Opinion
No. COA16-39
06-21-2016
IN THE MATTER OF: D. T., D. T., D. T., D. T.
Elizabeth Kennedy-Gurnee for the Petitioner-Appellee Cumberland County Department of Social Services. Beth A. Hall for the Guardian ad Litem. Richard Croutharmel for the Respondent-Appellant Mother. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Joyce L. Terres, for the Respondent-Appellant Father.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Cumberland County, Nos. 10 JT 556, 11 JT 477, 12 JT 623, 14 JT 16 Appeal by respondents from order entered 27 October 2015 by Judge Edward A. Pone in Cumberland County District Court. Heard in the Court of Appeals 31 May 2016. Elizabeth Kennedy-Gurnee for the Petitioner-Appellee Cumberland County Department of Social Services. Beth A. Hall for the Guardian ad Litem. Richard Croutharmel for the Respondent-Appellant Mother. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Joyce L. Terres, for the Respondent-Appellant Father. DILLON, Judge.
The mother ("Mother") of D.T. ("Latoya"), D.T. ("Ebony"), D.T. ("Linda"), and D.T. ("David") appeals from an order terminating her parental rights to the children. The father ("Father") of Ebony and Linda also appeals from the same order terminating his parental rights. Mother contends that the court erred by (1) failing to appoint a guardian ad litem for her pursuant to Rule 17 of the North Carolina Rules of Civil Procedure, and (2) denying her request to represent herself during the termination of parental rights ("TPR") hearing. Father has filed a "no merit" brief pursuant to N.C. R. App. P. 3.1(d). For the following reasons, we affirm.
The names of the children are stipulated pseudonyms.
I. Background
From October 2010 to May 2014, the Cumberland County Department of Social Services ("DSS") filed separate juvenile petitions alleging that Mother's four children were neglected and dependent. At individual hearings, the trial court adjudicated Linda as a neglected juvenile and adjudicated Latoya, Ebony, and David as neglected and dependent juveniles.
On 14 August 2014, DSS filed a petition seeking to terminate the parental rights of all parents to the four juveniles. At the commencement of the termination of parental rights hearing in May 2015, DSS and the attorneys representing Mother and Father moved to have a hearing on the issue of whether Mother should be appointed a guardian ad litem pursuant to Rule 17 of the North Carolina Rules of Civil Procedure. See N.C. Gen. Stat § 1A-1, Rule 17 (2015). The court conducted an inquiry of Mother and determined that she was competent to proceed and appointment of a guardian ad litem was not needed. Mother's counsel renewed the request for appointment of a guardian ad litem during the second day of the hearing. The court denied that motion.
During the course of the TPR hearing, Mother's counsel requested to withdraw, citing a breakdown in the attorney-client relationship, and informed the trial court that Mother wanted to represent herself. The court denied the request. Later in the hearing, Mother's counsel renewed the request to be discharged, and the court denied that request. Mother's counsel made a third attempt to withdraw while she was making her closing argument to the court. The court directed counsel to continue with her argument.
On 22 October 2015, the trial court filed an order terminating the parental rights of Mother and Father on the grounds that they have: (1) neglected the juveniles; (2) willfully left the juveniles in foster care without showing reasonable progress in correcting the conditions that led to the removal of the juveniles; and (3) willfully failed to pay a reasonable portion of the cost of care of the juveniles. See N.C. Gen. Stat. § 7B-1111(a)(1)-(3) (2015). The court additionally terminated Mother's parental rights on the ground that she is incapable of providing for the proper care and supervision of the juveniles such that they are dependent juveniles. See N.C. Gen. Stat. § 7B-1111(a)(6). Mother and Father timely appealed.
II. Analysis
A. Failure to Appoint Guardian ad Litem
N.C. Gen. Stat. § 7B-1101.1(c) authorizes a juvenile court, on motion of a party or the court's own motion, to appoint a guardian ad litem in accordance with N.C. Gen. Stat. § 1A-1, Rule 17 for a parent who is incompetent. N.C. Gen. Stat. § 7B-1101.1(c) (2015). An "incompetent adult" is defined as "an adult or emancipated minor who lacks sufficient capacity to manage the adult's own affairs or to make or communicate important decisions . . . whether the lack of capacity is due to mental illness . . . or similar cause or condition." N.C. Gen. Stat. § 35A-1101(7) (2015). "A trial court's decision concerning whether to appoint a parental guardian ad litem based on the parent's incompetence is reviewed on appeal for abuse of discretion." In re T.L.H., 368 N.C. 101, 107, 772 S.E.2d 451, 455 (2015).
Mother contends the court abused its discretion in failing to appoint a guardian ad litem pursuant to Rule 17. She argues the appointment was warranted based upon (a) evidence she had long-standing mental health issues, and (b) her bizarre behavior in the courtroom.
We conclude the court did not abuse its discretion. "[W]hen the record contains an appreciable amount of evidence tending to show that the litigant whose mental condition is at issue is not incompetent, the trial court should not, except in the most extreme instances, be held on appeal to have abused its discretion by failing to inquire into that litigant's competence." Id. at 108-09, 772 S.E.2d at 456. Here, the court asked Mother several questions for the purpose of determining her competence, and Mother answered each question appropriately. Her responses indicated that she understood the nature of the proceedings and that she could rationally make her own decisions. After making these inquiries, the judge found that he had been presiding over the matter for a substantial period of time, that Mother was very capable of representing her own interests, that she was able to converse with her attorney and explain her issues, and that Mother was "very competent" to proceed. Mother thereafter testified at length during the hearing, and demonstrated an understanding of the proceedings and the ability to make decisions for herself.
B. Failure to Allow Mother to Represent Herself
Mother's second argument on appeal is that the trial court erred in denying her requests during the TPR hearing to discharge her attorney and proceed pro se. We review the trial court's decision on this point for abuse of discretion. See In re Faircloth, 153 N.C. App. 565, 565, 571 S.E.2d 65, 65 (2002) (concluding that the "court acted within its discretion in not removing father's appointed counsel from [the] case" where the father's attorney requested to withdraw and father requested that his attorney be removed).
Throughout the second day of the TPR hearing, Mother's attorney ("Ms. Mallard") repeatedly requested to withdraw as counsel for Mother, and Mother repeatedly requested that Ms. Mallard be removed and that she be allowed to represent herself. Specifically, Ms. Mallard stated to the court that there had "been a breakdown in the attorney-client relationship" and that Mother "indicated she wishes to represent herself." The court then addressed Mother:
THE COURT: Now, Ms. Mallard indicates that you all are having some issues right now?
[MOTHER]: Yes, sir.
. . .
THE COURT: All right. Why don't I take a little break and let you and Ms. Mallard sit down and talk about a few things?
[MOTHER]: We don't have anything to talk about.
THE COURT: Okay, Why is that?
[MOTHER]: Because we don't. She has not been representing to my standard since this case has been going on. She is a public pretender.
THE COURT: Okay.
[MOTHER]: And I am here to represent myself.
MS. MALLARD: Your Honor, I ask to withdraw. I don't believe that there could be any reconciliation of this relationship.
[MOTHER]: I don't want to work with you.
THE COURT: Well, I am going to take a brief recess. I am going to take 15 minutes, and then we will come back and we will discuss this further.
When the hearing reconvened, Mother reiterated her desire to have Ms. Mallard discharged as her attorney, stating that "[s]he is not asking questions that I am telling her to ask. She is not objecting. She is just doing it to do it . . . . She is not meeting up to my standards." In addition to Mother's statements that she no longer wanted Ms. Mallard to represent her and instead wanted to represent herself, Mother also stated: "Well, I'll keep her on my case, if she don't - if she will get back on my case, just in case I got to come back and sue y'all." Immediately before the trial court issued its ruling, Mother stated:
I am not really 100 percent sure about this actual idea; however, I am just really not satisfied. She is not helping me at all. She is, basically, underlying, like, basically how she said it. Just be here and be a friend to the Court. She is just here to be here. Like, she is not - I am just - I know it is not the best decision. I know I don't know the law. However, if she is not representing me --.The court then entered the following ruling:
I find that we are in the middle of the termination of parental rights trial[.] The mother does, in fact, have mental health issues; however, she does not require a guardian[.] She is frustrated with the proceedings[.] That Ms. Mallard has acted appropriately and has raised appropriate objections . . . . Inasmuch as we are in a TPR, it would not be wise to discharge Ms. Mallard at this time. Ms. Mallard, you will remain in. You may now question the witness.
The provision of counsel to a parent in TPR proceedings is governed by N.C. Gen. Stat. § 7B-1101.1, which provides that "[t]he parent has the right to . . . appointed counsel . . . unless the parent waives the right." N.C. Gen. Stat. § 7B-1101.1(a) (2015). A parent who qualifies for appointed counsel may only proceed without the assistance of counsel if the court "examines the parent and makes findings of fact sufficient to show that the waiver is knowing and voluntary." N.C. Gen. Stat. § 1101.1(a1) (2015). As a general principle, an indigent person must accept counsel appointed by the court unless the indigent person wishes to waive the right to counsel and represent himself. State v. Robinson, 330 N.C. 1, 12, 409 S.E.2d 288, 294 (1991). Mere dissatisfaction with counsel is not a substantial reason for appointment of replacement counsel. In re S.L.L., 167 N.C. App. 362, 364, 605 S.E.2d 498, 499 (2004). The intention to waive counsel and to represent oneself must be clearly, voluntarily, and knowingly stated before the court may allow an indigent parent to proceed without counsel. Id.
Mother argues on appeal that this Court should apply a similar standard regarding waiver in a TPR hearing as is applied in criminal proceedings. We note that our Supreme Court has explicitly held that the waiver requirements of N.C. Gen. Stat. § 15A-1242 do not apply in TPR proceedings. In re P.D.R., 365 N.C. 533, 538, 723 S.E.2d 335, 338 (2012).
In the present case, the trial court engaged in numerous exchanges with Mother and Ms. Mallard regarding Mother's dissatisfaction with her appointed counsel. During these exchanges, Mother made conflicting statements that she wished to represent herself, that she wished to have another attorney appointed to replace Ms. Mallard, that she wished to keep Ms. Mallard on the case, and that she was not "100 percent sure about [the] idea" of proceeding pro se. These statements, made at different points in the proceeding, required the trial court to make a difficult determination as to whether Mother in fact wanted to represent herself or wanted substitute counsel appointed.
The trial court ultimately denied Ms. Mallard's second request to withdraw "in the interest of justice and the best interest of the children[.]" The trial court additionally stated that it would "[not] discharge [Ms. Mallard] and allow [Mother] to represent herself, which would not be in [Mother's] best interest[.]" The court also permitted Mother to present her own arguments during closing.
It appears that the word "not" between the words "will" and "discharge" in this sentence was inadvertently omitted by the transcriptionist, or that the statement was a lapsus linguae by the court. Otherwise, the sentence is inconsistent with the preceding sentences and subsequent proceedings in which Mother's counsel remained in the case.
We believe the trial court acted within the proper bounds of its discretion in denying Mother's requests to represent herself. It is the trial court's duty to "examine[] the parent and make[] findings of fact sufficient to show that the waiver is knowing and voluntary." See N.C. Gen. Stat. § 7B-1101.1(a1). Here, Mother's intentions were not clear, as evidenced by her conflicting statements to the court. See In re S.L.L., 167 N.C. App. at 364, 605 S.E.2d at 499. ("[A]t no point did respondent expressly and voluntarily waive his right to counsel."). The trial court had the opportunity to observe and interact with Mother during the hearings, was in the best position to make judgments about Mother's wishes, and was under no obligation to grant Mother's request to release counsel absent a substantial reason. See id. Accordingly, we are unable to conclude that the trial court's actions were manifestly unsupported by reason or so arbitrary that they could not have been the result of a reasoned decision. State v. T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998).
C. Father's Appeal
Father's attorney has filed a brief pursuant to N.C. R. App. P. 3.1(d) in which she concludes that there is no issue of merit upon which to base an argument for relief on appeal. Father has not filed his own arguments.
"The standard of review in termination of parental rights cases is whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the conclusions of law." In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6 (2004). "We then consider, based on the grounds found for termination, whether the trial court abused its discretion in finding termination to be in the best interest of the child." Id. at 222, 591 S.E.2d at 6.
After reviewing the record on appeal and considering the arguments made by counsel, we are unable to find any possible prejudicial error by the trial court. The trial court's findings of fact are supported by competent evidence, the findings support at least one ground for termination, and the findings support the court's discretionary determination that termination of parental rights is in the best interest of the children.
III. Conclusion
We affirm the order terminating the parental rights of Mother and Father.
AFFIRMED.
Judges CALABRIA and INMAN concur.
Report per Rule 30(e).