If a North Carolina county department of social services has custody of a child in an abuse or neglect case, can DSS let the parents' lawyer interview the child when the child's own court-appointed guardian ad litem or attorney advocate objects?

Plain-English summary

In several abuse-and-neglect cases pending in Edgecombe County, the attorneys for the parents wanted to interview the children, who were in DSS custody. The children's attorney advocates, acting on behalf of the children, said no. Edgecombe attorney Edward B. Simmons asked the AG: as the legal custodian, did DSS have the right to permit the interview anyway, over the child-advocate's objection?

The AG said no.

The reasoning was structural. Under G.S. § 7A-586(a) (the 1995 Juvenile Code, since recodified), once an abuse-or-neglect petition is filed alleging that a child has been abused or neglected, the judge appoints a guardian ad litem to represent that child. If the guardian ad litem is not an attorney, the judge also appoints an attorney advocate. The duties of those appointees include investigating the facts, identifying the child's needs, offering evidence and examining witnesses at adjudication, and protecting and promoting the child's best interest until formally relieved by the judge.

That last clause matters: until the judge says otherwise, the guardian ad litem or attorney advocate is in charge of protecting the child's legal interests. DSS holds physical and legal custody of the child, but custody is not the same as representation. DSS can decide where the child sleeps and what doctor the child sees, but DSS does not decide whether opposing counsel gets to interview the child for litigation purposes.

The North Carolina Court of Appeals had reached a parallel result in In re Maynard, 116 N.C. App. 616, 448 S.E.2d 871 (1994), review denied, 339 N.C. 613, 454 S.E.2d 254 (1995). The court held that DSS could not violate the child's right to counsel. The AG cited that case for the proposition that the child's appointed counsel is the only voice that can speak to litigation access.

So the practical rule was clear. In an active abuse-or-neglect case, the parents' attorney who wants to interview the child has to negotiate with the child's attorney advocate or guardian ad litem. If that negotiation fails and the parents' attorney still wants the interview, the path is back to the court, not around the child's counsel through DSS.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. North Carolina's juvenile code was recodified in 1998-1999 (the current Subchapter is Chapter 7B), so the specific statute number, G.S. § 7A-586(a), is no longer the operative section. The successor provision is G.S. § 7B-601 and related sections. The underlying principle that the child's appointed guardian ad litem and attorney advocate control access to the child for litigation purposes has continued, but counsel should verify the current statute and case law.

Background and statutory framework

The guardian-ad-litem system in North Carolina juvenile court was designed to give abused or neglected children an independent legal voice, separate from the State (represented by DSS or the prosecutor's office) and separate from the parents (represented by their own counsel). Without that independent voice, the child's interests could be subsumed into the State's case theory or sidelined entirely.

By 1995, the GAL system was a mature feature of North Carolina abuse-and-neglect practice. The statutory framework required the appointment, defined the duties, and put the appointed representative in charge of investigation and advocacy. The attorney advocate complemented the GAL: where the GAL was a non-lawyer (often a trained volunteer), the attorney advocate was the lawyer who could appear in court and protect the legal aspects of the child's interests.

DSS held custody of the child while the case was pending. That custody role is heavy: DSS picked the placement, monitored the child's well-being, made medical and educational decisions, and could be the plaintiff in the underlying neglect proceeding. But DSS was not the child's lawyer. The AG opinion reinforced that the lawyer role belonged to the appointed counsel.

The opinion was driven by a practical concern that ran in two directions. First, allowing DSS to greenlight an interview over GAL objection would have created tactical incentives for parents' counsel to negotiate around the GAL. Second, the children's interests at trial often differed from DSS's interests; even if DSS's heart was in the right place, its assessment of "what's good for this child" was structurally different from a lawyer's assessment of "what protects this child's legal position in pending litigation."

Common questions

Could the parents' lawyer ever interview the child?

Yes, with the GAL or attorney advocate's consent, or with a court order resolving the dispute. The opinion did not say interviews were forbidden, only that DSS could not unilaterally authorize them over the GAL's objection.

What if DSS thought letting the interview happen was good for the case?

DSS's opinion did not control. The judge could decide otherwise on motion, but DSS alone could not authorize the interview.

What about cases where there was no GAL appointed yet?

The opinion's reasoning was tied to G.S. § 7A-586(a)'s requirement that the judge "shall appoint" a GAL once an abuse-or-neglect petition is filed. The statute used mandatory language. So if no GAL had been appointed, there was likely a procedural defect to fix before pre-trial interviews proceeded.

Was this just a North Carolina rule, or was there federal background?

The case law cited was North Carolina-specific. But the broader principle (a minor in litigation has an appointed counsel who controls access) is reflected in federal due-process cases and in the ABA's model rules for the lawyer for a child in dependency proceedings. The AG opinion did not invoke those sources, but the result is consistent with them.

Source

• Landing page: https://ncdoj.gov/opinions/right-to-allow-the-parents-attorney-to-interview-the-child/

Citations

• N.C.G.S. § 7A-586(a) (now part of Chapter 7B, Juvenile Code)
• In re Maynard, 116 N.C. App. 616, 448 S.E.2d 871 (1994)

Original opinion text

September 7, 1995

Mr. Edward B. Simmons Attorney at Law P O Box 1223 118 East Saint James Street Tarboro, North Carolina 27886

Re: Advisory Opinion; Whether the County Department of Social Services, as the Custodian of a Child Who is Alleged to be Abused or Neglected, Has the Right to Allow the Parents' Attorney to Interview the Child Over the Objection of the Child's Attorney Advocate or Guardian Ad Litem; Juvenile Code; N.C.G.S. § 7A-586(a)

Dear Mr. Simmons:

In your letter of 21 August 1995, you state that in several recent cases involving the alleged abuse or neglect of children, the parents' attorney has requested an opportunity to interview the children who are in the custody of Edgecombe County DSS. In each of these cases the attorney advocate, speaking on behalf of the children, has denied the request of the parents' attorney. In particular, you ask whether the agency, as a child's custodian, has the right to permit such an interview over the objection of the child's attorney advocate or guardian ad litem.

Proceedings involving a child who is alleged to be abused or neglected fall under the Juvenile Code in Chapter 7A of the General Statutes. G.S. § 7A-586(a) provides, in pertinent part, as follows:

"When in a petition a juvenile is alleged to be abused or neglected, the judge shall appoint a guardian ad litem to represent the juvenile…The guardian ad litem and attorney advocate have standing to represent the juvenile in all actions under this Subchapter where they have been appointed…In every case where a nonattorney is appointed as a guardian ad litem, an attorney shall be appointed in the case in order to assure protection of the child's legal rights within the proceeding. The duties of the guardian ad litem shall be to make an investigation to determine the facts, the needs of the juvenile, and the available resources within the family and community to meet those needs; to facilitate, when appropriate, the settlement of disputed issues; to offer evidence and examine witnesses at adjudication; to explore options with the judge at the dispositional hearing; and to protect and promote the best interest of the juvenile until formally relieved of the responsibility by the judge."

Once a juvenile petition is filed alleging that a child is abused or neglected and the above appointments are made, clearly, the responsibility and authority for the protection of the child's legal rights rest with the child's attorney advocate or guardian ad litem. Thus, the county DSS, as a child's custodian, has no right to permit the parents' attorney to interview the child over the objection the child's attorney advocate or guardian ad litem. In fact, the county DSS may not violate the child's right to counsel. See, In re Maynard, 116 N.C. App. 616, 448 S.E.2d 871 (1994), review denied, 339 N.C. 613, 454 S.E.2d 254 (1995).

We trust that this fully answers your inquiry. If ever we can be of further assistance, please call on us.

Ann Reed Senior Deputy Attorney General

David Gordon
Assistant Attorney General