Contrary to widely held belief in the legal community, in North Carolina Chapter 50 custody actions, there is no such thing as "permanent custody." All determinations of custody are temporary in nature even if the intent of the court and the parties is to make them durable. All custody orders, whether fashioned through Chapter 50 or Chapter 7B, must be consistent with the best interests of the child. See Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967); In re Smith, 56 N.C. App. 142, 287 S.E.2d 440 (1982). What this practically means is that child custody determinations are about the child whose needs change, following the child's physical, emotional and intellectual development and ever changing requirements. Such determinations are not really at all about the wishes and desires of the litigants, though there is no doubt that equitable considerations play a role in furthering these. What is in the best interest of a child is, of course, subject to change. Thus, custody orders of whatever origin are always modifiable based upon the universal standard-that there has occurred a material change in circumstances. See In re Mason, 13 N.C. App. 334, 185 S.E.2d 433 (1971; Crosby.
Recognising that a material change in circumstances is required to modify an existing child custody determination, the obvious question is then what constitutes a "material change." The answer to this in large part is subjective and depends upon the facts and circumstances of each case. However, regardless of the a case's subjective factual variability, all material changes, if they are to affect custody, must have an established nexus with the welfare of the child. This may be immediately and profoundly manifest (i.e. the party vested by the court with primary custody is deceased) or it may be more subtle (i.e. the child has developed special needs that cannot be well provided for by the custodial party but may be provided for more effectively by the party with secondary custody). For the later, see Metz v. Metz, 138 N.C. App. 538, 530 S.E.2d 79 (2000). Either way, the change or changes cumulatively must substantially and materially affect the welfare of the juvenile
and may not have been in play at the time the original custodial order was entered.
Friday 6 December 2013
Friday 22 November 2013
The Promise of Adoption Assistance cannot be the Sole Reason to Terminate Parental Rights
North Carolina statute prohibits a court from terminating parental rights ". . .for the sole reason that the parents are unable to care for the juvenile on account of their poverty." N.C. Gen. Stat. 7B-111(a)(2). When a trial court takes into consideration the availability of adoption assistance resources in fashioning its adjudicatory order in a termination case, has it violated public policy?
The North Carolina Court of Appeals, in the Cumberland County case of In re T.J.F., __N.C.App.__ (NO. COA13-707, November 19, 2013),answered in the negative-but perhaps only because the trial court had terminated parental rights for other reasons outside of the financial resources available to a child.
In reaching its opinion, the Court relies on the fundamental premise, first articulated in In re Montgomery,that the court's paramount concern is the "best interest" of the juvenile, the "pole star" around which all juvenile court decision making revolves. As the Court noted, the Respondent Father's objection to the trial court's consideration of adoption assistance -financial resources paid by the State to adoptive families where children meet certain criteria-might have had some merit if it had been to only basis for termination cited by the court. As it stood ". . .the court cited other bases in its determination that termination of parental rights was in [the child's] best interest. In making a determination of the
disposition in the child’s best interest a court may assign more
disposition in the child’s best interest a court may assign more
weight to one or more factors over the others. . .Here, consistent with the purpose of protecting the child from abuse or neglect,
the bulk of the court’s findings of fact in the adjudication and
disposition orders is devoted to the failure of respondent-father to satisfy his parental obligations to his child by withholding his presence, affection,and support. Only one mention is made concerning the possibility of the child’s obtaining financial benefits by beingadopted by her maternal grandparents."
Thus too much reliance on the fact that economic goodies at the end of the tunnel can run a trial court afoul of public policy which explicitly against terminating parental rights merely because one is poor. Thus is the moral of the story, at least as far as In re T.J.F.. However, a more salient question arises in a slightly different context: to what extent can economic benefits that might accrue to a child ever be the primary factor in any juvenile decision? Those who regularly practice in the juvenile courts are well aware that such issues frequently arise. A prime example is where, following cessation of reunification efforts with a parent, the court is posed with the dilemma of finding a third party to provide a permanent plan for the child. Does the Court opt to keep the child with foster parents who, with the assistance of of the State, is able to abundantly provide for the material needs of a juvenile? Or does the Court defer to an available and appropriate relative placement who can maintain a degree of family connectedness for the juvenile but whose cash reserves are considerably strained? If the court sides with the foster parents, solely based upon what they can financial provide, isn't that tantamount to endorsing the evil that N.C. General Statute 7B-1111(a)(2) seeks to prevent?
As they say, money isn't everything. The court's discussion about economics as a basis for termination, while not dicta, was nonetheless scant and unsubstantive. However, the day will come when this same Court of Appeals will have to determine to what extent money-although not everything-is or is not something.
Thus too much reliance on the fact that economic goodies at the end of the tunnel can run a trial court afoul of public policy which explicitly against terminating parental rights merely because one is poor. Thus is the moral of the story, at least as far as In re T.J.F.. However, a more salient question arises in a slightly different context: to what extent can economic benefits that might accrue to a child ever be the primary factor in any juvenile decision? Those who regularly practice in the juvenile courts are well aware that such issues frequently arise. A prime example is where, following cessation of reunification efforts with a parent, the court is posed with the dilemma of finding a third party to provide a permanent plan for the child. Does the Court opt to keep the child with foster parents who, with the assistance of of the State, is able to abundantly provide for the material needs of a juvenile? Or does the Court defer to an available and appropriate relative placement who can maintain a degree of family connectedness for the juvenile but whose cash reserves are considerably strained? If the court sides with the foster parents, solely based upon what they can financial provide, isn't that tantamount to endorsing the evil that N.C. General Statute 7B-1111(a)(2) seeks to prevent?
As they say, money isn't everything. The court's discussion about economics as a basis for termination, while not dicta, was nonetheless scant and unsubstantive. However, the day will come when this same Court of Appeals will have to determine to what extent money-although not everything-is or is not something.
Friday 8 November 2013
Anticipatory Neglect and the A/N/D cases
North Carolina law has long held that evidence substantiating anticipatory neglect is sufficient to give rise to an adjudication of neglect. The North Carolina appellate courts have in the past found anticipatory neglect in a variety of contexts in initial child welfare cases alleging neglect, including where parents were planning to move a child into a home that would be injurious (In re McClean, 135 N.C. App. 387 (1999)); and exposing a child to the potential of harm from violent behaviour and drug use (In re W.V., 204 N.C. App.
290 (2010). The anticipatory neglect doctrine has also been addressed within the arena of domestic violence ( In re K.J.D.,203 N.C. App. 653 (2010)). A variant on the anticipatory neglect doctrine can also found in the context of the the termination of parental rights case where the North Carolina appellate courts have long stated that neglect can be found as a ground to terminate parental rights where a child would likely suffer from a repetition of receiving improper care, discipline or be exposed to an injurious environment if returned back to the home of a parent. ( See In re Brimm,139 N.C. App. 733 (2000)).
The importance of the anticipatory doctrine lies in its divergence from the standard theory that underlies the garden variety neglect case: that an act or omission of a parent, guardian, caretaker or custodian has created a direct impact on a child such that a child receives deficient care, supervision, discipline or in exposed to an injurious environment. To borrow from the parlance of Tort Law, a nexus must typically be established between the parental act or omission and an actual injury to the child, the act or omission being the proximate cause of the injury. (Palsgraf v. Long Island R.R. Co., (248 N.Y. 339, 162 N.E. 99 (1928)). In the case of anticipatory neglect, no damage has occurred but liability still arises for creating the conditions that would likely lead to injury to a child. Thus, one need not establish that a child actually was stuck by a discarded needle tainted with Hepatitis C. Rather, the mere likelihood of such an occurrence is enough if it can be established that a child might reasonably have come across it in the house.The same can be said for parental impairment or domestic violence: the child need not be physically harmed by these acts. Rather, it is enough to show that these acts might overflow (however unintended that might be) to the detriment of the child.
Of course, the touchstone of child welfare law in North Carolina is that clear, cogent and convincing evidence exist that a child will be harmed by parental acts or omissions. Accordingly, those prosecuting or defending against such claims must bear in mind what the evidence must show. Simply put, there must be a reasonable understanding that the overwhelmingly likely trajectory of events will lead to a child getting hurt or suffering a detrimental lack of care or being exposed to something no child should have to encounter.
Thursday 31 October 2013
Pierre Bourdieu, Habitus and the Dependency Case
Among the legacies of the French sociologist Pierre Bourdieu was his concept of habitus, a term widely construed by Bourdieu but taking on dimensions similar to the societal infrastructure and superstructure that surrounds an individual historically which in large part responsible for the individuals attitudes, disposition and social destiny. Quoting Bourdieu's Invitation to a Reflexive Sociology, he states, " Habitus. . . is an open system of dispositions that is constantly subjected to experiences, and therefore constantly affected by them in a way that either reinforces or modifies its structures." He goes on to state that, while habitus is not eternal, ". . .there is a probability, inscribed in the social destiny associated with definite social conditions, that experiences will conform to habitus, because most people are statistically bound to encounter circumstances that tend to agree with those that originally fashioned their habitus."(Bourdieu, 133). Thus, an individual's social trajectory, statistically, is likely to be the one that is confirmed by the individual's habitus because the individual won't know any better and will be resigned to such a trajectory. In such circumstances, such a trajectory has become doxically ingrained and thus seems not only to be part of the nature of things but inevitable, the entire possibility of a different or better world not even being a possible subject for discourse.
Of course, the world is full of exceptions, Bourdieu being one of the most notable, having ascended from a member of an outcast tribe situated in a rural French backwater to being a Professor at the College de France. However, possibility is not probability, and for every Bourdieu there are countless individuals who will never have the occasion to aspire to such greatness. If Bourdieu is correct, culture is structurally rigged in such a way as to gives rise to conditions surrounding the individual which in almost every case will lead to the individual sabotaging his own trajectory, largely without ever knowing he is doing so.
The overwhelming number of child welfare cases that appear in North Carolina's juvenile courts involve individuals who lack social capital: they are often the poorest of society, they lack insight and training necessary to parent, and very often have taken on such a huge responsibility too many times. North Carolina, at least as contemplated by General Statute 7B, has mandated State intervention in the sacred sphere of the parent/child relationship only where a child is faced with a situation where the child has been abused, neglected or dependent. As the Supreme Court has stated in Peterson v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994), ". . . absent a finding that parents are unfit or have neglected the welfare of their children, the constitutionally protected paramount right of parents to custody and control of their children must prevail." That being said, many families do experience State intervention because they have neglected the welfare of their children. The law further requires that the State intervene in certain circumstances where a child has been adjudicated in juvenile court to help the parent strengthen the familial bond and otherwise correct the conditions that led to the intervention of the State. Many families, despite intensive intervention by the State, fail to make any change or even exhibit a positive response. Instead, they continue to coordinate with the inertia of their habitus, doing things as seem to them to be in the realm of the ordinary, the natural, whether that means continuing to be violently assaulted by an intimate partner, to abuse controlled substances, or to live in squalor. If Bourdieu is correct, these individuals are in all probability doomed to a particular historical trajectory, which in all likelihood was the same trajectory of their ancestors, from their parents to their grandparents and beyond. Bourdieu widely criticised the French Educational system for its perpetuation of a culture where societal elites prevailed despite allegedly democratic reforms aimed as moving the working class and petit bourgeoisie into the Academy. If Bourdieu is correct, North Carolina, and for that matter every State government, is doomed to experience the same failure experienced by the French Educational System. It may very well be the case that familial behaviour, inculcated for generations, has been so internalised that it is now a visceral response, being purely a bodily reflex, not subject to intellectual discourse which is the very remedy being suggested when the juvenile courts order parents to comply with substance abuse counselling, parenting classes, and in-home family preservation efforts.
The high culture of North Carolina cannot speak the language of the low culture, let alone can it get that low culture to even want to hear and understand. So is the State to continue to perpetuate the illusion that it is helping when in reality it is doing nothing more than absurdly tilting at windmills? Perhaps the intent is enough, regardless of the lack of outcome. As in the case of Camus' hero Sisyphus, it matters not that the rock, so painfully pushed up the hill, nevertheless falls down once again, in a scenario which will be repeated ad infinitum. Not the outcome which is absurd, but rather the process, the response to the absurd world, is instilled with meaning. If so, all the better. Governments are good at doing things that individuals lack the capacity to otherwise do. But let it do the deed honestly (perhaps inscribing it in the juvenile code), acknowledging to all the world that it will probably fail but despite all is going to try to uplift juvenile court families anyway.
Of course, the world is full of exceptions, Bourdieu being one of the most notable, having ascended from a member of an outcast tribe situated in a rural French backwater to being a Professor at the College de France. However, possibility is not probability, and for every Bourdieu there are countless individuals who will never have the occasion to aspire to such greatness. If Bourdieu is correct, culture is structurally rigged in such a way as to gives rise to conditions surrounding the individual which in almost every case will lead to the individual sabotaging his own trajectory, largely without ever knowing he is doing so.
The overwhelming number of child welfare cases that appear in North Carolina's juvenile courts involve individuals who lack social capital: they are often the poorest of society, they lack insight and training necessary to parent, and very often have taken on such a huge responsibility too many times. North Carolina, at least as contemplated by General Statute 7B, has mandated State intervention in the sacred sphere of the parent/child relationship only where a child is faced with a situation where the child has been abused, neglected or dependent. As the Supreme Court has stated in Peterson v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994), ". . . absent a finding that parents are unfit or have neglected the welfare of their children, the constitutionally protected paramount right of parents to custody and control of their children must prevail." That being said, many families do experience State intervention because they have neglected the welfare of their children. The law further requires that the State intervene in certain circumstances where a child has been adjudicated in juvenile court to help the parent strengthen the familial bond and otherwise correct the conditions that led to the intervention of the State. Many families, despite intensive intervention by the State, fail to make any change or even exhibit a positive response. Instead, they continue to coordinate with the inertia of their habitus, doing things as seem to them to be in the realm of the ordinary, the natural, whether that means continuing to be violently assaulted by an intimate partner, to abuse controlled substances, or to live in squalor. If Bourdieu is correct, these individuals are in all probability doomed to a particular historical trajectory, which in all likelihood was the same trajectory of their ancestors, from their parents to their grandparents and beyond. Bourdieu widely criticised the French Educational system for its perpetuation of a culture where societal elites prevailed despite allegedly democratic reforms aimed as moving the working class and petit bourgeoisie into the Academy. If Bourdieu is correct, North Carolina, and for that matter every State government, is doomed to experience the same failure experienced by the French Educational System. It may very well be the case that familial behaviour, inculcated for generations, has been so internalised that it is now a visceral response, being purely a bodily reflex, not subject to intellectual discourse which is the very remedy being suggested when the juvenile courts order parents to comply with substance abuse counselling, parenting classes, and in-home family preservation efforts.
The high culture of North Carolina cannot speak the language of the low culture, let alone can it get that low culture to even want to hear and understand. So is the State to continue to perpetuate the illusion that it is helping when in reality it is doing nothing more than absurdly tilting at windmills? Perhaps the intent is enough, regardless of the lack of outcome. As in the case of Camus' hero Sisyphus, it matters not that the rock, so painfully pushed up the hill, nevertheless falls down once again, in a scenario which will be repeated ad infinitum. Not the outcome which is absurd, but rather the process, the response to the absurd world, is instilled with meaning. If so, all the better. Governments are good at doing things that individuals lack the capacity to otherwise do. But let it do the deed honestly (perhaps inscribing it in the juvenile code), acknowledging to all the world that it will probably fail but despite all is going to try to uplift juvenile court families anyway.
The Brave New World: Post P.D.R. Legislation Creates a Dilemna for Parent's Attorneys
The North Carolina Legislature's Session Law 2013-129 has put an end to the quandary courts were facing in having to determine whether a parent who suffered a disability required a guardian of assistance or a guardian of substitution. This quandary, of course was the result of the Court of Appeals decision in In re P.D.R.,713 S.E.2d 60; 2011 N.C. App. LEXIS 1054, review granted, 365 N.C. 342, 717 S.E.2d 369, reversed
and remanded, 2012 N.C. LEXIS 269 (N.C., Apr. 13,
2012) where the Court of Appeals determined that trial judges must determine whether a guardian is of assistance, or, pursuant to N.C. Rule Civ. Pro. 17, one of substitution. However, such legislation, no doubt well intended by its sponsors, has lead to a pair of unfortunate consequences for parent's attorneys.
As mentioned in an earlier post (In re P.D.R., infra), the assistance/substitution dichotomy was an important distinction even if one of the reasons for the Court of Appeals decision ( whether N.C. Gen. Stat 15A-1242 allows a parent to waive counsel when they have been appointed a guardian) has been overruled. If a guardian is one of substitution, then, pursuant to Rule 17, the parent's opinion is a nullity-it simply doesn't matter. What matters is the opinion of the appointed GAL, who, acting in the best interest of the parent, makes the decisions for that parent. A guardian of assistance, on the other hand, is ancillary to that of the parent who retains their ability to make decisions in a case, the GAL only being there to help the parent make those decisions.
With legislative action, N.C. Gen. Stat. 7B-602 has been amended to require that the trial court, when confronted with parental disability, conduct a hearing on whether the parent is competent. If not, the court may (translated, should) appoint a guardian of substitution. Guardians of assistance are no longer permitted by statute.
For the parent attorney, this creates a new world of problems, to wit: (1) if the parent is truly disabled and unable to assist in defence, then the solutionprovided by N.C. Gen. Stat. 7B-602 will effectively remove the parent's ability to participate in the defence, except derivatively through the GAL; and (2) a parent who receives a GAL is, at very least, incompetent, which very much plays well toward the position of the DSS which, in one form or another, has stated that the parent is disabled in some way in terms of parenting which underlies the child's status as abused, neglected or dependent. In large part, a competency hearing conducted pursuant to N.C. Gen. Stat. 7B-6023 makes the petitioners case before it is even heard.
Whether to play the disability card or not is, of course, within the sound discretion of the trial attorney. However, these type of decisions have a way of coming back on the attorney who makes a decision, the case goes poorly and the child is adjudicated, and then the case, following disposition, goes up on appeal. No doubt one of the issues that will be raised by the eager and zealous IDS attorney will be the effective assistance of counsel, whether this sound discretion was indeed sound enough.
As mentioned in an earlier post (In re P.D.R., infra), the assistance/substitution dichotomy was an important distinction even if one of the reasons for the Court of Appeals decision ( whether N.C. Gen. Stat 15A-1242 allows a parent to waive counsel when they have been appointed a guardian) has been overruled. If a guardian is one of substitution, then, pursuant to Rule 17, the parent's opinion is a nullity-it simply doesn't matter. What matters is the opinion of the appointed GAL, who, acting in the best interest of the parent, makes the decisions for that parent. A guardian of assistance, on the other hand, is ancillary to that of the parent who retains their ability to make decisions in a case, the GAL only being there to help the parent make those decisions.
With legislative action, N.C. Gen. Stat. 7B-602 has been amended to require that the trial court, when confronted with parental disability, conduct a hearing on whether the parent is competent. If not, the court may (translated, should) appoint a guardian of substitution. Guardians of assistance are no longer permitted by statute.
For the parent attorney, this creates a new world of problems, to wit: (1) if the parent is truly disabled and unable to assist in defence, then the solutionprovided by N.C. Gen. Stat. 7B-602 will effectively remove the parent's ability to participate in the defence, except derivatively through the GAL; and (2) a parent who receives a GAL is, at very least, incompetent, which very much plays well toward the position of the DSS which, in one form or another, has stated that the parent is disabled in some way in terms of parenting which underlies the child's status as abused, neglected or dependent. In large part, a competency hearing conducted pursuant to N.C. Gen. Stat. 7B-6023 makes the petitioners case before it is even heard.
Whether to play the disability card or not is, of course, within the sound discretion of the trial attorney. However, these type of decisions have a way of coming back on the attorney who makes a decision, the case goes poorly and the child is adjudicated, and then the case, following disposition, goes up on appeal. No doubt one of the issues that will be raised by the eager and zealous IDS attorney will be the effective assistance of counsel, whether this sound discretion was indeed sound enough.
Monday 11 February 2013
In re P.D.R.: Guardians of Assistance or Substitution
There has long been ambiguity in North Carolina about the consequences of appointing a guardian for a parent in an abuse, neglect, or dependency case. On its face, North Carolina General Statute 7B-1101.1(c) authorises the trial court to appoint a guardian for a parent where ". . .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." A district court judge, on the court's own motion or on motion from a party, must conduct a hearing, however brief, on whether such a reasonable basis exists to appoint a parent a guardian. Up until two and a half months ago, the judge's decision ended the inquiry: either a parent required assistance to act in their own interest or not, and if not, they were appointed a guardian who would assist the parent's legal counsel in trying the case.
Yet, despite the simplicity of the statute's wording and the minimal procedural requirements that the statute imposes, many who have been in such proceedings found them self asking troubling questions. For instance, what does it mean for a judge to find that it is reasonably likely that a parent is incompetent? Does this make them incompetent? If so, did the legislature create another process in addition to those contained in North Carolina General Statute Chapter 35A to determine competency? In addition, there were lingering questions about the interplay between G.S. 7B-1101.1 and G.S. 1A-1, Rule 17, which was the traditional civil procedure rule for appointment of a guardian in incompetency cases. With Rule 17, the guardian did more than just assist the attorney, they substituted as the party. Did G.S. 7B-1101.1 create a situation where the guardian was substituting for the party?
The Court of Appeals in its December 18, 2012 decision in In re P.D.R. has attempted to provide some clarity to some of these issues. For the most part, it has succeeded in providing some procedural and substantive guidance. Most notable from its holding is the admonition that a trial court, in conducting its initial hearing regarding the need for the appointment of a guardian, must now not only make a determination as to whether a guardian is reasonably necessary but must also determine whether the appointment is one of assistance or substitution. In the event of the former, the language of G.S. 7B-1101.1 governs and in consequence, the parent continues to maintain autonomy with regard to the scope and direction of the parent's representation. As the court of appeals has stated it, the parent suffers not from incompetence but from ". . . diminished capacity. . [and] may have some limitations that impair their ability to function." This is not so with regard to the later option where a court making a determination that an appointment is of substitution effectively strips the parent of their autonomy in the legal action. Appointments of substitution, according to the court of appeals, are governed by G.S. 1A-1, Rule 17. As such, a substitutive appointment is informed by the premise that an incompetent person does not have the capacity to make any decision with regard to the scope or direction of a legal proceeding. Accordingly, the party must be replaced by the guardian who then steps in to make necessary decisions on behalf of the party.
What this practically means now is that district court trial judges will have a little more work to do when confronted with parents who present with mental illness and impairment in its many forms. Moreover, guardians of substitution will be required to be at every hearing in the same way that a party would be necessary to enable to trial court to act in accordance with due process.Unanswered are those questions about where the frontier exists between a person who suffers from diminished capacity and the more significant and debilitating "incompetence." Those who deal with those issues in Clerk of Court special proceedings are well aware that such issues frequently require the consultation of multiple disciplines in order to gain any degree of understanding about the magnitude of a person's mental impairment.
It remains to be seen how deeply the district courts in North Carolina will go to satisfy the requirements of the North Carolina Court of Appeals through its decision in In re P.D.R. With dockets bursting at the seams and court time at a premium, it appears likely that patience will likely be a dear commodity among the trial judges. While this is no attempt at clairvoyance, it would be a good guess that the next appeal in this genre will ask the question as to what depth a trial court must proceed to satisfy its requirements under either G.S. 7B-1101.1 or 1A-1, Rule 17.
Yet, despite the simplicity of the statute's wording and the minimal procedural requirements that the statute imposes, many who have been in such proceedings found them self asking troubling questions. For instance, what does it mean for a judge to find that it is reasonably likely that a parent is incompetent? Does this make them incompetent? If so, did the legislature create another process in addition to those contained in North Carolina General Statute Chapter 35A to determine competency? In addition, there were lingering questions about the interplay between G.S. 7B-1101.1 and G.S. 1A-1, Rule 17, which was the traditional civil procedure rule for appointment of a guardian in incompetency cases. With Rule 17, the guardian did more than just assist the attorney, they substituted as the party. Did G.S. 7B-1101.1 create a situation where the guardian was substituting for the party?
The Court of Appeals in its December 18, 2012 decision in In re P.D.R. has attempted to provide some clarity to some of these issues. For the most part, it has succeeded in providing some procedural and substantive guidance. Most notable from its holding is the admonition that a trial court, in conducting its initial hearing regarding the need for the appointment of a guardian, must now not only make a determination as to whether a guardian is reasonably necessary but must also determine whether the appointment is one of assistance or substitution. In the event of the former, the language of G.S. 7B-1101.1 governs and in consequence, the parent continues to maintain autonomy with regard to the scope and direction of the parent's representation. As the court of appeals has stated it, the parent suffers not from incompetence but from ". . . diminished capacity. . [and] may have some limitations that impair their ability to function." This is not so with regard to the later option where a court making a determination that an appointment is of substitution effectively strips the parent of their autonomy in the legal action. Appointments of substitution, according to the court of appeals, are governed by G.S. 1A-1, Rule 17. As such, a substitutive appointment is informed by the premise that an incompetent person does not have the capacity to make any decision with regard to the scope or direction of a legal proceeding. Accordingly, the party must be replaced by the guardian who then steps in to make necessary decisions on behalf of the party.
What this practically means now is that district court trial judges will have a little more work to do when confronted with parents who present with mental illness and impairment in its many forms. Moreover, guardians of substitution will be required to be at every hearing in the same way that a party would be necessary to enable to trial court to act in accordance with due process.Unanswered are those questions about where the frontier exists between a person who suffers from diminished capacity and the more significant and debilitating "incompetence." Those who deal with those issues in Clerk of Court special proceedings are well aware that such issues frequently require the consultation of multiple disciplines in order to gain any degree of understanding about the magnitude of a person's mental impairment.
It remains to be seen how deeply the district courts in North Carolina will go to satisfy the requirements of the North Carolina Court of Appeals through its decision in In re P.D.R. With dockets bursting at the seams and court time at a premium, it appears likely that patience will likely be a dear commodity among the trial judges. While this is no attempt at clairvoyance, it would be a good guess that the next appeal in this genre will ask the question as to what depth a trial court must proceed to satisfy its requirements under either G.S. 7B-1101.1 or 1A-1, Rule 17.
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