In re J.E.B.

376 N.C. 629

853 S.E.2d 424

In the MATTER OF: J.E.B., II

No. 99A20

Supreme Court of North Carolina.

Filed February 5, 2021

Elizabeth Myrick Boone, for petitioner-appellee Gaston County Department of Health and Human Services.

Brian C. Bernhardt, Charlotte, for appellee Guardian ad Litem.

Garron T. Michael, for respondent-appellant mother.

EARLS, Justice.

¶ 1 Respondent-mother appeals from an order entered by Judge John K. Greenlee in District Court, Gaston County, on 21 October 2019 terminating her parental rights in J.E.B., II (Jason).¹ Respondent argues that she was denied a fundamentally fair termination proceeding because her guardian ad litem conducted examinations of some witnesses and, at one point, presented legal arguments on respondent's behalf. In respondent's view, these actions violated N.C.G.S. § 7B-1101.1, which establishes the right of a parent to appointed counsel and, in certain circumstances, to a guardian ad litem in a termination of parental rights proceeding. It further provides that "[t]he parent's counsel shall not be appointed to serve as the guardian ad litem and the guardian ad litem shall not act as the parent's attorney." N.C.G.S. § 7B-1101.1(d) (2019). Because the trial court properly appointed respondent a guardian ad litem and an attorney, both of whom carried out appropriate roles in this matter, we conclude the statute was not violated and we affirm the trial court's order.

I. Background

¶ 2 Jason was placed in the temporary nonsecure custody of the Gaston County Department of Health and Human Services, Division of Social Services (DSS) on 22 November 2017 following a forensic interview during which Jason disclosed that he had been sexually abused by his father's roommate and physically abused by his father. Prior to that point, both respondent and Jason's father had been involved with DSS as a result of concerns of substance abuse and domestic violence.

¶ 3 On 27 March 2018, the trial court entered an adjudication order placing Jason in the legal custody of DSS. The termination order indicates that, at a disposition hearing on 24 April 2018, the trial court ordered respondent to complete a case plan with the following components:

a) Refrain from using/abusing all illegal/mind altering substances; b) Complete an updated Mental Health and Substance Abuse Assessment;

c) Follow any recommendations from the Mental Health and Substance Abuse Assessments;

d) Submit to drug screens as requested;

e) Complete parenting classes;

f) Obtain and maintain safe, appropriate, and stable housing;

g) Obtain a Psychological Assessment;

h) Attend visitations with the juvenile, demonstrate effective parenting skills and display appropriate communication skills in presence of the juvenile;

i) Sign all consents necessary;

j) Refrain from any criminal activity.

The trial court subsequently found that Respondent failed to enter into a case plan, despite being ordered to do so by the court. The trial court changed Jason's primary permanent plan from reunification to adoption in an order filed 9 November 2018, following a hearing on 16 October 2018. Respondent was ultimately served with a termination petition alleging that Jason was a neglected juvenile, that respondent had willfully left Jason in foster care for more than twelve months without making reasonable progress to correct the circumstances that led to his removal from the home, and that respondent was incapable of properly caring for Jason.

¶ 4 At the beginning of the termination proceeding, respondent's appointed attorney, Mr. Kakassy, unsuccessfully attempted to withdraw on the basis of noncooperation, indicating that he had been unable to communicate with respondent and that she did not wish him to continue representing her. The court denied Mr. Kakassy's request to withdraw. In doing so, the court stated the following:

All right. [Respondent,] Mr. Kakassy has been on your underlying case for some period of time, was appointed on this in June. He is very familiar with your case and your situation. You have a Guardian Ad Litem that's been appointed, Mr. Hargett. Both are fully capable, professional attorneys to assist you in this and are fully capable of doing that. So, any motion to have a new attorney appointed or release Mr. Kakassy is denied.

Later, Mr. Kakassy again protested that he would have difficulty proceeding and the trial court stated that Mr. Hargett, respondent's guardian ad litem, was "welcome to ask questions and examine [respondent]" and stated that the group—Mr. Kakassy, Mr. Hargett, and respondent—could determine among themselves what strategy to use to present evidence.

¶ 5 During the proceeding, Mr. Kakassy and Mr. Hargett worked together to represent respondent. At various points, Mr. Hargett cross-examined witnesses, including respondent. At various points, Mr. Kakassy objected on respondent's behalf. At the end of the adjudication stage of the proceeding, Mr. Kakassy requested that DSS dismiss the dependency ground for termination of respondent's parental rights and Mr. Hargett argued on respondent's behalf regarding the remaining two grounds. During the best interests phase of the proceeding, Mr. Kakassy conducted the direct examination of respondent's only witness.

¶ 6 In an order entered on 21 October 2019, the trial court determined that grounds existed to terminate respondent's parental rights with respect to Jason. Respondent filed the instant appeal and argued that Mr. Hargett's actions violated a statutory mandate that a parent's guardian ad litem "shall not act as the parent's attorney." See N.C.G.S. § 7B-1101.1(d). Respondent also asserts in the alternative that, if we do not reverse the termination order on that basis, she received ineffective assistance of counsel. On a motion filed by DSS, respondent's original appeal was dismissed by order of this Court on 7 May 2020. We allowed respondent's petition for a writ of certiorari by order on the same date.

II. Standard of Review

¶ 7 Generally, when this Court reviews a trial court's order terminating parental rights, we review "to determine whether the trial court made sufficient factual findings to support its ultimate findings of fact and conclusions of law, regardless of how they are classified in the order." In re Z.A.M. , 374 N.C. 88, 97, 839 S.E.2d 792, 798 (2020). Factual findings are sufficient if they "are supported by clear, cogent and convincing evidence" in the record. In re Montgomery , 311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984). Here, respondent raises a question of statutory interpretation, which we review de novo. Town of Pinebluff v. Moore Cnty. , 374 N.C. 254, 255–56, 839 S.E.2d 833, 834 (2020) (citing Applewood Props., LLC v. New S. Props., LLC , 366 N.C. 518, 522, 742 S.E.2d 776, 779 (2013) ).

III. Analysis

¶ 8 Respondent raises two arguments on appeal. First, she argues that she was denied a fundamentally fair termination proceeding because her appointed guardian ad litem acted as her attorney. In the alternative, she argues that her appointed counsel provided ineffective assistance. We address each argument in turn.

A. Guardian ad litem

¶ 9 In a hearing to determine the termination of parental rights, "[t]he parent has the right to counsel, and to appointed counsel in cases of indigency, unless the parent waives the right." N.C.G.S. § 7B-1101.1(a). In certain circumstances, the parent may also be appointed a guardian ad litem. N.C.G.S. § 7B-1101.1(b) – (c). If a guardian ad litem is appointed for the parent, "[t]he parent's counsel shall not be appointed to serve as the guardian ad litem and the guardian ad litem shall not act as the parent's attorney." N.C.G.S. § 7B-1101.1(d). Respondent urges us to interpret subsection (d) to mean that a guardian ad litem shall not perform the functions of an attorney, so that the statute is violated where a guardian ad litem conducts examinations or performs similar acts. DSS, on the other hand, argues that the statute merely precludes one person from being appointed both as a parent's counsel and as a parent's guardian ad litem.

¶ 10 A parent whose rights are considered in a termination of parental rights proceeding must be provided "with fundamentally fair procedures" consistent with the Due Process Clause of the Fourteenth Amendment. In re Murphy , 105 N.C. App. 651, 653, 414 S.E.2d 396, 397 (quoting Santosky v. Kramer , 455 U.S. 745, 754, 102 S. Ct. 1388, 1395, 71 L.Ed.2d 599 (1982) ), aff'd per curiam , 332 N.C. 663, 422 S.E.2d 577 (1992). Respondent argues that the trial court violated the statute and rendered the proceeding fundamentally unfair by "permitting [her guardian ad litem] to act in the role of [her] parent attorney throughout the termination proceeding." As a result, we must consider whether the actions of respondent's guardian ad litem amounted to acting as the parent's attorney within the meaning of the statute.

¶ 11 "The goal of statutory interpretation is to determine the meaning that the legislature intended upon the statute's enactment." State v. Rankin , 371 N.C. 885, 889, 821 S.E.2d 787, 792 (2018). When the meaning is clear from the statute's plain language, we "give effect to the plain meaning of the statute, and judicial construction of legislative intent is not required." Winkler v. N.C. State Bd. of Plumbing , 374 N.C. 726, 730, 843 S.E.2d 207, 210 (2020) (citation omitted). However, when the language is ambiguous, we must ascertain the General Assembly's intent. Id. "The intent of the General Assembly may be found first from the plain language of the statute, then from the legislative history, the spirit of the act and what the act seeks to accomplish."

Rankin , 371 N.C. at 889, 821 S.E.2d at 792 (citation omitted). When we are determining legislative intent, "the words and phrases of a statute must be interpreted contextually, in a manner which harmonizes with the other provisions of the statute and which gives effect to the reason and purpose of the statute." Burgess v. Your House...