IN THE MATTER OF:
Davie County
J.R.T. No. 01 J 78
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
Affirmed.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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