Opinion
No. 08-140.
Filed 3 June 2008.
Haywood County Nos. 06JT32-33.
Appeal by respondent from orders entered 13 November 2007 by Judge Richard K. Walker in Haywood County District Court. Heard in the Court of Appeals 5 May 2008.
Ira L. Dove, for Haywood County Department of Social Services, petitioner-appellee. Pamela Newell Williams for Guardian ad Litem. Don Willey for respondent-appellant mother.
Respondent Lindsey D., appeals from orders terminating her parental rights to J.E.K. and L.A.F.K. (collectively "twins"). For the following reasons, we affirm.
In 2004, respondent gave birth to twins. In November of 2005, the Haywood County Department of Social Services (DSS) became involved with respondent when she became severely depressed and could not take care of the twins and their older sibling, M.B. DSS reported the occurrence of domestic violence between Respondent and the twins' father, Mr. K., which occurred in front of the children and potentially endangered them. DSS also reported that on one occasion, Mr. K. disciplined one of the children by throwing the child against a wall and calling the child names.
In January 2006, respondent, Mr. K., and DSS entered into an In-Home Family Services Case Plan. DSS provided in-home services to achieve the goals of the plan, which included establishing mental health providers, continuing therapy, complying with M.B.'s mental health treatment, and obtaining and maintaining employment. The in-home services were not successful and, in February 2006, DSS took nonsecure custody of the twins and placed them in foster care. On 2 June 2006, the trial court entered an order adjudicating the twins neglected and dependent. The trial court ordered respondent to complete a capacity to parent assessment and follow directions, complete a substance abuse assessment and follow all recommendations, complete random drug screens upon request, obtain stable and suitable housing, obtain income to support the family, and complete parenting classes. The trial court also ordered DSS to continue to make reasonable efforts to eliminate the need for placement of the juveniles and to reunify the family.
The trial court subsequently conducted a 90-day and later a six-month review hearing. At the end of each review hearing the trial court concluded that the conditions that led to DSS's non-secure custody of the twins continued to exist. At the time of the 90-Day review hearing, the trial court found that respondent completed a substance abuse assessment, meeting the criteria for cocaine dependency, and counseling and drug abuse testing were recommended. During the six-month review, the trial court found that respondent tested positive for marijuana, that respondent had not continued in substance abuse counseling and was not, at that time, in any counseling — parenting or substance abuse. The trial court found that respondent had been employed at the Huddle House for approximately seven months as the head cook, but, at the time of the hearing, respondent resided at the address of the Huddle House manager and had not found her own place.
In two orders entitled "Order on 6-Month Review and Permanency Planning Review," both entered 29 December 2006 (one for each twin), the trial court ordered all DSS visitation plans with respondent to remain in place, but DSS was no longer required to make reasonable efforts to reunify the twins with respondent. The trial court concluded that DSS was "no longer required to make reasonable efforts to reunify the family as those efforts would clearly be futile or would be inconsistent with the [twins'] health and safety, and need for a safe, permanent home within a reasonable period of time." The trial court further concluded that it was in "the best interest of the [twins] that the permanent plan for Reunification be changed . . . to Adoption. . . ."
In May 2007, the trial court held another permanency planning review hearing. Respondent did not attend the review hearing, but was represented by counsel. The trial court found that respondent had generally been compliant with scheduled visitations but that respondent had difficulty managing her children, including the twins, when all were together; respondent had difficulty maintaining discipline of the children and did not providere direction when the twins ran wild; and at times respondent appeared very stressed. The trial court further found respondent did not bring diapers for the twins; during some visitations, respondent did not check or change the twins' diapers during her two-hour visit; and at other visits, when she noticed the diaper needed to be changed, it took her ten to fifteen minutes to address the need.
In orders for the six-month permanency planning review filed simultaneously 7 June 2007 (for each twin), the trial court concluded that those conditions that led to the removal and custody of the twins by DSS continued to exist. The trial court ordered that DSS continue to be relieved of making reasonable efforts to reunify, and that the permanent plan of adoption for juveniles remaine approved.
On 16 July 2007, DSS filed simultaneous petitions for termination of parental rights with regard to the twins. On 18 July 2007, the trial court entered an order for the appointment of a Guardian ad Litem for the twins. The trial court conducted a hearing on the termination of parental rights on 25 October 2007. Before the hearing began, respondent's counsel moved to continue based upon respondent's absence. Counsel informed the court that respondent had moved to Florida where her mother lives and is undergoing treatment there, but respondent was financially unable to attend the hearing. DSS informed the court that respondent had been served and counsel had spoken to respondent. The trial court denied the motion to continue. During the hearing, the court took judicial notice of the underlying files, but DSS also requested that exhibits in each file be admitted into evidence. Without objection, the trial court entered into evidence the following exhibits "as attached to the petition for termination in each of those files": Order for Non secure Custody; Certified Birth Certificate; Affidavit as to Status of Minor Child; Order on Adjudication; Order on Disposition; Order on 90-Day Review; Order on 6-Month and Permanency Planning Review; Capacity to Parent Assessment of Respondent; Out-of-Home Family Services Agreement; affidavit regarding the cost of juvenile care; and an affidavit of paternity. The court also heard testimony from DSS foster care supervisor Paula Watson.
After the termination of parental rights hearing, the trial court found that respondent had been served but filed no responsive pleadings and did not appear in court at the call of the case for trial; the trial court orders previously entered in this matter were admitted as exhibits into evidence without objection; DSS made numerous and varied efforts to assist respondent in complying with the case plan and orders of the court to correct those conditions that led to the removal of the children and to promote and achieve reunification, but respondent had not made reasonable progress; respondent has not followed the recommendations of her Capacity to Parent Assessment and had not completed parenting classes or completed a psychological evaluation; respondent had not completed substance abuse counseling; respondent has not taken any further drug screens since 9 May 2007; respondent has not obtained her own stable housing and continues to reside with her employer and/or friends; and prior to and following the filing of the petitions for termination of parental rights, respondent visited the twins an average of twice a month despite having the opportunity to visit four times per month. Respondent last visited the twins in August 2006, calling it her "goodbye" visit, and then moved to Florida. The trial court found that respondent "willfully, and not due solely to poverty, left [the twins] in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the Court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juveniles. . . ."
The trial court concluded that there were "sufficient grounds to terminate the parental rights of the [respondent], pursuant to N.C.G.S. § 7B-1111(a)(1), in that the [respondent] [has] neglected the [twins], as defined in N.C.G.S. 7B-101(15), and that Neglect continues to the date of this hearing." And, on this basis, the trial court ordered, adjudged and decreed that the parental rights of respondent were terminated.
The trial court then turned to the disposition phase and heard testimony from DSS Social Worker Judith George. Ms. George testified that it was highly likely for the three-year-old twins to be adopted; that they have made "tremendous improvement in their behaviors" and that it would be in the best interest of the twins for them to be free for adoption. Upon cross-examination, Ms. George confirmed that respondent had attended about 70% of the scheduled visits. The trial court concluded that it was in the twins' best interest to terminate respondent's parental rights and accordingly entered an order terminating respondent's parental rights. Respondent appeals.
Respondent contends the trial court erred by entering an order terminating her parental rights because she was denied effective assistance of counsel at the termination hearing. Respondent argues that counsel's performance was deficient because counsel failed to: (1) file an answer to DSS's petition for termination; (2) file a written motion for continuance with an affidavit from her; (3) communicate with her; (4) prepare for trial; (5) object to the exhibits; (6) cross-examine DSS supervisor Ms. Watson; (7) offer any evidence; and (8) present a closing argument. We disagree.
North Carolina General Statutes sections 7B-1101.1(a) and 7B-1109(b) guarantee a parent's right to counsel, including appointed counsel in cases of indigence, "in all proceedings dedicated to the termination of parental rights." In re Oghenekevebe, 123 N.C. App. 434, 436, 473 S.E.2d 393, 396 (1996). Implicit in this statutory right to counsel is the right to effective assistance of counsel. Counsel's assistance, as guaranteed by N.C. Gen. Stat. §§ 7B-1101.1(a) and 1109(b), is ineffective when (1) counsel's performance was deficient and (2) the "deficiency was so serious as to deprive the represented party of a fair hearing." Id. (citations omitted) (considering an appellant's ineffective assistance of counsel claim pursuant to former N.C. Gen. Stat. § 7A-289.23 (1995), which has been repealed and recodified); see also In re J.A.A., 175 N.C. App. 66, 74, 623 S.E.2d 45, 50 (2005).
Yet here, respondent has not specified a theory of defense on which respondent could have prevailed, what objections counsel should have made at the hearing, what witnesses counsel should have called, what questions counsel should have asked, or how a filed answer to the termination petition would have afforded her a more fair hearing. Rather, respondent states that she was prejudiced by "counsel's inattention." Such general averments are insufficient to establish prejudice resulting in an unfair hearing. See In re B.P., 169 N.C. App. 728, 733, 612 S.E.2d 328, 332 (2005) (denying an ineffective assistance claim when the respondent "failed to specify what motions should have been made and what evidence could have been, but was not, presented before the trial court"). Thus, even assuming arguendo that counsel's performance was deficient in these respects, respondent has not illustrated how the alleged deficiencies resulted in an unfair hearing.
Further, our review of the record shows counsel represented respondent at every stage of this consolidated case, communicated with respondent even after she left the State, and was familiar with the substantive issues involved in the case. We also note that respondent not only failed to attend a permanency planning review hearing in May 2007, respondent failed to attend the adjudication and disposition hearings for the termination of her parental rights.
Last, respondent has not demonstrated that absent the alleged errors of counsel, there is a reasonable possibility that the outcome of the trial would have been different. See State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985). DSS presented overwhelming evidence to support at least one ground for termination of respondent's parental rights, neglect under N.C. Gen. Stat. § 7B-1111(a)(1)(2007). See In re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d 403, 406 (2003) (the existence of a single statutory ground for termination is sufficient to support a termination order).
In light of the prior neglect adjudication and respondent's failure to successfully comply with her case plan and orders of the court, we conclude that any alleged deficiencies of counsel did not result in ineffective assistance of counsel. Accordingly, this assignment of error is overruled.
Affirmed.
Judges WYNN and McCULLOUGH concur.
Report per Rule 30(e).