In re C.D.H., 265 N.C. App. 609 (2019)

for futher proceedings

• Facts: DSS filed a motion to terminate mother’s parental rights as part of an underlying neglect case. In the neglect case, mother appeared at a continued nonsecure custody hearing in September 2016. Mother did not attend any other hearing in the action, including at adjudication, disposition, review, permanency planning, and TPR. Mother was represented by the same counsel, who did appear at the hearings. In the review and permanency planning orders, the court made findings about mother’s visitation, although inconsistently, with the child; partial participation in and compliance with her case plan; and maintenance (for the most part) of communication with the court, DSS, and GAL. At the February 2018 TPR hearing, mother’s attorney did not (1) advise the trial court of any attempts to contact mother, (2) move to continue the hearing, (3) make objections or cross-examine witnesses, or (4) present evidence or arguments on mother’s behalf. After the TPR was granted, mother appealed raising as the sole issue ineffective assistance of counsel.
• Standard of Review: “Respondent must show: (1) her counsel’s performance was deficient or fell below an objective standard of reasonableness; and (2) her attorney’s performance was so deficient she was denied a fair hearing.” Sl. Op. at 6 (citation omitted).
• Statutory Right to Counsel: “When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.” Sl. Op. at 5 (citations omitted). For indigent parents, that includes a statutory right to counsel, unless waived, and effective assistance of a counsel.
• Insufficient Record on Appeal: The record on appeal is silent as to why counsel acted as she did. “Counsel’s failure to advocate for mother is not necessarily an indication of ineffective assistance of counsel.” Sl. Op. at 8. Neither the court nor counsel addressed on the record (there may have been a discussion off the record) why mother was absent. The record shows very limited evidence of mother’s relationship with her counsel, who she was represented by at previous hearings, and reasons for mother’s absence from the hearings even though she has some engagement with the child and DSS outside of court.
• Waive Right to Effective Assistance of Counsel: Mother may have waived her right to effective assistance of counsel based on her own actions – her failure to attend any court hearing other than the one hearing on the need for nonsecure custody. There may be other reasons for counsel’s lack of advocacy. The record is insufficient. The appellate court will not speculate.
• The appropriate remedy is remand for the trial court to determine whether mother was denied effective assistance of counsel. The court should inquire into what efforts counsel made to contact and adequately represent mother at the hearing; if necessary, make a prejudice determination (was mother deprived of a fair hearing); and determine whether respondent is entitled to appointed counsel in a new TPR hearing.