Opinion
No. COA12–1207.
2013-05-7
In the Matter of C.S.E.
No brief filed for Petitioner–Mother. Jeffrey L. Miller for Respondent–Father.
Appeal by Respondent–Father from Order entered 19 July 2012 by Judge Melinda Crouch in New Hanover County District Court. Heard in the Court of Appeals 16 April 2013. No brief filed for Petitioner–Mother. Jeffrey L. Miller for Respondent–Father.
STEPHENS, Judge.
Factual Background and Procedural History
On 7 November 2011, the Petitioner–Mother (“Mother”) filed a petition in New Hanover County District Court to terminate the parental rights of the Respondent–Father (“Father”). The hearing regarding that petition was held seven months later, on 4 June 2012. Father appeals from the juvenile court's order terminating his parental rights to his minor child (“Chad”). The evidence at the hearing tended to show the following:
A pseudonym is used to protect the juvenile's identity.
Chad was born on 16 June 2000 and, at the time of the hearing, was twelve years old. Mother was represented by counsel and Father was represented by a “stand-in” attorney, Nora H. Hargrove (“Hargrove”), who was taking over for Father's prior attorney, Lyana Hunter (“Hunter”). Before the hearing began, the following exchange occurred on the question of Hargrove's status as Father's putative attorney:
Both attorneys were employed by the New Hanover County Public Defender's Office, which had been court-appointed to represent Father.
THE COURT: It is our understanding that you were handling the [Termination of Parental Rights] on the ... Matter for [Hunter]?
[HARGROVE]: It's news to me.
THE COURT: It's news to you?
[HARGROVE]: It is news to me. But I will be happy to go over and get the file.
THE COURT: Okay.
(Pause.)
THE COURT: [Hargrove], do you need some time to review your file since you are standing in for [Hunter]?
[HARGROVE]: Um.
THE COURT: There's not—I mean, I want to make sure that the record is reflecting that your office has had an opportunity to
[HARGROVE]: Your Honor, from looking at the file, it appears that we have had an opportunity to contact [Father]. However, he has not taken the opportunity to return contact. And in fact, a letter from [Hunter] to him indicates that she asked him to please let her know what he intends to do and if he wishes her to remain as his attorney and he has not contacted her back.
So under those circumstances, I would say that he's had an opportunity to contact her and tell her what he wishes to do so I believe we can proceed.
THE COURT: Okay. All right....
Once the hearing began, Mother testified that she and Father had divorced on 10 May 2002. She has since remarried and lives with Chad, her new husband (the “Husband”), and their two other children in New Hanover County, North Carolina. The Husband has been in the U.S. Air Force for eighteen years, and the family has frequently changed its residence. The couple married on 3 June 2002 at the Rhein–Main Air Base in Germany and resided there before moving to the Malmstrom Air Base in Montana. The family moved from Montana to North Carolina in May of 2012, approximately one month before the hearing and six months after Mother filed her petition to terminate Father's parental rights. Despite each move, Mother and Juvenile have retained citizenship in North Carolina.
At the time of the hearing, Chad had not seen Father for four years. Father currently resides in the prison system of the Commonwealth of Virginia and has been there since December of 2010. According to Mother, he was incarcerated on a conviction of the murder of his live-in girlfriend and the kidnapping of her twelve-year-old daughter and is currently serving a life sentence without any possibility of parole. Mother also testified that, before his incarceration, Father had intentionally injured himself because “[h]e was addicted to ... prescription pain medicine.”
Mother testified that the Husband has known Chad since he was eighteen months old and “is the only daddy [Chad's] known.” She further testified to an experience with Chad in which he expressed his interest in being adopted by the Husband. When Mother discussed that possibility with Chad, “he kind of smiled real big and as I said, when people ask him [his] name, a lot of times he answers [using the Husband's last name]. So I know he wants to have the same last name as the rest of his family.”
At the end of the hearing, in opposition to the termination of Father's parental rights, Hargrove made the following closing argument:
I would just indicate to the Court that it appears that [Father] has exercised some visitation over the time period. I have to candidly concede that if—if their life sentences [in Virginia] are like our life sentences [in North Carolina] which is absolutely no ability for parole, then clearly [Father] won't be visiting [Chad] unless it's voluntarily matter [sic] where the child is taken to him.
And certainly when the child gets old enough he can do whatever he decides what he wants to do as far as visiting his father. Other than that, Your Honor, I don't have anything to add.
After Mother made her closing argument, the juvenile court determined that Father had “failed to communicate with counsel regarding this matter, .... provide support for the [Juvenile] ... [, and] provide adequate care and supervision....” Accordingly, the court determined that it was “in the child's best interest that the parental rights of [Father] be terminated,” citing the facts that the Husband wished to adopt the child, the child desired to be adopted by the Husband, and Father was serving a life sentence for murder.
Discussion
Father makes four arguments on appeal: (1) that the juvenile court lacked subject matter jurisdiction to terminate Father's parental rights; (2) that Father was denied effective assistance of counsel at the hearing; (3) that the court's findings of fact were not based on clear, cogent, and convincing evidence and do not support its conclusion of law; and (4) that there was insufficient evidence to support the court's findings of fact and conclusion of law. After careful consideration, we remand for further findings regarding the efforts of Father's counsel to contact Father and counsel's ability to represent Father at the hearing to terminate his parental rights.
I. Subject Matter Jurisdiction
We first address Father's argument that the juvenile court lacked subject matter jurisdiction over this case because neither he, Mother, nor Chad resided in North Carolina at the time the petition to terminate Father's parental rights was filed, 7 November 2011. Father is correct that generally a juvenile court of this State lacks subject matter jurisdiction over a petition to terminate parental rights where the juvenile does not reside, or is not found, in this State at the time the petition is filed. SeeN.C. Gen.Stat. § 7B–1101 (2011) (conferring “exclusive original jurisdiction” over “any petition or motion relating to termination of parental rights to any juvenile who resides in, is found in, or is in the legal or actual custody of a county department of social services or licensed child-placing agency in the district at the time of filing of the petition or motion”); see also In re D.D.J., 177 N.C.App. 441, 628 S.E.2d 808 (2006) (holding the court lacked jurisdiction under N.C. Gen.Stat. § 7B–1101 where the petitioning department of social services did not have custody of the juveniles who were living in South Carolina at the time of the petition's filing); In re Leonard, 77 N.C.App. 439, 440, 335 S.E.2d 73, 73–74 (1985) (where the mother left North Carolina with the child four days before filing her petition, the child was neither “residing in” nor “found in” the district at the time of filing, and the petition failed for lack of subject matter jurisdiction).
However, this Court has incorporated the exclusive, continuing jurisdiction provisions of N.C. Gen.Stat. § 50A–202 into termination of parental rights proceedings. In re H.L.A.D., 184 N.C.App. 381, 388–89, 646 S.E.2d 425, 431–32 (2007), affirmed per curiam, 362 N.C. 170, 655 S.E.2d 712 (2008). Section 50A–202 provides that where a court of this State has made an initial child-custody determination, the court
has exclusive, continuing jurisdiction over the determination until:
(1) A court of this State determines that neither the child, the child's parents, and any person acting as a parent do not have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child's care, protection, training, and personal relationships; or
(2) A court of this State or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this State.
N.C. Gen.Stat. § 50A–202(a) (2011). Consequently, where a court of this State has entered an initial custody order involving a juvenile, the court has exclusive, continuing jurisdiction over the custody of that juvenile until a court specifically finds that one of the two provisions of Section 50A–202(a) applies to the custody action. In re H.L.A.D., 184 N.C.App. at 388–89, 646 S.E.2d at 431–32.
Here, the District Court of New Hanover County entered an initial custody order in 2003, which granted primary custody of Chad to Mother. Father, Mother, and Chad all subsequently moved out of North Carolina. Mother and Chad did not return to North Carolina until after Mother had filed the petition to terminate parental rights; Father was incarcerated in Virginia during the entirety of the underlying proceedings. Thus, the juvenile court lacked exclusive original jurisdiction over the termination proceeding under Section 7B–1101 because Chad did not reside in and could not be found in North Carolina at the time the petition was filed.
Nonetheless, the court retained continuing jurisdiction over the custody of Chad pursuant to Section 50A–202. There is nothing in the record to suggest the juvenile court had been subsequently divested of its jurisdiction pursuant to either of the two provisions of Section 50A–202(a). Accordingly, the juvenile court had exclusive, continuing jurisdiction over matters involving the custody of Chad, including the underlying petition to terminate Father's parental rights. Father's argument is overruled.
II. Ineffective Assistance of Counsel (“IAC”)
Father next argues he received IAC at the termination hearing. Pursuant to N.C. Gen.Stat. §§ 7B–1101.1(a) and 7B–1109(b), “[p]arents 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 (citations and quotation marks omitted), disc. review denied,361 N.C. 354, 646 S.E.2d 114 (2007). “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). “To prevail in a claim for [IAC], [the] respondent must show: (1)[his] counsel's performance was deficient or fell below an objective standard of reasonableness; and (2)[his] attorney's performance was so deficient [he] was denied a fair hearing.” In re J.A.A., 175 N.C.App. 66, 74, 623 S.E.2d 45, 50 (2005). “A parent must also establish he suffered prejudice in order to show that he was denied a fair hearing.” 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).
The record before this Court indicates Father was initially represented in the underlying matter by Hunter. By order entered 24 January 2012, Hunter obtained a continuance of the pending hearing to terminate Father's parental rights and an extension of time to file a response to the petition to terminate Father's parental rights. Hunter had become aware of a conflict of interest in her representation of Father in the termination matter. She had received written confirmation that Father waived any conflict at the beginning of January 2012, but needed additional time to obtain a notarized statement from Mother indicating her waiver of the conflict. Because of the conflict of interest, Hunter had not been able to discuss the petition with Father and had not been able to prepare any responsive pleading to the petition. Additionally, her communication with Father was hampered by his incarceration in Virginia.
Upon review of the record and transcript, we are unable to determine why Hunter was unable to represent Father at the 4 June 2012 hearing or whether Hargrove could legally “stand in” for Hunter. It appears that the juvenile court made no meaningful inquiry into the efforts made by Hunter to communicate with Father and merely relied on Hargrove's statement that Hunter had sent Father a letter and that no response was contained in Hargrove's file. It further appears that Hargrove was unfamiliar with the underlying case, had never made any personal attempt to contact Father, and may not have even seen the case file until minutes before she represented Father, who was not present at the hearing. We note that by 24 July 2012, Hunter had resumed representing Father, as she filed his notice of appeal from the termination order.
This Court has held that where counsel appointed to represent a parent in a termination of parental rights proceeding informs the court that contact has been lost with the parent and counsel has had no instructions from the parent on how to proceed, the juvenile court should inquire into counsel's efforts “(1) to contact [the parent]; (2) to protect [the parent's] rights; and (3) to ably represent [the parent].” In re S.N.W., 204 N.C.App. 556, 559, 698 S.E.2d 76, 78 (2010) [hereinafter “ S.N.W.”]. After making the required inquiry, “if the trial court determine[s] that counsel [is] indeed ineffective, the trial court should ... appoint[ ] new counsel, despite the fact that no motion to withdraw [is] made.” Id. Where the district court fails to conduct such an inquiry and the record raises a question as to whether the parent was afforded the proper procedures to protect his or her rights during the termination proceeding, this Court will remand the matter to the juvenile court for an inquiry regarding the performance of the parent's counsel. Id. at 561, 698 S.E.2d at 79.
As in S.N.W., we are unable to determine from the record whether Hunter or Hargrove made adequate efforts to communicate with Father. We acknowledge the general principle that counsel cannot properly represent a client with whom she has no contact, and that a client cannot benefit when his own actions in avoiding contact cause his counsel to render ineffective assistance. Id. (citations omitted). However, the unexplained, last-minute substitution of Hargrove as counsel for Father, and Hargrove's apparent unfamiliarity with the case, call into question whether the juvenile court followed the necessary procedural safeguards designed to ensure the fundamental fairness of the termination proceedings. See id.
Accordingly, we remand for a determination by the juvenile court as to the efforts by Father's counsel to contact and adequately represent Father during the proceedings to terminate his parental rights, and whether Father is entitled to appointment of counsel in a new termination of parental rights proceeding. Because we remand for a new hearing on the issue of IAC, we need not address Father's remaining arguments regarding the termination order. See id.
REMANDED. Judges STEELMAN and DAVIS concur.
Report per Rule 30(e).