In re: A.D.B. & A.D.B. ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-400
Filed: 6 October 2015
Greene County, No. 13 JT 17, 19
IN THE MATTER OF: A.D.B., A.D.B.,
MINOR CHILDREN.
Appeal by respondent-mother and respondent-father from orders entered 4
February 2015 by Judge R. Les Turner in Greene County District Court. Heard in
the Court of Appeals 24 August 2015.
Baddour, Parker, Hine & Hale, P.C., by E. B. Borden Parker and Helen S.
Baddour, for petitioner-appellee Greene County Department of Social Services.
K&L Gates LLP, by Leah D’Aurora Richardson, for guardian ad litem.
Mercedes O. Chut for respondent-mother-appellant.
Richard Croutharmel for respondent-father-appellant.
BRYANT, Judge.
Where the trial court’s findings of fact in support of the conclusion that the
minor children were neglected juveniles were supported by clear, cogent, and
convincing evidence, there were sufficient grounds to terminate Mother’s parental
rights, and the trial court had sufficient basis to assume jurisdiction over the
termination of parental rights action, we affirm the trial court. Where the trial court
IN RE: A.D.B. & A.D.B.
Opinion of the Court
had sufficient basis to deny Father’s motion to dismiss, we affirm the trial court. Also,
where the trial court released Father’s attorney during a permanency planning
review hearing, we find no error.
The mother and father of A.D.B. and A.D.B. (hereinafter “Ashley” and
“Amelia”)1 appeal from orders terminating their parental rights to the juveniles on
the ground of neglect. We affirm the orders.
On 6 April 2013, respondent-father (“Father”) assaulted respondent-mother
(“Mother”) with a champagne glass, cutting her on the arm, forehead, and top of her
head. Mother signed a safety plan agreeing to keep the children away from Father.
Mother also obtained a domestic violence protection order. On 12 May 2013, Mother
contacted Father by cell phone. She traveled with the children to Rocky Mount and
transported Father back to Greene County with them. Law enforcement officers
stopped Mother’s vehicle and arrested Father on charges of assault and battery and
violation of the domestic violence protection order.
On 15 May 2013, the Greene County Department of Social Services (“DSS”)
filed juvenile petitions alleging that five-year-old Ashley and one-year-old Amelia
were neglected juveniles: they did not receive proper care, supervision or discipline
from their parents and lived in an environment injurious to their welfare. A trial
court adjudicated the girls neglected juveniles on 24 June 2013 and placed them in
1 The parties stipulated that the children shall be referenced by these pseudonyms in the
briefs.
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the custody of DSS. The court held a permanency planning hearing on 17 February
2014 and entered orders changing the permanent plan for each child to adoption.
DSS subsequently filed petitions to terminate the parental rights of
respondents on the grounds that they have neglected Ashley and Amelia and continue
to neglect them. On 18 December 2014, the court conducted a hearing upon the
petitions, and on 4 February 2015, the court filed orders terminating the parental
rights of both parents on the ground alleged in the petitions. Mother and Father
appealed.
__________________________________________
On appeal, Mother raises the following issues: whether the trial court erred by
(I) making certain findings of fact; (II) concluding that Mother neglected her minor
children; (III) terminating her parental rights; and (IV) assuming jurisdiction over
the parental rights action.
Father raises the following issues on appeal: whether the trial court erred by
(V) releasing Father’s attorney; and (VI) denying Father’s motion to dismiss.
Standard of Review
We review an order terminating parental rights to determine whether the
findings of fact are supported by clear, cogent and convincing evidence and whether
the conclusions of law are supported by the findings of fact. In re Shepard, 162 N.C.
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App. 215, 221, 591 S.E.2d 1, 6 (2004). We review the court’s conclusions of law de
novo. In re S.N., 194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008).
I
First, Mother argues that “the record does not contain clear, cogent and
convincing evidence to support many findings, or the inferences they produce.” We
disagree.
The trial court in a termination of parental rights proceeding acts both as judge
and jury, assigning weight to the evidence as it deems appropriate, and resolving
conflicts in the evidence. In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393,
397–98 (1996). “If different inferences may be drawn from the evidence, the trial
judge must determine which inferences shall be drawn and which shall be rejected.”
In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365–66 (2000) (citation
omitted). An appellate court is bound by the findings of fact made by the trial court
“where there is some evidence to support those findings, even though the evidence
might sustain findings to the contrary.” In re Montgomery, 311 N.C. 101, 110–11, 316
S.E.2d 246, 252–53 (1984) (citation omitted).
Mother contends that findings of fact numbers 15 and 16, which concern
Mother’s residential arrangements since the time the original juvenile petitions were
filed, erroneously “suggest” that Mother “did not follow the court’s directive to obtain
stable housing.” Mother takes exception to statements in finding of fact number 16
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that: (1) she “did not furnish a copy of the lease” for her current residence, an
apartment operated by Kinston Housing, “but did furnish a letter stating that she
could live there”; and (2) she told Kinston Housing that she had two children,
referring to Ashley and Amelia, who would be living with her there. Mother submits
that these statements created erroneous inferences that there was no lease or the
home was not permanent.
We find competent evidence to support findings of fact numbers 15 and 16. The
social worker responsible for the case and Mother both testified consistently
regarding the locations where Mother lived since the beginning of the case. The social
worker testified that Mother never supplied her with a copy of the lease to her current
apartment, only a letter from Kinston Housing stating there was a lease, and that
Mother stated she would bring the lease with her to court. When asked at the hearing
whether she had brought the lease with her, Mother responded that she had the
letters which were sent to her. Mother never introduced a lease into evidence or
produced a lease.
Mother next challenges findings of fact numbers 19 through 21, which state
that Mother failed to: (a) follow through with recommended domestic violence
counseling; (b) complete an empowerment class in Kinston with SAFE; and (c) follow
through with services provided by an agency in Snow Hill. Mother argues these
findings are “inaccurate, misleading and unsupported by the evidence.” She submits
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the findings are misleading because they mistakenly suggest she was ordered or
recommended to attend multiple classes, and they misrepresent the timeline of
events. She also maintains the evidence does not support the essence of the findings,
i.e., that she failed to follow through with recommended counseling.
We find evidentiary support for findings of fact numbers 19 through 21. The
record shows that on 24 June 2013 and again on 12 August 2013, the court ordered
Mother, inter alia, to: obtain a mental health assessment and follow all
recommendations; obtain a domestic violence assessment and follow all
recommendations; and attend and participate in a parenting class approved by DSS.
The social worker testified that although the mental health assessment did not state
how many sessions were needed, a treating psychologist indicated that counseling
“should be ongoing.” The psychologist testified that she saw Mother multiple times
between June 2013 and 24 October 2014 and that since the latter date, counseling
has been on an “as-needed basis.” The social worker also testified that Mother
attended only three of twelve SAFE empowerment classes and did not finish the
program. The social worker testified that when she first became involved with the
case, Mother and the children had been receiving services from Lucille’s in Snow Hill
“working with her on empowerment through motivating her to finish her GED,2
helping her find a job, helping her find resources for transportation. They would
2 At the time the orders terminating Mother’s parental rights to Ashley and Amelia were
entered, the trial court found that Mother had obtained her GED.
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make suggestions on helping her keep her house clean . . . .” After the children were
taken into the custody of DSS, Lucille’s decided not to continue its services due to
Mother’s “lack of follow through.” The term “follow through” is defined in The
American Heritage College Dictionary as “[t]o carry an act, a project, or an intention
to completion; pursue fully.” American Heritage College Dictionary 529 (3d ed. 1993).
This evidence demonstrates that Mother did not complete everything ordered by the
court to completion.
Mother next challenges findings of fact numbers 24 through 28, which concern
Mother’s visitations and interactions with the children during the visits. Specifically,
the court found in the order terminating her rights to Ashley:
24. That the mother has had visitation with the juvenile
and the siblings of the juvenile, but has missed several
visits and missed the most recent scheduled visit on
December 16, 2014.
25. That when the mother visits, the children often play
among themselves and do not interact a lot with the
mother. The children recognize the mother as their
mother.
26. That this juvenile gets very upset when a visit is set
and the mother does not appear.3
27. That during the visits with both of her daughters, the
mother has a hard time engaging both at the same time.
28. That the juveniles do not cry at the end of the visits at
3 Finding of fact number 26 in the order terminating Mother’s parental rights to Amelia states:
“[T]his juvenile cries and screams to get the attention of the mother when the mother is trying to give
attention to the sister of the juvenile at the visits.”
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this time.
Mother disagrees with the court’s findings that she “missed several visits,” that she
and the children have little interaction during the visits, and that the children display
little affection during the visits.
The social worker testified that there have been “several missed visitations,”
as recent as the Tuesday prior to the hearing. She further testified that she observed
all but one or two of the visits.
The children are usually very excited to see her and she is
usually pretty excited to see them. They hug. There is
positive interaction. Recently [Amelia’s] behavior has been
difficult during the visitation. She often screams. She is
very, very active. Tries to leave the room. Flips the light
on and off. She screams to get attention. If [Mother] is
paying attention to [Ashley,] [Amelia] screams to get
[inaudible]. She oftentimes gives [Ashley] her phone to
watch a video, like Dora the Explorer or something like
that, which is what [Ashley] wants to do. She wants to
immediately get the phone and watch videos. [Mother]
usually takes a few pictures during the visits. She takes
videos of [Ashley] singing and dancing.
[Mother] went through a stage where the visits were not
the best because the girls would just play and she would
just kind of sit back and watch them. There was not a
whole lot of interaction. But over time, in talking to
[Mother] about it, that has gotten better. She has a hard
time engaging both of the girls at the same time in one
activity. Part of that, I think, is because [Amelia] is so busy
and so active. [Mother] will correct either of the children
and tell them “you can’t do that” or “you shouldn’t do that”.
Sometimes they listen and sometimes they don’t. At the
end of the visits, the children don’t cry anymore. They are
pretty used to her leaving.
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There were two visits where the children were brought to
DSS after [Mother] called and said that she would come to
the visits and then didn’t show up, and those really, really
upset [Ashley]. She was very devastated by those visits not
taking place after she had her hopes up that they would,
and it was my understanding during those two times that
she had transportation issues.
We cannot agree with DSS and the guardian ad litem that the social worker’s
testimony concerning her observations of the visits supports the findings that the
children often play among themselves and do not interact a lot with the mother. The
social worker’s testimony indicates that although there may have been a time when
there was little interaction, Mother improved her engagement with the children over
the course of time. The social worker further testified that the children are excited
to see Mother and “[c]all her mommy,” that they hug each other and show affection,
and that they interact with each other. We conclude the portion of finding of fact
number 25 which suggests otherwise is not supported by the evidence.
Mother next challenges the court’s finding of fact in each order in which the
court found that Mother has a son who is in his father’s custody but she is not
exercising court-ordered visitation with the child. After carefully reviewing the
record, we are unable to find any evidence to support the portion of the finding that
Mother is not exercising court-ordered visitation. At best, the testimony of the social
worker shows the Mother and the father of the child had some “conflict” in the
planning of the visits, not that Mother failed to visit the child.
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Mother next disagrees with the court’s statement in finding of fact number 38
that she “has started to comply with the orders of the Court but it appears that her
compliance is timed around Court hearings.” We find support for this finding in the
record. The social worker testified that Mother attended domestic violence
counseling in June and July 2013, March 2014, and twice in October 2014; that
Mother completed a parenting class on 27 October 2014; and that Mother moved into
a three-bedroom home in November 2014. The record shows a pretrial conference
hearing was held on 24 June 2013, permanency planning hearings were held on 17
February 2014 and 11 August 2014, the pretrial conference for the termination of
parental rights hearing was held on 15 September 2014, and a special hearing was
held on 6 October 2014 upon the parents’ motion to postpone the termination of
parental rights hearing to 8 December 2014. The termination of parental rights
hearing was conducted on 18 December 2014.
Mother’s final claim concerning the lower court’s findings of fact is that
findings of fact number 36, 37, and 39—in which the court found that the parents
have neglected the juveniles, that they will continue to neglect them, and that
grounds exist to terminate her parental rights on the basis of neglect—are actually
conclusions of law. We agree but conclude the error is not prejudicial as the court
also stated as conclusion of law number 5 in both orders that “[t]o the extent that any
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Finding of Fact is more properly designated a Conclusion of Law the same is hereby
incorporated herein by reference.”
Having determined portions of the court’s findings of fact are not supported by
evidence, we must next determine whether these unsupported findings of fact lead to
prejudicial error. “When . . . ample other findings of fact support an adjudication of
neglect, erroneous findings unnecessary to the determination do not constitute
reversible error.” In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006)
(citation omitted). As discussed herein, we conclude the erroneous findings
concerning Mother’s interaction with the children during visitations do not require
reversal of the orders.
II
Next, Mother contends the court erred by concluding that her parental rights
may be terminated on the ground of neglect. She argues there is no evidence that she
had not successfully addressed the basis for removal of the children from the home,
namely, domestic violence. She also argues there is no evidence that she was
neglecting the children at the time of the hearing to terminate her parental rights or
that she is likely to neglect the children in the future. She submits the court
improperly used her failure to fulfill conditions unrelated to the reason for removal
from the home to support termination of her parental rights. We disagree.
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To terminate parental rights pursuant to N.C. General Statutes, section 7B-
1111(a)(1), the trial court must conclude that the parent has abused or neglected the
child. N.C. Gen. Stat. § 7B-1111(a)(1) (2013). A juvenile is neglected when the
juvenile is not provided proper care, supervision, discipline or the juvenile lives in an
environment injurious to his or her welfare. N.C. Gen. Stat. § 7B-101(15) (2013).
This Court has consistently held that a showing must be made that the juvenile’s
physical, mental or emotional condition is impaired or at substantial risk for
impairment as a consequence of a failure to provide proper care, supervision or
discipline. In re D.B.J., 197 N.C. App. 752, 755, 678 S.E.2d 778, 780 (2009). “A
finding of neglect sufficient to terminate parental rights must be based on evidence
showing neglect at the time of the termination proceeding.” In re Young, 346 N.C.
244, 248, 485 S.E.2d 612, 615 (1997) (citation omitted). The court must consider
evidence of any changed circumstances since the time of a prior adjudication and the
probability that the neglect will be repeated if the child is returned to the parent’s
care. In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). In making the
latter determination, the court “must assess whether there is a substantial risk of
future abuse or neglect of a child based on the historical facts of the case.” In re
McLean, 135 N.C. App. 387, 396, 521 S.E.2d 121, 127 (1999).
The original orders adjudicating the two girls as neglected juveniles
incorporated by reference the court reports prepared by the social worker in charge
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of the case and the guardian ad litem. These reports relate that Mother’s residence
at the time of the 24 June 2013 adjudication hearing was infested with roaches and
her children were coming to school “dirty and [unkempt].” Mother declined the
services offered by two agencies to assist her in keeping the children dressed in clean
clothing. Ashley, who was born in October 2007, had never had her teeth cleaned
before 21 June 2013. Ashley underwent eye surgery in July 2012 to correct severe
strabismus, but Mother failed to take Ashley to recommended follow-up
appointments related to the eye condition. Mother also failed to keep the younger
child’s immunizations on schedule. The social worker recommended that Mother
maintain safe and stable housing which is not infested by insects or rodents, attend
parenting classes, and obtain mental health and domestic violence assessments. The
guardian ad litem also recommended that Mother be required to maintain stable and
appropriate housing in addition to stable, suitable employment or obtain high school
equivalency. The court adopted the recommendations of the social worker and
guardian ad litem to address these issues. These reports and recommendations
indicate that the adjudication was not based solely upon domestic violence in the
home but was based also upon Mother’s failure to provide them with proper care and
a safe home.
The court’s findings in the termination orders further indicate that Mother
failed to meet the obligations imposed upon her by the trial court and that the neglect
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will be likely to continue. They show that Mother has lived in six different locations
during the nineteen months preceding the termination of parental rights hearing,
that she has not completely complied with the obligations of domestic violence
counseling and followed the recommendations of the mental health assessment, and
that she has not attended DSS-approved parenting classes.
III
Mother next contends that the court erred by failing to make pertinent findings
of fact before terminating her parental rights. We disagree.
North Carolina General Statutes, section 7B-1110(a) provides the following:
After an adjudication that one or more grounds for
terminating a parent’s rights exist, the court shall
determine whether terminating the parent’s rights is in the
juvenile’s best interest. The court may consider any
evidence . . . that the court finds to be relevant, reliable,
and necessary to determine the best interests of the
juvenile. In each case, the court shall consider the
following criteria and make written findings regarding the
following that are relevant:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will
aid in the accomplishment of the permanent plan for
the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the
juvenile and the proposed adoptive parent,
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guardian, custodian, or other permanent placement.
(6) Any relevant consideration.
N.C. Gen. Stat. § 7B-1110(a) (2013). Although the statute requires the court to
consider all of the factors, the court is required to make written findings of fact only
regarding those factors which are relevant. In re D.H., ___ N.C. App. ___, ___, 753
S.E.2d 732, 735 (2014). A factor is relevant if there is conflicting evidence concerning
the factor such that it is placed in issue. In re H.D., ___ N.C. App. ___, ___, 768
S.E.2d 860, 866 (2015).
Mother argues the court erred by failing to make findings of fact concerning
the children’s ages, the bond between her and the two children, and the likelihood
that the children may be adopted. We disagree; the court did make these findings.
In finding of fact number 9 in both orders, the court noted the date of birth of the
particular child. In findings of fact numbers 24–28, the court made findings of fact
concerning the bond and interactions between Mother and the children. In findings
of fact numbers 40–42, the court found that the children are in a foster home that is
considered a pre-adoptive placement, that the children are bonded with the foster
parents, and that the foster parents are bonded with the children and treat them like
family. Accordingly, we overrule this argument.
IV & VI
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Mother joins with Father in contending the court lacked subject matter
jurisdiction because the petitions fail to allege facts sufficient to warrant a
determination that grounds for terminating parental rights existed. We disagree.
In their answers to the petitions, both Mother and Father asserted the
petitions failed to state sufficient grounds for relief. At the commencement of the
termination of parental rights hearing, Father moved to dismiss the petitions on the
basis asserted in his answers filed 1 August 2014. The trial court summarily denied
the motion and proceeded to conduct the hearing.
A petition to terminate parental rights must contain “[f]acts that are sufficient
to warrant a determination that one or more of the grounds for terminating parental
rights exist.” N.C. Gen. Stat. § 7B-1104(6) (2013). “While there is no requirement
that the factual allegations [in a petition for termination of parental rights] be
exhaustive or extensive, they must put a party on notice as to what acts, omissions[,]
or conditions are at issue.” In re Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79,
82 (2002). “[S]ufficiently detailed allegations need not appear on the face of the
petition but may be incorporated by reference.” In re H.T., 180 N.C. App. 611, 617,
637 S.E.2d 923, 927 (2006) (citation omitted). A custody order which is attached to
the petition and states facts sufficient to warrant the determination of the existence
of the asserted ground may supply the requisite factual allegations. See In re
Quevedo, 106 N.C. App. 574, 579, 419 S.E.2d 158, 160 (1992).
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As to allegation number 3 in each petition, it is averred that custody of the
child was placed with DSS pursuant to an attached order entered by the court on 17
February 2014. After identifying the parents and their last known addresses in
allegation numbers 4 and 5, the petition alleges: “6. The grounds to terminate the
parental rights of the parents, [ ], mother, and [ ], father of this child, are that they
have neglected the juvenile and continue to neglect the juvenile.” As the final
allegation, the petition alleges that an affidavit as to the status of the minor child is
attached to the petition.
The foregoing petition is a bare bones document which is insufficient to pass
muster unless the attached custody order states sufficient facts to put the parents on
notice as to what acts, omissions, or conditions may be at issue. We conclude that the
custody order does so. The order incorporated court summaries prepared by the social
worker and guardian ad litem which summarized the history of the proceedings to
that date, their observations of the progress made by the parents to comply with their
respective case plans, and their recommendations as to changing the permanent plan
to adoption and their reasoning. The custody order also contains findings that
Mother does not have permanent housing or transportation, has not attended
parenting classes as ordered by the court, did not attend domestic violence classes on
a regular and consistent basis, is inconsistent with her visitations with the children,
and is not providing any monetary assistance for the children. The order also
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contains findings that Father is not providing monetary assistance, has no contact
with DSS or the juveniles, and “his whereabouts are unknown to the mother and to
the court.” Because the petition to terminate parental rights contains by
incorporation facts sufficient to warrant a determination that one or more of the
grounds for terminating parental rights exist, we overrule this argument. See N.C.
Gen. Stat. § 7B-1104(6) (2013) (“The petition, or motion pursuant to G.S. 7B-1102 . .
. shall set forth such of the following facts as are known; and with respect to the facts
which are unknown the petitioner or movant shall so state: . . . (6) Facts that are
sufficient to warrant a determination that one or more of the grounds for terminating
parental rights exist.”).
V
Father separately contends the court erroneously denied him his statutory
right to counsel at each critical stage of the proceeding by releasing Father’s attorney
at the permanency planning review hearing on 25 November 2013. We disagree.
Father argues the court erred by releasing Mr. Rogerson as counsel before the
permanency planning hearing without prior notice to Father. Citing In re Dj.L., 184
N.C. App. 76, 84, 646 S.E.2d 134, 140 (2007), Father contends that this release
violated his right to effective assistance of counsel. Father further argues that the
court was required to inquire into the efforts made by counsel to contact him before
allowing the attorney to withdraw. Father argues the court’s error was prejudicial
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because the court changed the permanent plan to adoption at the next permanency
planning hearing during which he was not represented by counsel.
In support of his argument, Father cites several cases regarding the right to
counsel during a proceeding to terminate parental rights, e.g., In re D.E.G., ___ N.C.
App. ___, ___, 747 S.E.2d 280, 284—85 (2013) (where counsel withdrew absent having
appeared in court, providing notification of an intention to withdraw, or showing good
cause for the request); In re S.N.W., 204 N.C. App. 556, 561, 698 S.E.2d 76, 79 (2010)
(contending denial of effective assistance of counsel where the trial court allowed
counsel to refrain from participating in the termination of parental rights hearing);
In re Dj.L., 184 N.C. App. 76, 646 S.E.2d 134 (contending the termination of her
parental rights was erroneous where she was denied effective assistance of counsel);
In re S.S., No. COA06-1538, 2007 N.C. App. LEXIS 1033 at *21–22 (N.C. App. May
15, 2007) (unpublished) (arguing he was denied a right to counsel where counsel was
absent during the closing arguments of the termination of parental rights
proceeding).
On the point of the due process right to representation during a proceeding to
terminate parental rights, the Supreme Court of the United States has made the
following observation:
This Court's decisions have by now made plain beyond the
need for multiple citation that a parent's desire for and
right to the companionship, care, custody, and
management of his or her children is an important interest
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that undeniably warrants deference and, absent a powerful
countervailing interest, protection. Here the State has
sought not simply to infringe upon that interest but to end
it [by termination of parental rights]. If the State prevails,
it will have worked a unique kind of deprivation. A parent's
interest in the accuracy and justice of the decision to
terminate his or her parental status is, therefore, a
commanding one.
Lassiter v. Dep't of Soc. Servs. of Durham Cnty., N. C., 452 U.S. 18, 27, 68 L. Ed. 2d
640, 649 (1981) (citations and quotations omitted). Moreover, even in the context of
the termination of parental rights proceeding, the Supreme Court could not say that
the Constitution requires the appointment of counsel in every parental termination
proceeding. Id. at 31, 68 L. Ed. 2d at 652. “[T]he decision whether due process calls
for the appointment of counsel for indigent parents in termination proceedings [is] to
be answered in the first instance by the trial court [on a case-by-case basis], subject,
of course, to appellate review.” Id. at 32, 101 S. Ct. at 2162, 68 L. Ed. 2d at 652.
As Father has failed to provide an argument for extending the right of court
appointed counsel to indigent parties as conferred by the due process clause of the
Fourteenth Amendment to the United States Constitution to indigent parties in a
permanency planning hearing for juveniles, we consider a statutory basis for Father’s
right to counsel and basis for his relief.
Here, Father’s counsel was released from the duty to represent Father during
a permanency planning review proceeding held subsequent to the entry of two
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juvenile petitions alleging Ashley and Amelia were neglected juveniles. Pursuant to
North Carolina General Statutes, section 7B-602,
[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 right. When a petition is filed
alleging that a juvenile is abused, neglected, or dependent,
the clerk shall appoint provisional counsel for each parent
named in the petition in accordance with rules adopted by
the Office of Indigent Defense Services and shall indicate
the appointment on the juvenile summons or attached
notice. At the first hearing, the court shall dismiss the
provisional counsel if the respondent parent:
(1) Does not appear at the hearing;
(2) Does not qualify for court-appointed counsel;
(3) Has retained counsel; or
(4) Waives the right to counsel.
The court shall confirm the appointment of counsel if
subdivisions (1) through (4) of this subsection are not
applicable to the respondent parent.
The court may reconsider a parent's eligibility and desire
for appointed counsel at any stage of the proceeding.
N.C. Gen. Stat. § 7B-602(a) (2013).
Pursuant to the General Rules of Practice for the Superior and District Courts
Supplemental to the Rules of Civil Procedure,
[n]o attorney who has entered an appearance in any civil
action shall withdraw his appearance, or have it stricken
from the record, except on order of the court. Once a client
has employed an attorney who has entered a formal
appearance, the attorney may not withdraw or abandon
the case without (1) justifiable cause, (2) reasonable notice
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Opinion of the Court
to the client, and (3) the permission of the court.
Gen. R. Pract. Super. And Dist. Ct. 16, 2015 Ann. R. N.C. 14; see also Smith v. Bryant,
264 N.C. 208, 211, 141 S.E.2d 303, 305 (1965) (After entering a formal appearance on
behalf of a client, the attorney “was not at liberty to abandon her case without (1)
justifiable cause, (2) reasonable notice to her, and (3) the permission of the court.”).
“The determination of counsel's motion to withdraw is within the discretion of the
trial court, and thus we can reverse the trial court's decision only for abuse of
discretion.” Benton v. Mintz, 97 N.C. App. 583, 587, 389 S.E.2d 410, 412 (1990)
(citation omitted).
Here, the court released Mr. Robertson from his representation of Father
during a permanency planning review hearing. In the court’s orders entered 14
November 2013, the Court found that Father failed to appear for a pretrial conference
held on 24 June 2013 and the next hearing on 12 August 2013. The court found that
“[Father] is not utilizing his Court appointed counsel and Christopher Robertson was
relieved as Court appointed counsel of [Father].” During a hearing held on 25
November 2013, Mr. Robertson appeared and moved to be released. In its 23 January
2014 orders resulting from the hearing, the court found that “[Mr. Robertson] moved
to be relieved as Court appointed counsel for [Father] because he has had no contact
with . . . [F]ather and he was allowed to be relieved.” Though entered after the 23
January 2014 orders, it is worth noting that in the orders entered 7 May 2014,
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IN RE: A.D.B. & A.D.B.
Opinion of the Court
following a permanency planning hearing, the court found that “[Father] is having no
contact with the Department of Social Services nor with the juvenile and his
whereabouts are unknown to the mother and to the Court.”
In accordance with section 7B-1101.1(a), “the court shall dismiss the
provisional counsel if the respondent parent . . . [d]oes not appear at the hearing[.] . .
. The court may reconsider a parent's eligibility and desire for appointed counsel at
any stage of the proceeding.” N.C.G.S. § 7B-1101.1(a). Thus, the court’s consideration
of Father’s eligibility for court appointed representation following Father’s failure to
appear for the 24 June 2013 pretrial conference and the next hearing on 12 August
2013, was within the court’s authority. See id. Furthermore, Mr. Robertson’s release
as Father’s counsel during the permanency planning stage of the juvenile proceeding,
following Mr. Robertson’s motion for release on the basis that Father had no contact
with Mr. Robertson does not amount to an abuse of discretion. Accordingly, we
overrule this argument.
We affirm the orders terminating the parental rights of both parents to Ashley
and Amelia.
AFFIRMED.
Judges McCULLOUGH and INMAN concur.
Report per Rule 30(e).
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