An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-674
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 4 February 2014


IN THE MATTER OF:

A.P.                                          Durham County
                                              No. 11 J 98



       Appeal by Respondent-Father from orders entered 20 February

2012 and 20 February 2013 by Judge Brian C. Wilks in District

Court, Durham County.          Heard in the Court of Appeals 7 January

2014.


       Assistant   County  Attorney Bettyna  Belly  Abney for
       Petitioner-Appellee Durham County Department of Social
       Services.

       Sandlin & Davidian, PA, by Debra A. Griffiths, for Guardian
       ad Litem.

       J. Thomas Diepenbrock for Respondent-Appellant Father.



       McGEE, Judge.


       Respondent-Father appeals from the district court’s orders

ceasing reunification and terminating his parental rights as to

his daughter (“the child”).          We affirm.
                                    -2-
      Respondent-Father and Respondent-Mother are the parents of

the child, born 8 February 2011.            On 24 March 2011, the Durham

County Department of Social Services (“DSS”) filed a juvenile

petition alleging that the child was a neglected and dependent

juvenile.      DSS took nonsecure custody of the child.

      In   a   separate   action,   H.B.,    the    father    of   Respondent-

Father, filed a petition in Superior Court, Durham County for

guardianship of Respondent-Father.          The Clerk of Court of Durham

County, pursuant to Chapter 35A of the North Carolina General

Statutes,      found   Respondent-Father     “incompetent     to    a   limited

extent”    and   appointed   H.B.   as     guardian     of   the   person   for

Respondent-Father in an order filed 7 April 2011.

      By order filed 22 August 2011, the trial court adjudicated

the child a neglected and dependent juvenile.                The trial court

also found that        Respondent-Father’s whereabouts were unknown.

At that time, paternity had not yet been officially established,

and   Respondent-Father      was    referred       to   as   the    “putative”

Respondent-Father.        The trial court held subsequent permanency

planning hearings and,       on 20 February 2012, the              trial court

ceased reunification efforts with putative Respondent-Father.

      DSS filed a motion to terminate the               parental    rights of

Respondent-Mother and Respondent-Father, as the putative father,
                                          -3-
in April 2012, alleging failure of putative Respondent-Father to

establish        paternity,       legitimate,        or     provide        substantial

financial support to the child, and abandonment.                         In July 2012,

Respondent-Father was located at the Durham County Jail and was

personally served with a summons and petition.                     A paternity test

conducted       in   August     2012   confirmed     Respondent-Father           as    the

father of the child.

       Respondent-Father informed DSS that H.B. was his guardian.

DSS amended its motion to terminate parental rights in October

2012.       DSS alleged that the Durham County Clerk of Superior

Court had found Respondent-Father to be incompetent to a limited

extent;     that     Respondent-Father          sustained     a    traumatic      brain

injury in a car accident; and that due to the head trauma,

Respondent–Father had           been diagnosed with psychotic disorder,

mood    disorder,      and    mild     mental   retardation.             DSS   added    as

grounds for termination neglect, and that Respondent-Father was

incapable of providing for the proper care and supervision of

the child such that the child was a dependent child pursuant to

N.C. Gen. Stat. § 7B-1111(a)(6) (2011).

       On   5    December     2012,    the   trial    court       held    a    pre-trial

hearing on the motion to terminate Respondent-Father’s parental

rights.         Counsel   for    Respondent-Father        moved     to     dismiss     the
                                      -4-
motion to terminate based upon lack of personal jurisdiction

over Respondent-Father. The trial court ordered that the motion

to dismiss be heard on 10 December 2012 and set the termination

hearing for 11 December 2012.

       At the motion to dismiss hearing, the trial court heard

arguments from counsel, denied the motion, and stated that “the

case    will     proceed   to   hearing     [on   the    termination    motion]

tomorrow   morning.”       At   the   hearing,    counsel    for   Respondent-

Father orally moved for the appointment of a guardian ad litem

(“GAL”)    for    Respondent-Father    pursuant     to   Chapter   7B   of   the

North Carolina General Statutes, in light of Respondent-Father’s

diminished capacity.       The trial court denied the motion, stating

“there is a limited guardian ad litem1 appointed in the case.

The case will not be delayed at this late date[.]”

       When the termination hearing was called the next morning,

the GAL for the minor child asked the trial court to “clarify

for the record” its ruling on the motion for the appointment of

a GAL for Respondent-Father.          The trial court quoted from N.C.

Gen. Stat. § 7B-1101.1(c) and then stated:

            Considering [7B-1101.1(c)] and the fact that
            the Court may appoint, there are some

1
  The trial court refers to H.B. as a “limited guardian ad
litem.” The trial court should have simply referred to H.B. as
Respondent-Father’s “guardian.”
                                       -5-
          instances in which the Court does not have
          to appoint, pursuant to that statute.    And
          the Court finds that this is one of those
          situations where the father already has a
          Guardian ad Litem appointed, a limited
          Guardian ad Litem appointed, that being his
          father   [H.B]  who  was   properly  served,
          pursuant to the hearing yesterday, properly
          served with the motion to terminate parental
          rights.   He was served with that motion on
          November the 1st.    He was appointed as a
          limited guardian on April 7th, 2011, before
          the Honorable Archie Smith, the Clerk of
          Durham County Court.        Mr. Smith made
          findings of fact, appointed him as a limited
          Guardian ad Litem of [Respondent-Father] and
          made specific findings.    The Court has no
          record that that guardianship has been
          terminated, so [H.B.] is still a limited
          guardian for [Respondent-Father].    Because
          he has a limited guardian, and because 7B-
          1101.1(c) says that the Court may appoint,
          the Court does not find that an additional
          guardian is needed in this particular case,
          because one already exists for [Respondent-
          Father].

    The trial court proceeded with the termination hearing.                      By

order   filed    20    February      2013,       the   trial   court   terminated

Respondent-Father’s parental rights.               Respondent-Father appeals.

    In his sole argument on appeal, Respondent-Father contends

the trial court erred by not inquiring into his competency and

by not appointing a GAL.        We disagree.

    Appointment       of   a   GAL   for     a   parent   in   a   termination   of

parental rights proceeding is governed by N.C. Gen. Stat. § 7B-

1101.1 (2011).        Subsection (c) of the statute provides:
                                     -6-
              On motion of any party or on the court's own
              motion, the court may appoint a guardian ad
              litem for a parent in accordance with G.S.
              1A–1, Rule 17 if the court determines that
              there is a reasonable basis to believe that
              the parent is incompetent or has diminished
              capacity and cannot adequately act in his or
              her own interest.      The parent's counsel
              shall not be appointed to serve as the
              guardian ad litem.

N.C. Gen. Stat. § 7B-1101.1(c) (2011) (emphasis added).          Rule 17

states in relevant part:

              In actions or special proceedings when any
              of the defendants are       . . . incompetent
              persons,   . . . they must defend by general
              or testamentary guardian, if they have any
              within this State or by guardian ad litem
              appointed as hereinafter provided; and if
              they have no known general or testamentary
              guardian in the State, and any of them have
              been summoned, the court in which said
              action or special proceeding is pending,
              upon motion of any of the parties, may
              appoint some discreet person to act as
              guardian ad litem, to defend in behalf of
              such . . . incompetent persons[.]

N.C.   Gen.    Stat.   §   1A-1,   Rule    17(b)(2)   (2013).   When   the

incompetent person already has a general guardian, the trial

court still has the discretion to appoint a GAL if the trial

court determines such appointment “expedient.”

              Notwithstanding     the     provisions     of
              subsections (b)(1) and (b)(2), a guardian ad
              litem for an    . . . incompetent person may
              be appointed in any case when it is deemed
              by the court in which the action is pending
              expedient to have the       . . . incompetent
                                             -7-
              person so represented, notwithstanding such
              person may have a general or testamentary
              guardian.

N.C.G.S. § 1A-1, Rule 17(b)(3).

    In    the        present    case,    Respondent-Father             had       a   general

guardian at all times relevant to this matter.                        Pursuant to Rule

17, no appointment of a GAL was required.                         Though the trial

court   had    the     discretion       to    appoint      a    GAL    notwithstanding

Respondent-Father’s          general     guardian,         we   find        no    abuse    of

discretion      in     the     trial    court’s       decision        not    to      do   so.

Accordingly,     the     trial    court’s          order   terminating           Respondent-

Father’s parental rights is affirmed.

    Affirmed.

    Judges McCULLOUGH and DILLON concur.

    Report per Rule 30(e).
