Clark, In re, 136

• Decision Date: 17 August 1981
• Docket Number: No. 136,136
• Parties: In re Kim CLARK, a minor child.
• Court: North Carolina Supreme Court

Page 47

281 S.E.2d 47

303 N.C. 592

In re Kim CLARK, a minor child.

No. 136.

Supreme Court of North Carolina.

Aug. 17, 1981.

Revelle, Burleson, Lee & Revelle by L. Frank Burleson, Jr., Murfreesboro, for petitioner-appellant.

Jenkins & Jenkins by Robert C. Jenkins, Ahoskie, guardian ad litem for respondent-appellee Kim Clark, a minor child.

Gram & Baker by Ronald G. Baker, Ahoskie, guardian ad litem for respondent-appellee Vernice Clark, a minor parent.

Rufus L. Edmisten, Atty. Gen., amicus curiae by Blackwell M. Brogden, Jr., Associate Atty., Raleigh.

MEYER, Justice.

At issue in this case is the constitutionality of Subsection (4) of G.S. § 7A-289.32 which permits the termination of the parental rights of a parent when the child has been placed in the custody of a county department of social services and the parent, for a continuous period of six months next preceding the filing of the petition, has failed to pay a reasonable portion of the cost of care for the child. We find no constitutional defect in G.S. § 7A-289.32(4). The conclusion of the trial judge that the statute is unconstitutional was therefore erroneous, and his dismissal of the petition for termination of parental rights for failure to state a claim upon which relief may be granted is reversed.

This appeal concerns the dismissal of an action brought by a county department of social services to terminate the parental rights of the biological mother and putative father of a minor child approximately twenty-two months old born out of wedlock. The child has been in the custody of the DSS since it was approximately ten months old. Williford, J., dismissed the petition of the DSS upon his findings and conclusions of three independent constitutional defects in the general statutes authorizing the petition, the Termination of Parental Rights Act, Chapter 7A, Article 24B, of the General Statutes (hereinafter "the Act"). The default of the putative father has been entered and his rights are not a subject of this appeal.

The factual background to the present appeal is as follows: On 2 February 1979 as the result of DSS filing a juvenile petition alleging that Kim Clark, at that time ten months old, was a neglected child as defined by G.S. § 7A-278(4), and alleging that Vernice Clark, the child's mother was a minor and mentally deficient, Judge Williford issued an order placing the child's physical custody with DSS. The order was executed by the Hertford County Sheriff's Department on that same date and Kim Clark was placed in a foster home by DSS.

A hearing was held on 16 February 1979 at which Vernice Clark was present and at which Kim Clark was represented by a court-appointed attorney. The court found that Kim Clark was a neglected child as defined by G.S. § 7A-278(4) and custody of Kim Clark was continued in the DSS.

DSS filed a motion for review, and on 22 August 1979, Judge Williford continued custody in DSS and the child remained in foster care.

On 26 February 1980, and in a separate proceeding, DSS petitioned the Hertford County District Court to terminate the parental rights of the biological father, McCoy Futrell, and of the respondent-mother Vernice Clark in their minor child, Kim Clark.

DSS relied only upon G.S. § 7A-289.32(4) as grounds for termination of the mother's parental rights to her minor child and alleged:

11. The child has been placed in the custody of the Hertford County Department of Social Services and the mother, for a continuous period of six months next preceding the filing of this petition, has failed to pay a reasonable portion of the cost of care for the child.

In an ex parte order, Long, C. J., of the District Court for the Sixth Judicial District, made the preliminary jurisdiction determination required by G.S. § 7A-289.23.

Even though the mother of the child was over fourteen years of age, she was an infant, and DSS, upon information and belief, alleged that she was not sui juris. In his ex parte order determining jurisdiction, Judge Long found as facts that Vernice Clark was an infant, was not sui juris, and had no general or testamentary guardian in North Carolina. Judge Long thereupon appointed Ronald G. Baker, an attorney at law, as guardian ad litem for Vernice Clark.

The petition, the ex parte order, and the summons were duly served upon Vernice Clark and upon her guardian ad litem.

Vernice Clark's guardian ad litem in apt time filed an answer denying material allegations of the petition. Pursuant to G.S. § 7A-289.29(b), Judge Williford appointed Robert C. Jenkins, an attorney at law, as guardian ad litem for Kim Clark, the minor child. A copy of the petition and a copy of the answer of Vernice Clark's guardian ad litem were mailed to Mr. Jenkins by the Clerk of Superior Court, Hertford County and to the other parties.

The special hearing required by G.S. § 7A-289.29(b) was scheduled and rescheduled several times. Meanwhile, Vernice Clark's guardian ad litem was permitted by the court to file an amendment to her answer, and Kim Clark's guardian ad litem was permitted by the court to file an answer after the original time for answering had expired.

The special hearing ultimately was scheduled for 15 August 1980 at the Hertford County Courthouse, Winton, North Carolina, before Judge Williford presiding at that Session of District Court, Hertford County.

At the call of the matter for hearing, each of the guardians ad litem orally moved Judge Williford pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure to dismiss the entire proceeding as to the mother and the child on the grounds that the petition failed to state a claim upon which relief can be granted because the Act contravenes the Constitutions of the State of North Carolina and of the United States in that (1) the indigent mother and child are denied the right to appointed counsel to represent them in these revocation proceedings, (2) trial by jury in these proceedings is denied, and (3) each statutory ground in G.S. § 7A-289.32 for terminating parental rights is overly broad and vague.

After taking the matter under advisement, Judge Williford again heard it in open court on 7 October 1980. He concluded as a matter of law that the motion to dismiss should be granted because, alternatively, the Act unconstitutionally (I) deprives the indigent parent and child the right of counsel, (II) denies trial by jury in these proceedings, and (III) each of the statutory grounds for revocation of parental rights is unconstitutionally vague and overbroad. Judge Williford then ordered that the proceeding be dismissed on the basis of each of his alternative conclusions of law.

We now consider the three constitutional issues raised by the order dismissing the proceeding.

I.

The first assignment of error is that the trial court erred in concluding as a matter of law that the Act unconstitutionally deprives the parent and the child the right to counsel in that it makes no provision for appointment and payment of counsel "in such a case as is now before the court." We interpret the quoted language to refer to a case where the indigent respondent-mother is either a minor or not sui juris or both and where, as here, the minor child is obviously indigent. We believe the trial court erred in dismissing the action on that basis.

We acknowledge that after this case was filed and argued before this Court our legislature adopted Chapter 966 of the Session Laws of 1981. This act amends G.S. §§ 7A-289.23, 7A-289.27, 7A-289.30 and 7A-451(a) to provide inter alia that in such cases a parent has a right to counsel and to appointed counsel in case of indigency unless the parent waives the right. The amendment further requires that a guardian ad litem be appointed to represent a parent where that parent suffers a diminished mental capacity as defined by G.S. § 7A-289.32(7) or is a minor. The amendment also provides that fees of appointed counsel shall be borne by the Administrative Office of the Courts. Clearly the mother here would have been entitled to appointed counsel under the terms of this recent amendment had the provisions of the amendment been effective when the petition before us was filed. ¹ Since this amendment was not then effective we must determine whether the indigent ² respondent-mother was entitled to appointed counsel in the absence of such a statutory provision.

We recognize that G.S. 7A-289.29(b) requires that a guardian ad litem who is an attorney be appointed for the child only if an answer is filed denying the material allegations of the petition. This language does not prevent the application of other pertinent statutory provisions. Whether or not the Act requires it, appointment of a guardian ad litem for both the minor respondent-mother and her minor child is mandated by G.S. 1A-1, Rule 17(c), Rules of Civil Procedure. ³

"The appointment of the guardian ad litem is to protect the interest of the infant defendant at every stage of the proceeding." 7 Strong's N.C. Index 3d, Infants § 9, p. 202. "The guardian ad litem may prepare the answer himself or employ an attorney to represent the infant ...." McIntosh, N.C. Practice and Procedure, (Wilson & Wilson Ed.) § 693(d) (1956), citing former G.S. 1-67 (now found in parts of G.S. 7A-305 and G.S. 7A-306), and Hood v. Cheshire, 211 N.C. 103, 189 S.E. 189 (1937).

Thus, under the statutory law and traditional practice of this State, the minor parties to a civil action or a special proceeding must be represented by a guardian ad litem who may defend pro se or employ counsel. A traditional practice has been to appoint licensed attorneys as guardians ad litem, and, even then, in the more complicated matters, for the guardian to employ separate counsel.

Even though the respondent-mother was over fourteen years of age, ⁴ she was an infant and alleged to be not sui juris. In his ex parte order, Judge Long, finding as facts that she was an infant, not sui juris and had no...