In re Z.M.T.

379 N.C. 44

864 S.E.2d 250

In the MATTER OF: Z.M.T.

No. 416A20

Supreme Court of North Carolina.

Filed October 29, 2021

Miller & Audino, LLP, Greenville, by Jay Anthony Audino, for petitioner-appellee Beaufort County Department of Social Services.

Thomas N. Griffin, III, Charlotte, for appellee Guardian ad Litem.

Mary McCullers Reece, Smithfield, for respondent-appellant mother.

BERGER, Justice.

¶ 1 Respondent-mother appeals from an order terminating her parental rights.¹ We affirm.

I. Factual and Procedural History

¶ 2 On May 31, 2019, the Beaufort County Department of Social Services (DSS) received a report alleging that respondent-mother was using heroin and cocaine in the presence of her two children. Respondent-mother was eight months pregnant at the time. On June 7, 2019, respondent-mother gave birth to a minor child, Zoe,² who tested positive for heroin and cocaine. DSS received additional child protective services reports on June 8 and 9, 2019.

¶ 3 Respondent-mother received education on appropriate care for a newborn child, but she appeared agitated when the issue of improper handling of Zoe arose. These instances caused concern amongst hospital staff regarding the ability of respondent-mother and Zoe's father to provide appropriate care for the child. After an argument with Zoe's father and against the advice of her doctor, respondent-mother checked herself out of the hospital, leaving Zoe alone in the hospital without a parent on the premises. As a result, Zoe was sent to the Special Care Unit. While there, she was prescribed morphine to help curtail her withdrawal symptoms.

¶ 4 On June 20, 2019, DSS filed a petition alleging that Zoe and her two siblings were neglected juveniles. The petition recited the above facts, and an adjudication hearing was held on July 24, 2019. Respondent-mother consented to entry of an order in which Zoe was adjudicated a neglected juvenile. On August 7, 2019, the trial court entered a dispositional order which set the permanent plan as reunification with a concurrent plan of adoption. Respondent-mother was ordered to complete a psychological evaluation, individual therapy, parenting classes, obtain and maintain stable housing and employment, and engage in substance abuse treatment and recovery therapy.

¶ 5 On November 13, 2019, respondent-mother tested positive for morphine, cocaine, benzoylecgonine, and opiates. Respondent-mother refused to submit to subsequent drug screens on January 2, January 7, January 29, and February 18, 2020.

¶ 6 On January 22, 2020, a permanency planning hearing was conducted. The trial court determined that barriers to reunification existed due to respondent-mother's substance abuse, inconsistent parenting, mental health issues, and decisionmaking. Additionally, the trial court's permanency planning order detailed respondent-mother's attempts to comply with the dispositional order. The court found that after completing her psychological evaluation, respondent-mother was diagnosed with "Opioid Use Disorder and Other Specified Depressive Disorder." Further, the court found that respondent-mother was not honest with the examiner and that she had failed to seek therapy and related medication. The court also found that respondent-mother was still in need of meaningful substance abuse treatment and employment. Ultimately, the trial court concluded that respondent-mother had failed to make sufficient progress within a reasonable period of time under her case plan and that additional progress was required.

¶ 7 Based on the above findings, the trial court ordered respondent-mother to comply with recommended treatment, attend therapy, obtain and maintain stable housing and employment, attend parenting classes, and submit to random drug testing. The order specifically found that "[respondent-mother] was given an opportunity to discuss this order with her attorney ... prior to its entry. [Respondent-mother] understands the requirements that this order places upon her; she consents to the decretal portion of this order." Notably, the last entry in the decretal portion of the order stated "[t]his matter shall be scheduled for a permanency planning hearing on June 10, 2020. "

¶ 8 On March 27, 2020, before the scheduled permanency planning hearing, DSS filed a motion to terminate respondent-mother's parental rights based on neglect and dependency pursuant to N.C.G.S. § 7B-1102. Respondent-mother did not file a responsive pleading or otherwise address the allegations in the motion to terminate parental rights. Notice of the motion was sent to respondent-mother's counsel, who had represented her at the adjudication hearing in July 2019, the dispositional hearing in August 2019, and the first permanency planning hearing in January 2020.

¶ 9 Prior to filing of the motion to terminate parental rights, respondent-mother was arrested and charged with three counts of manufacturing, selling or delivering a controlled substance³ within 1000 feet of a school, one count of maintaining a dwelling or place for controlled substances, one count of possession of drug paraphernalia, one count of robbery with a deadly weapon, and one count of assault with a deadly weapon inflicting serious injury.⁴ Between March and June 2020, respondent-mother did not make any effort to visit with Zoe.

¶ 10 Hearing on the motion to terminate parental rights was scheduled for June 10, 2020, the same day as the previously scheduled second permanency planning hearing. Respondent-mother did not appear in court. Respondent-mother's counsel moved to continue the case and stated in open court that she sent notice of the hearing to respondent-mother, who was "generally present in court for such hearing[s]." The trial court denied the motion and the hearing proceeded without further inquiry.

¶ 11 DSS called one witness during the grounds phase of the hearing and a different witness during the best interests phase. Respondent-mother's counsel did not cross-examine either witness, did not offer any witnesses on respondent-mother's behalf, and declined to offer a closing argument. On June 11, 2020, the trial court terminated respondent-mother's parental rights, concluding that grounds existed pursuant to N.C.G.S. § 7B-1111(a)(1) and (6), and that termination was in Zoe's best interests.

¶ 12 The trial court determined that respondent-mother had not taken advantage of the multiple opportunities she was provided to work towards regaining custody of Zoe. Instead, respondent-mother failed to complete therapy, refused to take drug tests, was charged with both drug and violent offenses, stopped visiting with Zoe, and admitted to increased heroin use. The trial court further found that respondent-mother's lack of stable housing and instability contributed to her inability to care for Zoe and that respondent-mother's actions "present[ed] the risk of severe harm to the child, including a real risk of serious bodily harm or injury to the child." Based on these findings, the trial court concluded that "grounds exist to terminate the parental rights of [respondent-mother] ... under N.C.G.S. Sections 7B-1111(a)(1)&(6)."

¶ 13 During the trial court's best interest determination, it incorporated the above findings and further found there was a "high likelihood that [Zoe] will be adopted by her current foster parents" because of the strong bond Zoe had developed with them. Such a bond, the trial court found, did not exist in the "attenuated relationship" between Zoe and respondent-mother. Moreover, the trial court found that it was "evident that further reunification efforts with [respondent-mother were] inconsistent with the juvenile's health, safety, and welfare." As a result, the trial court concluded it to be in Zoe's best interest for respondent-mother's parental rights to be terminated.

¶ 14 Respondent-mother appeals, arguing that the trial court failed to ensure that respondent-mother received effective assistance of counsel.

II. Analysis

¶ 15 A parent in a termination of parental rights proceeding has a statutory right to counsel pursuant to N.C.G.S. § 7B-1101.1, which inherently requires effective assistance from that counsel. See In re T.N.C. , 375 N.C. 849, 854, 851 S.E.2d 29, 32 (2020) ("Counsel necessarily must provide effective assistance, as the alternative would render any statutory right to counsel potentially meaningless.").

¶ 16 To succeed in a claim for ineffective assistance of counsel, respondent must satisfy a two-prong test, demonstrating that (1) counsel's performance was deficient; and (2) such deficient performance by counsel was so severe as to deprive respondent of a fair hearing. State v. Braswell , 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). "To make the latter showing, the respondent must prove that ‘there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings.’ " In re T.N.C., 375 N.C. 849, 854, 851 S.E.2d 29, 33 (2020) (quoting Braswell , 312 N.C. at 563, 324 S.E.2d at 248 ).

¶ 17 Assuming without deciding that counsel's performance was deficient, respondent-mother cannot prevail on her ineffective assistance of counsel claim because she has failed to demonstrate that she was prejudiced by any alleged deficiency in performance by counsel. Respondent-mother does not argue, and therefore cannot show, that there was a reasonable probability of a different result. Respondent-mother has not challenged on appeal the trial court's findings of fact or conclusions of law that the grounds for termination pursuant to N.C.G.S. § 7B-1111(a)(1) and (6) exist or that the termination was in Zoe's best interest. We therefore affirm the trial court's order terminating respondent-mother's parental rights.

III. Conclusion

¶ 18 Respondent-mother has failed to demonstrate that, but for such the alleged deficiency by counsel, there was a reasonable probability of a different result. The trial court's order terminating respondent-mother's parental rights is...