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.