In re R.A.F.

284 N.C.App. 637

877 S.E.2d 84

In the MATTER OF: R.A.F., R.G.F.

No. COA21-754

Court of Appeals of North Carolina.

Filed August 2, 2022

F.B. Jackson and Associates Law Firm, PLLC, by James L. Palmer, Hendersonville, for Petitioners-Appellees.

Peter Wood, for Respondent-Appellant.

WOOD, Judge.

¶ 1 Respondent-Mother ("Mother") appeals an order terminating her parental rights to her minor children, R.A.F. ("Ralph") and R.G.F. ("Reggie")¹ . On appeal, Mother argues that the trial court abused its discretion when it removed her court-appointed counsel without a proper inquiry under N.C. Gen. Stat § 7B-1108.1 and erred by not appointing a guardian ad litem ("GAL") on behalf of her minor children. After careful review of the record and consideration, we vacate the trial court's order and remand for a new hearing.

I. Factual and Procedural Background

¶ 2 Mother and the children's father ("Father")² are the biological parents of Ralph and Reggie, who were born in July 2012 and November 2013, respectively. Since September 6, 2014, Ralph and Reggie have resided continuously with Petitioners ("Petitioners"), who are husband and wife and are step-maternal aunt and uncle to the children. Petitioners are also licensed foster parents. Following the Henderson County Department of Social Services ("DSS") taking custody of Ralph and Reggie pursuant to petitions filed alleging neglect, the trial court, on July 11, 2015, adjudicated both children to be neglected due to housing instability, income instability, and substance abuse by the parents. The children continued in foster care placement and remained with Petitioners. On October 5, 2015, Father was convicted of breaking into a motor vehicle, trespassing, and disturbing the peace and was incarcerated in South Carolina.

¶ 3 At a review and permanency planning hearing on March 9, 2017, the trial court detailed the status of the requirements Mother needed to complete as a prerequisite to regain custody or placement of her children, Ralph and Reggie. In order for reunification to occur, Mother was required to: (1) obtain a substance abuse assessment and complete all recommendations from this assessment; (2) submit to random drug/alcohol screenings; (3) maintain a lifestyle free of controlled substances and alcohol; (4) demonstrate stable income sufficient to meet her family's basic needs; (5) obtain and maintain appropriate and safe housing; (6) not be involved with criminal activity; (7) pay child support; (8) cooperate with and ensure that her children have all medical, dental, developmental, and mental health evaluations and treatments; (9) provide the Social Worker with current contact information and ensure that if such information changes, the Social Worker is notified; and (10) maintain regular contact with her children, including "visiting with the juveniles as frequently as allowed by the Court and demonstrat[ing] the ability to provide appropriate care for the juveniles."

¶ 4 In reviewing these requirements for reunification, the trial court found that Mother had made some progress: she had completed her substance abuse classes; provided the social worker her current address; attended a child family team meeting in March 2017; assisted in scheduling doctor's appointments for her children; was employed full-time since September 2016; paid child support; attended all but three visits with her children; and acted appropriately during the visitations. However, there were several requirements Mother had not fulfilled. The trial court found Mother tested positive for marijuana intermittently during random drug screens conducted between 2015 and 2017; was convicted of possession of marijuana on both February 16, 2016 and April 18, 2016; and did not possess independent housing because she lived with her mother and stepfather.

¶ 5 At this hearing, the trial court granted custody of Ralph and Reggie to Petitioners, terminated the juvenile proceedings, and initiated a civil custody action pursuant to N.C. Gen. Stat. § 7B-911. The trial court found that Mother was "acting in a manner inconsistent with the health or safety of the juveniles," had not made adequate progress within a reasonable time as the children had been in DSS custody for twenty-one months, had not completed her reunification plan, and that the "compliance and actions of the [Mother and Father] are not sufficient to remedy the conditions which led to the juveniles’ removal."

¶ 6 On April 3, 2017, the trial court entered a separate child custody order to initiate a civil action for custody. This order granted Mother unsupervised visitation with her children every other weekend from Friday at 6 pm to Sunday at 5 pm. Mother was also permitted phone calls with her children as mutually agreed upon with Petitioners. The order granted Father one hour of supervised visitation per week upon his release from prison.

¶ 7 Four years later, on April 6, 2021, Petitioners filed petitions for the termination of Mother and Father's parental rights ("TPR"). Petitioners alleged that Mother had willfully neglected her children as she was unable to complete reunification requirements, did not exercise her visitation rights with her children, and did not provide proper care or supervision of her children. Petitioners also alleged that Mother had willfully abandoned her children for at least six months immediately preceding the filing of the petitions. On April 16, 2021, the Henderson County sheriff personally served Mother with the TPR petitions and summonses. On May 12, 2021, Father was served with the TPR summonses and petitions while in custody.

¶ 8 Mother was assigned Ms. Walker as her provisional court-appointed attorney at the time of the filing of the petitions. Mother called Ms. Walker and informed her she wanted to contest the TPR petitions. Ms. Walker filed separate motions for Extension of Time on May 4, 2021 (in 15J27) and on May 7, 2021 (in 15J26). Both motions were granted by the trial court and allowed Mother to file an answer or response to the respective petitions on or by June 9, 2021. Mother did not file an answer or other responsive pleading in either case.

¶ 9 On June 23, 2021, Petitioners filed a Notice of Hearing scheduling a hearing on the TPR petitions for July 15, 2021. A week before the TPR hearing, Mother sent a card to her children in which she wrote that "she was trying her best to get better, and to be better, and that she loved and missed them very much." The envelope listed a return address in Abbeville, South Carolina that was unknown to Petitioners.

¶ 10 Neither Mother nor Father appeared in court at the July 15, 2021 TPR hearing. The trial court conducted a pretrial hearing with Mother's provisional court-appointed attorney present. The trial court asked Ms. Walker if she had been in contact with Mother. Ms. Walker informed the trial court that Mother had contacted her when she was served. Ms. Walker explained that although Mother did not appear for her scheduled office appointment, she had contacted the office to "say she was in a treatment facility" for substance abuse. Ms. Walker further recounted that she spoke with the treatment facility and learned Mother had successfully graduated from the program, but Mother had not been in contact with her since. Ms. Walker stated that she had last heard from Mother in April 2021. Thereafter, the trial court, on its own motion, released Ms. Walker from representing Mother in the termination action. In the TPR Order, the trial court found that "[t]he provisionally appointed attorneys for [Mother and Father] should be released, despite efforts by the respective attorneys to engage the Respondent parents in the participation of this proceeding."

¶ 11 During the pretrial hearing, the trial court found that all service and notice requirements had been met for Mother and Father. The trial court noted that "the appointment of a Guardian Ad Litem for the child[ren] was not needed or required as neither [Parent] has sought to contest the [TPR] Petition[s]." The court also stated that "there are no issues or pre-trial motions raised by any party" and "no responsive pleading has been submitted by [Mother] (although the court notes that a Motion and Order for extension of time in regards [sic] to the [Mother] appears in the court file[s])."

¶ 12 After the pretrial hearing, the trial court proceeded with the adjudication and disposition stages of the TPR hearing. The trial court heard testimony from one witness, Petitioner wife. Petitioner wife testified the children had lived with her and her husband since September 2014; the children were adjudicated neglected based upon Mother's housing instability, income instability, and substance abuse in 2015; and Mother had not exercised visitations with her children since July 2019. Petitioner wife also testified that Mother does not provide support for her children; is not involved in their education, extracurricular activities, or medical appointments; and had not shown any progress in correcting the conditions that led to her children's removal from her custody. Petitioner wife acknowledged that Mother sent a card to her children that arrived sometime earlier in July.

¶ 13 After this testimony, the court found by clear and convincing evidence that grounds existed to terminate Mother's parental rights based on willful neglect and willful abandonment because: Mother has not exercised her visitation rights with her children, has failed to follow through with telephone calls or visitation with her children, and has not offered any support for her children since July 2019. At the dispositional portion of the TPR hearing, the trial court determined that: (1) a strong bond exists between Petitioners, Reggie, and Ralph; (2) the likelihood Petitioners will adopt the children is high; and (3) it is in the best interests of the children to terminate Mother and Father's parental rights. On July 15, 2021, the trial court entered orders terminating Mo...