In re M.Z.M., 251 N.C. App. 120 (2016)

  • Reviewing prior published opinions, this opinion discusses ineffective assistance of counsel. Indigent parents in a termination of parental rights proceeding have a statutory right to effective assistance of counsel. A claim of ineffective assistance of counsel requires the respondent parent show that counsel’s performance was deficient; the deficiency was so serious as to deprive the represented party of a fair hearing; and the respondent was prejudiced by counsel’s alleged deficient performance. Attorneys have a responsibility to advocate on the behalf of their clients. A counsel’s silence or lack of positive advocacy could be part of a strategy and trial tactics. When reviewing the counsel’s performance, the “‘court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”
  • In this case respondent mother’s counsel did not cross examine either of the two witnesses called by the petitioner (the mother and county department social worker) or introduce any evidence or arguments on behalf of respondent mother during the adjudicatory phase of the hearing that addressed the 3 alleged grounds (7B-1111(a)(1) neglect, (a)(7) abandonment, and (a)(2) willfully failing to correct the conditions). Instead, respondent’s counsel waited until the dispositional phase of the hearing to introduce evidence (the mother’s testimony) and offer a “thoughtful and reasoned argument” against the termination of parental rights based on it being contrary to the children’s best interests which addressed the importance of maintaining a relationship between the children and their mother. Counsel’s silence during the adjudicatory phase appears to be a tactical decision to concede the grounds alleged. Respondent-mother has failed to show prejudice or that counsel’s conduct undermined the fundamental fairness of the proceeding. She was not denied effective assistance of counsel.
Termination of Parental Rights
Appointment of Counsel
Ineffective Assistance of Counsel
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