In re M.A.F., ___ N.C. App. ___ (August 19, 2026)
Held:
Remanded
- Facts: Mother appeals the termination of her parental rights to her three children on the sole issue of ineffective assistance of counsel. In the underlying neglect proceeding, Mother attended the continued nonsecure custody hearing and a hearing to approve DSS’s placement of the children during permanency planning. Mother did not attend any other hearings in the action. Mother was represented by the same counsel at the adjudication, disposition, and permanency planning hearings who reported he had not spoken to Mother and took no position. The second PPH order made extensive findings about Father’s control over Mother, including not allowing her to work, not allowing her to meet the social worker alone, searching her purse after supervised visits with the children, keeping her phone and deleting DSS contacts, and once stalking her hotel during a period of separation. The order also found Mother was bonded with the children, consistently visited the children, and maintained contact with DSS, though her cooperation with DSS was inconsistent. DSS moved to terminate Mother’s parental rights on three grounds. Mother did not appear at the TPR hearing. Mother’s same counsel appeared but remained silent. Counsel did not advise the court of any attempt to contact Mother, move to continue, make objections to evidence presented, cross-examine DSS witnesses, or present any evidence or argument on Mother’s behalf at either adjudication or disposition. No one addressed why Mother was absent. The TPR was granted. The TPR order included additional findings of Father’s control of Mother’s participation in the action, including preventing communication and cooperation with DSS, and Mother’s repeated intention to leave Father, one instance as recent as three days before the TPR hearing.
- “When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures . . .” Sl. Op. at 7 (citation omitted). Parents have the statutory right to counsel, unless waived, that includes the effective assistance of counsel. G.S. 7B-1101.1. An ineffective assistance of counsel claim requires that the respondent show both “that counsel’s performance was deficient and the deficiency was so serious as to deprive her of a fair hearing.” Sl. Op. at 7 (citation omitted). When the record and transcripts do not permit an appellate court to review whether counsel’s performance was deficient or whether any deficiency deprived the parent of a fair hearing, the appropriate remedy is remand.
- The TPR order is remanded. The record and transcript are silent as to why Mother did not appear at the hearings, what efforts counsel took to reach Mother after contact had lapsed during the underlying proceedings, and any explanation for counsel not participating once the TPR hearing had begun. While record evidence shows the adjudication may not have had a different outcome, it is possible counsel’s advocacy or Mother’s appearance could have changed the outcome at disposition. The record shows Mother consistently visited the children, stayed in contact with DSS through the weeks before the hearing, and that many difficulties in reaching Mother were due to Father’s threats, control, and interference. The court of appeals acknowledged that Mother may have waived her right to effective counsel by failing to communicate or appear and that counsel’s silence at the TPR hearing may have been strategic advocacy under the circumstances, but neither determination can be made on the present record and appellate courts will not speculate as to the underlying facts (relying on In re S.N.W., 204 N.C. App. 556 (2010) and In re C.D.H., 265 N.C. App. 609 (2019), and determining In re C.D.H. has not been explicitly overruled and is distinguishable from other supreme court holdings briefed by DSS and the GAL). Ineffective assistance of counsel “will generally not be made where the purposed shortcomings of counsel were caused by the party.” Sl. Op. at 9 (citation omitted). Similarly, ineffective assistance of counsel may not arise from a “failure to advocate;” for example, the attorney says nothing negative about their client and “ ‘resourceful preparation’ may have ‘reveal[ed] nothing position to be said for’ the mother.” Sl. Op. at 10 (citation omitted). The trial court must inquire and receive evidence about counsel’s conduct and Mother’s participation in the case to determine whether counsel’s performance was deficient and, if so, whether Mother was denied a fair hearing.
Category:
Termination of Parental RightsStage:
Appointment of CounselTopic:
Ineffective Assistance of Counsel