Opinion
No. COA10-1478
Filed 3 May 2011 This case not for publication
Appeal by respondent-mother from order entered 21 September 2010 by Judge Michael A. Sabiston in Randolph County District Court. Heard in the Court of Appeals 25 April 2011.
Erica Glass McDoe for petitioner-appellee Randolph County Department of Social Services. Charlotte Gail Blake for respondent-appellant mother.
Randolph County No. 07 JA 206.
Because the trial court failed to include a minimum outline of the conditions under which visitation may be exercised, we reverse and remand the trial court's permanency planning order. However, because respondent-mother does not show that she was prejudiced by the trial court's failure to appoint a guardian ad litem for the juvenile, we will not reverse the permanency planning order for the failure to appoint the guardian ad litem.
On 31 December 2007, the Randolph County Department of Social Services ("ADSS") filed a petition alleging that H.K.L. was a dependent juvenile. DSS claimed that the respondent-mother, who was a minor in the custody of DSS, had "significant mental health issues" which had "resulted in self injurious behaviors in the past and multiple hospitalizations." Furthermore, at the time the petition was filed, respondent-mother had no independent housing and was unemployed. The putative father of H.K.L. had not provided support for respondent-mother or the child, and was likewise unemployed and without independent housing. DSS alleged that H.K.L. was a dependent juvenile: respondent-mother and father were unable to provide for H.K.L.'s care or supervision and there was no appropriate alternative child care arrangement. In an order entered 2 January 2008, DSS obtained non-secure custody of H.K.L.
Initials have been used throughout to protect the identity of the juvenile.
On 19 March 2008, with the consent of all the parties, H.K.L. was adjudicated dependent. The minor child was initially placed together with the respondent-mother in a maternity home. Subsequently, however, the respondent-mother left the maternity home, and H.K.L. was placed in foster care.
On 4 May 2009, DSS filed a motion to terminate respondent-mother and the father's parental rights. Respondent-mother's and the father filed separate answers denying material allegations contained in the motion. Based on the denials and pursuant to N.C. Gen. Stat. § 7B-1108(b), the trial court appointed a guardian ad litem for H.K.L.
Following a 23 September 2009 adjudication hearing and 28 October 2009 disposition hearing, on 19 February 2010, the trial court entered separate adjudication and disposition orders on the motion to terminate parental rights. In the adjudication order, the trial court found that the father and respondent-mother satisfied the requirements for termination of parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (a)(2), (a)(3), and (a)(6). In its disposition order, the trial court concluded that while it was in the juvenile's best interests to terminate the father's parental rights, it was not in the best interests of the juvenile to terminate respondent-mother's parental rights. Accordingly, the trial court terminated the father's parental rights but denied the motion to terminate the rights of respondent-mother.
Following the denial of the motion to terminate respondent-mother's parental rights, H.K.L. continued to reside in the same foster home where the juvenile had been placed in June 2008. The permanent plan for H.K.L. was modified to reunification with a concurrent plan of guardianship. On 30 June 2010, the trial court held a permanency planning review hearing, at which, it changed the permanent plan to guardianship and then granted guardianship to H.K.L.'s foster-mother. Respondent-mother appeals.
Respondent-mother raises two questions on appeal: Did the trial court err and abuse its discretion in (I) granting the parties discretion over the conditions of visitation; and (II) conducting a permanency planning and review hearing without a guardian ad litem to represent H.K.L.
I
First, respondent-mother argues that the trial court erred by failing to provide specificity regarding the details of her visitation rights with the juvenile. The trial court provided in its order that visitation "occur a minimum of once per month with the understanding that it can be arranged between the [respondent-mother] and the legal guardian[.]" Respondent-mother contends that the visitation plan approved by the trial court fails to comply with the minimum requirements established in In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005). We agree.
North Carolina General Statutes, section 7B-905(c), provides that any dispositional order which leaves the minor child in a placement "outside the home shall provide for appropriate visitation as may be in the best interests of the juvenile and consistent with the juvenile's health and safety." N.C. Gen. Stat. § 7B-905(c) (2009). This Court has held that "[a]n appropriate visitation plan" in compliance with N.C. Gen. Stat. § 7B-905(c) "must provide for a minimum outline of visitation, such as the time, place, and conditions under which visitation may be exercised." In re E.C., 174 N.C. App. at 523, 621 S.E.2d at 652 (emphasis added) (citation omitted). Further, "[t]he awarding of visitation of a child is an exercise of a judicial function, and a trial court may not delegate this function to the custodian of a child." Id. at 522, 621 S.E.2d at 652 (citation omitted). Here, the order for visitation allows for one visit per month but provides no other details such as the time, place, or conditions under which the visitation is to take place. The court's order allows the parties the authority to create the criteria upon which the visitations will occur. As such, the order constitutes an impermissible delegation of the court's authority under N.C. Gen. Stat. § 7B-905. See In Re Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844, 849 (1971). Accordingly, the trial court's order is reversed and remanded for entry of an order setting forth a minimum outline of visitation, such as the time, place, and conditions under which visitation may be exercised.
II
Next, respondent-mother argues that the trial court erred in conducting a permanency planning review hearing in the absence of a guardian ad litem appointed to represent H.K.L.
Prior to the termination hearing, the trial court appointed a guardian ad litem for H.K.L. in accordance with the provisions of N.C. Gen. Stat. § 7B-1108(b). Under section 7B-1108(b), "[i]f an answer or response denies any material allegation of the petition or motion, the court shall appoint a guardian ad litem for the juvenile to represent the best interests of the juvenile. . . ." N.C.G.S. § 7B-1108(b) (2009); see also N.C.G.S. § 7B-601(a) (2009) ("The guardian ad litem and attorney advocate have standing to represent the juvenile in all actions under this Subchapter where they have been appointed."). The guardian ad litem represented the juvenile at both the adjudication and disposition hearings on the motion to terminate respondent-mother's parental rights. However, following the denial of the motion to terminate respondent-mother's parental rights, the guardian ad litem failed to continue representing the juvenile at subsequent hearings.
Pursuant to N.C. Gen. Stat. § 7B-1108(b), "[t]he appointment, duties, and payment of the guardian ad litem shall be the same as in G.S. 7B-601 and G.S. 7B-603." N.C.G.S. § 7B-1108(b). Section 7B-601(a) states that "[t]he appointment shall terminate when the permanent plan has been achieved for the juvenile and approved by the court." N.C.G.S. § 7B-601(a) (emphasis added). Here, the motion to terminate respondent-mother's parental rights was denied on 19 February 2010, and the permanent plan of adoption was not achieved at the termination hearing. On 30 June 2010, the trial court conducted a permanency planning review hearing and, on 21 September 2010, entered a permanency planning review order which modified the permanent plan to guardianship. According to the plain language of `§ 7B-1108 and 7B-601, the guardian ad litem's appointment did not terminate until the permanent plan had been achieved for H.K.L. and approved by the court. Consequently, the guardian ad litem was required to continue to represent H.K.L. at the permanency planning review hearing. However, we do not believe that, standing alone, the failure to adhere to the requirement during a permanency planning hearing warrants reversal and, as such, the matter is subject to harmless error review. See In re T.D.W., ___ N.C. App. ___, ___, 692 S.E.2d 177, 181 (2010) (holding that the respondent-mother was not prejudiced by the failure to mechanically adhere to the notice requirement in a termination of parental rights action); compare In re O.C., 171 N.C. App. 457, 615 S.E.2d 391 (2005) (holding that an order terminating parental rights should not be reversed where the trial court failed to appoint a guardian ad litem for the respondent-mother during the adjudicatory proceedings prior to the termination proceeding). In the instant case, respondent-mother neither asserts nor argues prejudice as a result of the absence of a guardian ad litem at the permanency planning hearing. Accordingly, this argument is overruled.
Reversed and remanded in part; affirmed in part.
Chief Judge MARTIN and Judge STEPHENS concur.