In re T.N.C., 375 N.C. 849 (2020)

  • Facts: The children were adjudicated neglected in an underlying action. DSS filed a TPR petition, alleging neglect and failure to make reasonable progress (G.S 7B-1111(a)(1)-(2)). At the time of the TPR hearing, mother was incarcerated but she was present at the hearing and represented by an attorney. Mother’s attorney made a short cross-examination of the one DSS witness (the social worker) at the adjudicatory stage of the hearing and gave a conciliatory closing argument at the adjudication and dispositional stages. The TPR was granted, and respondent mother appeals arguing she had ineffective assistance of counsel such that the TPR proceeding was fundamentally unfair.
  • G.S. 7B-1101.1(a) provides parents who are indigent with the right to appointed counsel in TPR cases. Appointed counsel must provide effective assistance. Ineffective assistance of counsel claims require the parent to show that (1) the counsel’s performance was deficient and (2) the deficiency was so serious that it deprived her of a fair hearing, meaning that but for counsel’s errors there is a reasonable probability there would have been a different result.
  • Although a substantial amount of the tone of mother’s counsel’s advocacy was acquiescent in nature, it did not rise to a level of disparagement of mother before the court causing an adverse impact on the court like the case in State v. Davidson, 77 N.C. App. 540 (1985). Mother’s counsel mentioned multiple facts in her favor, including some progress on her case plan, her bond with her children, and her desire to keep her parental rights as well as emphasizing her positive traits, like she has been easy to deal with and does not make excuses. Mother’s counsel unequivocally asked the court to rule in his client’s favor.
  • Mother has failed to show her counsel’s performance was deficient by the tone of the closing arguments or brevity of the cross examination, and as such, mother cannot show prejudice she suffered in the proceeding. The strength of the undisputed evidence does not show a reasonable probability the outcome would have been different.
Termination of Parental Rights
Appointment of Counsel
Ineffective Assistance of Counsel
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