the juvenile court reluctantly continued the restitution hearing for 30 days to allow the State to obtain all necessary evidence related to the victim's medical bills. Delinquency counsel objected to the continuance, arguing that the State should have been prepared at that time to deal with the entirety of N. T.’s case. When the parties convened 30...