Child Abuse and Neglect_parent's right to counsel_indigent's request for replacement
counsel
The trial court erred in a child neglect proceeding by equating an indigent parent's second
request for new counsel with a waiver of appointed counsel and then requiring the parent to
proceed pro se. The trial court was not required to grant the parent's request to release counsel
absent a substantial reason, but, having done so, the court was obligated to obtain a knowing
waiver or to appoint substitute counsel.
Haywood County Department of Social Services, by Ira L. Dove
and Mary G. Holliday.
Ann H. Davis for Guardian ad Litem.
Susan P. Hall for respondent-appellant.
TIMMONS-GOODSON, Judge.
Scott Lee Lewis, Sr.,
(See footnote 1)
(“respondent”) appeals an order of the
trial court adjudicating his minor child, Scott Lee Lewis, Jr.,
(“Scott”) a neglected child. For the reason stated herein, we
reverse the order of the trial court and remand the case for a new
hearing.
On 2 January 2003, the Haywood County Department of Social
Services (“D.S.S.”) filed a petition with the trial court allegingthat Scott was a neglected child. Upon the case being called for
trial on 15 May 2003, the following exchange took place between the
trial court and respondent regarding respondent's attorney (“Mr.
Cook”):
THE COURT: Mr. [Lewis], before we broke
for lunch, Mr. Cook informed me
that you wanted to address the
Court about Mr. Cook.
MR. [LEWIS]: Yes.
THE COURT: Okay. Go ahead. That's fine.
MR. [LEWIS]: Due to the lack of his ability
to (inaudible) withdraw
(inaudible).
THE COURT: Okay. You're asking that Mr.
Cook not be your attorney. Is
that right?
MR. [LEWIS]: (Inaudible response)
THE COURT: Okay. You don't want him to
represent you?
MR. [LEWIS]: No, sir.
THE COURT: Okay. All right. Mr. Cook,
you're released.
. . . .
MS. HOLLIDAY: Your Honor, should a waiver be
signed or (inaudible)?
THE COURT: I don't think so. It's on the
record. Okay. . . .
MR. [LEWIS]: I want counsel.
THE COURT: I'm sorry.
MR. [LEWIS]: I want counsel. (Inaudible)
THE COURT: Okay. Well, this is the second
attorney that you've let go, so
we've appointed two attorneys
to represent you. They've both
been very competent. You'veelected not to proceed with
them. I can't continue the
case ad infinitum until you
find an attorney you're pleased
with, so you're just going to
have to represent yourself.
Okay? . . .
MR. [LEWIS]: I'd like to object to it.
THE COURT: I'm sorry.
MR. [LEWIS]: I'd like to object to that.
THE COURT: Okay. I'll note your objection
for the record. All right
[sic].
Upon consideration of the evidence, the trial court adjudicated
Scott neglected. Respondent appeals.
The dispositive issue on appeal is whether the trial court
erred by failing to obtain a written waiver of counsel from
respondent.
The General Statutes of North Carolina provide that “[i]n
cases where the juvenile petition alleges that a juvenile is
abused, neglected, or dependent, the parent has the right to
counsel and to appointed counsel in cases of indigency unless that
person waives the right.” N.C. Gen. Stat. § 7B-602(a) (2003). Our
courts have yet to address the scope of an indigent parent's right
to counsel in an abuse, neglect or dependency hearing. Because
criminal matters are the only other legal matters wherein the
accused has a right to counsel, we look to our criminal caselaw for
guidance. Generally, in the absence of some substantial reason for the
appointment of replacement counsel, an indigent must accept counsel
appointed by the court unless he wishes to waive counsel and
represent himself. State v. Robinson, 330 N.C. 1, 12, 409 S.E.2d
288, 294 (1991) (citing State v. Hutchins, 303 N.C. 321, 279 S.E.2d
788 (1981)). Mere dissatisfaction with one's counsel is not a
substantial reason for the appointment of replacement counsel.
Nevertheless, “[s]tatements of a desire not to be represented by
court-appointed counsel do not amount to expressions of an
intention to represent oneself.” Hutchins, 303 N.C. at 339, 279
S.E.2d at 800 (citations omitted). Once a court allows an
indigent's motion to withdraw his or her counsel, “[g]iven the
fundamental nature of the right to counsel, we ought not to indulge
in the presumption that it has been waived by anything less than an
express indication of such an intention.” Id. Our Supreme Court
in State v. Thacker further instructed on the issue of waiver of
right to counsel as follows:
Services of counsel cannot be forced upon an
unwilling defendant. However, the waiver of
counsel, like the waiver of all constitutional
rights, must be knowing and voluntary, and the
record must show that the defendant was
literate and competent, that he understood the
consequences of his waiver, and that, in
waiving his right, he was voluntarily
exercising his own free will.
301 N.C. 348, 354, 271 S.E.2d 252, 256 (1980) (quotations and
citations omitted).
In the present case, respondent's request that Mr. Cook be
removed as counsel did not amount to an expression of a waiver of
court-appointed counsel, or an intention to represent himself. Ourreview of the transcript indicates that at no point did respondent
expressly and voluntarily waive his right to counsel. On the
contrary, respondent repeatedly requested new counsel. Although
the trial court was not required to grant respondent's request to
release counsel absent a substantial reason, once the court decided
to release Mr. Cook it had an obligation to either obtain a knowing
waiver of counsel from respondent or appoint substitute counsel.
We conclude that the trial court erred by equating respondent's
request for new counsel with a waiver of court-appointed counsel,
and requiring respondent to proceed to trial pro se. For these
reasons, we reverse the order of the trial court, and remand the
case for a new hearing.
REVERSED and REMANDED.
Chief Judge MARTIN and Judge HUDSON concur.
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