In re K.M.W., 376 N.C. 194 (2020)

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Held:

Reversed and Remanded

There is a dissent

Morgan, J. and Newby, J.

Facts: There is an underlying neglect action, where mother was represented by court-appointed counsel. When adoption became the primary permanent plan, DSS filed a TPR petition against respondent mother. Mother’s attorney in the underlying neglect action filed a motion to withdraw in the TPR actions (but to remain in the neglect action) as mother had retained her own counsel with a back payment award of SSI. At a hearing, mother confirmed that she wished to retain her own counsel and waive her right to court-appointed counsel. Mother signed a waiver of counsel form at the hearing. The court granted the motion to withdraw and mother’s privately retained attorney filed answers to the TPR petitions. At a scheduled permanency planning hearing, mother did not appear but her court-appointed attorney did. The court relieved the court-appointed attorney as he had not had contact with his client for months. The privately retained attorney filed a motion to withdraw in the TPR actions. At the hearing on his motion where mother did not appear, he stated his reason for withdrawal was that it was mother’s request. The court granted the motion to withdraw. Mother was mailed the notice of TPR hearing that noted her attorney had been discharged. Mother arrived several minutes after the TPR hearing started and after the social worker started to testify. The court did not inquire as to whether mother was represented by counsel or whether she wished to have counsel appointed or to represent herself. Mother did represent herself. The TPR was granted and mother appealed, arguing the court erred by allowing her attorney to withdraw without providing her proper notice and allowing her to proceed pro se without making an inquiry as to whether she wished to have counsel.
Standard of review of a withdrawal of a parent’s attorney in a TPR is an abuse of discretion. But, the “ ‘general rule presupposes that an attorney’s withdrawal has been properly investigated and authorized by the court,’ so that, ‘[w]here an attorney has given his client no prior notice of an intent to withdraw, the trial judge has no discretion.’ ” Sl.Op. 23. Whether a parent has waived or forfeited their right to counsel in a TPR is based on statutory criteria and is reviewed de novo.
Federal and state law establish that “[w]hen the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.” Sl.Op. at 22. Under N.C. law, that includes a statutory right to counsel in TPR proceedings – G.S. 7B-1101.1.
A parent may waive that right “ ‘after the court examines the parent and makes findings of fact sufficient to show that the waiver is knowing and voluntary.’ N.C.G.S. § 7B-1101.1(a1).” Id. The court inquiry is not required when a litigant forfeits that 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[,]’ ” such as engaging in “egregious dilatory or abusive conduct.” Sl.Op. at 23-24.
Here, the court erred by allowing the privately retained attorney to withdraw from the TPR proceeding. When the parent is absent from the hearing on the motion to withdraw, the court must inquire into efforts the attorney made to contact the parent to ensure the parent’s rights are adequately protected. Nothing in the record shows that mother was served with a copy of the motion to withdraw. The trial court did not make an inquiry into whether she was served with the motion; whether the attorney informed his client of his intent to withdraw, and what efforts he made to ensure mother understood what he was proposing to do or to protect her statutory right to counsel.
The court erred by allowing mother to represent herself without inquiring about whether she wished to appear pro se. Her signing the waiver of counsel form related to her ability to employ privately retained counsel and was not a waiver of her right to any and all counsel. She did not indicate on the form she wished to represent herself. The court had an obligation to make the inquiry at the time she appeared for the hearing (albeit late). There was not a knowing and voluntary waiver after an examination by the court in accordance with G.S. 7B-1101.1(a1). Her conduct was not egregious such that she forfeited her right to counsel.
As with criminal cases, a showing of prejudice is not required for appellate relief on this issue.
Mother is entitled to a new hearing where her statutory rights to counsel are adequately protected.
Dissent: Although agreeing that mother’s conduct was not egregious to warrant forfeiture of counsel, her conduct constituted a waiver of counsel. She repeatedly failed to appear for hearings, was not in contact with her court-appointed counsel, appeared for the TPR hearing after it started, and left the courtroom without explanation for a period of time during the TPR hearing. The requirements imposed on trial courts by the majority should be a best practice for implementation and should not result in error if the trial court fails to follow them.