In re M.B.S., ___ N.C. App. ___ (October 1, 2024)
Held:
Remanded in part
- Facts: Mother appeals order terminating her parental rights. In this private TPR action, the paternal grandmother of the child filed a petition to terminate Mother and Father’s parental rights. Petitioner voluntarily dismissed the petition and filed an amended petition. The court adjudicated four TPR grounds and determined termination to be in the child’s best interest. Mother argues the amended petition was insufficient to put her on notice of the grounds alleged and that she received ineffective assistance of counsel based on her counsel’s failure to motion to dismiss the deficient petition.
- G.S. 7B-1104(6) requires that a TPR motion allege sufficient facts to warrant a determination that a ground exists. Although the factual allegations do not need to be “exhaustive or extensive, they must be sufficient to put a party on notice as to what acts, omission, and conditions are at issue.” Sl. Op. at 6 (citation omitted).
- The alleged failure to comply with G.S. 7B-1104(6) is an issue that must be preserved for appellate review by making a timely motion to the trial court to dismiss the deficient petition. Mother’s counsel failed to make a Rule 12(b)(6) motion prior to or during the TPR hearing and therefore the issue was not properly preserved for appeal.
- A claim of ineffective assistance of counsel (AIC) requires a respondent to show that (1) the counsel’s performance was deficient and (2) the deficiency deprived respondent of a fair hearing such that there is a reasonable probability that there would have been a different result in the proceeding but for counsel’s deficiency. Respondent Mother received IAC. Here, the TPR petition alleged five grounds: neglect; willfully leaving the child in placement outside the home for more than 12 months without showing reasonable progress; willfully failing to pay a reasonable portion of the cost of care, support, and education; dependency; and abandonment. G.S. 7B-1111(a)(1), (2), (4), (6), (7). The allegations consisted of bare recitations of the statutory grounds to TPR and did not incorporate any prior orders stating sufficient facts to support the grounds, distinguishing the case from In re Quevedo, 106 N.C. App. 574 (1992). The amended petition was insufficient to put respondent Mother on notice as to what acts, omissions, or conditions were at issue and the trial court would have erred in denying Mother’s motion to dismiss had her counsel made the motion. Adopting the reasoning stated in In re A.X.M., 264 N.C. App. 637 (2019) (unpublished), the court of appeals determined that counsel’s failure to move to dismiss the petition prejudiced respondent as the trial court would have dismissed the petition or erred in failing to do so, clearly changing the result of the proceeding.
Category:
Termination of Parental RightsStage:
PleadingTopic:
Sufficiency