In re D.T.P., ___ N.C. App. ___ (November 7, 2023)
Held:
Affirmed
- Facts: Mother and Father appeal from orders terminating their parental rights, challenging the trial court’s conclusion that each parent forfeited their right to court-appointed counsel requiring the parents to appear pro se at the TPR hearing. During the period between DSS filing neglect petitions in 2017 and 2018, through to the TPR in 2022, Father had five and Mother had six different court appointed attorneys. Mother and Father filed invalid appeals to the Court of Appeals and the U.S. Supreme Court. Mother and father used the procedure of having their attorneys withdraw right before the TPR hearing in order to obtain a continuance. Together, acting pro se, mother and father filed a civil action against their appointed counsel while the TPR proceedings were pending, resulting in a motion to withdraw. In the TPR order, the trial court made the above findings and concluded the parents’ conduct was egregious, dilatory, and abusive; undermined the purposes of their right to counsel by making their representation impossible; and prevented the TPR proceedings from timely occurring.
- “A trial court’s conclusion that a parent waived or forfeited [their] statutory right to counsel in a termination of parental rights proceeding is a question of law … reviewed de novo.” Sl. Op. at 6 (citation omitted). A court’s ruling is reviewed on appeal to determine whether the trial court’s findings are supported by competent evidence, and if so, whether those findings support its conclusion that ‘respondent parents each separately and together forfeited their right to court appointed counsel by their deliberate acts’ ”. Sl Op. at 7 (citation omitted).
- G.S. 7B-1101.1 provides the parent in a termination of parental rights proceeding the right to counsel, and appointed counsel in cases of indigency, unless the parent knowingly and voluntarily waives their right. G.S. 7B-1101.1(a), (a1).
- “The right to court-appointed counsel is not absolute; a party may forfeit the right ‘by engaging in ‘actions [which] totally undermine the purposes of the right itself by making representation impossible and seeking to prevent a trial from happening at all’ ’ ”. Sl. Op. at 8 (citations omitted). A conclusion of forfeiture is limited to when the parent’s conduct is “egregious dilatory or abusive.” Sl. Op. at 8 (citation omitted).
- The trial court’s findings are supported by competent evidence, including Mother’s invalid appeal from a memo of the trial court; Father’s invalid appeal to the U.S. Supreme Court, which he testified that he did not expect the Court to accept; several motions and orders allowing for withdrawal and appointment of counsel; both Parents’ testimony that they understood withdrawal and appointment of counsel would lead to a continuance; and the Parents’ pro se civil suit against their appointed counsel and their acknowledgement of their intent to force the attorneys’ withdrawal.
- The trial court’s findings are sufficient to support the conclusion that the Parents’ actions were egregious, dilatory, and abusive conduct that undermined the purpose of their right to appointed counsel, making their representation impossible to prevent the TPR trial from happening.
Category:
Termination of Parental RightsStage:
Appointment of CounselTopic:
Forfeiture of Counsel