In re N.M.W., ___ N.C. App. ___ (May 21, 2025)
Held:
Affirmed in Part; Vacated in Part; and Remanded
There is a dissent
in part by Stroud, J.
- Facts: Father appeals the termination of his parental rights to one child and argues he was deprived of his right to counsel. Father was appointed counsel twice in the underlying neglect and dependency proceeding. Both counsels properly withdrew in those proceedings due to harassment or threatening behavior by Father. Father waived his right to appointed counsel and proceeded pro se in the underlying matter. Upon commencement of the TPR proceedings, Father was again appointed counsel who later withdrew due to irreconcilable differences. Father requested and was again appointed counsel. Father’s second appointed counsel in the TPR proceedings motioned to withdraw at the TPR hearing. The court allowed the motion and Father proceeded pro se.
- “G.S. 7B-1101.1(a) mandates parents to be represented by counsel during termination of parental rights actions, unless findings and supported conclusions show the parent has forfeited or waived such right.” Sl. Op. at 7, citing G.S. 7B-1101.1(a). An attorney may withdraw after making an appearance with “(1) justifiable cause, (2) reasonable notice [to the client], and (3) the permission of the court.” Sl. Op. at 7 (citation omitted). A court has no discretion and must grant the party affected a reasonable continuance or deny the attorney’s motion for withdrawal where the attorney fails to give the client prior notice of their intent to withdraw. For waiver of a parent’s right to counsel to be valid, the court must examine the parent and make findings of fact to demonstrate that the waiver is knowing and voluntary. “A parent may waive representation by counsel if findings and conclusions support his actions constitute ‘egregious dilatory or abusive conduct.’ ” Sl. Op. at 8 (citation omitted).
- Findings show Father knowingly and voluntarily waived his right to counsel. Findings include Father’s pattern of hostile and threatening behaviors towards his previously appointed counsels, DSS, and the GAL which ultimately caused prior appointed counsel to move to withdraw. In motioning to withdraw at the TPR hearing, Father’s second appointed counsel informed the trial court of Father’s harassment and verbal abuse of counsel and their staff which once required staff to call the police. The trial court found Father’s actions appeared to be a stalling tactic and constituted consent to counsel’s withdrawal. The court conducted a colloquy to determine if Father could proceed pro se in the TPR proceedings. Father confirmed he wanted to proceed pro se, was prepared to proceed without counsel, and executed a written waiver. Further, Father’s abusive conduct also presumably constituted forfeiture of counsel. TPR affirmed.
Category:
Termination of Parental RightsStage:
Appointment of CounselTopic:
Waive Counsel