In re A.R.C., 265 N.C. App. 603 (2019)

for further proceedings

• Facts: In 2016, mother’s 4 children were adjudicated neglected. In February 2017, DSS filed a TPR petition for all 4 children. After a hearing in November 2017, mother was appointed a Rule 17 guardian ad litem (GAL) based on incompetency. Mother’s GAL and attorney were notified of the TPR hearing, scheduled in March 2018. Mother had been hospitalized for mental health treatment. At the TPR hearing, mother was not present but her GAL and attorney were. There was no inquiry as to why mother was not present. Mother’s attorney filed an answer and a motion to dismiss the TPR petitions but did not object to any evidence, cross-examine witnesses, or present evidence or arguments. Mother’s rights to her children were terminated and she appealed.
• Standard of Review: “Respondent must show: (1) her counsel’s performance was deficient or fell below an objective standard of reasonableness; and (2) her attorney’s performance was so deficient she was denied a fair hearing.” Sl. Op. at 4-5 (citation omitted).
• Right to Counsel: “When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures,” which includes a statutory right to counsel and effective assistance of a counsel. Sl. Op. at 4 (citations omitted).
• Insufficient Record on Appeal: The record shows mother’s absence was noted but the reasons for it were not discussed. In the period between mother’s appearance at the hearing re: her competency/need for a GAL and the TPR hearing, mother was hospitalized, and this period is of particular concern. The appellate court cannot determine why mother was not present at or what her condition was at the time of the TPR hearing. There is limited evidence of mother’s relationship with her attorney or GAL re: contact with them or instructions she gave them about her case. Nothing explains the discrepancy between mother’s attorney’s filing of an answer and motion to dismiss and lack of advocacy for mother during the actual hearing. Without knowing the reason, the appellate court cannot determine if the attorney’s performance was deficient. The appellate court will not speculate.
• The appropriate remedy is remand for the trial court to find those facts and make a determination of the adequacy of the attorney representation. The trial court should inquire “ ‘into efforts by [Mother’s] counsel to contact and adequately represent [her] at the termination of parental rights hearing’ and determine ‘whether [she] is entitled to appointment of counsel in a new termination of parental rights proceeding.’ ” Sl. Op. at 8 (citations omitted). If a prejudice determination is necessary, the trial court, after having all the facts, should determine whether mother was deprived of a fair hearing.