In re D.E.-E.Y., ___ N.C. App. ___ (February 5, 2025)
Held:
Vacated and Remanded
There is a dissent
by Stading, J.
- Facts: Mother appeals order terminating her parental rights (TPR), arguing the court abused its discretion in allowing her attorney’s motion to withdraw at the TPR hearing. Mother’s counsel was appointed during the underlying abuse, neglect, and dependency proceedings for Mother’s three children. Mother’s counsel represented Mother and was present at the pre-adjudication, adjudication, and subsequent permanency planning hearings over a two-year period. Mother was inconsistent in appearing at these hearings. At the TPR hearing, Mother did not appear. Mother’s counsel orally moved to withdraw as her counsel, noting that he had not had contact with Mother in over a year. The motion was allowed. The court found grounds existed to TPR and that termination was in the children’s best interest.
- The court’s determination of counsel’s motion to withdraw is reviewed for an abuse of discretion.
- G.S. 7B-1101.1 gives parents a right to counsel in all TPR proceedings. After appearing in a case, an attorney cannot cease representation without “(1) justifiable cause, (2) reasonable notice to the client, and (3) the permission of the court.” Sl. Op. at 5 (citation omitted). “While the trial court has discretion to allow or deny an attorney’s motion when there is justifiable cause and prior notice to the client, when an attorney ‘has given his client no prior notice of an intent to withdraw, the trial judge has no discretion and must grant the party affected a reasonable continuance or deny the attorney’s motion for withdrawal.’ ” Sl. Op. at 5. (citations omitted). The trial court must make an inquiry into the attorney’s efforts to contact the parent in considering whether reasonable notice was given.
- The trial court abused its discretion in allowing Mother’s counsel to withdraw without making an inquiry as to whether counsel notified or attempted to notify Mother of his intent to withdraw. The court rejected the GAL’s argument that G.S. 7B-1101.1 required the court to dismiss Mother’s counsel when Mother failed to appear at the TPR hearing, noting that Mother had been represented by her counsel in the underlying case for two years at the time the TPR petition was filed and therefore, Mother’s counsel at the TPR hearing was not provisional counsel subject to dismissal under G.S. 7B-1101.1.
- The TPR order is vacated and remanded for the trial court to conduct a hearing to determine whether counsel had attempted to notify Mother of his intent to withdraw and whether he had justifiable cause. If counsel gave adequate notice and had justifiable cause, the court should allow the motion and reinstate the TPR order; if counsel failed to give adequate notice or failed to show adequate justification for withdrawal, the court must conduct a new hearing and enter new TPR orders.
- Dissent: The TPR order should be affirmed. The record shows Mother’s counsel had not had contact with Mother in over a year prior to the TPR hearing and had no updated contact information for Mother, and documents Mother’s lack of participation, persistent absence, and minimal efforts toward correcting the conditions that led to the children’s removal. In re T.A.M., 378 N.C. 64 (2021) instructs the reviewing court to consider whether the trial court “reasonably balanced and honored the purpose and policy of the State to promote finding permanency for the juvenile at the earliest possible age and to put the best interest of the juvenile first when there is a conflict with those of a parent.” Dissent at 1, citing G.S. 7B-1100(2)-(3). Here, the court put the best interests of the juvenile first and did not abuse its discretion. Mother’s counsel could not provide effective assistance due to his lack of contact with Mother, and continuing the matter to appoint another attorney would further delay the proceedings.
Category:
Termination of Parental RightsStage:
Appointment of CounselTopic:
Withdrawal of Counsel