In re Z.M.T., 2021-NCSC-121

Held: 
Affirmed
There is a dissent
Earls, J.
  • Facts: The juvenile was adjudicated neglected and ultimately, DSS filed a TPR motion. Notice was sent to mother’s attorney, who represented her in the underlying neglect action. The TPR motion was scheduled for the same day as a previously scheduled permanency planning hearing. Mother did not appear for the hearing, and her attorney requested a continuance, which was denied. At hearing, two witnesses were presented, neither of which were cross-examined by mother’s attorney. Mother did not present witnesses or make a closing argument. The TPR was granted, and mother appeals raising ineffective assistance of counsel.
  • In a TPR, parent’s have a statutory right to counsel, which must be effective assistance of counsel. See G.S. 7B-1101.1.  Ineffective assistance of counsel (IAC) requires a two-part test: (1) the counsel’s performance must be deficient and (2) that deficiency must be severe enough to deprive the respondent of a fair hearing (would there be a different result).
  • Mother does not argue and cannot show that she was prejudiced by her attorney’s performance.
  • Dissent: The case should be remanded for further factfinding to ensure that there is an adequately developed record. Counsel’s performance appears to have deprived the mother of a record for the appellate court to review whether the performance was deficient or that mother was prejudiced by it. A TPR is different from a criminal proceeding where a defendant can challenge the fairness of a proceeding through a motion for appropriate relief and so the parent does not have the same opportunity to develop a factual record to support their IAC claim.
Category:
Termination of Parental Rights
Stage:
Appointment of Counsel
Topic:
Ineffective Assistance of Counsel
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