Opinion
No. COA12–704.
2013-01-15
In the Matter of I.G.R.
H. Lee Merritt for petitioner-appellee Surry County Department of Social Services. Womble Carlyle Sandridge & Rice, LLP, by Murray C. Greason, III, for guardian ad litem.
Upon certiorari to review orders entered by Judge Spencer G. Key, Jr., on 13 December 2010 and by Judge William F. Southern III, on 9 March 2012 in Surry County District Court. Heard in the Court of Appeals 3 January 2013. H. Lee Merritt for petitioner-appellee Surry County Department of Social Services. Womble Carlyle Sandridge & Rice, LLP, by Murray C. Greason, III, for guardian ad litem.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Joyce L. Terres for respondent-appellant father.
ERVIN, Judge.
Respondent–Father Allen W. seeks review from an order entered by Judge Southern terminating his parental rights in his child, I.G.R. He also seeks the issuance of a writ of certiorari authorizing review of an order allowing DSS to cease reunification efforts and changing the permanent plan for Ira to adoption. In his brief, Respondent–Father contends that the trial court erroneously authorized the Surry County Department of Social Services to cease any efforts to reunify Ira with Respondent–Father without making the findings required by N.C. Gen.Stat. § 7B–507; holding the permanency planning hearing in violation of Respondent–Father's right to be represented by counsel; concluding that Respondent–Father's parental rights in Ira were subject to termination pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) (neglecting the juvenile), N.C. Gen.Stat. § 7B–1111(a)(6) (incapability of providing proper care of and supervision for the juvenile without having an alternative child care arrangement), and N.C. Gen.Stat. § 7B–1111(a)(7) (willfully abandoning the juvenile). After careful consideration of Respondent–Father's challenges to these orders in light of the record and the applicable law, we conclude that the permanency planning and termination orders should be reversed and that this case should be remanded to the Surry County District Court for further proceedings not inconsistent with this opinion.
I.G.R. will be referred to as “Ira” throughout the remainder of this opinion, a pseudonym used for ease of reading and to protect the juvenile's privacy.
I. Factual Background
On 27 May 2010, Ira was taken to the hospital after sustaining a non-accidental head injury. Ira's mother provided several inconsistent explanations concerning the manner in which the injury had occurred. On 28 May 2010, DSS filed a petition alleging that Ira was an abused, neglected, and dependent juvenile and obtained non-secure custody of the child. Ira was adjudicated to be a neglected and dependent juvenile on 22 July 2010.
Respondent–Father was incarcerated in Virginia throughout the entirety of the proceedings in this case.
On 19 November 2010, the court entered an order relieving DSS of any further responsibility for attempting to reunify Ira with his mother. After a permanency planning hearing held on 17 November 2010, Judge Key entered an order on 13 December 2010 relieving DSS from any responsibility for attempting to reunify Ira with Respondent–Father, approving a permanent plan of adoption coupled with a concurrent plan of custody with a relative, and ordering DSS to pursue placement with Ira's paternal grandfather. After the performance of a home study, Ira's paternal grandparents were not approved for placement.
On 6 October 2011, Ira's permanent plan was changed to adoption. On 17 October 2011, DSS filed a motion to terminate Respondent–Father's parental rights on the grounds of neglect, incapability, and willful abandonment. On 3 November 2011, Ira's mother voluntarily relinquished her parental rights in the child. The termination hearing was held on 2 February 2012. At the conclusion of that proceeding, Judge Southern determined that Respondent–Father's parental rights in Ira were subject to termination based on the grounds alleged in the termination motion, concluded that termination of Respondent–Father's parental rights would be in Ira's best interests, and ordered that Respondent–Father's parental rights in Ira be terminated. Respondent–Father noted an appeal to this Court.
II. Substantive Legal Analysis
A. Appealability
1. Termination Orders
As an initial matter, we note that Respondent–Father's notice of appeal sought review of the “Order Terminating Parental Rights that was filed on March 9, 2012.” In actuality, however, Judge Southern entered two orders on 9 March 2012, one of which was an adjudication order and the other of which was a disposition order. In light of this possible deficiency in his notice of appeal, Respondent–Father has filed a petition for writ of certiorari seeking review of both orders. As a result of the fact that the record clearly establishes that Respondent–Father intended to seek appellate review of both orders and the fact that his notice of appeal does not specifically name both of the orders which he wishes to challenge on appeal, we hereby allow Respondent–Father's certiorari petition seeking review of both orders.
2. Permanency Planning Order
In addition, Respondent–Father seeks the issuance of a writ of certiorari authorizing appellate review of the 13 December 2010 permanency planning order in which Judge Key ordered the cessation of efforts to reunify Ira with Respondent–Father. Although Respondent–Father candidly acknowledges that he did not properly preserve his right to seek review of the 13 December 2010 permanency planning order, we conclude, in the exercise of our discretion and in recognition of the seriousness of the matters before the Court in this case, that Respondent–Father's certiorari petition relating to the 13 December 2010 order should be allowed as well. As a result, we will now proceed to examine Respondent–Father's challenges to all of the relevant orders on the merits.
B. Permanency Planning Order
In his brief, Respondent–Father contends that Judge Key failed to make the findings required by N.C. Gen.Stat. § 7B–507 before allowing DSS to cease attempting to reunify him with Ira. Both DSS and the guardian ad litem concede that aspects of Respondent–Father's argument are valid. We agree.
“This Court reviews an order that ceases reunification efforts to determine whether the trial court made appropriate findings, whether the findings are based upon credible evidence, whether the findings of fact support the trial court's conclusions, and whether the trial court abused its discretion with respect to disposition.” In re C.M., 183 N.C.App. 207, 213, 644 S.E.2d 588, 594 (2007). “The trial court may ‘only order the cessation of reunification efforts when it finds facts based upon credible evidence presented at the hearing that support its conclusion of law to cease reunification efforts.’ “ In re N.G., 186 N.C.App. 1, 10, 650 S.E.2d 45, 51 (2007) ( quoting In re Weiler, 158 N.C.App. 473, 477, 581 S.E.2d 134, 137 (2003)), aff'd per curiam, 362 N.C. 229, 657 S.E.2d 355 (2008). First, any order leaving a child in DSS custody must, among other things:
(2) ... contain findings as to whether a county department of social services has made reasonable efforts to prevent or eliminate the need for placement of the juvenile, unless the court has previously determined under subsection (b) of this section that such efforts are not required or shall cease;
(3) ... contain findings as to whether a county department of social services should continue to make reasonable efforts to prevent or eliminate the need for placement of the juvenile, unless the court has previously determined or determines under subsection (b) of this section that such efforts are not required or shall cease.
N.C. Gen.Stat. § 7B–507(a). Secondly, before authorizing the cessation of reunification efforts, the court must find that:
(1) Such efforts clearly would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time;
(2) A court of competent jurisdiction has determined that the parent has subjected the child to aggravated circumstances as defined in [N.C. Gen.Stat. § ] 7B–101;
(3) A court of competent jurisdiction has terminated involuntarily the parental rights of the parent to another child of the parent; or
(4) A court of competent jurisdiction has determined that: the parent has committed [various violent criminal acts against the child or another child of the parent].
N.C. Gen.Stat. § 7B–507(b).
In the challenged permanency planning order, Judge Key found that Respondent–Father was currently incarcerated and had a projected release date of 2013, that “[i]t is not likely that the child would be placed in the care of either parent within the next six (6) months,” and that “it is not in the best interest of the child and it is contrary to the child's welfare to be returned to the home.” In his conclusions of law, Judge Key determined that DSS “has made reasonable efforts to return the child/children to the home of their parents; but, returning the child to the home at this time would be contrary to the child's welfare and not in the child's best interest .” Based upon these findings and conclusions, Judge Key adopted a permanent plan of adoption with a concurrent plan of custody with a relative and relieved DSS of any responsibility for attempting to reunify Ira with Respondent–Father.
In seeking to persuade us that the trial court failed to comply with N.C. Gen.Stat. § 7B–507(a), Respondent–Father contends that Judge Key failed to sufficiently address the reasonableness of DSS' reunification efforts. In support of this contention, Respondent–Father contends that DSS never provided him with any information concerning Ira or answered any of the questions that he asked about Ira in various letters. Although the guardian ad litem concedes that the trial court failed to address the reasonableness of DSS' efforts to reunify Respondent–Father with Ira, a careful reading of the permanency planning order establishes that Judge Key did describe DSS' reunification efforts as reasonable and did indicate that Respondent–Father would be incarcerated until 2013. In view of the fact that Respondent–Father was incarcerated at the time of the hearing and was not scheduled to be released until 2013, we are unable to hold that Judge Key failed to adequately address the issues specified in N.C. Gen.Stat. § 7B–507(a) given the impossibility of reunifying Respondent–Father with Ira prior to the date of Respondent–Father's release.
Although Judge Key appears to have adequately addressed the issues posited in N.C. Gen.Stat. § 7B–507(a), the same cannot be said about the sufficiency of his compliance with N.C. Gen.Stat. § 7B–507(b). In that portion of his order addressing the issue of whether efforts to reunify Respondent–Father and Ira should continue, Judge Key simply ordered that DSS “is hereby relieved of further reunification efforts with the father.” As Respondent–Father argues and as DSS concedes, Judge Key failed to address any of the factors enumerated in N.C. Gen.Stat. § 7B–507(b) before authorizing the cessation of reunification efforts. Judge Key's failure to address the extent to which any of the grounds for cessation of reunification efforts specified in N.C. Gen.Stat. § 7B–507(b) were present in this case necessitates the reversal of the 13 December 2010 permanency planning order and the remanding of this case to the Surry County District Court for further proceedings. See In re Weiler, 158 N.C.App. 473, 480, 581 S.E.2d 134, 138 (2003) (holding that, where the trial court failed to make findings addressing the issues specified in N.C. Gen.Stat. § 7B–507, those findings did not support its conclusion that efforts to reunify the respondent parent with the children should cease). In view of our decision to reverse the 13 December 2010 permanency planning order, Judge Southern's termination orders must be reversed as well. See In re I.R.C., ––– N.C.App. ––––, ––––, 714 S.E.2d 495, 499 (2011) .
Having decided that Respondent–Father is entitled to relief from Judge Southern's termination orders based upon the deficiencies in the order providing for the cessation of efforts to reunify Respondent–Father with Ira, we need not address Respondent–Father's specific challenges to Judge Southern's termination orders.
C. Right to Counsel
In his second challenge to the permanency planning order, Respondent–Father argues that Judge Key should not have held the 17 November 2010 permanency planning hearing without appointing counsel to represent him. We conclude that this aspect of Respondent–Father's challenge to the 13 December 2010 permanency planning order lacks merit.
Although we have already concluded that the 13 December 2010 permanency planning order must be reversed, we address Respondent–Father's contention concerning the extent to which he was deprived of his right to counsel at the 17 November 2010 permanency planning hearing on the grounds that our resolution of this issue potentially affects the nature of the proceedings that must be conducted on remand.
Although the record indicates that provisional counsel was appointed to represent Respondent–Father after the filing of the initial juvenile petition, Respondent–Father was not represented at the adjudication hearing held in July 2010, at an October 2010 review hearing, or at the 17 November 2010 permanency planning hearing. Despite the fact that Respondent–Father wrote to the Clerk of Superior Court of Surry County after being informed of the November hearing date, he did not request the appointment of counsel at that time. After the holding of the 17 November 2010 permanency planning hearing, the Clerk mailed an affidavit of indigency to Respondent–Father accompanied by an instruction that Respondent–Father complete the form and return it to the court. On 29 November 2010, the court received the completed affidavit and a written request that counsel be appointed to represent Respondent–Father. Counsel was appointed to represent Respondent–Father on the same day that the completed affidavit and request for appointment of counsel were received. Even so, Respondent–Father argues that his right to be represented by counsel was violated given that he was not represented at the 17 November 2010 hearing despite having “made an appearance at the permanency planning hearing by [the] filing [of] his verified letter.” We do not agree.
The right to counsel in cases arising under the Juvenile Code is statutory in nature. According to N.C. Gen.Stat. § 7B602 (a), parents have a right to counsel after a juvenile petition alleging abuse, neglect, or dependency has been filed. Although provisional counsel must be appointed for the parents named in each abuse, neglect, or dependency petition, such provisional counsel “shall” be dismissed if the parent fails to appear at the hearing. N.C. Gen.Stat. § 7B–602(a)(1). Although the record does not clearly indicate whether the provisional counsel appointed to represent Respondent–Father after the filing of the initial petition was dismissed, such a dismissal of provisional counsel should have occurred given that Respondent–Father did not appear at the adjudication hearing. However, the “court may reconsider a parent's eligibility and desire for appointed counsel at any stage of the proceeding.” N.C. Gen.Stat. § 7B–602(a). For that reason, the court had the right to reconsider the issue of whether counsel should be appointed to represent Respondent–Father after he corresponded with the Clerk and requested the appointment of counsel. However, nothing in Chapter 7B of the General Statutes requires the court to appoint counsel at any other stage in an abuse, neglect, or dependency proceeding prior to the filing of a motion or petition seeking the termination of a parent's parental rights. N.C. Gen.Stat. § 7B–1101.1. In view of the fact that the General Assembly has not provided for the automatic appointment of counsel after the dismissal of provisional counsel appointed pursuant to N.C. Gen.Stat. § 7B–602(a), Respondent–Father had no right to the appointment of counsel in the absence of a request for that to be done or the filing of a termination motion or petition. As a result, given the absence of any indication that Respondent–Father had applied for the appointment of counsel prior to the holding of the 17 November 2010 permanency planning hearing, we hold that Judge Key did not err by conducting the 17 November 2010 hearing without appointing counsel to represent Respondent–Father.
III. Conclusion
Thus, for the reasons set forth above, we conclude that Judge Key failed to make sufficient findings of fact to support the cessation of efforts to reunify Respondent–Father with Ira. As a result, the 13 December 2010 permanency planning order and 9 March 2012 termination orders should be, and hereby are, reversed and this case should be, and hereby is, remanded to the Surry County District Court for further proceedings not inconsistent with this decision.
REVERSED AND REMANDED. Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).