Opinion
No. COA13–264.
2013-07-2
In The Matter of B.P., B.P., B.P.
Hanna Frost Honeycutt for petitioner-appellee Buncombe County Department of Social Services. Michael N. Tousey for guardians ad litem.
Appeal by respondents from orders entered 14 March 2012 by Judge Andrea F. Dray and 16 November 2012 by Judge Ward D. Scott in Buncombe County District Court. Heard in the Court of Appeals 10 June 2013. Hanna Frost Honeycutt for petitioner-appellee Buncombe County Department of Social Services. Michael N. Tousey for guardians ad litem.
Miller & Audino, LLP, by Jeffrey L. Miller, for respondent-appellant mother.
W. Michael Spivey for respondent-appellant father.
ERVIN, Judge.
Respondent–Mother Amber B. and Respondent–Father Allan P. appeal from orders terminating their parental rights in B.P., born in July of 2010 (“Becky”), B.P., born in October of 2008 (“Bonnie”), and B. P., born in October of 2011 (“Ben”). In addition, Respondent–Father appeals from orders entered by the trial court which authorized the Buncombe County Department of Social Services to cease attempting to reunify Becky, Bonnie, and Ben with Respondent–Mother and Respondent–Father and changed the children's permanent plans to adoption. On appeal, Respondent–Father has filed a “no merit” brief and Respondent–Mother has contended that the trial court erred by allowing her counsel to withdraw during the course of the termination hearing without continuing the adjudication hearing, that she received ineffective assistance of counsel as a result of her counsel's decision to seek leave of court to withdraw from his representation of her during the course of the termination proceeding without providing her with proper notice, and that the trial court erred by failing to establish the capacity in which Respondent–Mother's guardian ad litem should act. After careful consideration of the parents' challenges to the relevant orders in light of the record and the applicable law, we conclude that the trial court's orders authorizing DSS to cease any efforts at reunifying Respondent–Father with Becky, Bonnie, and Ben and terminating Respondent–Father's parental rights in the children should be affirmed and that the trial court's orders terminating Respondent–Mother's parental rights in the children should be vacated and that this case should be remanded to the Buncombe County District Court for further proceedings involving Respondent–Mother not inconsistent with this opinion.
“Becky,” “Bonnie,” and “Ben” are pseudonyms used for ease of reading and to protect the juveniles' privacy.
I. Factual Background
On 10 September 2010, DSS filed petitions alleging that Becky and Bonnie were neglected and dependent juveniles. In these petitions, DSS relied upon the parents' persistent cocaine use, which resulted in Bonnie testing positive for cocaine at birth, coupled with their failure to properly supervise the children, provide an adequate supply of food for the household, and the absence of an appropriate alternative care arrangement. After the parents stipulated to the validity of the allegations set out in the DSS petitions, the trial court determined that those allegations were sufficient to establish that Becky and Bonnie were neglected and dependent juveniles, and adjudicated Becky and Bonnie to be neglected and dependent juveniles on 8 November 2011. After Ben's birth in October of 2011, DSS filed a petition alleging that he was a neglected and dependent juvenile. Based upon stipulations by the parents, the court adjudicated Ben a neglected and dependent juvenile on 3 January 2012.
After a permanency planning hearing held on 27 January 2012, the court entered orders on 14 March 2012 authorizing DSS to cease making further efforts toward reunifying the children with their parents and establishing a permanent plan of adoption for the children. Respondent–Father timely filed notice of his intent to seek appellate review of these permanency planning orders in accordance with N.C. Gen.Stat. § 7B–1101.
On 13 March 2012, DSS filed petitions seeking to have the parents' parental rights in the children terminated. In the petitions relating to Becky and Bonnie, DSS alleged that the parents' parental rights were subject to termination pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) (neglect), N.C. Gen.Stat. § 7B–1111(a)(2) (failure to make reasonable progress), N.C. Gen.Stat. § 7B–1111(a)(3) (failure to pay reasonable cost of care), N.C. Gen.Stat. § 7B–1111(a)(6) (dependency), and N.C. Gen.Stat. § 7B–1111(a)(7) (abandonment). In addition, DSS alleged that Respondent–Father's parental rights in Becky and Bonnie were subject to termination pursuant to N.C. Gen.Stat. § 7B–1111(a)(5) (failure to establish paternity or legitimate the children). N.C. Gen.Stat. 7B–1111(a). Finally, DSS alleged that the parents' parental rights in Ben should be terminated pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) (neglect) and N.C. Gen.Stat. § 7B–1111(a)(6) (dependency). On 27 March 2012, the court appointed counsel and a guardian ad litem for Respondent–Mother.
The trial court consolidated the cases involving Becky, Bonnie, and Ben for hearing and received testimony from ten witnesses, including respondent-father, at an adjudicatory hearing which was held on 15 August, 17 August, and 7 September 2012. The trial court received additional testimony concerning dispositional issues from a foster care social worker on 27 September 2012.
On 16 November 2012, the trial court entered orders determining that the parents' parental rights in Becky and Bonnie were subject to termination pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) (neglect), N.C. Gen.Stat. § 7B–1111(a)(2) (failure to make reasonable progress), and N.C. Gen.Stat. § 7B–1111(a)(6) (dependency) and that the parents' parental rights in Ben were subject to termination pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) (neglect) and N.C. Gen.Stat. § 7B–1111(a)(6) (dependency). The trial court further concluded that termination of the parents' parental rights would be in the best interests of each child. Respondent–Father noted an appeal to this Court from the trial court's permanency planning and termination orders and Respondent–Mother noted an appeal to this Court from the trial court's termination order.
II. Substantive Legal Analysis
A. Respondent–Father's Appeal
Counsel for Respondent–Father has filed a no-merit brief on his client's behalf pursuant to N.C.R.App. P. 3.1(d), stating that counsel has made “a conscientious and thorough review of the record on appeal and concludes that the record contains no issue of merit on which to base an argument for relief and that this appeal is frivolous” and asking this Court to conduct an independent examination of the record in order to determine whether the trial court's orders were subject to any valid legal challenge. Although Respondent–Father's counsel has directed our attention to various potential issues relating to the trial court's jurisdiction over the subject matter of this case, the sufficiency of the findings and conclusions that the trial court made in support of its permanency planning and termination orders, and the trial court's decision that termination of Respondent–Father's parental rights in Becky, Bonnie, and Ben was in the children's best interests in his brief, he acknowledges that the trial court actions implicated by these issues would not result in an award of appellate relief to Respondent–Father. Although he was provided with an opportunity to do so by his counsel, Respondent–Father has not submitted supplemental written arguments for our consideration prior to addressing the merits of his appeal from the challenged orders.
After carefully reviewing the record, we are unable to find any possible prejudicial error in the challenged orders. The court had jurisdiction over the subject matter of this case, made the findings of fact necessary to support its decision to authorize DSS to cease attempting to reunify the children with Respondent–Father, made sufficient findings of fact to support a determination that at least one ground for terminating Respondent–Father's parental rights in the children existed, and did not abuse its discretion in determining that the termination of Respondent–Father's parental rights in each child would be in their best interests. SeeN.C. Gen.Stat. §§ 7B–1110, 1111. As a result, since the court did not err in authorizing DSS to cease attempting to reunify the children with Respondent–Father and terminating his parental rights in the children, we affirm the challenged permanency planning and termination orders.
B. Respondent–Mother's Appeal
1. Withdrawal of Counsel
As an initial matter, Respondent–Mother argues that the trial court erred by allowing her appointed attorney to withdraw in the midst of the adjudicatory hearing. More specifically, Respondent–Mother argues that the trial court erred by allowing her counsel to withdraw without notice and without continuing the adjudication hearing. We agree.
Although Respondent–Mother personally participated in the underlying neglect and dependency proceedings in 2010 and 2011 and attended review hearings until 14 February 2012, she did not attend the termination hearing, which was held on 16 August, 17 August, 7 September, 26 September, and 27 September 2012. Her guardian ad litem was, however, present throughout the entire termination hearing. In addition, Respondent–Mother's appointed counsel appeared and participated in the evidentiary portion of the adjudicatory hearing, which was held on 16 August, 17 August, and 7 September 2012.
At the 7 September 2012 hearing, a foster care social worker testified that she had spoken to Respondent–Mother “[y]esterday” and that Respondent–Mother had “indicated that she was in Greensboro with her mother” and had been living in Greensboro “[s]ince last month[.]” On 26 September 2012, prior to the presentation of the parties' closing arguments, counsel for Respondent–Mother moved to withdraw, stating that:
[COUNSEL]: Your Honor, I would be moving to withdraw in that I have had no contact with my client since September 7th, in which I informed her of this court date. As of today, she is not present, her phone number doesn't work. I do not, I'm sure, need to remind the Court—That's not her.—that she has not been here for the other days of court either.
After confirming that Respondent–Mother had not been in contact with DSS, the office of the Clerk of Superior Court, or the guardian ad litem for the children, the trial court noted that, pursuant to local rules, “[Respondent–Mother] would have been advised that it is her duty and obligation to get up with her attorney” and that “[i]t is not her attorney's duty and obligation to get up with her.” After the bailiff advised the trial court that Respondent–Mother was “on the run,” the trial court stated that:
THE COURT: Well, she's been on the run. I mean, that'd be a rational inference for some period of time, open warrants and other such things. But she's not—She's not maintained contact with her attorney, and therefore her attorney consistent with his ethical obligations is not in a position to adequately represent [Respondent-mother], and is moving to withdraw. It does seem appropriate at this point in time to allow the attorney to withdraw. So, I will allow the attorney to withdraw. Although I could avail myself, [counsel], of the suggestion of the North Carolina Supreme Court, and hear [Respondent–Mother's] Guardian ad Litem on whether you should be allowed to withdraw?
[COUNSEL]: Please do, Your Honor.
[GUARDIAN AD LITEM]: Your Honor, I just feel, as her Guardian ad Litem as she's not present, with the contact that I have had with her, I have not had any contact since September 7th that we had, but we have had contact prior to that, with instructions on how to proceed in this specific matter for the last two sessions of hearing, we have had telephone contact and text contact with her. We do have instructions on what her preferences are. It is true that we have not had—neither of us have had contact with her since the conclusion of the last hearing. And I just think it's important for you to have, at least, that information.
....
[COUNSEL]: My specific problem being, ethically, and I've researched this particular issue. I can't assume, ethically, that her position is the same as it was on September 7th, so therefore I cannot proceed without knowing what her exact wishes are.
THE COURT: Well, it would be really nice if the Court of Appeals would give us trial courts and other individuals some guidance on the true role of a GAL, but on today's market, I am not going to have the input of the GAL at this point in time consistent with the previous view of the Court of Appeals, and my present view of the [J]uvenile [C]ode, and I will allow [counsel] to withdraw, based on his motion.
Respondent–Mother was absent and unrepresented by counsel for the remainder of the proceedings held with respect to the DSS termination petitions.
“Parents have a right to counsel in all proceedings dedicated to the termination of parental rights.” In re L. C., 181 N.C.App. 278, 282, 638 S.E.2d 638, 641 (citation and quotations omitted), disc. review denied,361 N.C. 354, 646 S.E.2d 114 (2007); see alsoN.C. Gen.Stat. § 7B–1101.1. In civil actions, the withdrawal of counsel is governed by Rule 16 of the General Rules of Practice, which requires “(1) justifiable cause, (2) reasonable notice to the client, and (3) the permission of the court,” N.C. Gen. R. Pract. Super. and Dist. Ct. 16 (2011), as a prerequisite for the entry of an order allowing a party's counsel to withdraw. “The determination of counsel's motion to withdraw is within the discretion of the trial court, and thus we can reverse the trial court's decision only for abuse of discretion.” Benton v. Mintz, 97 N.C.App. 583, 587, 389 S.E.2d 410, 412 (1990) (citation omitted). However, “[w]here an attorney has given his client no prior notice of an intent to withdraw, the trial judge has no discretion. The Court must grant the party affected a reasonable continuance or deny the attorney's motion for withdrawal.” Williams & Michael, P.A. v. Kennamer, 71 N.C.App. 215, 217, 321 S.E.2d 514, 516 (1984).
In this case, Respondent–Mother's trial counsel did not request a continuance and gave no indication that he had provided notice to Respondent–Mother that he intended to seek leave of court to withdraw from his representation of her. While “a lawyer cannot properly represent a client with whom he has no contact[,]” it is also true that “procedural safeguards ... must be followed to ensure the ‘fundamental fairness' of termination proceedings.” In re S.N.W., 204 N.C.App. 556, 561, 698 S.E.2d 76, 79 (2010) (first quotation omitted; quoting In re K.N., 181 N.C.App. 736, 741, 640 S.E.2d 813, 817 (2007)). Although Respondent–Mother was effectively required to proceed without counsel after a certain point in the termination process, the record contains no indication that she was either given notice of her trial counsel's decision to seek leave of court to withdraw or granted a reasonable continuance. As a result, we hold that the trial court erred by allowing Respondent–Mother's counsel to withdraw without continuing the termination hearing until a later date; that the orders terminating Respondent–Mother's parental rights in Becky, Bonnie, and Ben must be vacated; and that this case must be remanded to the Buncombe County District Court for further proceedings to be described in more detail below. See In re K.N., 181 N.C.App. at 741, 640 S.E.2d at 817.
In seeking to persuade us to reach a different result, DSS and the Guardian ad Litem point to the same local rule provisions mentioned in the trial court's colloquy with counsel for Respondent–Mother and the guardian ad litem for the children and the alleged difficulty which Respondent–Mother's counsel had experienced in communicating with her. Although local rules are, of course, of considerable value, they cannot supersede the legal principles set forth in decisions of the appellate courts. In addition, the record contains no indication that Respondent–Mother's counsel had actually attempted to notify her of his intentions before moving to withdraw and tends to suggest that Respondent–Mother's counsel relied upon the local rule in lieu of actually attempting to provide her with notice of his intentions. As a result, we do not find either of these arguments persuasive.
As a result of our decision with respect to this issue, we need not address Respondent–Mother's ineffective assistance of counsel claim.
2. Role of Guardian ad Litem
Secondly, Respondent–Mother contends that the trial court erred by failing to determine the capacity in which her guardian ad litem was supposed to act as required by N.C. Gen.Stat. § 7B–1101.1(c). More specifically, Respondent–Mother argues that the trial court erred by failing to determine whether her guardian ad litem was supposed to act in an advisory or substitutionary role. Once again, we conclude that Respondent–Mother's argument has merit.
After DSS filed petitions seeking to have her parental rights in Becky, Bonnie, and Ben terminated, the court appointed a guardian ad litem for Respondent–Mother. Although the appointment was made employing an Administrative Office of the Courts form provided for use in connection with the appointment of a guardian ad litem pursuant to N.C. Gen.Stat. § 7B–602, the guardian ad litem in this case was clearly appointed pursuant to N.C. Gen.Stat. § 7B–1101.1(c). The record does not indicate whether any sort of hearing was held in connection with the appointment of Respondent–Mother's guardian ad litem and the order does not delineate the role which Respondent–Mother's guardian ad litem was intended to play in the termination proceedings. We further note that the judge who appointed Respondent–Mother's guardian ad litem in the juvenile proceedings involving Ben also presided at the termination hearing.
The court had previously appointed the same guardian ad litem for Respondent–Mother in connection with the original neglect and dependency proceedings.
As we have already noted, both the trial court and the guardian ad litem expressed uncertainty as to the nature of the guardian ad litem's role during the proceedings held in the termination case on 26 September 2012. The trial court further expressed a desire for this Court to “give us trial courts and other individuals some guidance on the true role of a” parental guardian ad litem. Ultimately, however, the trial court declined to consider the guardian ad litem's position concerning the motion made by Respondent–Mother's trial counsel for the purpose of seeking leave of court to withdraw from representing Respondent–Mother.
On the following day, the guardian ad litem addressed the trial court for the purpose of describing the results of his research into the nature and extent of his role in this case, stating that:
[GUARDIAN AD LITEM]: Well, I suppose at the appropriate time, being the only representative of my—of the respondent mother, as her Guardian ad Litem, after reviewing 7B–1101.1 and Rule 17, I believe that my role here is in an assistive capacity. And without guidance from my client, I don't—I don't feel able to substantively participate as opposed to procedurally.
THE COURT: Thank you, [ ]. That actually was a very eloquent statement considering the confusion in the law at this point in time. Probably the only thing you could say that would make some reasoned sense. But thank you.
Such a discussion would have been unnecessary if there had been a prior determination of the guardian ad litem's role in this proceeding, clearly establishing that no such determination had ever been made.
This Court has recently explained the process which must be followed in connection with the appointment of a parental guardian ad litem pursuant to N.C. Gen.Stat. § 7B–1101.1(c) as follows:
[T]he trial court ... must conduct a hearing in accordance with the procedures required under [N.C. Gen.Stat. § 1A–1,] Rule 17 in order to determine whether there is a reasonable basis for believing that a parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest. If the court chooses to exercise its discretion to appoint a [guardian ad litem] under N.C. Gen.Stat. § 7B–1101.1(c), then the trial court must specify the prong under which it is proceeding, including findings of fact supporting its decision, and specify the role that the [guardian ad litem] should play, whether one of substitution or assistance.
In re P.D.R., ––– N.C.App. ––––, ––––, 737 S.E.2d 152, 159 (2012). The trial court's colloquy with the guardian ad litem at the termination hearing clearly establishes that the “court appointed the GAL without benefit of the above analysis.” In re P.D.R., ––– N.C.App. at ––––, 737 S.E.2d at 159. Moreover, the record contains conflicting evidence concerning whether the guardian ad litem was appointed for Respondent–Mother as the result of diminished capacity or incompetence concerns. A previous psychological examination indicated that Respondent–Mother exhibited low average intelligence and displayed “logical and coherent” thought processes with “no gross deficits noted with attention, concentration or memory.” However, other information contained in the record suggests that Respondent–Mother's competence might have been a concern which motivated the appointment of the guardian ad litem. In adjudicating Ben a neglected and dependent juvenile, the trial court made the following findings:
20. “In addition to [Respondent–Mother's] inconsistent involvement in substance abuse and mental health services, it appears that her recent Mission Hospitalization was far more concerning than initially thought. [Respondent–Mother] was admitted to Mission Hospital on April 16, 2011 with significant psychotic symptoms. [She] reported that she had ‘recurrence of auditory hallucinations, many of a command quality for self-harm or suicide. She put up with these symptoms for a number of weeks, in which symptoms gradually grew worse....’ “
21. “... Upon her discharge on April 22, 2011 [Respondent–Mother] was diagnosed with Schizoaffective Disorder, Bipolar type relapse during pregnancy while off medication, Post-traumatic Stress Disorder and Cocaine Abuse and Dependence.”
DSS alluded to this incident and the resulting diagnosis in petitioning for the termination of Respondent–Mother's parental rights in all three children. As a result, the record contains information raising concerns about Respondent–Mother's competence and might have supported the appointment of a guardian ad litem acting in a substitutionary, rather than an advisory, role.
Thus, the record clearly reflects that the trial court failed to delineate the precise role to be played by Respondent–Mother's guardian ad litem during the termination proceeding as required by N .C. Gen.Stat. § 7B–1101.1(c). The significance of this determination is reflected in the proceedings which led to the trial court's decision to allow Respondent–Mother's counsel to withdraw. In the event that Respondent–Mother's guardian ad litem had been serving as a substitute for Respondent–Mother, he could have given Respondent–Mother's counsel proper instructions concerning the manner in which he should proceed, thereby resolving the ethical concerns which underlay counsel's withdrawal motion. However, given his uncertainty concerning the role which he should be playing, the guardian ad litem elected not to provide such instructions. As a result, we conclude that the court erred by failing to determine whether Respondent–Mother's guardian ad litem was acting in an advisory or substitutionary capacity, so that the trial court's termination orders should be vacated and this case should be remanded to the Buncombe County District Court for the purpose of determining “[R]espondent[-M]other's need for a GAL and the proper role of that GAL,” In re P.D.R., ––– N.C.App. at ––––, 737 S.E .2d at 159, and conducting any additional proceedings that might be needed dependent upon the determination made at that time.
Although DSS and the guardian ad litem for the children have argued that the order appointing Respondent–Mother's guardian ad litem clearly contemplated that the guardian ad litem would play an advisory, rather than a substitutionary, role, we are unable to make this deduction after carefully reviewing the record. Simply put, the record does not definitively establish the basis for the guardian ad litem's appointment. In addition, although the guardian ad litem for the children argues that our decision in P.D.R. should not be given retroactive effect, the children's guardian ad litem has provided no legal justification for a decision to depart from our usual practice of treating decisions, like P.D.R., construing statutory provisions as declarative of existing law and applicable to all cases in which relevant issues are raised rather than applicable on a purely prospective basis. Thus, we do not find either of these arguments persuasive.
III. Conclusion
As a result, we conclude that Respondent–Father's challenge to the court's permanency planning and termination orders has no merit and that those orders should be affirmed. In addition, we conclude that the trial court erred by allowing Respondent–Mother's trial counsel to withdraw during the course of the termination proceeding without continuing the case to a later date and by failing to delineate the role to be played by Respondent–Mother's guardian ad litem during the termination proceeding, so that the trial court's orders terminating Respondent–Mother's parental rights in Becky, Bonnie, and Ben should be vacated and this case remanded to the Buncombe County District Court for the purpose of determining the role which should have been played by Respondent–Mother's guardian ad litem during the termination proceeding. In the event that the trial court determines that the guardian ad litem should have played a substitionary, rather than an advisory, role, a new termination hearing must be held with the guardian ad litem acting as a substitute for Respondent–Mother. In the event that the trial court determines that the guardian ad litem should have acted in an advisory, rather than a substitutionary role, the trial court must then determine how its error in allowing Respondent–Mother's trial counsel to withdraw should be redressed. At that point, the trial court must determine, after proper notice to Respondent–Mother, whether the withdrawal motion should or should not be allowed. After making this determination, the trial court may elect to rely on the record developed before the allowance of the withdrawal motion while allowing for the presentation of argument by either Respondent–Mother or her counsel concerning adjudication-related issues. In addition, in the exercise of its discretion, the trial court may allow the presentation of additional evidence relevant to the issue of adjudication. After making a new decision with respect to the issue of whether grounds exist for the termination of Respondent–Mother's parental rights in Becky, Bonnie, and Ben, the trial court shall conduct a new dispositional hearing. At the conclusion of all of these proceedings on remand, the trial court must enter a new termination order addressing the extent, if any, to which Respondent–Mother's parental rights in Becky, Bonnie, and Ben should be terminated.
AFFIRMED AS TO RESPONDENT–FATHER; VACATED AND REMANDED AS TO RESPONDENT–MOTHER. Judges GEER and STEPHENS concur.
Report per Rule 30(e).