In re R.A.F., 284 N.C. App. 637 (2022)

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Held:

Reversed and Remanded

There is a dissent

by Tyson, J.

THIS DECISION WAS REVERSED BY THE SUPREME COURT; see ___ N.C. ___ (April 28, 2023).
Facts: In 2015, the juveniles were adjudicated neglected. In 2017, permanency was achieved when the court entered G.S. 7B-911 and Ch. 50 custody orders that terminated juvenile court jurisdiction and awarded permanent custody to the children’s aunt and uncle. In 2021, aunt and uncle filed a TPR petition. In April, mother was personally served and was appointed provisional counsel. Mother and provisional counsel spoke and mother asserted she wanted to contest the TPR. In May, provisional counsel requested an extension to file an answer, which was granted. No answer was filed. In June, notice of the July hearing was sent to mother’s provisional counsel, father’s provisional counsel, and father. In July, a pretrial hearing was held, which was immediately followed by the TPR hearing. Mother was not present, but her provisional counsel was. Counsel informed the court that she did have contact with mother earlier when mother reported she was in a treatment facility. Counsel contacted the treatment facility and learned mother had successfully graduated but did not have contact with mother since the last phone call in April. The court released provisional counsel, on its own motion, and determined all service and notice requirements were satisfied. The TPR hearing followed, and the TPR was granted. Mother appeals arguing the court erred in releasing her counsel.
TPR proceedings require that parents be provided with fundamentally fair procedures and include a parent’s right to counsel and adequate notice.
When an attorney makes an appearance in a case, the attorney may not withdraw without justifiable cause, reasonable notice to the client, and the court’s permission. The court’s decision is discretionary. The general rule regarding withdrawal “presupposes that an attorney’s withdrawal has been properly investigated and authorized by the court.” 284 N.C. App. at 644 (citation omitted). “[W]hen the parent is absent from a [TPR] hearing, the trial court must inquire into the efforts made by counsel to contact the parent in order to ensure that the parent’s rights are adequately protected.” Id. Because mother’s attorney filed motions for extensions of time, petitioner’s attorney presumed mother’s attorney made an appearance. “This presumption provides a possible explanation for why Petitioners’ attorney did not service Mother with notice of the TPR hearing” and served only Mother’s attorney. 284 N.C. App. at 644.
G.S. 7B-1101.1 requires the court to dismiss provisional counsel if at the first hearing after service the respondent does not appear. The statute presumes respondent was given notice of the hearing and decides whether to participate.
G.S. 7B-1108.1 requires the court at a pretrial hearing to consider retaining or releasing provisional counsel and whether all summons, service of process, and notice requirements have been met.
The trial court should have inquired into the efforts mother’s attorney made to contact mother to ensure mother’s rights were adequately protected and that she knew about the hearing. No inquiries about whether mother received notice of the hearing were made. There is no evidence in the record that mother knew of the hearing. The court’s findings that the notice requirements were met were not supported by competent evidence. A violation of a right to counsel does not require mother to prove prejudice to obtain appellate relief.
Concur in result. Acknowledging the tension between the parent’s due process rights and the best interests of a child who has lived with a foster parent for more than 4 years and the limbo the children and foster parents experience.
Dissent: The unchallenged findings are that mother’s provisional counsel tried to engage mother to participate in the proceeding. Unchallenged findings are binding. Mother was served with the summons, failed to keep her appointments and update her address. There is no abuse of discretion.