Opinion
No. COA10-1153
Filed 5 April 2011 This case not for publication
Appeal by Respondent from orders entered 16 June 2010 by Judge Richlyn D. Holt in Haywood County District Court. Heard in the Court of Appeals 7 March 2011.
Rachael J. Hawes for petitioner-appellee Haywood County Department of Social Services. J. Thomas Diepenbrock for respondent-appellant mother. Pamela Newell for guardian ad litem.
Haywood County No. 09 JT 30.
Respondent appeals from the trial court's orders terminating her parental rights to her son, M.R.L., III ("M.R.L."). After careful review, we affirm.
Haywood County Department of Social Services ("DSS") filed a juvenile petition on 25 March 2009 alleging that M.R.L. was a neglected and dependent juvenile. DSS became involved with the family in February 2009 after four-day-old M.R.L. was taken to the hospital: M.R.L. tested positive for amphetamines. Following the incident, M.R.L. was placed in a kinship placement with his paternal aunt and uncle. According to the petition, both Respondent and M.R.L.'s father had substance abuse problems and pending criminal charges.
The trial court appointed a guardian ad litem for Respondent in an order entered 4 June 2009, based on Respondent's medical and substance abuse issues. Following a hearing on 15 June 2009, the trial court entered an order adjudicating M.R.L. neglected. The trial court found, among other things, that Respondent had been hospitalized from 22 August 2008 to 2 September 2008 due to a self-inflicted laceration; that Respondent had been in an opiate detoxification program at Haywood Regional Hospital from 13 March 2009 until 20 March 2009; that Respondent had several pending criminal charges; and that Respondent had not been in contact with DSS. In a disposition order entered the same day, the trial court gave DSS custody of M.R.L., but kept him in the kinship placement with his aunt and uncle. The trial court also ordered Respondent to comply with her case plan, entered into on 9 May 2009, which was primarily directed at Respondent's substance abuse problems.
In a permanency planning order entered 23 February 2010, the trial court changed M.R.L.'s permanent plan from reunification to adoption and relieved DSS of its requirement to make reasonable efforts to reunify M.R.L. with his parents. At the time of the permanency planning hearing, the parents' locations were unknown, the parents had not completed any items in their respective case plans, and neither parent had visited M.R.L. since August 2009. On 26 March 2010, DSS filed a petition to terminate Respondent's parental rights, alleging the following grounds: (1) neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (2009); (2) failure to make reasonable progress pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) (2009); (3) dependency pursuant to N.C. Gen. Stat. § 7B-1111(a)(6) (2009); (4) willful abandonment pursuant to N.C. Gen. Stat. § 7B-1111(a)(7) (2009); and (5) termination of parental rights to another child pursuant to N.C. Gen. Stat. § 7B-1111(a)(9) (2009). DSS also sought to terminate the father's parental rights in the petition.
On 8 June 2010, M.R.L.'s father executed a voluntary relinquishment of his parental rights to M.R.L. On the same day, during calendar call, Respondent's attorney, Jonathan Song, made a motion to withdraw as counsel. The hearing was not recorded, but according to the narrative included in the record on appeal, Mr. Song's motion was "based on a conflict of interest arising from Mr. Song's prior representation of an individual who was charged with assaulting [Respondent's] fiancé." The trial court denied Mr. Song's motion.
The trial court held a termination of parental rights hearing on 9 June 2010. At the time, Respondent was incarcerated on several pending criminal charges. At the outset of the hearing, Mr. Song moved for a continuance, stating that Respondent was not feeling well. Mr. Song elaborated that Respondent had a gallbladder condition and felt that the food served in jail had made her ill. DSS objected to a continuance, and the trial court denied the motion.
Following the denial of Respondent's motion to continue, the court took a brief recess. It appears that during the recess, Respondent indicated that she no longer wished to have Mr. Song represent her. The following colloquy resulted:
THE COURT: Tell us for the record what your client's wishes are.
MR. SONG: Your Honor, at this point it's my client's wish that I no longer represent her as her attorney.
THE COURT: Okay. And I see Ms. Norwood [Respondent's guardian ad litem].
MS. NORWOOD: That is correct, Your Honor.
THE COURT: Okay. And you're going to be here. Right?
MS. NORWOOD: Yes, sir.
THE COURT: Okay. [Respondent], I'll let you ask, on any direct examination or any decision, I'll let you ask the first questions. You can ask whatever appropriate questions you want to ask and then I'm going to give Mr. Song the opportunity, if he feels like there's some things to ask after, to ask[,] and then if you decide you want to testify, you can do that. I'm going to give Mr. Song an opportunity to ask you additional questions or if he thinks there are things that would be of benefit to you in your case.
I'm not going to let you just get rid of him, but I'll let you go first and you can do whatever you want to in your questioning that's appropriate. You cannot say whatever you want to. Anything that's appropriate that you want to do or any witness[es] that you want to call that are appropriate, including yourself if you desire to. Okay?
(No audible response)
THE COURT: All right. Thank you. Department's witness.
The trial court heard testimony from a DSS foster care social worker and a DSS foster care supervisor. During the hearing, both Mr. Song and Respondent cross-examined DSS's witnesses. Respondent also testified. On 16 June 2010, the trial court entered an order concluding that all five grounds existed to terminate Respondent's parental rights. In a separate order entered the same day, the trial court determined that termination of Respondent's parental rights was in M.R.L.'s best interests. From the orders entered 16 June 2010, Respondent appeals.
On appeal, Respondent first argues that the trial court erred in denying counsel's motion to withdraw. Second, Respondent argues that the trial court erred by failing to conduct a hearing to determine whether she was entitled to substitute counsel and instead arranging for "co-representation" between Respondent and Mr. Song. Finally, Respondent argues that the trial court erred in denying her motion for a continuance. We address each argument in turn.
I: Motion to Withdraw as Counsel
In Respondent's first argument on appeal, she contends that the trial court committed reversible error in denying her attorney's motion to withdraw. We disagree.
Our juvenile code provides indigent parents with the right to appointed counsel in cases affecting their parental rights. However, this right to counsel is not "a right to have the attorney of [her] choice appointed to represent [her]." State v. Robinson, 290 N.C. 56, 65, 224 S.E.2d 174, 179 (1976). "[I]n the absence of some substantial reason for the appointment of replacement counsel, an indigent must accept counsel appointed by the court unless [she] wishes to waive counsel and represent [her]self." In re S.L.L., 167 N.C. App. 362, 364, 605 S.E.2d 498, 499 (2004) (citation omitted). "[A] motion to withdraw is ordinarily a matter left to the sound discretion of the trial judge and his ruling will not be disturbed absent a showing of abuse." State v. Thomas, 310 N.C. 369, 375, 312 S.E.2d 458, 461 (1984) (citation omitted).
Mr. Song made the motion at calendar call, the day before the termination hearing, based on a potential conflict of interest. In ruling on a motion to withdraw based on a potential conflict of interest, "[t]he established law . . . is that the trial judge must satisfy himself only that the `present counsel is able to render competent assistance and that the nature or degree of the conflict is not such as to render that assistance ineffective.'" State v. Poole, 305 N.C. 308, 311, 289 S.E.2d 335, 338 (1982) (quoting State v. Thacker, 301 N.C. 348, 353, 271 S.E.2d 252, 256 (1980)). Our Supreme Court has further explained the trial court's duty in this regard:
A trial court is constitutionally required to appoint substitute counsel whenever representation by counsel originally appointed would amount to denial of defendant's right to effective assistance of counsel, that is, when the initial appointment has not afforded defendant his constitutional right to counsel. Thus, when it appears to the trial court that the original counsel is reasonably competent to present defendant's case and the nature of the conflict between defendant and counsel is not such as would render counsel incompetent or ineffective to represent that defendant, denial of defendant's request to appoint substitute counsel is entirely proper.
Thacker, 301 N.C. at 352, 271 S.E.2d at 255 (citations omitted).
Respondent contends that the trial court should have granted counsel's motion to withdraw because "[i]t can be presumed that when he made the motion to withdraw, based on what he believed to be an actual or potential conflict of interest, [Respondent's] attorney was questioning whether he could provide effective assistance of counsel." In support of her argument, Respondent cites the North Carolina Rules of Professional Conduct for the proposition that an attorney must "zealously assert[] the client's position" and that "[l]oyalty and independent judgment are essential elements in the lawyer's relationship to a client." See North Carolina Rules of Professional Conduct, 0.1 Preamble, Comment to Rule 1.7 (2009).
Other than her assertion that Mr. Song was "presumed" to have a conflict of interest, Respondent has failed to demonstrate that Mr. Song's loyalty and independent judgment were in any way compromised by Mr. Song's past representation of an individual who allegedly assaulted Respondent's fiancé. Mr. Song began representing Respondent in the underlying neglect case, which began more than a year before the 8 June 2010 motion to withdraw. During this time, Mr. Song represented Respondent without incident, and he went on to provide effective assistance of counsel during the termination hearing. Mr. Song effectively cross-examined witnesses, even impeaching one witness, effectively examined Respondent, and provided ample argument to the trial court in opposition to DSS's petition. In denying the motion, the trial court was satisfied that Mr. Song's representation did not result in any actual conflict of interest, and we find no abuse of discretion in the trial court's decision.
II: Hearing on Motion to Withdraw
As a corollary to her first argument, Respondent also contends that the trial court should have conducted a hearing to determine whether Respondent was entitled to substitute court-appointed counsel. We find no reversible error.
Despite Respondent's request, the trial court was already satisfied that Mr. Song's representation was not ineffective, and Respondent provided no further legal explanation for her motion. As we have explained, "[m]ere dissatisfaction with one's counsel is not a substantial reason for the appointment of replacement counsel." In re S.L.L., 167 N.C. App. at 364, 605 S.E.2d at 499 (citations omitted). Furthermore, "[o]nce it becomes apparent that the assistance of counsel has not been rendered ineffective, the trial judge is not required to delve any further into the alleged conflict." Poole, 305 N.C. at 311-12, 289 S.E.2d at 338. "The trial court's sole obligation when faced with a request that counsel be withdrawn is to make sufficient inquiry into defendant's reasons to the extent necessary to determine whether defendant will receive effective assistance of counsel." Id., 305 N.C. at 312, 289 S.E.2d at 338. (Emphasis added). Here, the trial court made sufficient inquiry to determine that Respondent would receive effective assistance of counsel. The transcript reveals no reason Mr. Song's counsel may have been ineffective, but only suggests that Respondent "wish[ed]" that Mr. Song "no longer represent her." Robinson, 290 N.C. at 65, 224 S.E.2d at 179 (the right to counsel is not "a right to have the attorney of [her] choice appointed to represent [her]"). We conclude that the trial court was not required to conduct a separate hearing regarding the need for substitute counsel in the instant case.
III: Co-representation
Respondent also argues that the trial court should have appointed substitute counsel instead of arranging for "co-representation" between Respondent and Mr. Song. We conclude that any error was not prejudicial.
Respondent cites In re S.L.L., 167 N.C. App. 362, 605 S.E.2d 498, in support of her argument. In S.L.L., after a parent's second court-appointed attorney was discharged, the parent again requested that the trial court appoint new counsel. The trial court refused to appoint substitute counsel, stating the following:
Okay. Well, this is the second attorney that you've let go, so we've appointed two attorneys to represent you. They've both been very competent. You've elected not to proceed with them. I can't continue the case ad infinitum until you find an attorney you're pleased with, so you're just going to have to represent yourself. . . .
Id., 167 N.C. App. at 363, 605 S.E.2d at 499. We reversed the case and remanded it to the trial court for a new hearing, concluding that the trial court "erred by equating respondent's request for new counsel with a waiver of court-appointed counsel, and requiring respondent to proceed to trial pro se." Id., 167 N.C. App. at 365, 605 S.E.2d at 500.
We find the case sub judice distinguishable from S.L.L. Here, the trial court never discharged Respondent's attorney, nor did the court require Respondent to proceed pro se. Therefore, contrary to Respondent's assertion, S.L.L. is not controlling authority.
We decline to address whether the trial court's arrangement of co-representation was improper, because assuming arguendo that such an arrangement was improper, it resulted in no prejudicial error to Respondent. See In re T.D.W., ___ N.C. App. ___, ___, 692 S.E.2d 177, 181 (2010) (concluding that an error regarding notice was harmless error); In re I.S., 170 N.C. App. 78, 85, 611 S.E.2d 467, 471-72 (2005) (holding that the trial court's failure to hear respondent's motion to dismiss did not constitute prejudicial error). While Respondent certainly had some difficulty examining witnesses, we have reviewed the record and conclude that no prejudice resulted. Respondent's questioning did not appear to hinder Mr. Song's examination. Mr. Song effectively cross-examined witnesses, even impeaching one witness. He provided ample argument to the trial court in opposition to DSS's petition, contending that Respondent's actions lacked willfulness due to her diminished capacity. Respondent later testified on her own behalf, thereby providing the trial court with details of her traumatic brain injury and resulting medical conditions, her struggles with substance abuse, her attempts to bring M.R.L. money and presents, and her strained relationship with M.R.L.'s foster parents. Thus, while the trial court's arrangement may not have been ideal, it resulted in no prejudicial error to Respondent. Accordingly, we conclude that the trial court did not abuse its discretion in declining to appoint substitute counsel.
IV: Continuance
Finally, Respondent argues that the trial court committed reversible error by denying her motion for a continuance. We disagree.
Our juvenile code contains a specific statute pertaining to continuances:
The court may, for good cause, continue the hearing for as long as is reasonably required to receive additional evidence, reports, or assessments that the court has requested, or other information needed in the best interests of the juvenile and to allow for a reasonable time for the parties to conduct expeditious discovery. Otherwise, continuances shall be granted only in extraordinary circumstances when necessary for the proper administration of justice or in the best interests of the juvenile.
N.C. Gen. Stat. § 7B-803 (2009). We review the trial court's denial of a motion to continue for abuse of discretion. In re Humphrey, 156 N.C. App. 533, 538, 577 S.E.2d 421, 425 (2003). "Generally, the denial of a continuance, which is within the trial court's sound discretion, will not be interfered with on appeal; however, if the ruling is `manifestly unsupported by reason,' it is an abuse of discretion and subject to reversal." In re Safriet, 112 N.C. App. 747, 751, 436 S.E.2d 898, 901 (1993) (quoting Freeman v. Monroe, 92 N.C. App. 99, 101, 373 S.E.2d 443, 444 (1988)). Furthermore, "[c]ontinuances are generally disfavored, and the burden of demonstrating sufficient grounds for continuation is placed upon the party seeking the continuation." In re J.B., 172 N.C. App. at 10, 616 S.E.2d at 270 (citation omitted).
Although this statute appears in an article governing adjudication and disposition hearings in abuse, neglect, and dependency cases, we have also applied this statute to termination of parental rights hearings. See, e.g., In re J.B., 172 N.C. App. 1, 10, 616 S.E.2d 264, 270 (2005).
Here, Respondent did not seek the continuance to receive additional evidence, reports, or assessments, or to conduct discovery. Nevertheless, Respondent contends that the trial court abused its discretion in denying her motion because she was ill. Respondent relies on Abernethy v. State Planters Bank Trust Co., 202 N.C. 46, 161 S.E. 705 (1932). In Abernethy, the plaintiff moved for a continuance because she was ill and could not attend the trial. Id., 202 N.C. at 47, 161 S.E. at 705. Unlike Respondent, the plaintiff in Abernethy offered an affidavit and certificates from two physicians, which established that the plaintiff was ill and unable to leave her house. Id., 202 N.C. at 47-48, 161 S.E. at 705-06. Our Supreme Court ordered a new trial on other grounds, but, in dicta, stated that the trial court should have granted the continuance. Id., 202 N.C. at 48, 161 S.E. at 706.
Unlike the plaintiff in Abernethy, Respondent failed to present any documentation or medical evidence of her illness, other than her claim that she had a gallbladder condition that was exacerbated by the food served to her in jail. Moreover, Respondent was able to attend and participate in the hearing. She asked questions of witnesses and offered her own testimony. Nothing in the record indicates that Respondent's illness affected her ability to participate in the hearing. Therefore, we conclude that Respondent failed to demonstrate that her continuance was "necessary for the proper administration of justice" due to an "extraordinary circumstance." See N.C. Gen. Stat. § 7B-803. Accordingly, the trial court did not abuse its discretion in denying Respondent's motion for a continuance.
For the foregoing reasons, we conclude that the trial court did not commit prejudicial error, and the orders entered 16 June 2010, which concluded that grounds existed to terminate Respondent's parental rights and determined that termination of Respondent's parental rights was in M.R.L.'s best interests, are affirmed.
AFFIRMED.
Judges BEASLEY and McCULLOUGH concur.
Report per Rule 30(e).