An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-643
                        NORTH CAROLINA COURT OF APPEALS

                               Filed:      7 January 2014

IN THE MATTER OF:

       L.P.                                          Cumberland County
                                                     No. 12 JA 222


       Appeal    by   respondent-father          from     order    entered   20    March

2013   by     Judge   Edward     A.   Pone      in    Cumberland    County   District

Court.      Heard in the Court of Appeals 10 December 2013.


       Elizabeth     Kennedy-Gurnee    for     petitioner-appellee,
       Cumberland County Department of Social Services.

       Beth A. Hall for guardian ad litem.

       Peter Wood for respondent-appellant, father.


       McCULLOUGH, Judge.


       Respondent      appeals     from    an    order     adjudicating      his   son,

L.P., to be an abused and neglected juvenile, and continuing the

custody of L.P. with the Cumberland County Department of Social

Services (“DSS”).        For the following reasons, we affirm.

       Respondent      and   the      mother     are     parents     of   L.P.,    born

November 2011.         On 17 April 2012, DSS filed a juvenile petition

alleging      that    L.P.   was   an     abused,      dependent,    neglected,     and
                                          -2-
seriously      neglected       child.     DSS    alleged        that    L.P.     suffered

serious injuries inconsistent with accidental trauma.                            DSS took

nonsecure      custody    of    L.P.    and    placed     him    with    his     maternal

grandparents.

       The trial court held             a nonsecure custody hearing                on 29

August 2012, during which respondent’s attorney moved to have a

guardian ad litem (“GAL”) appointed for respondent pursuant to

N.C. Gen. Stat. § 7B-602(c).                  In its nonsecure custody order,

the trial court found that respondent’s attorney had requested a

GAL “as [respondent] has previously been diagnosed with Bi-Polar

disorder and receives SSI for the same.”                        The court found “it

would be appropriate to appoint a Guardian ad Litem for the

Respondent Father” and entered an order appointing a GAL on the

day of the nonsecure hearing.

       After    holding     another      nonsecure        custody       hearing     on   9

January       2013,   the      court     entered     an     order       finding      that

respondent’s GAL had asked to withdraw because respondent “is

able to effectively communicate with his counsel and understands

the nature of these proceedings.”                  By order filed 10 January

2013, the trial court allowed respondent’s GAL to withdraw based

upon    the     “judicial       determination      that         GAL    is   no     longer

necessary.”
                                       -3-
       The   trial   court     held    an    adjudication   and   disposition

hearing on 28 and 29 January 2013.                By order filed 20 March

2013, the trial court adjudicated L.P. an abused and neglected

juvenile.     The trial court concluded that L.P. should remain in

the custody of DSS and that respondent and the mother should

have supervised visitation with L.P.            Respondent appeals.

       Respondent contends the trial court abused its discretion

when   it    appointed   and    then    later    removed    respondent’s   GAL

without making sufficient findings.             We disagree.

       Appointment of a guardian ad litem for a parent is governed

by N.C. Gen. Stat. § 7B-602(c), which provides:

             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-602(c) (2011)1.               “Because N.C.G.S. § 7B-

602(c) employs the term ‘may,’ a trial court’s action pursuant



1
 We note that Session Law 2013-129, effective for all actions
filed or pending on or after 1 October 2013, amends section 7B-
602(c) such that appointment of a GAL is only for a parent who
is incompetent.   Because the adjudication order was filed in
this matter before 1 October 2013, the effective date of Session
Law 2013-129, this action was no longer pending. Therefore, the
                                        -4-
to this statute is discretionary, and our review is limited to a

determination of whether the trial court abused its discretion.”

In re M.H.B., 192 N.C. App. 258, 261, 664 S.E.2d 583, 585 (2008)

(citation omitted).         “A trial court abuses its discretion when

its   decision    is    ‘manifestly     unsupported      by     reason.’”       Id.

(citation omitted).

      Relying on this Court’s decision in In re A.Y., ___ N.C.

App. ___, 737 S.E.2d 160, disc. review denied, ___ N.C. ___, 748

S.E.2d 539 (2013), respondent argues the trial court abused its

discretion     when    it   appointed    and   then    removed     the    GAL   for

respondent-father without specifying the role of the GAL.                        In

A.Y., this Court applied the analysis set out in In re P.D.R.,

___ N.C. App. ___, 737 S.E.2d 152 (2012), which involved the

role of a GAL for a termination of parental rights proceeding

under   N.C.   Gen.    Stat.   §   7B-1101.1(c)       (2011),    to   a   juvenile

petition proceeding under N.C. Gen. Stat. § 7B-602(c).

      In A.Y., this Court noted:

           In deciding whether to appoint a parental
           GAL, the court “must conduct a hearing in
           accordance with the procedures required
           under Rule 17 in order to determine whether
           there is a reasonable basis for believing
           that   a  parent  is  incompetent  or   has
           diminished capacity and cannot adequately
           act in his or her own interest.     If the


new language is not applicable to this appeal.
                                  -5-
           court chooses to exercise its discretion to
           appoint a GAL under N.C. Gen. Stat. § 7B-
           1101.1(c), then the trial court must specify
           the prong under which it is proceeding,
           including findings of fact supporting its
           decision, and specify the role that the GAL
           should play, whether one of substitution or
           assistance.”

A.Y., ___ N.C. App. at ___, 737 S.E.2d at 165 (quoting P.D.R.,

__ N.C. App. at ___, 737 S.E.2d at 159).         Respondent argues that

the adjudication and disposition order should be vacated because

the trial court did not specify whether the role of respondent’s

GAL was one of assistance or substitution.         We are not persuaded

by respondent’s argument.

    In its juvenile petition, DSS did not claim that respondent

had mental health issues; however, counsel for respondent moved

to have a GAL appointed at a nonsecure custody hearing.               The

trial   court’s   nonsecure   custody   order   contains   the   following

finding of fact pertinent to the issue of appointment of a GAL:

           13.   Attorney Nelson made an oral motion
           requesting that a Guardian ad Litem be
           appointed to the Respondent Father inasmuch
           as he has previously been diagnosed with Bi-
           Polar disorder and receives SSI for the
           same.    The Court finds that it would be
           appropriate to appoint a Guardian ad Litem
           for the Respondent Father and appointed
           Attorney Mona Burke to serve as the Guardian
           ad Litem for the Respondent Father in this
           matter.
                                      -6-
      Respondent is correct that the finding of fact does not

specifically state the role of attorney Burke.             However, similar

to the court in A.Y., the court here did not “have the benefit

of our decision in In re P.D.R., so it did not specify whether

it was acting under the incompetence prong or the diminished

capacity prong.”        Id. at ___, 737 S.E.2d at 166.          Nevertheless,

even if the court were required to specify the prong and the

GAL’s role pursuant to A.Y. and P.D.R., we find no reversible

error   because   the    trial    court    ultimately   found    that   neither

prong applied and entered an order in January 2013 allowing the

GAL   to   withdraw.      The    January    2013   nonsecure    custody   order

contains the following finding of fact:

            13.   Attorney Burke was initially appointed
            as Guardian ad Litem for the Respondent
            Father inasmuch as the Respondent Father
            receives Social Security benefits for a
            previous diagnosis of Bi-Polar.    He is not
            currently    prescribed    any    medication.
            Attorney Burke requested that she be allowed
            to withdraw as Guardian ad Litem for the
            Respondent Father inasmuch as the Respondent
            Father is able to effectively communicate
            with his counsel and understands the nature
            of these proceedings.     After conversation
            with the Respondent Father, the Respondent
            Father’s counsel and Respondent Father’s
            Guardian ad Litem, the Court determined that
            it was not necessary for the Respondent
            Father to have a Guardian ad Litem and
            allowed Attorney Burke’s motion to withdraw.
                                         -7-
Because the trial court allowed the GAL to withdraw, the court’s

failure to determine the role of the GAL when appointing the GAL

is   irrelevant      to   the    trial     court’s    adjudication    of     L.P.

Accordingly, we conclude respondent’s argument is without merit.

     Respondent also asserts the trial court failed to make a

sufficient inquiry when it allowed the GAL to withdraw.                       Our

review is limited because respondent has not provided this Court

with a transcript of the January 2013 nonsecure hearing in which

the GAL moved to withdraw.               The court’s finding of fact 13,

however,     shows    that      before    allowing     respondent’s    GAL     to

withdraw, the trial court heard from respondent’s GAL who had

worked with respondent since August 2012, respondent’s attorney

who had represented respondent throughout the case, and from

respondent himself.          Based upon the trial court’s finding of

fact, we conclude that the trial court conducted a sufficient

inquiry to determine whether a GAL was necessary for respondent.

We conclude that the trial court’s decision to appoint and then

allow the guardian ad litem to withdraw was not arbitrary or

manifestly     unsupported      by   reason.         Accordingly,    the   trial

court’s order adjudicating L.P. an abused and neglected juvenile

is affirmed.

     Affirmed.
                         -8-
Judges McGEE and DILLON concur.

Report per Rule 30(e).
