In Re: J.L.H

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-575 NORTH CAROLINA COURT OF APPEALS Filed: 15 November 2011 IN THE MATTER OF: J.L.H. Onslow County No. 10 J 54 Appeal by respondent father from order entered 9 March 2011 by Judge Louis F. Foy, Jr., in Onslow County District Court. Heard in the Court of Appeals 24 October 2011. No brief filed on behalf of petitioner-appellee mother. Ryan McKaig for respondent-appellant father. BRYANT, Judge. Respondent terminating his father appeals parental rights from to the his trial court s minor child, order Johnny1. Since the trial court failed to appoint a guardian ad litem for the minor child, we reverse and remand for a new termination hearing. Facts and Procedural History 1 Pseudonyms have been used throughout to protect the identity of the juvenile. -2Respondent father and petitioner mother are the biological parents of Johnny, born on 26 September 2006. petitioner were never married. filed a petition to Respondent and On 1 April 2010, the petitioner terminate respondent s parental rights, alleging as grounds: (1) neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1); (2) failure to establish paternity or legitimate the child pursuant to N.C. Gen. Stat. § 7B-1111 (a)(5); and, (3) willful abandonment pursuant to N.C. Gen. Stat. § 7B-1111(a)(7). On 6 January certain 2011, grounds respondent existed filed to justify conducted a an answer the denying termination that of his parental rights. The trial court February 2011. termination hearing on 24 Respondent, who was in the military, was not present at the hearing due to being stationed in another state, but was represented by counsel. After hearing testimony from petitioner, the trial court determined that grounds existed to terminate respondent s rights as alleged in the petition. trial court also determined that termination of The respondent s parental rights was in the best interests of the minor child. From the order terminating his parental appeals. _________________________ rights, respondent -3On appeal, respondent argues that the trial court erred in failing to appoint a guardian ad litem for Johnny pursuant to N.C. Gen. Stat. § 7B-1108. We agree. The Juvenile Code provides in pertinent part that: If 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, unless the petition or motion was filed by the guardian ad litem pursuant to G.S. 7B-1103, or a guardian ad litem has already been appointed pursuant to G.S. 7B-601. N.C. Gen. Stat. Court has held § 7B-1108(b) (2009) that failure to (emphasis added). appoint a guardian This ad litem pursuant to this section amounts to reversible error. In re J.L.S., 168 N.C. App. 721, 723, 608 S.E.2d 823, 824 (2005). Based on the record before us, there is no indication the trial court appointed a guardian ad litem to represent the best interests of the minor child, even though respondent filed an answer to the petition to terminate his parental rights denying the material allegations contained in the petition. Further, despite the fact that respondent s answer to the termination petition was not filed until many months after the petition was filed, the late answer did not absolve the trial court of its duty to appoint a guardian ad litem for the minor child. See In -4re J.L.S. at 723, 608 S.E.2d at 825. In In re J.L.S., the respondent filed a response to the termination petition on the day of the termination hearing, more than thirty days after the petition was filed. Id. This Court concluded that the best interests of the minor child must be protected, particularly in a private termination action where one parent seeks to terminate the parental rights of the other parent, as in the instant case. Id. Thus, this Court refuse[d] to penalize the minor child for the late filing of the response. Id. In keeping with the holding in In re J.L.S., we conclude that the trial court erred by failing to appoint a guardian ad litem for the minor child after respondent filed a response denying the allegations in the termination petition. Here, the record reflects the appointment of an attorney to serve as an attorney advocate for the juvenile. However, this Court has found that the appointment of an attorney advocate is not sufficient to satisfy the requirement of a guardian ad litem when one is required. In re R.A.H., 171 N.C. App. 427, 431, 614 S.E.2d 382, 385 (2005) (stating that [t]he functions of the guardian ad litem and the attorney advocate are not sufficiently similar to allow one to pinch hit for the other when the best interest of a juvenile is at stake. ). Accordingly, we reverse -5the order of the trial court terminating respondent s parental rights to J.L.H. and remand for appointment of a guardian ad litem for the minor child and a new termination hearing. re J.L.S. at 723, 608 S.E.2d at 825. Reversed and remanded. Judge Elmore and Ervin concur. Report per Rule 30(e). See In

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