In re T.A.M., 2021-NCSC-77

Held: 
Affirmed
There is a dissent
in part and concur in part, Erivn, J. joined by Hudson J. and Earls, J.
  • Facts: The juveniles were adjudicated neglected due to circumstances created by their parents' domestic violence, substance use, and mental health issues. The parents had done well with their case plan services for a while but then stopped doing so. The primary permanent plan was changed to adoption and DSS filed TPR petitions. Father’s location was unknown, resulting in his service by publication. His attorney moved to withdraw based on father’s failure to maintain contact with her. The motion was granted, and the hearing was continued. Father appeared at the next scheduled hearing and his same attorney was reappointed to represent him. At the next scheduled TPR hearing, the attorney filed a second motion to withdraw based on father’s failure to maintain contact with her and her lack of knowledge about his wishes. Father did not appear at the hearing, and the court granted the attorney’s motion to withdraw after engaging in a colloquy with the attorney, who advised the court that she had spoken with father that day and told him if he did not appear at the hearing, she would withdraw and the case would proceed without him and father consented to her withdrawal. The motion was granted, and the TPR was also granted. Father appeals, challenging the court’s decision to allow his attorney to withdraw. Mother appealed, challenging the best interests determination. This summary focuses on father’s appeal.
  •  The standard of review for a motion to withdraw is an abuse of discretion, which is when “the court’s ruling is manifestly unsupported by reason or is so arbitrary that is could not have been the result of a reasoned decision.” Sl.Op. ¶20. The appellate court inquiry is “whether the ruling is unreachable by a reasoned decision, see White [v. White], 312 N.C. [770], 777 [1985], which necessarily requires appellate courts to consider broadly the circumstances which may render the ruling justifiable.” Id.
  • There was no abuse of discretion. The trial court advised father of his responsibility to attend all the TPR hearings, and in the underlying neglect action advised him to maintain contact with his attorney and that if he failed to do so, the attorney may ask the court to be permitted to withdraw such that the case would proceed without his having an attorney represent him. After the TPR petition was filed, the court found that DSS made diligent efforts to locate father, who was actively trying to conceal his whereabouts, and ordered service by publication. The court continued the attorney’s appointment at that time. When the court reappointed his attorney (after the first motion to withdraw was granted), the court again advised father of his responsibility to maintain contact with his attorney and failing to do so may result in another motion to withdraw such that father would be unrepresented when the case proceeded. The attorney filed a second motion to withdraw and made a good faith effort to serve him with the motion and notice of the hearing on the motion. The court granted father’s motions to continue.
  • These cases are fact-specific, and this case is distinguishable from In re K.M.W., 376 N.C. 195 (2020) based on father’s actions and his attorney’s execution of her responsibilities. Unlike K.M.W. where mother appeared at the hearing and the court failed to determine whether mother was knowingly and voluntarily waiving her right to counsel, father did not appear at the TPR hearing. Father did not make efforts to follow the court’s advisement to attend all the hearings, and he verbally consented to his attorney’s withdrawal.
  • Overburdened trial courts and permanency. A parent could successfully manipulate the judicial system to delay a TPR and thwart the purpose of the Juvenile Code in finding permanency for a child at the earliest possible age by repeatedly failing to communicate with their attorney, avoid communications from DSS and other parties, and fail to attend hearings. The court is not required to track down a parent. Here, the court respected father’s statutory right to counsel by giving him reasonable opportunities to participate and be represented by counsel in the TPR proceeding. The court “reasonably balanced and honored the purpose and policy of this State to promote finding permanency for the juvenile at the earliest possible age and to put the best interest of the juvenile first where there is a conflict with those of parent.” Sl. Op. ¶32.
  • Dissent: The majority’s opinion is inconsistent with the holding in In re K.M.W., 376 N.C. 195 (2020) and goes against the principle of stare decisis. There has been no attempt to overrule K.M.W., based on a “grievous wrong.” Dissent ¶61. The facts are similar. The trial court erred in granting the attorney’s motion to withdraw without first ensuring proper notice had been provided to father and without conducting a sufficient inquiry into the reasons for the withdrawal or extent father understood his attorney’s request. There was no inquiry into the nature and extent of the attorney’s efforts to serve the motion on father or to ensure father “understood the implications of the action that [counsel] proposed to take or to protect [respondent-father’s] statutory right to the assistance of counsel.” Dissent ¶55 (quoting In re K.M.W.).  The court did not ensure the father was provided with “reasonable notice” of the attorney’s motion to withdraw as required by G.S. 7B-1101.1(a1) or In re K.M.W. Id. The motion and notice to father was sent to an address where father indicated he was not receiving mail. Father’s conduct is not a forfeiture of counsel. The purpose of the Juvenile Code is also to “assure fairness and equity,” “protect the constitutional rights of juveniles and parent,” and “prevent the unnecessary or inappropriate separation of juveniles from their parents.” Dissent ¶63.
Category:
Termination of Parental Rights
Stage:
Appointment of Counsel
Topic:
Withdrawal of Counsel
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