In re: J.R., A.R. , 250 N.C. App. 195 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-384
Filed: 1 November 2016
Rutherford County, Nos. 15 JA 73-75
IN THE MATTER OF: J.R., A.R., K.R.
Appeal by respondent-mother from orders entered 4 January 2016 by Judge
Randy Pool in District Court, Rutherford County. Heard in the Court of Appeals 10
October 2016.
Joshua G. Howell for petitioner-appellee Rutherford County Department of
Social Services.
The Tanner Law Firm PLLC, by James E. Tanner III, for respondent-appellant
mother.
Stephen M. Schoeberle for guardian ad litem.
STROUD, Judge.
Respondent-mother appeals from orders adjudicating her minor children “Joe,”
“Amy,” and “Karl”1 (collectively “the children”) abused and neglected juveniles.
Respondent-mother argues that the trial court improperly denied her attempt to
waive representation by counsel and represent herself. We affirm the orders.
On 18 June 2015, the Rutherford County Department of Social Services
(“DSS”) filed juvenile petitions alleging that the children were abused, neglected, and
1 Pseudonyms are used to protect the identity of the minor children and for ease of reading.
IN RE: J.R., A.R., K.R.
Opinion of the Court
dependent. The petitions detailed significant and repeated physical abuse by
respondent-mother’s boyfriend (“the caretaker”).2 Whenever the caretaker was
drunk, he would punch the children, hit them with wooden objects, or choke them.
At the time the petition was filed, Joe and Karl had visible injuries. The petition
alleged that respondent-mother did not stop the abuse because the caretaker hit her
as well, and she was scared of him. The trial court placed the children in nonsecure
custody with DSS the same day.
The matter was called for an adjudication hearing on 26 October 2015. Prior
to the hearing, respondent-mother and the caretaker made a joint motion to dismiss
their court-appointed counsel and represent themselves. The caretaker informed the
court that respondent-mother had filed a complaint against her counsel with the
North Carolina State Bar. Respondent-mother also told the court that she had not
seen the discovery in the case, making it impossible for her to rebut DSS’s case. The
caretaker then stated, “[t]he base fact of it, Your Honor, is that we choose to represent
ourselves.” He continued:
She said that she was -- we both said to our attorneys when
we got them that -- we give each other full disclosure to this
case so that we can -- because I’ve done a little bit of -- I
was pre-law in college, I ended up going into other things.
But I was going to help her prepare, you know, to do
research on the computer, look up statute 7B and get all
the information.
2 The caretaker was made a party to the adjudication due to the allegations made against him
in the petition. See N.C. Gen. Stat. § 7B-401.1 (e) (2015).
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We don’t want these attorneys, your Honor. We shouldn’t
be stuck with them.
The trial court then denied both motions, stating, “I think you both need
representation. You have adequate representation.”
The hearing was not completed, and the case was continued until 9 November
2015. Prior to resuming the hearing, both the caretaker and respondent-mother’s
respective attorneys moved to withdraw from representation. Respondent-mother’s
attorney pointed out that she was respondent-mother’s second attorney: “She had a
prior attorney who then filed a motion to withdraw and then I was appointed I think
it was in August. But she will not talk to me without her boyfriend [the caretaker],
you know, being present. And that creates obviously some issues with us.”
In addition, the caretaker and respondent-mother each presented the court
with signed waivers of their right to counsel. Respondent-mother addressed the court
as follows:
Yes. Well, I had asked when we began this in October that
I could waive my right to counsel because that’s what I was
told by Steve up in your clerk’s office.
You said that I needed this attorney when I asked you for
dismissal of my attorney for a waive of right. You said no,
that I needed that. And since then I’ve found the North
Carolina Statute 7B-1101.1(a), please see case number In
the Matter of JKP, Court of Appeals 14-756, citation
number 767 S.E.2d 119 (2014).
For the record, Your Honor, I believe that my right was
overridden by your statement and we had to proceed at
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that time. I ask for a dismissal of counsel, I waive my right
to him. I don’t want him to represent me or speak for me.
The court again denied both motions from the bench:
The motions of [the caretaker] and the respondent
mother to be relieved -- have their counsel relieved and to
be allowed to proceed representing themselves, self
representation, is denied.
The Court would make findings of fact the
allegations in this case of abuse and neglect involve
allegations of serious assault on the children that could and
may very well give rise to criminal proceedings being
brought against one or both of these individuals -- the
respondent mother and [the caretaker].
That if they were allowed to proceed without
counsel, they may choose to testify themselves, which they
have the right to do if they wish to, and any statements
that they make could be used against them in criminal
prosecution.
And they do have the right, of course, the rights
associated with any kind of criminal prosecution including
rights to remain silent if they wish to exercise those.
But pursuant to the statute the Court would find
that the respondents have asked that they be allowed to
represent themselves and that their attorneys be released.
And the Court -- if the Court finds the person -- 7B-
602(a)(1) states a parent qualifying for appointed counsel
may be permitted to proceed without the assistance of
counsel only after the Court examines the parent and
makes findings of fact sufficient to show that the waiver is
knowing and voluntary. The Court’s examination shall be
reported as provided in 7B-806.
The Court would find that the parents have made a
request to be allowed to proceed on their own without
counsel and be self represented. The Court would find that
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with pending criminal charges possible and maybe even
likely that it would not be in their best interest to proceed
without counsel.
And the Court would find that there would not be a
knowing and voluntary waiver since they’re not attorneys
and are lay people and would not fully understand even the
Court’s directive as to what their rights may or may not be
if they’re proceeding representing themselves.
So, the Court will deny the request to release
counsel.
The hearing then continued with both respondent-mother and the caretaker
represented by their respective counsel.
On 4 January 2016, the trial court entered orders concluding that the children
were abused and neglected. The court left the children in the custody of DSS,
removed the caretaker as a party to the case, relieved DSS of its obligation to pursue
reunification efforts with respondent-mother, and denied respondent-mother
visitation. Respondent-mother filed a timely notice of appeal.3
Respondent-mother argues that the trial court erred by denying her request to
waive counsel and represent herself. We disagree.
N.C. Gen. Stat. § 7B-602(a) provides that “[i]n cases where the juvenile petition
alleges that a juvenile is abused, neglected, or dependent, the parent has the right to
counsel and to appointed counsel in cases of indigency unless that person waives the
3 The trial court permitted respondent-mother’s counsel to withdraw on 10 December 2015,
and respondent-mother filed the notice of appeal pro se.
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right.” N.C. Gen. Stat. § 7B-602(a) (2015). The statute further provides that “[a]
parent qualifying for appointed counsel may be permitted to proceed without the
assistance of counsel only after the court examines the parent and makes findings of
fact sufficient to show that the waiver is knowing and voluntary.” N.C. Gen. Stat. §
7B-602(a1). Respondent-mother contends that these statutory provisions create both
a right to counsel and a “correlative . . . right to self-representation.” According to
respondent-mother, when a parent asserts his or her right to self-representation, the
trial court is required to examine the parent and also required to allow the parent to
proceed pro se so long as the record reflects that the parent “was literate and
competent, that she understood the consequences of the waiver, and that such waiver
was a voluntary exercise of her own free will.”
But respondent-mother’s interpretation cannot be reconciled with the plain
language of N.C. Gen. Stat. § 7B-602(a1). That subsection clearly states that the trial
court may allow the parent to proceed pro se, and it is well established that the use
of the word “may” in a statute implies the use of discretion. See In re Hardy, 294 N.C.
90, 97, 240 S.E.2d 367, 372 (1978) (“Ordinarily when the word ‘may’ is used in a
statute, it will be construed as permissive and not mandatory.”). The discretionary
nature of the trial court’s decision is further supported by the history of Chapter 7B.
Prior to 1 July 1998, adjudication hearings in abuse, neglect, and dependency cases
were governed by N.C. Gen. Stat. § 7A-631, which stated:
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“The adjudicatory hearing shall be a judicial process
designed to adjudicate the existence or nonexistence of any
of the conditions alleged in a petition. In the adjudicatory
hearing, the judge shall protect the following rights of the
juvenile and his parent to assure due process of law: the
right to written notice of the facts alleged in the petition,
the right to counsel, the right to confront and cross-
examine witnesses, the privilege against self-
incrimination, the right of discovery and all rights afforded
adult offenders except the right to bail, the right of self-
representation, and the right of trial by jury.”
Thrift v. Buncombe County DSS, 137 N.C. App. 559, 561, 528 S.E.2d 394, 395 (2000)
(quoting N.C. Gen. Stat. § 7A-631) (emphasis added). This statute was repealed, see
1998 N.C. Sess. Laws ch. 202, § 5, and replaced by N.C. Gen. Stat. § 7B-802, which
provides: “The adjudicatory hearing shall be a judicial process designed to adjudicate
the existence or nonexistence of any of the conditions alleged in a petition. In the
adjudicatory hearing, the court shall protect the rights of the juvenile and the
juvenile’s parent to assure due process of law.” N.C. Gen. Stat. § 7B-802 (2015). This
Court previously concluded that the removal of the reference to the “privilege against
self-incrimination” defeated a respondent’s contention that the privilege was
protected by the statute. In re Pittman, 149 N.C. App. 756, 761, 561 S.E.2d 560, 565
(2002). Using that same logic, by removing the language specifically requiring the
trial court to protect the right of self-representation, the General Assembly also
eliminated any statutory right to self-representation. Thus, we conclude that,
contrary to respondent-mother’s argument, N.C. Gen. Stat. § 7B-602(a1) does not
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require the trial court to allow parents to waive counsel and represent themselves,
but rather gives the court the discretion to do so.
Respondent-mother also asserts that she has a right to self-representation
protected by the Sixth Amendment of the United States Constitution and Article I,
Section 23 of the North Carolina Constitution, but the only cases cited by respondent-
mother in support of her assertion discuss the right to self-representation in criminal
cases.4 Respondent-mother cites no cases, and we have found none, that suggest a
parent has a constitutional right to self-representation in the context of an abuse,
neglect, and dependency proceeding. In In re Lassiter, 43 N.C. App. 525, 259 S.E.2d
336 (1979), this Court held that parents do not have a constitutional right to counsel
in termination proceedings:
The termination of parental rights by the State invokes no
criminal sanctions against the parent whose rights are so
terminated. While this State action does invade a protected
area of individual privacy, the invasion is not so serious or
unreasonable as to compel us to hold that appointment of
counsel for indigent parents is constitutionally mandated.
Id. at 527, 259 S.E.2d at 337. That decision was appealed to the United States
Supreme Court, which left “the decision whether due process calls for the
4 Respondent-mother cites In re J.K.P., 238 N.C. App. 334, 336, 767 S.E.2d 119, 121 (2014),
disc. review denied, __ N.C. __, 771 S.E.2d 314 (2015), in an attempt to support her argument, but that
case dealt with whether the trial court properly allowed the respondent to proceed pro se in a
termination proceeding in accordance with N.C. Gen. Stat. § 7B-1101.1 (a1) (2015), the companion
statute to N.C. Gen. Stat. § 7B-602(a1). The J.K.P. Court never asserted there was a constitutional or
statutory right to self-representation.
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appointment of counsel for indigent parents in termination proceedings” for the trial
court and held that “the trial court did not err in failing to appoint counsel for Ms.
Lassiter.” Lassiter v. Department of Social Services, 452 U.S. 18, 32, 33, 68 L. Ed. 2d
640, 652, 653 (1981). Since there is no per se constitutional right to counsel for
parents, there can be no correlative constitutional right to self-representation.
Indeed, the few courts in other jurisdictions that have considered the question of a
parent’s right to self-representation have concluded that such a right does not exist
under the United States Constitution. See In re A.H.L., III, 214 S.W.3d 45, 52 (Tex.
App. 2006) (“We likewise find that a right of self-representation is not a necessary
component of a fair parental rights termination proceeding.”); In re Angel W., 113 Cal.
Rptr. 2d 659, 665 (Cal. Ct. App. 2001) (“The Sixth Amendment does not apply in
dependency proceedings so its structure cannot provide a basis for finding a
correlative constitutional right of self-representation.”). But see Dane Cnty. Dep’t of
Human Servs. v. Susan P.S. (In re Sophia S.), 715 N.W.2d 692, 697 (Wis. Ct. App.
2006) (concluding that parents in termination proceedings have a right to self-
representation under a provision of the Wisconsin Constitution which states that
“ ‘[i]n any court of this state, any suitor may prosecute or defend his suit either in his
own proper person or by an attorney of the suitor’s choice.’ ” (quoting Wis. Const. art.
I, § 21(2)). We find the reasoning of these cases persuasive and similarly conclude
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that there is no constitutional right to self-representation for a parent in an abuse,
neglect, and dependency proceeding.
Having determined that the trial court was not required, either by statute or
the Constitution, to allow respondent-mother to proceed pro se, we must still consider
whether the court abused its discretion by denying respondent-mother’s request.
“Absent an abuse of discretion, we will not disturb the trial court’s choice. An abuse
of discretion occurs when the trial court’s ruling is so arbitrary that it could not have
been the result of a reasoned decision.” In re Robinson, 151 N.C. App. 733, 737, 567
S.E.2d 227, 229 (2002) (citations and quotation marks omitted). In this case, the
court considered respondent-mother and the caretaker’s motions to proceed pro se
twice, once prior to the beginning of the hearing and a second time prior to the
presentation of evidence on the second day of the hearing. The trial court denied the
first motion by stating, “I think you both need representation. You have adequate
representation.” After the second motion, the trial court made more detailed findings
in support of its decision. Specifically, the court found that respondent-mother was
potentially facing criminal charges due to the abuse suffered by her children and that
she would be unlikely to be able to protect her rights with regard to those criminal
charges if she represented herself.
In addition, although the trial court did not explicitly say so, it is clear from
the transcript that the court found respondent-mother’s waiver was not knowing and
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voluntary because she was highly influenced -- if not coerced -- by the caretaker, with
whom she continued to live and whom the trial court determined was physically
abusive to the juveniles as well as respondent-mother. Respondent-mother’s attorney
pointed out to the court that respondent-mother would not speak with him “without
her boyfriend . . . being present. And that creates obviously some issues with us.”
Each time the waiver was brought up in court, the caretaker argued first as to why
the court should grant both his request and respondent-mother’s request to waive
their right to a court-appointed attorney. The caretaker often spoke on behalf of both
himself and respondent-mother, constantly using the pronoun “we.” He noted, for
example, that respondent mother filed a grievance against one of her prior attorneys
where she wrote “six to seven pages of narrative . . . about reasons why she does not
want to be represented by this man.” Respondent-mother then followed the caretaker
each time he brought up their request to waive the right to an attorney, making
nearly identical arguments for waiving her right.
The trial court also had evidence of the extent of the caretaker’s control over
respondent-mother from her own submissions to the trial court. Respondent mother
filed a long written statement with the trial court in which she described her history
with her husband and the father of the juveniles, whom she alleges was physically
abusive and addicted to alcohol and drugs. They and their extended families lived in
the state of Washington. They separated in about 2012, and she claims that she had
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been attempting to legally divorce him ever since but had been unable to because she
could not find him to serve him.5 Apparently at about the same time as the separation
from her husband, she met the caretaker and shortly after, alleging fear for the
children’s safety, she decided to have the caretaker home-school three of her children.
She, the caretaker, and the children then moved to North Carolina in 2013 to assist
the caretaker’s ailing father. She had become estranged from her parents and
extended family in Washington. She repeatedly states her fervent desire to marry
the caretaker, noting that “[e]ver since we first started texting scripture over 3 and a
half years ago, he has been my best friend, my Love, and my strength in all
situations.” She describes how poorly behaved the children have been; explains away
each of their injuries from the alleged physical abuse; and laments their lack of
appreciation for being provided with “3+ meals a day, movies on the weekends, sweets
once a week (only because they blew that themselves), time to ‘play’, and to enjoy
living on top of a hill . . . in a beautiful home!” Of course, the children were also
required to help maintain the “over 30 acres of [caretaker’s] family land that needs
attending to[.]” She notes that since the children pay no bills, it is “more than
reasonable for them to live the life of a farmer, and to work hard.”
Considering respondent-mother’s written statements as well as the statements
and behavior of both her and the caretaker in court, it is apparent that respondent-
5 DSS did find and serve respondent-father in this case and he participated in the case to some
extent, although he is not a party to this appeal.
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mother was entirely under the control of caretaker and incapable of understanding
the effect his behavior has had on her children. The court’s findings from the bench
reflect that it considered respondent-mother’s situation and determined that self-
representation was not in her best interests. We cannot say that this ruling was “so
arbitrary that it could not have been the result of a reasoned decision,” and
accordingly, we do not disturb it. The adjudication and disposition orders are
affirmed.
AFFIRMED.
Judges CALABRIA and INMAN concur.
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