UNPUBLISHED OPINION

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

STEELMAN, Judge.

Where parents have failed to demonstrate prejudice arising from the trial court's failure to specify whether guardians ad litem were assistive or substitutive, we affirm the order of the trial court terminating parents' parental rights.

I. Factual and Procedural History

On 16 August 2011, the Yadkin County Department of Social Services ("DSS") obtained non-secure custody of N.S.R.C. and his older sister based upon a petition alleging that they were neglected juveniles. Law enforcement contacted DSS after responding to a domestic dispute at the home of the children's paternal grandmother. The children, together with their mother and father, were living with the grandmother after being homeless for three months. DSS found that there were "numerous safety issues" at the grandmother's residence, and also reported that drug screens administered to mother and father were positive for cocaine. The petition alleged that father had an "extensive criminal record" that included pending drug-related charges; that he was "unable to answer questions" due to his apparent impairment; and that he claimed to have "seizure problems" and a brain tumor. The petitioner further alleged that mother had exhibited "sporadic outbursts" at DSS and the county courthouse, had an untreated diagnosis of bipolar disorder, and "also reports having brain tumors which are not being treated[.]" The petition noted DSS's prior involvement with the family in both Yadkin and Wilkes Counties.

The district court adjudicated N.S.R.C. and his sister to be neglected juveniles on 23 September 2011, and continued them in DSS custody. Mother and father stopped communicating with DSS on 28 January 2013 after refusing to submit to a drug screen. The court held a permanency planning hearing on 7 March 2013, and entered an order ceasing reunification efforts and establishing a permanent plan of adoption with a concurrent plan of guardianship on 9 April 2013. Both parents gave notice of their intent to appeal. N.C. Gen. Stat. §§ 7B-507(c), 1001(a)(5) (2011).

On 4 April 2013, DSS filed a motion to terminate parental rights as to N.S.R.C. on the grounds of neglect and failure to make reasonable progress to correct the conditions that led to his placement outside of the home. See N.C. Gen. Stat. § 7B-1111(a)(1)-(2) (2013). The district court heard evidence on 31 October 2013, and entered its order terminating parental rights on 5 December 2013. The court found both of the grounds for termination alleged by DSS and concluded that termination of parents' parental rights was in N.S.R.C.'s best interest.1 Mother and father both filed timely notices of appeal from the orders ceasing reunification efforts and terminating their parental rights.

Father subsequently filed a petition for writ of certiorari to review the subject orders, acknowledging his failure to include a certificate of service with his notice of appeal and amended notice of appeal filed on 6 and 13 December 2013. Since "failure to include a certificate of service for the notice of appeal does not support dismissal of the appeal if the appellee has waived the issue by failing to raise the issue by motion or otherwise[,]" we hold that father's notice of appeal was sufficient to establish this Court's jurisdiction over his appeal. McQuillin v. Perez, 189 N.C. App. 394, 396, 657 S.E.2d 924, 926 (2008). We therefore dismiss his petition for writ of certiorari.

II. Guardian Ad Litem Appointments

In father's sole argument on appeal and mother's first argument on appeal, they contend that the district court erred in ceasing reunification efforts because, when it appointed guardians ad litem at the 7 March 2013 permanency planning hearing pursuant to N.C. Gen. Stat. § 7B-602(c) (2011), the court failed to designate the capacity in which their guardians were to serve, as required by our decision in In re P.D.R., ___ N.C. App. ___, 737 S.E.2d 152 (2012). We disagree with the argument that this constitutes reversible error.

A. Standard of Review

A trial court's actions pursuant to N.C. Gen. Stat. § 7B-602(c) are 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).

B. Appointment of Guardians Ad Litem for Parents

Subsequent to the initial non-secure custody hearing on 18 August 2011, the district court appointed Frank Zachary as guardian ad litem to represent mother and Donna Terrell as guardian ad litem to represent father pursuant to N.C. Gen. Stat. § 7B-602(c). At that time, the statute authorized appointment of a guardian ad litem if the court found "a reasonable basis to believe that the parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest." N.C. Gen. Stat. § 7B-602(c) (2011) thus contemplated the appointment of both assistive guardians ad litem to aid parents with diminished capacity and substitutive guardians ad litem to act on behalf of incompetent parents. In re P.D.R., ___ N.C. App. at ___, 737 S.E.2d at 154. An identical provision applied to termination proceedings under N.C. Gen. Stat. § 7B-1101.1(c) (2011). However, effective 1 October 2013, both N.C. Gen. Stat. § 7B-602 and N.C. Gen. Stat. § 7B-1101.1 were amended to eliminate assistive guardians ad litem and to authorize the appointment of a guardian ad litem only "for a parent who is incompetent in accordance with G.S. 1A-1, Rule 17." 2013 N.C. Sess. Laws 129, §§ 17, 32, 41 (June 13, 2013).

Zachary and Terrell appeared with mother and father at the juveniles' 15 September 2011 adjudication hearing and the six-month review hearing on 7 June 2012. On 30 August 2012, the district court appointed Jacob Wagoner to represent mother. The record is silent on the reasons for Wagoner's appointment. Wagoner and Terrell appeared with mother and father at the permanency planning hearing on 6 December 2012 and at the 7 March 2013 hearing that resulted in the order ceasing reunification efforts.

After DSS filed its motion for termination of parental rights, the district court appointed new guardians ad litem for mother and father pursuant to N.C. Gen. Stat. § 7B-1101.1(c) (2013).2 The order terminating parental rights included the following finding of fact regarding the guardians ad litem:

This finding confirms that mother and father were appointed substitutive guardians ad litem for the 31 October 2013 termination of parental rights hearing, as reflected in the "Order Appointing Guardian Ad Litem for Parents" filed 13 November 2013. Fagerli and Southard appeared with mother and father at the termination of parental rights hearing and executed the parents' notices of appeal in December 2013.

We note that mother and father have not provided this Court with transcripts of the hearings that resulted in the appointments of Zachary, Terrell, and Wagoner. The orders appointing Zachary and Terrell do not appear in the record on appeal. The record does include the 30 August 2012 order appointing Wagoner as guardian for mother, which contains findings and conclusions that "[t]here is a reasonable factual basis that the respondent is incompetent or has diminished capacity. Respondent cannot adequately act in . . . her own interest, and does need a Guardian ad Litem." It appears that the district court never determined the capacity in which Terrell and Wagoner were to serve mother and father.

Mother and father have also failed to provide this Court with a transcript of the 26 September 2013 hearing3 which resulted in the district court's appointment of Fagerli and Southard to represent mother and father in the termination proceeding. We cannot determine why the State Bar advised Terrell and Wagoner at the time of the 26 September 2013 voir dire that they should not serve as substitutive guardians ad litem for mother or father.4 In re A.S.Y., 208 N.C. App. 530, 539, 703 S.E.2d 797, 802 (2010) ("[The guardian ad litem's] powers are coterminous with the beginning and end of the litigation in which he is appointed.") (citation and quotation marks omitted). The order appointing Fagerli and Southard states that, based on a "voir dire of each parent to determine whether either parent was in need of a [guardian ad litem] for substitutive purposes[,]" the court concluded that each parent was entitled to a substitutive guardian ad litem.

C. Failure to Designate Guardian's Role under G.S. § 7B-602(c)

Mother and father argue that the district court's order ceasing reunification efforts must be reversed, because the court appointed guardians ad litem to represent them at the 7 March 2013 permanency planning hearing without specifying the capacity in which they were to serve. Both parents cite to our holding in In re P.D.R. that

In re P.D.R., ___ N.C. App. at ___, 737 S.E.2d at 159. Although our decision in In re P.D.R. addressed the statute governing termination proceedings, N.C. Gen. Stat. § 7B-1101.1(c), it applies equally to N.C. Gen. Stat. § 7B-602(c). In re A.S.Y., 208 N.C. App. at 536 n.3, 703 S.E.2d at 800 n.3.

While mother and father acknowledge the guardians ad litem attendance at the permanency planning hearing, they each point to the hearing transcript as evidence that the guardians ad litem did not actively participate in the hearing. Therefore, mother and father contend, because the guardian ad litem's role at the hearing was never specified, they cannot be shown to have fully protected the interests of the parents. Father further suggests that district court's subsequent appointment of a substitutive guardian ad litem to represent him at the termination hearing makes it "almost certain" that he would have been found to require a substitutive guardian ad litem at the 7 March 2013 permanency planning hearing, had the court so inquired.

In In re P.D.R., a mother with a court-appointed guardian ad litem refused to cooperate with her counsel and chose to proceed pro se at her termination hearing. In re P.D.R., ___ N.C. App. at ___, 737 S.E.2d at 159. After questioning the mother about this decision, the district court found that she had made "`an unequivocal, informed and competent decision to waive her right to court appointed counsel'" and granted her counsel's motion to withdraw. Id. On appeal, the mother argued the court erred in allowing her to waive counsel and proceed pro se, given that the court had appointed a guardian ad litem to represent her pursuant to N.C. Gen. Stat. § 7B-1101.1(c).

This Court concluded that the district court's failure to designate the mother's guardian ad litem role as assistive or substitutive left this Court unable to determine the validity of the mother's waiver of counsel. Rather than find reversible error, however, we remanded for further proceedings as follows:

In re P.D.R., ___ N.C. App. at ___, 737 S.E.2d at 159 (emphasis added).

Our disposition in In re P.D.R. establishes that the district court's failure to designate the proper role for a guardian ad litem is not reversible error per se, at least insofar as the parent was entitled only to an assistive guardian ad litem based on diminished capacity. Compare id. ("In the event that the trial court determines that respondent mother suffered only diminished capacity, . . . the trial court's TPR order could be reinstated.") with In re O.C., 171 N.C. App. 457, 463, 615 S.E.2d 391, 396 (2005) ("If the trial court fails to appoint a required GAL for a parent for the proceedings associated with the order on appeal, such order must be reversed."). Moreover, at issue in In re P.D.R. was the voluntariness of the mother's waiver of her right to counsel. See N.C. Gen. Stat. § 7B-1101.1(a) (2013). Because an involuntary waiver of counsel is reversible error, In re S.L.L., 167 N.C. App. 362, 365, 605 S.E.2d 498, 500 (2004), our ruling in In re P.D.R. does not imply that the failure to designate the role of a parent's guardian ad litem is reversible error per se when the parent was entitled to a substitutive guardian. Rather, it merely affirms that a parent who is incompetent and entitled to a substitutive guardian ad litem also lacks the capacity to waive her right to counsel.

We hold that, under N.C. Gen. Stat. §§ 7B-602(c) and 1101.1(c) (2011), where a parent is provided with a guardian ad litem but the district court errs by failing to specify the guardian's role as assistive or substitutive, there must be some showing of prejudice to the parent in order to justify relief on appeal. See generally Starco, Inc. v. AMG Bonding and Ins. Services, 124 N.C. App. 332, 335, 477 S.E.2d 211, 214 (1996) ("[T]o obtain relief on appeal, an appellant must not only show error, but that appellant must also show that the error was material and prejudicial, amounting to denial of a substantial right that will likely affect the outcome of an action."). We note that the effect of this holding is limited by the legislature's elimination of assistive guardians ad litem in N.C. Gen. Stat. §§ 7B-602 and 7B-1101.1(c), effective 1 October 2013. 2013 N.C. Sess. Laws 129, §§ 17, 32, 41.

We agree with mother and father that the district court failed to properly specify the role of Wagoner and Terrell at the hearing that resulted in the ceasing of reunification efforts. We conclude, however, that mother and father have not shown any prejudice arising from this error. Neither points to a decision at the permanency planning hearing which required the aid of a substitutive guardian ad litem. Moreover, unlike the parent in In re P.D.R., both parents were represented by counsel in addition to their guardians.

Father suggests that the district court's designation of Terrell as a substitutive guardian would have allowed her to obtain certificates from father's service providers proving his completion of certain coursework required by his case plan. The record shows that father provided proof that he obtained a substance abuse assessment and attended parenting classes. He also asserted that he had completed a domestic violence assessment but was unable to pay the fee required to receive a certificate. We are not persuaded that father was in any way impeded in obtaining this certificate by the indeterminate nature of guardian ad litem Terrell's appointment. More importantly, we find no indication that the want of this certificate affected the court's decision to cease reunification efforts. The court's order includes findings that father was "again incarcerated on pending criminal charges[,]", had "never had a stable residence[,]", had failed to follow the recommendations of his substance abuse assessment and psychological evaluation or participate in couple's counseling, and had missed 22 of 47 scheduled visits with the juveniles. The court noted that its previous order entered 20 December 2012 had given mother and father 90 days "to complete their [DSS] case plan, and despite being given very specific directives the parents have made no progress since the last hearing."

Absent some indication that mother and father were prejudiced at the 7 March 2013 permanency planning hearing by the failure to designate the role of their guardians ad litem appointed under N.C. Gen. Stat. § 7B-602(c), we find no reversible error. This argument is without merit.

III. Lack of Findings and Conclusions

In Mother's second argument on appeal, she contends that the trial court erred in failing to make findings of fact when appointing Wagoner to represent her at the 7 March 2013 permanency planning hearing, and when appointing Fagerli to represent her at the termination hearing. She further contends that the order appointing Fagerli lacks the necessary conclusions of law to support the appointment of a substitutive guardian ad litem. Mother argues that without these findings of fact and conclusions of law, the orders appointing her guardians are "invalid[,]" as are the later orders ceasing reunification efforts and terminating her parental rights.

In support of her claims, mother again relies on the following language from our decision in In re P.D.R.:

In re P.D.R., ___ N.C. App. at ___, 737 S.E.2d at 159 (emphasis added). She also cites the provision in N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 52 (2013), which "requires a judge to make findings of fact to support its conclusions of law."

With regard to the 30 August 2012 order appointing Wagoner under N.C. Gen. Stat. § 7B-602(c) (2011), we agree with mother that the order lacks the findings of fact required to "specify the role the GAL should play, whether one of substitution or assistance[,]" and the basis for the district court's determination of the appropriate role. In re P.D.R., ___ N.C. App. at ___, 737 S.E.2d at 159. As previously discussed, however, this defect does not amount to reversible error, absent some showing of prejudice to mother. Because mother does not attempt to show such prejudice, we deem the error to be harmless.

With regard to the 13 November 2013 order appointing Fagerli, we note that the district court conducted the 26 September 2013 voir dire hearing pursuant to the statutory changes that eliminated the provision for assistive guardians ad litem under N.C. Gen. Stat. §§ 7B-600(c) and 7B-1101.1(c). The court undertook to determine only "the need, if any, to appoint GALs for substitutive purposes[.]" Inasmuch as the court was no longer obliged to distinguish between a parent's incompetence and diminished capacity when appointing a guardian ad litem, the court was also no longer required to specify the role of a guardian ad litem because the role of a guardian ad litem can only be for one purpose. Moreover, because the court's determination that mother was entitled to a substitutive guardian ad litem necessarily implied a conclusion that she was incompetent, we are not persuaded that the court's conclusions of law were insufficient to comply with Rule 52.

Assuming, arguendo, that the order appointing Fagerli is defective, we hold that there was no prejudice to mother. For purposes of the 31 October 2013 termination hearing, mother was entitled either to a substitutive guardian ad litem or to no guardian at all. See N.C. Gen. Stat. § 7B-1101.1(c) (2013). The district court explicitly designated Fagerli's role as substitutive. Mother does not suggest that the lack of additional findings or conclusions in any way inhibited Fagerli's representation of her interests. Nor does she argue, conversely, that the appointment of a substitutive guardian ad litem was unnecessary and thus subverted her will as a competent party. This argument is without merit.

IV. Conclusion

Because we conclude that the district court did not commit prejudicial error in appointing guardians ad litem for mother and father, the orders ceasing reunification efforts and terminating mother and father's parental rights as to N.S.R.C. are affirmed.

AFFIRMED.

Judges CALABRIA and McCULLOUGH concur.

Report per Rule 30(e).