Opinion
No. COA11–1253.
2012-05-1
In the Matter of C.M.H.
Deputy County Attorney Rebekah R. Price for petitioner-appellee Henderson County Department of Social Services. Pamela Newell for guardian ad litem.
Appeal by respondent father from order entered 27 July 2011 by Judge Thomas McAvoy Brittain, Jr. in Henderson County District Court. Heard in the Court of Appeals 9 April 2012. Deputy County Attorney Rebekah R. Price for petitioner-appellee Henderson County Department of Social Services. Pamela Newell for guardian ad litem.
Leslie Rawls for respondent-appellant father.
ROBERT C. HUNTER, Judge.
Respondent father appeals from the trial court's order terminating his parental rights to the minor child, C.M.H. After careful review, we affirm the trial court's order.
Background
On 14 November 2008, the Henderson County Department of Social Services (“petitioner”) filed a juvenile petition alleging C.M.H. was an abused and neglected juvenile. On that same date, a nonsecure custody order was entered placing C.M.H. in petitioner's custody. By order entered 29 December 2008, C.M.H. was adjudicated neglected.
On 8 November 2010, petitioner filed a motion in the cause seeking to terminate respondent's parental rights. The termination of parental rights hearing was held on 13 January 2011. After finding grounds existed to terminate respondent's parental rights, the trial court proceeded to disposition. At the conclusion of the hearing, the trial court stated: “If [respondent's] rights were terminated today, the child is still not available for adoption because we have another father out there to address.” Another man, C.H., was listed as the father on C.M.H.'s birth certificate and had not been made a party to the proceedings. Termination of C.H.'s parental rights was not addressed at the 13 January 2011 hearing. The trial court proceeded to hear from the parties and ultimately decided to withhold entry of judgment as to best interests until after C.H.'s parental rights were addressed. The trial court entered an order finding grounds existed to terminate respondent's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) and (a)(2) (2011), but continued the best interests hearing. The trial court's order states:
The Court finds that it is in the best interest of the Juvenile to continue the Best Interest hearing as to the termination of the parental rights of the Respondent father, [J.Q.], in and to the juvenile, [C.M.H.], until such time as the parental rights of Respondent [C.H.] have been addressed, at which point this matter shall be re-noticed for hearing.
C.H.'s parental rights were subsequently terminated. On 14 July 2011, the trial court conducted a dispositional hearing and determined that it would be in C.M.H.'s best interests to terminate respondent's parental rights. The trial court entered a written order terminating respondent's parental rights on 27 July 2011. Respondent appeals.
Discussion
Respondent argues that the trial court violated N.C. Gen.Stat. § 7B–1110 (2011) when it failed to dismiss the action upon concluding that C.M.H.'s best interests were not served by terminating respondent's parental rights. N.C. Gen.Stat. § 7B–1110(b) provides:
Should the court conclude that, irrespective of the existence of one or more circumstances authorizing termination of parental rights, the best interests of the juvenile require that rights should not be terminated, the court shall dismiss the petition or deny the motion, but only after setting forth the facts and conclusions upon which the dismissal or denial is based.
Respondent specifically contends that the trial court deprived respondent of his right to an impartial judge when it decided that DSS had not proven that termination would be in C.M.H.'s best interests, and, instead of dismissing the case, invited DSS to come back into court when it could satisfy the best interests requirement for termination. Respondent cites In re T.B., 203 N.C.App. 497, 506, 652 S.E.2d 182, 188 (2010), where this Court held that the trial court erred by determining that the child was dependent, but left the question of neglect to be “decided at some point in the future.” Respondent misapprehends what transpired in court and his reliance on T.B. is misplaced.
Respondent did not object at the hearing to continuing disposition. In fact, all parties agreed that the hearing should be continued. Moreover, the trial court's decision to continue disposition was not based on petitioner's inability to establish that it was in C.M.H's best interests to terminate respondent's parental rights. The trial court's decision to postpone the best interests hearing was based strictly on the fact that there was someone else listed as C.M.H.'s father on the birth certificate and termination of that person's parental rights had not been addressed. The Juvenile Code provides that:
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 (2011). The trial court's decision to continue the hearing “is discretionary and will not be disturbed on appeal absent a showing of abuse of discretion.” In re J. B., 172 N.C.App. 1, 10, 616 S.E.2d 264, 270 (2005). We conclude the trial court did not violate N.C. Gen.Stat. § 7B–1110(b) or abuse its discretion when it decided to continue the best interests hearing until after the parental rights of C.H. had been addressed. This argument is overruled.
Respondent next argues he was denied his right to effective assistance of counsel when: (1) trial counsel failed to object to the trial court's failure to dismiss the case, and (2) when trial counsel failed to present evidence of respondent's mental health treatment. Respondent contends it is clear from the record that trial counsel had documents in his possession showing respondent was engaged in mental health treatment.
A parent has a right to counsel in a termination of parental rights proceeding. N.C. Gen.Stat. § 7B–1101.1 (2011). “This right to counsel also includes the right to effective assistance of counsel.” In re S.C.R., 198 N.C.App. 525, 531, 679 S.E.2d 905, 909,appeal dismissed,363 N.C. 654, 686 S.E.2d 676 (2009). “A claim of ineffective assistance of counsel requires the respondent to show that counsel's performance was deficient and the deficiency was so serious as to deprive the represented party of a fair hearing .” In re Oghenekevebe, 123 N.C.App. 434, 436, 473 S.E.2d 393, 396 (1996). “A parent must also establish he suffered prejudice in order to show that he was denied a fair hearing.” S.C.R., 198 N.C.App. at 531, 679 S.E.2d at 909.
Here, we have already concluded that the trial court did not violate N.C. Gen.Stat. § 7B–1110 by continuing the best interests hearing and not dismissing the action. We further conclude that respondent's claim of ineffective assistance of counsel on this basis fails. As for the second basis, respondent has not established that he was prejudiced by the failure of his counsel to present his mental health records to the trial court. Contrary to respondent's contentions, it is not clear whether counsel actually possessed evidence of respondent's mental health treatment. At one point, respondent testified that counsel received documentation from his therapist via fax; however, at another point respondent testified “[t]here's no documentation, period, of actually how many times I seen him.” Assuming, arguendo, that respondent's counsel possessed the records at issue, respondent has failed to establish that there was a reasonable probability that his parental rights would not have been terminated had those records been provided to the trial court. Therefore, we hold that respondent has not shown that he received ineffective assistance of counsel in this case.
Affirmed. Judges STROUD and ERVIN concur.
Report per Rule 30(e).