In re J.S.

1

IN THE MATTER OF: J.S.

No. COA22-878

Court of Appeals of North Carolina

July 5, 2023

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Heard in the Court of Appeals 12 June 2023.

Appeal by respondent-mother from order entered 14 June 2022 by Judge William F. Helms, III, in Union County, No. 20 JT 143 District Court.

Perry Bundy, Plyler &Long, LLP, by Ashley J. McBride, for Petitioner-Appellee Union County Division of Social Services.

North Carolina Administrative Office of the Courts, by GAL Appellate Counsel Matthew D. Wunsche, for Guardian ad Litem-Appellee.

Parent Defender Wendy C. Sotolongo, by Deputy Parent Defender Annick Lenoir-Peek, for Respondent-Appellant-Mother.

Before a panel consisting of Judges COLLINS, CARPENTER, and WOOD.

PER CURIAM.

Respondent-Mother appeals from an order (the "Order") terminating her parental rights in J.S. ("Jaxon").^[1] For the reasons stated herein, we vacate the Order and remand for a new termination-of-parental-rights hearing.

I. Factual &Procedural Background

Jaxon was born in August 2020. On 21 August 2020, Union County Division of Social Services ("DSS") obtained nonsecure custody of Jaxon and filed a petition alleging him to be a neglected and dependent juvenile. The petition alleged that both Jaxon and Respondent-Mother tested positive for amphetamine at Jaxon's birth, and Respondent-Mother admitted to using methamphetamine during her pregnancy with Jaxon. Nursing staff at the hospital had concerns Respondent-Parents were not feeding Jaxon as directed. Respondent-Parents had three other children in DSS custody all of whom had been adjudicated neglected and dependent in November 2019.

On 26 August 2020, a deputy clerk from the Union County Clerk of Superior Court's Office appointed Tiffany Porter ("Ms. Porter") as provisional counsel for Respondent-Mother. On 28 August 2020, the trial court entered an order concluding that Respondent-Mother was indigent and confirming the appointment of Ms. Porter as counsel. See N.C. Gen. Stat. § 7B-602 (2021) ("The court shall confirm the appointment of counsel if" the court is not required to dismiss the provisional counsel under subsections (1)-(4)).

On 15 December 2020, the trial court entered an order adjudicating Jaxon to be a neglected and dependent juvenile. Respondent-Mother was ordered to comply with her Out-of-Home Services Agreement.

Following a 7 April 2021 permanency planning hearing, the trial court entered an order on 1 May 2021, finding that Respondent-Mother was "not making adequate progress within a reasonable period of time under the plan." After a permanency planning hearing held on 3 August 2021, the trial court entered an order on 3 September 2021, changing the permanent plan to adoption with a secondary, concurrent plan of guardianship.

On 27 August 2021, DSS filed a petition to terminate Respondent-Mother's parental rights to Jaxon.^[2] DSS alleged grounds existed to terminate RespondentMother's parental rights based on: (1) neglect; (2) willfully leaving Jaxon in foster care or placement outside the home for more than twelve months without making reasonable progress to correct the conditions that led to his removal; (3) willfully failing to pay a reasonable portion of the cost of care for Jaxon; (4) dependency; and (5) Respondent-Mother's parental rights with respect to another child had been terminated involuntarily, and she lacked the ability or willingness to establish a safe home. See N.C. Gen. Stat. § 7B-1111(a)(1)-(3), (6), (9) (2021).

DSS's petition came on for hearing on 1 December 2021, and RespondentMother and Ms. Porter were present. The hearing was continued until 11 January 2022 "due to time constraints." At the 11 January 2022 hearing, Ms. Porter was present, and Respondent-Mother was absent. The hearing was continued until 2 February 2022 "due to the social worker being ill and unable to be present to testify."

At the 2 February 2022 hearing, Ms. Porter was present, and Respondent- Mother was not. The trial court continued the matter until 8 March 2022 "due to the mother of the juvenile being unavailable." At a hearing held on 9 March 2022, both Respondent-Mother and Ms. Porter were present, and the trial court continued the hearing until 4 May 2022 "due to [Ms.] Porter and [Respondent-Mother needing] additional time to discuss the matter."

On 7 April 2022, Ms. Porter filed a motion to withdraw as counsel for Respondent-Mother because Ms. Porter was leaving private law practice. On 8 April 2022, a deputy clerk from the Union County Clerk of Superior Court's Office entered an order appointing attorney Corey McManus ("Mr. McManus") as provisional counsel for Respondent-Mother. On 18 April 2022, the trial court entered an order allowing Ms. Porter's motion to withdraw as counsel for Respondent-Mother and appointing "[Mr. McManus] . . . in substitute" for Respondent-Mother.

The petition to terminate Respondent-Mother's parental rights came on for hearing on 4 May 2022. Respondent-Mother did not appear for this hearing. Mr. McManus made a motion to continue, stating:

I was substituted in for Ms. Porter. I think I may have been substituted in three or four weeks ago. I haven't had any contact with my client. I don't know why she's not here, but I've never had any contact with her. Like I said, I was substituted in, so I would make a motion to continue on that basis.

The trial court denied the motion to continue. Mr. McManus then made a motion to withdraw as counsel for Respondent-Mother, and the trial court allowed the motion.

On 14 June 2022, the trial court entered the Order adjudicating the existence of all grounds alleged by DSS. The trial court also concluded it was in Jaxon's best interests that Respondent-Mother's parental rights be terminated, see N.C. Gen. Stat. § 7B-1110(a) (2021), and terminated her rights. Respondent-Mother appeals from the Order.

II. Jurisdiction

This Court has jurisdiction to address Respondent-Mother's appeal from the Order terminating her parental rights pursuant to N.C. Gen. Stat. § 7B-1001(a)(7) (2021) and N.C. Gen. Stat. § 7A-27(b)(2) (2021).

III. Issue

Respondent-Mother's sole argument on appeal is that the trial court erred by allowing both Ms. Porter and Mr. McManus to withdraw from representation without their providing proper notice of intent to withdraw.

IV. Analysis

On appeal, Respondent-Mother contends the trial court violated her due process rights by allowing "both her prior counsel to withdraw without notice to her, and her subsequent counsel to withdraw without prior notice to her at the beginning of the termination hearing." Consequently, Respondent-Mother requests this Court to vacate the Order terminating her parental rights in Jaxon and to remand the matter to the trial court with instructions to appoint counsel to her. RespondentMother's argument has merit.

It is well established that "when the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures, with the existence of such procedures being an inherent part of the State's efforts to protect the best interests of the affected children by preventing unnecessary interference with the parent-child relationship." In re K.M.W., 376 N.C. 195, 208, 851 S.E.2d 849, 859 (2020) (citations and quotation marks omitted); see also N.C. Gen. Stat. § 7B-100(1) (2021). "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 (2007) (citations and quotation marks omitted); see also N.C. Gen. Stat. § 7B-1101.1 (2021) (providing that "[t]he parent [in a termination of parental rights proceeding] has the right to counsel, and to appointed counsel in cases of indigency, unless the parent waives the right"). After making an appearance in a particular case, an attorney may not cease representing a client without "(1) justifiable cause, (2) reasonable notice [to the client], and (3) the permission of the court." Smith v. Bryant, 264 N.C. 208, 211, 141 S.E.2d 303, 305 (1965) (citation omitted).

"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). "An abuse of discretion occurs when the trial court's ruling is so arbitrary that it could not have been the result of a reasoned decision." In re J.H., 373 N.C. 264, 268, 837 S.E.2d 847, 850 (2020) (citation omitted). "However, this general rule presupposes that an attorney's withdrawal has been properly investigated and authorized by the court, so that, where an attorney has given his client no prior notice of an intent to withdraw, the trial judge has no discretion." In re K.M.W., 376 N.C. at 209, 851 S.E.2d at 860 (citations and quotation marks omitted). Thus, "before allowing an attorney to withdraw . . ., the trial court must inquire into the efforts made by counsel to contact the parent in order to ensure that the parent's rights are adequately protected." In re D.E.G., 228 N.C.App. 381, 386-87, 747 S.E.2d 280, 284 (2013) (citation omitted).

As an initial matter, DSS and the guardian ad litem contend that Mr. McManus was only provisionally appointed to represent Respondent-Mother, and because Respondent-Mother did not appear at the termination hearing, Mr. McManus was authorized to withdraw. See N.C. Gen. Stat. § 7B-1101.1(a) (2021) (stating that "[a]t the first...