In re M.Y.

857 S.E.2d 367 (Table)

In the MATTER OF: M.Y.; N.Y.; K.E.; and A.E.

No. COA20-848

Court of Appeals of North Carolina.

Filed May 4, 2021

Forrest Firm, P.C., by Brian C. Bernhardt, for guardian ad litem.

Wake County Attorneys’ Office, by Mary Boyce Wells, for petitioner-appellee Wake County Human Services.

Parent Defender Wendy C. Sotolongo, by Kimberly C. Benton, for respondent-appellant mother.

ZACHARY, Judge.

¶ 1 Respondent-mother appeals from an adjudication and disposition order in which the trial court adjudicated her four minor children as neglected and ordered that they remain in the sole legal and physical custody of their father. After careful review, we affirm in part, vacate in part, and remand.

Background

¶ 2 Respondent-mother Firehiwot Asemaw ("Mother") and Respondent-father Yonas Asfaw ("Father") were married in 2003 and moved from Ethiopia to North Carolina in 2012. They are the parents of four minor children: "Morris," "Ned," "Kelly," and "Andrew."¹

¶ 3 Respondents have a history of domestic discord. The family returned to Ethiopia in 2018 due to a job opportunity for Father. Father hoped that the move would help the family, but Mother's "erratic and abusive behavior towards ... [F]ather and the children continued[,]" so he accepted another job in North Carolina and the family returned in January 2019.

¶ 4 In February 2019, Father sought, but did not obtain, an ex parte domestic violence protective order against Mother. On 21 February 2019, Petitioner Wake County Human Services ("WCHS") received a report of parental domestic violence in the presence of the children and alcohol abuse by Mother. That same day, Father moved out of the family residence and filed a custody action against Mother, seeking, inter alia , custody of their four children.

¶ 5 On 29 April 2019, Father's custody action came on for hearing in Wake County District Court. On 30 April 2019, the trial court entered a temporary custody order awarding, inter alia , temporary joint legal custody of the children to both Respondents while awarding Mother temporary physical custody of the children because Father left the minor children in Mother's care despite his fear and the allegations that he leveled against her. Then, on 3 May 2019, Mother attacked Father with a stick at the custodial exchange. Mother was arrested and spent 30 days in jail, while Father received an emergency ex parte domestic violence protective order and then a one-year domestic violence protective order against Mother.

¶ 6 On 15 November 2019, WCHS filed a juvenile petition alleging that the juveniles were neglected. That same day, the trial court entered an order for nonsecure custody, awarding placement authority to WCHS and approving of placement with Father. The court also set a hearing for 18 November to determine the need for continued nonsecure custody. Prior to that date, the family court coordinator filed a request for an Amharic-speaking interpreter to assist Respondents at both a child-planning conference and the hearing that would immediately follow.

¶ 7 On 18 November 2019, the Honorable V.A. Davidian, III, presided over the first hearing on the need for continued nonsecure custody. Although the interpreter attended the child-planning conference, the record is silent as to whether he also attended this first hearing. Judge Davidian determined that the children's best interests were served by continuing WCHS's placement authority, with the children placed in Father's care. The trial court set a further hearing for the following week. The trial court also accepted Mother's and Father's affidavits of indigency on that date, approving the appointment of counsel for each.

¶ 8 On 25 November 2019, the matter came on for hearing on the need for continued nonsecure custody before the Honorable Monica Bousman. At this hearing, Mother asked the trial court "to release" her appointed counsel and allow her to represent herself.² After a colloquy with Mother, Judge Bousman concluded that Mother's waiver of her right to counsel was knowing and voluntary, and entered an order allowing Mother to proceed pro se , which Mother also signed. Judge Bousman also found that Mother did not want the services of an interpreter "in lieu of speaking/hearing English." Following this hearing, the trial court continued WCHS's placement authority and continued the children's placement with Father.

¶ 9 On 20 February 2020 and 2 March 2020, the matter came on for adjudication and disposition hearings before Judge Davidian, at which Mother proceeded pro se. On 30 July 2020, the trial court entered an order that, inter alia , adjudicated the children as neglected and, with regard to disposition, awarded permanent legal and physical custody of the children to Father, with Mother having certain visitation rights. Mother timely filed her notice of appeal.

Discussion

¶ 10 On appeal, Mother argues that (1) the trial court erred by permitting her to proceed pro se ; (2) the trial court abused its discretion by giving Father the authority to unilaterally modify her visitation; and (3) the trial court abused its discretion by ordering Mother to bear a portion of the cost of a supervised visitation facility. For the reasons below, we affirm the trial court's order in part, vacate in part, and remand.

I.

¶ 11 Mother first contends that the trial court erred by allowing her to proceed pro se. We disagree.

A. Preservation and Standard of Review

¶ 12 As a threshold matter, the guardian ad litem and WCHS (collectively, "Petitioners") argue that Mother waived her right to appeal the trial court's order granting her request to proceed pro se because she did not object to the trial court's order. See N.C.R. App. P. 10(a)(1) ("In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection, or motion[.]").

¶ 13 "In cases where the juvenile petition alleges that a juvenile is abused, neglected, or dependent, the parent has the right to counsel and to appointed counsel in cases of indigency unless that person waives the right." N.C. Gen. Stat. § 7B-602(a) (2019). "A parent qualifying for appointed counsel may be permitted to proceed without the assistance of counsel only after the court examines the parent and makes findings of fact sufficient to show that the waiver is knowing and voluntary." Id. § 7B-602(a1). Here, because of her indigency, Mother qualified for appointed counsel.

¶ 14 Despite Petitioners’ argument, this Court has previously reviewed challenges to a parent's knowing and voluntary waiver of their right to counsel in an abuse, neglect, or dependency proceeding, even after the parent signed a consent order. See In re H.D.F. , 197 N.C. App. 480, 495, 677 S.E.2d 877, 886 (2009). Indeed, in the similar context of a proceeding on the termination of parental rights, our Supreme Court recently explained that "[a] trial court's determination concerning whether a parent has waived his or her right to counsel is a conclusion of law that must be made in light of the statutorily prescribed criteria," without any discussion of issue preservation. In re K.M.W. , 376 N.C. 195, 209, 851 S.E.2d 849, 860 (2020). Although the waiver of the right to counsel in a termination of parental rights proceeding is governed by a different statute, the governing statutes are identical. Compare N.C. Gen. Stat. § 7B-602(a1), with id. § 7B-1101.1(a1).

¶ 15 Based on these precedents, Mother has not waived appellate review of this issue. Accordingly, this issue is properly before us.

¶ 16 We review de novo the trial court's determination that Mother waived her right to counsel. See K.M.W. , 376 N.C. at 210, 851 S.E.2d at 860. However, "[w]here no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal." In re J.O.D. , 374 N.C. 797, 801, 844 S.E.2d 570, 574 (2020) (citation omitted).

B. Analysis

¶ 17 Mother asserts that the trial court did not comply with its statutory requirement to make "findings of fact sufficient to show that [her] waiver [wa]s knowing and voluntary." N.C. Gen. Stat. § 7B-602(a1). She contrasts this case with In re A.Y. , 225 N.C. App. 29, 737 S.E.2d 160, disc. review denied , 367 N.C. 235, 748 S.E.2d 539 (2013). In that case, we concluded that "the trial court's inquiry was adequate to determine whether respondent mother knowingly and voluntarily waived her right to counsel" where the court "undertook a fairly lengthy dialogue with respondent mother to determine her awareness of her right to counsel and the consequences of waiving that right." Id. at 39, 737 S.E.2d at 166.

¶ 18 Comparing the present case with A.Y. , Mother argues that "[t]here is no specific record or indication that [her] waiver of appointed counsel was knowing" and that "[t]here is nothing in the record to demonstrate she had any knowledge of the nature of the proceedings as well as the factual aspects of the case and there is no indication that the court sought any such demonstration of knowledge." Mother's argument is based in large part upon the narrative, provided by her former counsel, of a portion of the 25 November 2019 hearing that reads in pertinent part:

Court: [Former counsel], why does your client want a second nonsecure custody hearing?

[Former counsel]: Your honor, my client wants the children placed with her but before we get to that, she has requested that I be released and that she be allowed to represent herself. I ask that the Court address that issue first.

Court: Okay. Ma'am, is it true you want to represent yourself?

Mother: Yes. My attorney is not doing what I ask him to do. If he's not going to do what I ask him to do, I might as well

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