In re L.Z.S., 383 N.C. 309 (2022)
Held:
Reversed and Remanded
There is a dissent
by Berger, J., joined by Newby, J. and Barringer, J.
- Facts: The juvenile was adjudicated neglected. During the course of the case, father had been incarcerated and then was released. The court held multiple permanency planning hearings, where father was represented by a court-appointed attorney but did not appear. Upon release from prison, father’s contact with DSS and his attorney was sporadic despite efforts by DSS to contact father. At the last permanency planning hearing where father was not present, his attorney filed a written motion to withdraw based on his lack of contact with father and father’s failure to appear at hearing. The motion was granted, and the permanency planning hearing proceeded. The court ordered reunification with father eliminated as a permanent plan. DSS later filed a TPR petition, where father was reappointed his attorney and appeared at the TPR hearing. The TPR was granted. Father appeals the order allowing his attorney to withdraw at the permanency planning hearing, the order eliminating reunification, and the TPR order.
- A parent who is indigent has a statutory right to counsel in cases of abuse, neglect, dependency and TPRs (unless a parent waives that right). G.S. 7B-602; -1101.1. A parent may forfeit his right to counsel only when there conduct has been egregious, dilatory, or abusive.
- An attorney may withdraw from representation when there is (1) justifiable cause, (2) reasonable notice to the client, and (3) the court’s permission. In re K.M.W., 376 N.C. 195 (2002) referring to Rule 16 of the General Rules of Practice. “ ’[T]his 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 [to allow withdrawal].’ ” 383 N.C. at 315 (In re K.M.W. 376 N.C. at 209). Before an attorney can be allowed to withdraw on the day of trial, prior notice that is specific and reasonable must be given to the client.
- The cases are fact specific but all of them show the court only has discretion to permit the withdrawal when the parent has had adequate notice of the attorneys’ intent to seek permission from the court to withdraw. Relying on In re K.M.W., Father’s conduct of not maintaining consistent communication with his attorney and DSS does not rise to a forfeiture of counsel. Like In re K.M.W., father was not noticed by his attorney that the attorney would seek to withdraw on the day of the permanency planning hearing, and the court did not make any further inquiry about the circumstances for the motion to withdraw. The withdrawal of the attorney without notice requires reversal. Distinguishing these facts from In re T.A.M., 378 N.C. 64 (2021), withdrawal in that case was not error because the court on multiple occasions advised father of his responsibility to attend all court hearings and his failure to appear may result in his attorney asking for permission to withdraw and the court proceeding without father being represented. Additionally, on the day of the hearing where the attorney did withdraw, the attorney spoke with father and told him if he did not appear at the TPR hearing, she would need to withdraw and the hearing would proceed without him.
- On remand, if the court concludes reunification should be eliminated, the TPR will stand. If the court determines reunification was improperly eliminated, the TPR will be vacated without prejudice.
- Dissent: The order allowing the attorney’s withdrawal and the order eliminating reunification should be affirmed. The father’s failure to communicate, avoid receiving mail, and not attend numerous hearings should not be permitted to manipulate the courts to delay the hearing and is contrary to the overarching purpose of the Juvenile Code to find permanency for the juvenile at the earliest possible stage. The required findings of fact required by G.S. 7B-906.2(b) and (d) were supported by competent evidence and support the order eliminating reunification.
Category:
Abuse, Neglect, DependencyStage:
Cease ReunificationTopic: