Opinion
No. COA11–1377.
2012-04-3
In the Matter of K.R.B., a minor child.
Lucy R. McCarl for Caldwell County Department of Social Services, petitioner-appellee. Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson, for respondent-appellant.
Appeal by respondent from order entered 3 August 2011 by Judge C. Thomas Edwards in Caldwell County District Court. Heard in the Court of Appeals 5 March 2012. Lucy R. McCarl for Caldwell County Department of Social Services, petitioner-appellee. Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson, for respondent-appellant.
Nelson Mullins Riley & Scarborough LLP, by Stephen D. Martin and Kelli Goss Hopkins, for guardian ad litem.
THIGPEN, Judge.
Respondent-appellant, the father of K.R.B., appeals from an order terminating his parental rights to K.R.B. We must decide whether the trial court erred by (I) allowing respondent's trial counsel to withdraw and (II) failing to continue the hearing after it had allowed counsel to withdraw. Because the record does not show that respondent's trial counsel gave respondent notice of his intention to withdraw or that the trial court inquired into counsel's efforts to contact respondent in advance of the hearing, we vacate the termination order and remand for further proceedings.
I. Factual and Procedural History
The Caldwell County Department of Social Services (hereafter “petitioner”) filed a juvenile petition on 14 May 2010 alleging that K.R.B. was a neglected and dependent juvenile because his mother had a history of instability and drug abuse, and respondent, who was incarcerated at the time, had never had much contact with K.R.B. The trial court adjudicated K.R.B. a neglected and dependent juvenile on 16 July 2010 and ordered that K.R.B. remain in petitioner's custody. On 12 October 2010, the trial court filed a review order ceasing reunification efforts with respondent. On 15 December 2010, the trial court filed an order terminating visitation by respondent.
On 31 March 2011, petitioner filed a motion to terminate the parental rights of both parents. Respondent, through counsel, filed a response to the motion on 26 April 2011. When respondent did not come forward at the call of the motion for hearing on 27 July 2011, the court allowed the motion of respondent's attorney to withdraw as counsel. The trial court proceeded to conduct the termination hearing in respondent's absence. After hearing the testimony of only one witness, a social worker, the court concluded grounds existed to terminate respondent's parental rights on the grounds of neglect, willful abandonment, failure to pay a reasonable portion of the cost of care, and dependency. The trial court further concluded termination of parental rights was in K.R.B.'s best interest and terminated the parental rights of both parents. Respondent appeals from the order terminating his parental rights.
II. Withdrawal of Counsel
Respondent first contends the trial court erred by allowing respondent's trial counsel to withdraw. We agree.
Applicable to juvenile petitions filed on or after 1 October 2009, the right of a parent to counsel in a juvenile proceeding is governed by N.C. Gen.Stat. § 7B–1101.1(a), which provides:
The parent has the right to counsel, and to appointed counsel in cases of indigency, unless the parent waives the right. The fees of appointed counsel shall be borne by the Office of Indigent Defense Services. When a petition is filed, unless the parent is already represented by counsel, the clerk shall appoint provisional counsel for each respondent parent named in the petition and indicate the appointment on the juvenile summons. At the first hearing after service upon the respondent parent, the court shall dismiss the provisional counsel if the respondent parent:
(1) Does not appear at the hearing;
(2) Does not qualify for court-appointed counsel;
(3) Has retained counsel; or
(4) Waives the right to counsel.
The court shall confirm the appointment of counsel if subdivisions (1) through (4) of this subsection are not applicable to the respondent parent. The court may reconsider a parent's eligibility and desire for appointed counsel at any stage of the proceeding.
N.C. Gen.Stat. § 7B–1101.1(a) (2011); 2009 N.C. Sess. Laws 311 § 9.
Withdrawal of an attorney's appearance in a civil action is governed by Rule 16 of the General Rules of Practice, which provides that an attorney may not withdraw from representation of a client “without (1) justifiable cause, (2) reasonable notice to the client, and (3) the permission of the court.” N.C. Gen. R. Pract. Super. and Dist. Ct. 16 (2011). “The determination of counsel's motion to withdraw is within the discretion of the trial court, and thus we can reverse the trial court's decision only for abuse of discretion.” Benton v. Mintz, 97 N.C.App. 583, 587, 389 S.E.2d 410, 412 (1990) (citation omitted). However, “[w]here an attorney has given his client no prior notice of an intent to withdraw, the trial judge has no discretion. The Court must grant the party affected a reasonable continuance or deny the attorney's motion for withdrawal.” Williams and Michael, P.A. v. Kennamer, 71 N.C.App. 215, 217, 321 S.E.2d 514, 516 (1984).
The transcript shows the following transpired when the case was called for hearing at 9:57 a.m. on Wednesday, 27 July 2011:
MS. MCKAY: Calling for hearing No. 28 on your docket. That's [K .R.B.'s], termination of parental rights. The Department
THE COURT: [Mother], come up. [Respondent], come up.
No one responded.
MR. DELK: Your Honor, at this time I would respectfully move the Court to allow—I'm Mr. Delk, [respondent's] representative. I have not had contact with him. We have attempted today to locate him. He was incarcerated for a time. I don't know exactly where (inaudible). I would be asking at this time to withdraw.
THE COURT: All right. What's the position of the Department?
MS. McKAY: The Department has no objection, your Honor.
THE COURT: All right. Then, Madam Clerk, if you will allow Mr. Delk to withdraw as counsel for the absent [respondent] from whom Mr. Delk has no directives.
The court proceeded to conduct the hearing in the absence of counsel for both respondent and the mother. The court heard the testimony of the one witness, rendered its decision, and adjourned the hearing at 10:20 a.m. the same day.
The transcript fails to show that counsel gave respondent notice of his intention to withdraw or that the trial court inquired into counsel's efforts to contact respondent in advance of the hearing. The record does show that respondent attended the original adjudication hearing and several review hearings. He last attended a review hearing on 12 January 2011 after having missed a hearing for the first time on 15 December 2010. Respondent also missed a permanency planning hearing on 1 June 2011. The court's order regarding the 1 June 2011 hearing simply states respondent's counsel reported having “no recent contact” with respondent. The order does not reflect the efforts, if any, counsel made to contact respondent.
The facts in the case at bar are similar to those of In re K.N., 181 N.C.App. 736, 640 S.E.2d 813 (2007), in which the trial court conducted a termination of parental rights hearing in the absence of the parent and parent's counsel. The trial court allowed the mother's counsel to withdraw after counsel told “the trial court that she had not heard from or had any response from Respondent-mother.” Id. at 737, 640 S.E.2d at 814. The mother appeared shortly after the hearing concluded. Id. at 738, 640 S .E.2d at 815. In vacating the termination order, we stated that “issues as to valid service, as well as a hearing lasting only twenty minutes with no counsel present for Respondent-mother, raise questions as to the fundamental fairness of the procedures that led to the termination of Respondent-mother's parental rights.” Id. at 741, 640 S.E.2d at 817.
Similar questions arise in the case at bar. The trial court conducted no inquiry as to the extent of counsel's efforts to contact respondent. The hearing lasted only 23 minutes and neither parent was represented by counsel. The petitioner's witness was cross-examined only by the attorney for the child's guardian ad litem and that cross-examination, during the disposition stage, consisted of only two questions: (1) whether it was the recommendation of the witness to terminate parental rights and (2) whether the witness had any other relevant consideration for the court to hear. This is not a case of a parent not taking any interest in the proceedings as respondent attended several hearings, even a hearing held after visitation and reunification efforts were ceased. We accordingly vacate the termination order and remand for further proceedings consistent with this opinion.
VACATED and REMANDED. Judges ELMORE and GEER concur.
Report per Rule 30(e).