An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-963


Filed: 4 May 2004

                                         Davie County
J.R.T.                                      No. 01 J 78

    Appeal by respondent from order entered 31 March 2003 by Judge L. Dale Graham in Davie County Juvenile District Court. Heard in the Court of Appeals 19 April 2004.

    Martin & Van Hoy, L.L.P., by Brian F. Williams, for petitioner appellees.

    Carol Ann Bauer for respondent appellant.

    McCULLOUGH, Judge.

    Petitioners are the great-uncle and great aunt of the minor child J.R.T., who was born on 1 September 1999. Respondent R.A.H. is the father of the minor child. Petitioners' niece is the mother of the minor child. In orders entered in October of 1999, petitioners were given temporary custody of the minor child, and respondent was given visitation with the minor child. The trial court entered an order on 16 December 1999 continuing custody with petitioners and adjusting respondent's visitation. On 19 December 2001, petitioners served respondent with a petition to terminate his parental rights alleging that respondent had neglected the minor child, had failed to pay for the care and support of the minor child, and had willfully abandoned the minor child for at least six months before the filing of the petition. Petitionerssubsequently filed a petition to adopt the minor child. Petitioners' niece, who was fifteen years old when the minor child was conceived, consented to the adoption. On 26 November 2002, respondent replied to the petition for termination of parental rights and denied the material allegations.     The case was heard before Judge L. Dale Graham. Petitioner great-uncle testified that the minor child had lived with petitioners since his birth and that respondent's visitation started in October of 1999. He testified that respondent exercised his visitation with the minor child sporadically and that respondent last exercised his visitation rights with the minor child on 6 January 2001. On cross- examination, respondent's attorney established that petitioner great-uncle knew respondent had failed to appear in Davie County Criminal Superior Court on 8 January 2001; that respondent was apprehended in Australia in July of 2001; and respondent was convicted of statutory rape in January of 2002. At the close of petitioners' evidence, respondent moved to dismiss the petition. The trial court denied the motion. Respondent did not testify at trial, but made an unsworn statement to the court.
    In his 31 March 2003 order, Judge Graham found that grounds existed for the termination of the respondent's parental rights since he willfully abandoned the minor child for at least six months immediately preceding the institution of the action and concluded that it was in the best interests of the child to terminate respondent's parental rights. From this order, respondent appeals.     In his sole assignment of error, respondent contends he received ineffective assistance of counsel because his attorney did not present evidence on his behalf. Before petitioners rested their case, petitioners' attorney sought to admit respondent's criminal record into evidence. Respondent's attorney objected on grounds of relevancy “since [respondent] has not been up on the witness stand and not cross examined.” The trial court sustained the objection “as to the criminal file at this point.” Respondent's attorney then asked the court for “a moment.”
    After a ten-minute recess, the trial court asked if there was any evidence from respondent. Respondent's attorney stated “at this time, before putting on any evidence, we'd make a motion.” Respondent's attorney then argued that petitioners had not proved the facts justifying termination by clear and convincing evidence. At the end of his argument, respondent's attorney told the court:
        [Respondent] did want to make a brief statement to the Court, and I would ask that you please let him make that brief statement. Stand up.

The trial court stated that it wanted to hear more as to respondent's motion to dismiss. After additional arguments by the parties' attorneys, the following exchange took place:
        THE COURT: All right. Well, I think you're making a good argument, Mr. Volger, but based on the evidence, I think [petitioners have] met their burden to [N.C. Gen. Stat. § 7B- 1111(7)] at this point, and I'm going to deny your motion.

        [RESPONDENT'S ATTORNEY]: And with that, Your Honor, we would rest and renew our motion. Same argument.
The trial court then found that petitioners met their burden of proof in the grounds phase and the hearing moved into the best interest of the child phase. The trial court asked:
            All right, any evidence as to the best interest? Would you like _ your man like to be heard as to his statement?

            [RESPONDENT'S ATTORNEY:] Your Honor, no evidence as to the best interest, I'm sure he would like to be heard. We would also like to note our exception at this point in time for the record, on the ruling. Stand up, if you - you want to have him sworn or anything?

            THE COURT: I don't think that's necessary, that's up to you, Mr. Volger.

            [RESPONDENT'S ATTORNEY]: Go ahead.

Respondent then made his statement. Respondent claims that evidence of counsel's deficient performance can be found in the failure to allow him to present sworn testimony in defense of the petition to terminate his parental rights.
    N.C. Gen. Stat. §§ 7B-1101 and 7B-1109(b) (2003) guarantee a parent's right to counsel, including appointed counsel in cases of indigency, in all proceedings related to the termination of parental rights. See In re Oghenekevebe, 123 N.C. App. 434, 436, 473 S.E.2d 393, 396 (1996) (recognizing these rights under former N.C. Gen. Stat. § 7A-289.23). Implicit in this right to counsel is the right to effective assistance of counsel. Oghenekevebe, 123 N.C. App. at 436, 473 S.E.2d at 396. To prevail on a claim of ineffective assistance of counsel, respondent "must show that counsel's performance was deficient and the deficiency was soserious as to deprive [him] of a fair hearing." In re Bishop, 92 N.C. App. 662, 665, 375 S.E.2d 676, 679 (1989).
    Here, respondent has not shown that his counsel's failure to allow him to present sworn testimony deprived respondent of a fair hearing. In fact, respondent points out in his brief that his counsel engaged in an extensive cross-examination. Respondent's counsel also moved to dismiss the petition, and as the trial court noted, made a “good argument.” It was not until the trial court denied respondent's motion to dismiss based on the grounds that petitioners had met their burden, that respondent's counsel, apparently as a matter of trial strategy, decided not to present evidence on behalf of respondent. We conclude that respondent has not met his burden necessary to prevail on an ineffective assistance of counsel claim. Therefore, this assignment of error is overruled, and the decision of the trial court is
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

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