Because the majority has inappropriately applied this Court's holding in In re R.A.H., I respectfully dissent.1
Under N.C. Gen.Stat. § 7B-601(a) (2005) "[w]hen in a petition a juvenile is alleged to be abused or neglected, the court shall appoint a guardian ad litem ["GAL"] to represent the juvenile." In both J.E.'s and Q.D.'s petitions they were alleged to be neglected. The trial court complied with the statute in this case by stating that "[t]he petitioner is informed that the [GAL] Program . . . has been appointed guardian of said child[ren] and the attorney advocate for the [GAL] Program has been appointed attorney advocate for the child[ren]." It is undisputed that the children were represented by a GAL at the termination hearing. The only times in which the record reflects that a GAL was not present on behalf of the children occurred during J.E.'s initial seven-day order on 22 October 2002, his review hearing order on 25 September 2003, and Q.D.'s adjudicatory hearing order on 12 April 2004. Even during those hearings, however, the attorney advocate for the GAL program was present. See N.C. Gen.Stat. § 7B-601(a) (attorney advocate shall "assure protection of the juvenile[s'] legal rights"). Respondent's parental rights were terminated on 19 December 2005 after a hearing held on 17 November 2005. Thus, the issue before this Court is whether an order terminating parental rights should be affirmed when both children were represented by a GAL at the termination hearing while unrepresented during some hearings not on direct appeal to this Court.
This Court in In re R.A.H., 171 N.C.App. 427, 614 S.E.2d 382 (2005), held that prejudice will be presumed where "a child was not represented by a [GAL] at a critical stage of the termination proceedings." Id. at 431, 614 S.E.2d at 385. In that case, the child was not represented by a GAL during the first three and a half days of a termination hearing and the mother's parental rights were terminated. Id. at 430, 614 S.E.2d at 384. The mother then appealed "[f]rom the order terminating her parental rights" to the child. Id. at 428, 614 S.E.2d at 383.
In the instant case, respondent is also appealing the order terminating her parental rights. Unlike respondent in In re R.A.H., however, respondent in this case points to the children's lack of representation at prior hearings, to which she did not object nor later appeal, as grounds to overturn the trial court's termination order. Unlike the child in In re R.A.H., the children in this case were represented at every stage of the termination hearing.
This Court has dealt with a similar issue relating to GAL representation of parents *35facing termination hearings and has held that where a GAL is required, and the trial court fails to appoint one in the proceeding being appealed, this Court must reverse. In re O.C. & O.B., 171 N.C.App. 457, 463, 615 S.E.2d 391, 396 (2005); see also In re E.T.S., 175 N.C.App. 32, 37, 623 S.E.2d 300, 302 (2005); In re L.A.B., ___ N.C.App. ___, ___, 631 S.E.2d 61, 66 (2006). Accordingly, this Court has also held that when the trial court fails to appoint a GAL in a prior proceeding not on direct appeal, we will not reverse. In re O.C. & O.B., 171 N.C.App. at 463, 615 S.E.2d at 395. The rationale behind this rule is clear and, in relevant part, is quoted below:
First, [allowing respondents to allege errors based on prior orders] would create uncertainty and render judicial finality meaningless. Termination orders entered three, five, even ten years after the initial adjudication could be cast aside. Secondly, by necessarily tying the adjudication proceedings and termination of parental rights proceedings together, respondent misapprehends the procedural reality of matters within the jurisdiction of the district court: Motions in the cause and original petitions for termination of parental rights may be sustained irrespective of earlier juvenile court activity.
Id. In short, "there is no statutory authority for the proposition that the instant order is reversible because of a GAL appointment deficiency that may have occurred years earlier." Id. at 462, 615 S.E.2d at 395.
In the instant case, the hearing in which Q.D. was purportedly unrepresented occurred over a year before the termination hearing, and the hearings in which J.E. was purportedly unrepresented occurred approximately two and three years before the termination hearing. More importantly, the trial court's order should be affirmed because the prior orders in which the children were purportedly unrepresented are not on appeal before this Court and because a GAL represented the children during the entire termination proceeding. Thus, because it cannot be said that the children were unrepresented during a "critical stage" of the termination hearing, I would affirm the trial court as to this issue. As such, I respectfully dissent.
Petitioner argues in its brief that respondent's arguments regarding guardian ad litem representation should be deemed abandoned because the assignments of error relating to that issue were not brought forward before the record on appeal was settled. After the record on appeal was filed, respondent moved to add the only additional assignments of error which are argued on this appeal. This motion was granted. Under North Carolina Rule of Appellate Procedure 9(b)(5), any party may make a motion to this Court to "order additional portions of a trial court record or transcript sent up and added to the record on appeal." Petitioner had notice of the Rule 9 motion before its brief was filed with this Court, and as such, could have made a Rule 9 motion to amend the record to add any necessary documents needed to address the issue of guardian ad litem representation. Accordingly, the issue is properly before this Court.