Opinion
No. COA09-1616
Filed 15 June 2010 This case not for publication
Appeal by respondents from order entered 24 September 2009 by Judge Hugh B. Lewis in Mecklenburg County District Court. Heard in the Court of Appeals 28 April 2010.
Kathleen Arundell Widelski for petitioner-appellee. Leslie C. Rawls for respondent-appellant father. Mercedes O. Chut for respondent-appellant mother. Pamela Newell Williams for guardian ad litem.
Mecklenburg County No. 07 JT 367.
Respondent-father T.H. and respondent-mother C.H. appeal from the trial court's order terminating their parental rights with respect to their minor daughter S.H. ("Shakira"). Respondent-father primarily argues that he was deprived of effective assistance of counsel based on his trial counsel's failure to adequately prepare for trial by not visiting him or otherwise communicating with him while he was incarcerated. We conclude, however, that respondent-father has failed to demonstrate on appeal either deficient performance or prejudice. We, therefore, affirm the trial court's order with respect to the termination of respondent-father's parental rights.
The pseudonym "Shakira" is used throughout this opinion to protect the minor's privacy and for ease of reading.
In challenging the trial court's order, respondent-mother predominately argues that the trial court's determination that grounds exist for terminating her parental rights is not supported by the evidence in the record. We conclude that the evidence in the record supports the trial court's findings of fact, which, in turn, support its conclusions of law. Accordingly, we affirm.
Facts
Respondents began dating in early 2005, when respondent-mother was 15 years old. Respondent-mother gave birth to Shakira in November 2006, when she was 17. Respondents continued their relationship for "a few months" after Shakira was born. On 23 April 2007, while she was living with some friends, respondent-mother called 911, stating that Shakira had been crying for a long time, she felt "overwhelmed," and she felt like she might hurt Shakira. That same day, Mecklenburg County Youth and Family Services ("YFS") obtained non-secure custody of respondent-mother — who was still a minor — and Shakira. Respondent-mother and Shakira were placed in the same foster home.
After conducting an adjudication and disposition hearing on 11 July 2007, the trial court entered an order on 25 July 2007 adjudicating Shakira as a dependent juvenile and establishing reunification as the plan of care. The trial court also ordered respondent-mother to comply with the case plan developed by YFS, which included participating in the independent living program; obtaining her GED or high school diploma; obtaining part-time employment while she was in school and full-time employment when she was not taking classes; engaging in individual counseling until released; obtaining safe and appropriate housing; participating in parenting classes; and visiting regularly with her daughter. Although YFS developed a case plan for respondent-father, the trial court did not adopt the plan as paternity had not yet been established.
Respondent-father did not attend the 11 July 2007 hearing.
After respondent-mother turned 18 on 16 August 2007, YFS offered her a CARS agreement, allowing her to stay in foster care with her daughter in order to support reunification. YFS and respondent-mother entered into the CARS agreement, which required YFS to continue to pay for respondent-mother's foster care and required respondent-mother to continue working her case plan. Respondent-mother had conflicts with the foster parents with whom both she and Shakira lived, believing that the foster parents' rules were too strict. Respondent-mother had at least two conversations with Cassie Moore, respondent-mother's permanency planning social worker, and her foster parents about their rules. Respondent-mother left the foster home on 29 August 2007, leaving Shakira in the foster home, and refused to return.
The trial court conducted a review hearing on 5 October 2007, where respondent-father appeared for the first time and was served with the abuse, dependency, and neglect petition. Ms. Moore explained to respondent-father YFS' proposed case plan for him and respondent-father requested paternity testing.
After the 5 October 2007 review hearing, the trial court entered an order on 1 November 2007, in which it found that respondent-mother had completed all the required independent living classes; that she was involved in a GED program; that she was employed part-time; that she attended her weekly therapy sessions; that she was on the waiting list for housing; and that she was attending her parenting classes. Respondent-father contacted Ms. Moore twice after the 5 October 2007 hearing, requesting information about paternity testing. Respondent-father, however, did not obtain paternity testing at that time.
A review hearing was held on 9 January 2008, where the trial court found that respondent-mother continued to comply with her case plan and the trial court continued reunification as the permanent plan with respect to respondent-mother. At respondent-mother's request, the trial court delayed a trial placement with Shakira in order for her to find new housing and a different job with daytime hours. Respondent-father did not attend the 9 January 2008 hearing due to his being incarcerated, and the court found that at the time of the hearing, he had not entered into a case plan with YFS; that he had not obtained paternity testing, which he previously indicated he wanted in October 2007; and that he had not been in contact with YFS since 10 October 2007.
After the 9 January 2008 review hearing, respondent-mother "regressed" in her case plan by failing to attend scheduled appointments with her service providers and allowing her Medicaid to lapse. Ms. Moore scheduled a family centered meeting ("FCM") for 23 May 2008. Respondent-mother and several of her service providers attended the FCM to discuss respondent-mother's regression. Although respondent-mother was provided an opportunity to ask questions and provide input, she failed to explain why she had missed the appointments or why she had allowed her Medicaid to lapse. Respondent-mother and her service providers entered into an action plan to help respondent-mother get back on track with her case plan.
At a permanency planning hearing on 5 June 2008, the trial court found that respondent-mother was "continu[ing] to make reasonable progress" on her case plan and ordered her to comply with the FCM action plan. The trial court continued reunification as the permanent plan. At the next hearing on 4 December 2008, however, the trial court found that since the last hearing, respondent-mother had maintained only "sporadic" contact with YFS; that she had begun dating and living with a convicted felon; that she had only "sporadic[ally]" attended her required therapy sessions; and that she had not provided verification of employment. The court also received the results from a paternity test, which indicated a 99.99% probability that respondent-father was Shakira's biological father. The trial court changed the permanent plan to adoption concurrent with reunification with respect to respondent-mother. Accordingly, the trial court ordered YFS to file a termination of parental rights ("TPR") motion before the next scheduled court date.
In an order entered 7 January 2009, the trial court found that respondent-father acknowledged paternity.
YFS filed a TPR motion in the cause with respect to both respondent-mother and respondent-father on 3 February 2009. The trial court held a pre-trial hearing on 4 March 2009 and calendared the trial to begin on 20 July 2009. Trial was continued until 6 August 2009. After conducting the termination proceedings on 6 and 13 August 2009, the trial court entered an order on 24 September 2009, in which it determined that grounds existed to terminate both respondents' parental rights. The court subsequently concluded that it was in Shakira's best interest to terminate respondents' parental rights and ordered that their rights be terminated. Respondents timely appealed to this Court.
Father's Appeal I
Respondent-father first argues on appeal that he received ineffective assistance of counsel in the termination of parental rights proceedings. Pursuant to N.C. Gen. Stat. §§ 7B-1101.1(a) and-1109(b) (2009), parents have a "right to counsel in all proceedings dedicated to the termination of parental rights." In re Oghenekevebe, 123 N.C. App. 434, 436, 473 S.E.2d 393, 396 (1996). "This statutory right includes the right to effective assistance of counsel." In re Dj.L., 184 N.C. App. 76, 84, 646 S.E.2d 134, 140 (2007). Generally, to prevail on a claim for ineffective assistance of counsel, the respondent must show that counsel's performance was deficient and that the deficiency was so serious as to deprive the respondent of a fair hearing. In re Bishop, 92 N.C. App. 662, 665, 375 S.E.2d 676, 679 (1989) (citing State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985)); see also Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984) (holding that assistance of counsel is deemed ineffective when a defendant shows that "counsel's performance was deficient" and that "the deficient performance prejudiced the defense"). The respondent generally must demonstrate how he or she was prejudiced by counsel's conduct in order to establish an ineffective assistance of counsel claim. See In re L.C., 181 N.C. App. 278, 283, 638 S.E.2d 638, 641 ("Because respondent has failed to demonstrate the prejudice he suffered, he has likewise failed to establish his claim of ineffective assistance of counsel."), disc. review denied, 361 N.C. 354, 646 S.E.2d 114 (2007).
We note that although respondent-father did not make his ineffective assistance of counsel contention the subject of any proposed issue on appeal, they "are to facilitate the preparation of the record on appeal and [do] not limit the scope of the issues presented on appeal in an appellant's brief." N.C. R. App. P. 10(b). Thus the issue is properly before this Court.
Here, respondent-father contends that he failed to receive effective assistance as his "trial counsel failed to make any reasonable efforts to prepare or communicate with [him] for nearly six months between the date the TPR motion was filed and the date of the TPR hearing." See generally State v. Dockery, 78 N.C. App. 190, 191, 336 S.E.2d 719, 720-21 (1985) (explaining that trial counsel's duties to criminal defendant "include the duty of loyalty, a duty to advocate the defendant's cause and duties to consult with the client, investigate the client's case and keep the client informed"). In support of his argument, respondent-father maintains that he was incarcerated from 14 December 2007 to 31 July 2009; that during the six months after the TPR motion was filed on 3 February 2009, his attorney did not write or call him and never came to the jail — despite its close proximity to her office — to discuss the case and prepare for trial; that no responsive pleadings were filed on his behalf; that his attorney did not notify him that the termination hearing, which was originally calendared for 20 July 2009, had been continued until 6 August 2009; and that the only time his attorney attempted to visit him in jail was on 31 July 2009, after he had already been released.
The record indicates that Pili Fleming, the attorney representing respondent-father in the TPR proceedings, had been representing him throughout the case. Respondent-father appeared with Ms. Fleming at review hearings on 5 October 2007, 5 June 2008, and 4 December 2008, as well as a pre-trial hearing on 4 March 2009 regarding the TPR motion. The fact that respondent-father's attorney had been representing him for over 20 months evidences that she was familiar with the facts of the case, respondent-father's level of compliance with his case plan, and the progress of the case in the trial court. See In re Faircloth, 153 N.C. App. 565, 571-72, 571 S.E.2d 65, 70 (2002) (noting, in rejecting ineffective assistance of counsel claim in termination proceeding, that "[c]ounsel was appointed for [respondent] and has represented him in the instant case, the earlier abuse and neglect proceeding, and the prior appeal"). Moreover, neither respondent-father nor his attorney raised any concerns regarding his representation at the 4 March 2009 pre-trial hearing.
Respondent-father fails to explain how Ms. Fleming would have been better prepared for trial by further communicating or visiting respondent-father. Respondent-father points to no information or evidence that he might have provided to her that would have aided Ms. Fleming in preparing for trial. See In re B.P., 169 N.C. App. 728, 733, 612 S.E.2d 328, 331-32 (2005) (holding that respondent's "general[]" allegations that her "counsel was difficult to contact, failed to call additional witnesses, and made no motions before the trial court" were insufficient to establish deficient performance by trial counsel where respondent "failed to specify what motions should have been made and what evidence could have been, but was not, presented before the trial court"). Respondent-father has, therefore, failed to establish that his trial counsel's performance was deficient.
Even assuming that trial counsel's performance was deficient, respondent-father bears the burden of establishing prejudice. This he has not done. Again, respondent-father fails to point to any evidence that might have been presented, any witnesses that might have been called, any motions that might have been filed, or any trial strategy that might have been developed in the event that his trial counsel had been better prepared. See Faircloth, 153 N.C. App. at 572, 571 S.E.2d at 70 (holding respondent failed to establish prejudice where respondent "fail[ed] to indicate the nature of the pre-trial motions counsel should have filed or the identity of witnesses counsel should have subpoenaed").
Respondent-father nonetheless argues that prejudice should be presumed in this case because his trial counsel's performance was so deficient that it was "tantamount to [his] having no counsel at all." In support of his argument, respondent-father relies on United States v. Cronic, 466 U.S. 648, 659-60, 80 L. Ed. 2d 657, 668 (1984), where the United States Supreme Court held that prejudice may be presumed "without inquiry into the actual conduct of the trial" when "the likelihood that any lawyer, even a fully competent one, could provide effective assistance" is remote.
Contrary to respondent-father's argument, Cronic is inapposite here. Unlike the cases discussed in Cronic where the Supreme Court had previously held that a presumption of prejudice was warranted, see, e.g., Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d 347 (1974), and Powell v. Alabama, 287 U.S. 45, 77 L. Ed. 158 (1932), respondent-father does not contend that, in light of the "surrounding circumstances" in this case, even a competent attorney could not have provided effective assistance in the termination proceedings. Cronic, 466 U.S. at 661, 80 L. Ed. 2d at 669. Rather, respondent-father simply contends on appeal that his trial counsel's lack of communication and lack of trial preparation resulted in deficient performance. Without respondent-father demonstrating how the surrounding circumstances in this case precluded even a competent attorney from providing effective assistance, a presumption of prejudice is not warranted. This argument is overruled.
II
Respondent-father also contends that the trial court should have granted his motion for a continuance on the ground that his trial counsel had failed to provide effective assistance. Ordinarily, a motion for a continuance in Chapter 7B proceedings is reviewed for abuse of discretion. Bishop, 92 N.C. App. at 666, 375 S.E.2d at 679. When, however, the motion for a continuance implicates a respondent's right to effective assistance of counsel, "the denial of a motion to continue presents a reviewable question of law. . . ." Id.
The right to effective assistance of counsel includes, "as a matter of law, the right of client and counsel to have adequate time to prepare a defense." Id. In contrast to "claims of ineffective assistance of counsel based on defective performance of counsel, prejudice is presumed in cases where the trial court fails to grant a continuance which is `essential to allowing adequate time for trial preparation.'" Id. (quoting State v. Maher, 305 N.C. 544, 550, 290 S.E.2d 694, 697-98 (1982)).
Here, however, there was sufficient time — roughly six months — to adequately prepare for the termination proceedings. See id. (holding there was "ample time for trial preparation" where petition was filed 5 February 1987 and order terminating parental rights was entered 4 June 1987). Although respondent-father contends that he was deprived of effective assistance due to his trial counsel's failure to contact him or visit him while he was incarcerated during the period between the time the TPR motion was filed and the time of the termination hearing, respondent-father fails to explain how Ms. Fleming would have been better prepared for trial if she had contacted or visited him in jail. Respondent-father, moreover, acknowledges that he never attempted to contact Ms. Fleming or anyone else involved in the case during this period. Where, as here, "the lack of preparation for trial is due to a party's own actions, the trial court does not err in denying a motion to continue." Id. The trial court, therefore, did not err in denying respondent-father's motion for a continuance in this case. As respondent-father does not otherwise challenge the trial court's order terminating his parental rights, we affirm the court's order with respect to respondent-father.
Mother's Appeal
Respondent-mother argues that the trial court erred in terminating her parental rights. A termination of parental rights proceeding is conducted in two phases: (1) an adjudication phase that is governed by N.C. Gen. Stat. § 7B-1109 (2009) and (2) a disposition phase that is governed by N.C. Gen. Stat. § 7B-1110 (2009). In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). During the adjudication stage, the petitioner has the burden of proving by clear, cogent, and convincing evidence that one or more of the statutory grounds for termination set out in N.C. Gen. Stat. § 7B-1111 exist. Id. The standard of appellate review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the court's findings of fact support its conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
If the petitioner meets the burden of proving that at least one ground for termination exists, the trial court moves to the disposition phase to determine whether termination of parental rights is in the best interest of the child. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002); N.C. Gen. Stat. § 7B-1110(a). The trial court's decision to terminate parental rights is reviewed for an abuse of discretion. Anderson, 151 N.C. App. at 98, 564 S.E.2d at 602. "A trial court may be reversed for abuse of discretion only upon a showing that its actions are `manifestly unsupported by reason.'" Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) (quoting Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980)).
The trial court in this case determined that grounds exist to terminate respondent-mother's parental rights under N.C. Gen. Stat. § 7B-1111(a)(1) (neglect), N.C. Gen. Stat. § 7B-1111(a)(2) (lack of reasonable progress), and N.C. Gen. Stat. § 7B-1111(a)(3) (failure to pay child care). Because we hold that the trial court properly concluded that grounds existed under N.C. Gen. Stat. § 7B-1111(a)(3), we do not address respondent-mother's arguments regarding the other two grounds. See In re B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004) ("Having concluded that at least one ground for termination of parental rights existed, we need not address the additional ground[s] . . . found by the trial court.").
N.C. Gen. Stat. § 7B-1111(a)(3) provides that parental rights may be terminated where
[t]he juvenile has been placed in the custody of a county department of social services, a licensed child-placing agency, a child-caring institution, or a foster home, and the parent, for a continuous period of six months next preceding the filing of the petition or motion, has willfully failed for such period to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so.
A finding that a parent has the ability to pay support is essential to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(3). In re Ballard, 311 N.C. 708, 717, 319 S.E.2d 227, 233 (1984). In determining what constitutes a "reasonable portion" of the cost of care for a child, the parent's ability to pay is the "controlling characteristic." In re Clark, 303 N.C. 592, 604, 281 S.E.2d 47, 55 (1981). "A parent is required to pay that portion of the cost of foster care for the child that is fair, just and equitable based upon the parent's ability or means to pay." Id. A parent's "nonpayment will be deemed a failure to pay a reasonable portion if and only if the [parent] could pay some amount greater than zero." In re McDonald, 72 N.C. App. 234, 243, 324 S.E.2d 847, 853 (1984).
With respect to respondent-mother's ability to pay a reasonable portion of care for her daughter, the trial court found that
44) In the six months immediately preceding the filing of the Motion, respondent-mother provided no monetary support to defray the costs of the juvenile's placement in foster care. She did not provide any clothing or other necessities for the juvenile.
45) Respondent-mother held inconsistent employment in the 6 months immediately preceding the filing of the Motion. She has the ability to work and earn income. She does not suffer from any disability that would impede her ability to work and earn income. She had the ability to pay some amount greater than zero.
Respondent-mother argues that the trial court's findings are not supported by the evidence in the record. Ms. Moore, respondent-mother's YFS social worker, testified that respondent-mother neither "provide[d] any monetary support for [Shakira]" nor "any clothing, toiletries, [or] any other items for the foster parent to support the child" during the six months preceding the filing of the petition to terminate her parental rights. Ms. Moore also testified that respondent-mother had been employed at "various times" during the relevant period and that she had never disclosed any disability that would "impede her from working and earning income[.]" Respondent-mother also testified that she started working at Burger King in November 2008, but left the job sometime in January 2009. Respondent-mother stated that she had "no excuse" as to why she left that job. Respondent-mother also testified that she had not provided any monetary support for Shakira's foster care.
This evidence is sufficient to support the trial court's findings that respondent-mother had the ability to pay some amount greater than zero, but failed to do so. See In re T.D.P., 164 N.C. App. 287, 290, 595 S.E.2d 735, 738 (2004) (concluding that "there was clear and convincing evidence that respondent had an ability to pay an amount greater than zero" where evidence showed that, although respondent made "very little money" as a cook in prison, he did not contribute any money toward paying for child support), aff'd per curiam, 359 N.C. 405, 610 S.E.2d 199 (2005); In re McMillon, 143 N.C. App. 402, 410-11, 546 S.E.2d 169, 175 (concluding that "[t]he record . . . supports the trial court's conclusion that [respondent] had willfully failed to contribute financially to [juvenile]'s upkeep" where evidence showed that respondent "was regularly employed, yet she did not contribute any funds in child support during the twenty-eight months that [juvenile] was in foster care"), disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001); Huff, 140 N.C. App. at 292-93, 536 S.E.2d at 841-42 (finding sufficient evidence that parents willfully failed to pay reasonable portion of child support where neither parent contributed any money toward child support, "both parents were employed for at least half of the relevant six-month period," and "any unemployment during this period appear[ed] to have occurred only after the parents voluntarily terminated previous jobs").
The trial court's findings, supported by competent evidence, support the court's conclusion that "[r]espondent-mother failed, for a continuous period of at least 6 months next preceding the filing of the Motion, to pay a reasonable portion of the cost of care for the child, although physically and financially able to do so. Respondent-mother had the ability to pay some amount greater than zero." See In re Montgomery, 311 N.C. 101, 114, 316 S.E.2d 246, 254 (1984) (reversing this Court where "there was ample evidence from which the trial court could conclude that respondent Maxwell failed to pay a reasonable portion of the costs of care of the children"); T.D.P., 164 N.C. App. at 291, 595 S.E.2d at 738 ("[B]ecause the trial court in the instant case correctly found that respondent was able to pay some amount greater than zero during the relevant time period, we hold that sufficient grounds existed for termination of respondent's parental rights under N.C. Gen. Stat. § 7B-1111(a)(3)."). As respondent-mother makes no argument that the trial court abused its discretion in terminating her parental rights, we affirm the trial court's order.
Affirmed.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).