An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-31-2

NORTH CAROLINA COURT OF APPEALS

Filed: 18 October 2005

IN THE MATTER OF:

    D.M.H., Jr.,                    Burke County
                                No. 02 J 57
    A minor child.                                
                        

    Appeal by respondent parents from order entered 24 July 2002 by Judge Jonathon L. Jones in Burke County District Court. Heard in the Court of Appeals 11 June 2003.

    Susan J. Hall for respondent-appellant father.

    Rebekah W. Davis for respondent-appellant mother.

    Stephen M. Schoeberle for petitioner-appellee Burke County Department of Social Services.

    Mary R. McKay, guardian ad litem for D.M.H., Jr.

    ELMORE, Judge.

    On 17 February 2004 this Court filed In re Hopkins, 163 N.C. App. 38, 592 S.E.2d 22 (2004), overruled by In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005). There we determined, in part, that the district court had improperly terminated the parental rights of respondent-father regarding his son D.M.H., Jr. (David)   (See footnote 1)  , when it entered an order of termination during a period in which a previous order affecting custody was properly on review at this Court. Due to this appeal from a previous order we interpreted the plainlanguage of N.C. Gen. Stat. § 7B-1003, which allows a court to enter temporary orders affecting the custody of a child while a prior order is on appeal, and held that the district court was divested of jurisdiction to enter permanent orders. See id. at 42, 592 S.E.2d at 25; see also N.C. Gen. Stat. § 7B-1003 (2003). Since a termination order is permanent rather than temporary, we vacated the district court's order terminating respondent-father's parental rights. Id.
    After filing In re Hopkins, DSS petitioned the North Carolina Supreme Court for discretionary review. That review was denied by order of the Court on 30 June 2005. See In re D.M.H. Jr., 359 N.C. 632, 616 S.E.2d 230 (2005). However, the next day, the Court filed In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005), which reversed one of this Court's unanimous, unpublished decisions vacating an order terminating parental rights decided by applying the rationale and analysis of In re Hopkins. In In re R.T.W., the Supreme Court specifically overruled this Court's holding in In re Hopkins regarding the jurisdictional issue. See In re R.T.W., 359 N.C. at 542, 614 S.E.2d at 491. Thereafter, the Supreme Court, ex mero motu, vacated its 30 June 2005 order denying DSS's petition for discretionary review of In re Hopkins, and in lieu of that order, entered an order allowing discretionary review for the limited purpose of remanding In re Hopkins (now In re D.M.H., Jr.) to this Court in light of In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005). Thus, by order of the North Carolina Supreme Court, we now take up that task.    At present, DSS has been involved in David's life for an extraordinary amount of time, approximately twelve years. This Court has also repeatedly been involved in David's life. On 6 May 2003, this Court filed an unpublished opinion remanding David's permanency planning order to the district court for appropriate findings of fact. See In re Hopkins, 157 N.C. App. 572, 579 S.E.2d 520 (2003) (unpublished opinion). We then filed an opinion on 17 February 2004 reviewing the district court's order terminating parental rights. See In re Hopkins, 163 N.C. App. 38, 592 S.E.2d 22 (2004), overruled by In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005). Both of these opinions relayed all the relevant facts necessary to our current review, yet we restate most of them here for clarity.
    After DSS obtained custody of David in March of 1995, he was adjudicated neglected in May. Then in May 1997, DSS allowed David's maternal aunt, Ms. Hopkins, to take custody of him. This was done with the consent of respondent-father, who had just been released from jail and was on parole. Respondent-mother was deemed unsuitable for custody at the time. Ms. Hopkins, in violation of the court's 28 April 1998 order maintaining her custody over David, returned physical custody to respondent-father. At some point during the 1998-1999 school year, David was sexually assaulted at home by respondent-father's step-brother who was living in the house. On 27 September 2001, the district court ordered that home studies be done on both parents and continued any remaining matters until 1 November 2001. On that date, the court reviewed the homestudies, evidence, and testimony and found that neither parent nor Ms. Hopkins was suitable for custody of David. Therefore the court ordered that custody be restored to DSS and ceased any reunification efforts with the three individuals. The district court further scheduled a permanency planning hearing for 29 November 2001.
    Following that hearing, on 7 December 2001 the district court entered an order making adoption the permanent plan for David, ceasing reunification, and requiring DSS to file for termination of parental rights within sixty days. As noted above, we have previously reviewed the sufficiency of that order.
    On 20 March 2002, DSS filed a petition to terminate respondents' parental rights on the basis of grounds listed in N.C. Gen. Stat. § 7B-1111(a)(1) and (2) (2003). On 11 July 2002 the district court conducted a hearing on the petition to terminate respondents' parental rights. By order entered 24 July 2002, the court found that David “has been in the custody of [DSS] from March 19, 1995, to May 1, 1997, and continuously since November 1, 2001,” and his parents have not corrected any of the issues regarding their violence and substance abuse that led to David being adjudicated neglected. The district court also found that:
        6. . . . Ms. Hopkins placed the minor child back with his father, in spite of the fact that 1-2 weeks earlier Mr. Hopkins had been convicted of trespassing on her property and assaulting the father of her child. Subsequently, around October 10, 2002, Mr. Hopkins, after consuming alcohol, allowed the minor child to sleep in the same bed with Boyd Lane, Mr. Hopkins' stepbrother who hadmolested Mr. Hopkins when they were children. As a result, the minor child was molested.

        7. While the minor child was residing with his father, he had numerous behavioral problems in school that Mr. Hopkins failed to appropriately address. Mr. Hopkins also failed to ensure that the minor child completed appropriate counseling after his molestation.

Further, the court found respondent-mother's involvement in David's life to be sporadic and disruptive. As a result, the district court concluded there was sufficient evidence to terminate respondents' parental rights pursuant to N.C. Gen. Stat. § 7B- 1111(a)(2) and (3): willful failure to show progress in correcting the circumstances leading to the minor's removal and willful failure to pay for child care. See N.C. Gen. Stat. § 7B-1111(a)(2) and (3) (2003). The court also concluded that this action would be in the child's best interest. Both parents sought review of the termination order in this Court.
    In a termination of parental rights case, the standard of review is a two-part process: (1) the adjudication phase, governed by section 7B-1109 of our General Statutes, and (2) the disposition phase, governed by section 7B-1110. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). During the adjudication phase, the burden of proof rests on petitioner to prove by clear, cogent, and convincing evidence that one or more of the statutory grounds for termination set forth in section 7B-1111 exists. N.C. Gen. Stat. § 7B-1109(e)-(f) (2001); Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908. The standard of appellate review is whether the trial court's findings are supported by clear, cogent,and convincing evidence and whether the findings support the conclusions of law. In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996).
    Here, neither respondent excepted to any of the relevant findings in the district court's order. Accordingly, the findings are deemed conclusive. See In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003) (“Findings of fact to which a respondent did not object are conclusive on appeal.”) (citing In re Wilkerson, 57 N.C. App. 63, 65, 291 S.E.2d 182, 183 (1982)). Through its third finding of fact, the district court determined that David had been in DSS's custody for over 33 months. Further, the court found that respondent-father allowed David to be placed in a situation where he was sexually assaulted. The district court also conclusively found that respondent-father had failed to address David's “numerous behavioral problems,” or ensure that he completed counseling. These findings support the district court's determination that respondent-father had willfully left David in custody of DSS “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 juvenile.” N.C. Gen. Stat. § 7B- 1111(a)(2) (2003).
    If petitioner meets the burden of proof that grounds for termination exist, the trial enters the disposition phase and the court must consider whether termination is in the best interest of the child. Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908. Itis within the district court's discretion to terminate parental rights upon a finding that it would be in the best interest of the child. Id. at 613, 543 S.E.2d at 910. The district court's decision to terminate parental rights is reviewed under an abuse of discretion standard. In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001). Here, the district court determined that it was in David's best interest to terminate respondent-father's parental rights. Given the circumstances of the case, we cannot find that the district court abused its discretion.
    We now turn to respondent-mother's appeal from the termination order. By her first assignment of error she contends that the trial court erred by denying her request for court-appointed counsel during the termination proceedings. Section 7B-1101 of our General Statutes provides that with respect to termination proceedings, a “parent has the right to counsel and to appointed counsel in cases of indigency unless the parent waives the right.” N.C. Gen. Stat. § 7B-1101 (2003). Section 7B-1106 mandates that the summons issued in connection with termination proceedings include “[n]otice that if they are indigent, the parents are entitled to appointed counsel; the parents may contact the clerk immediately to request counsel[,]” as well as “[n]otice that this is a new case. Any attorney appointed previously will not represent the parents in this proceeding unless ordered by the court[.]” N.C. Gen. Stat. § 7B-1106(b)(3) and (4) (2003). Finally, at the hearing on a TPR petition, the trial court:
        shall inquire whether the juvenile's parents are present at the hearing and, if so, whetherthey are represented by counsel. If the parents are not represented by counsel, the court shall inquire whether the parents desire counsel but are indigent. In the event that the parents desire counsel but are indigent as defined in G.S. 7A-450(a) and are unable to obtain counsel to represent them, counsel shall be appointed to represent them in accordance with rules adopted by the Office of Indigent Defense Services. The court shall grant the parents such an extension of time as is reasonable to permit their appointed counsel to prepare their defense to the termination petition or motion. In the event that the parents do not desire counsel and are present at the hearing, the court shall examine each parent and make findings of fact sufficient to show that the waivers were knowing and voluntary. . . .

N.C. Gen. Stat. § 7B-1109(b) (2003).
    In considering an earlier, substantially similar version of the foregoing statutory scheme, this Court previously stated as follows:
        It is clear from reading the above statutes that the General Assembly did not intend to allow for waiver of court appointed counsel due to inaction prior to the hearing. [Former] G.S. 7A-289.30 makes it quite clear that if the parent is present at the hearing, which respondent undoubtedly was, and does not waive representation, counsel “shall” be appointed. . . . If the party is present in court, waiver can only result from an examination by the trial court and a finding of knowing and voluntary waiver.

Little v. Little, 127 N.C. App. at 191, 192-93, 487 S.E.2d 823, 825 (1997) (emphasis added).
    In the present case, the order terminating rights states:
        Upon the matter being called for hearing, [respondent-mother] requested court-appointed counsel. The Court noted that [respondent-mother] had been served personally on May 21, 2002, with a summons,the petition and notice of the [pre-trial conference] that took place on June 13, 2002; that [respondent-mother] failed to appear at that [pre-trial conference]; that the Court entered an order that day that it would consider such a request if [respondent-mother] made it prior to this day but that the hearing this day would not be postponed in order for her to obtain court-appointed counsel; and that the clerk had communicated the contents of that order to [respondent-mother] over the telephone since the [pre-trial conference]. Therefore, the Court denied her motion.

Similarly, following a colloquy with respondent-mother in which she was requesting an attorney and attempting to explain herself, the transcript from the termination hearing indicates similar resolve from the district court:
        Let the record show that this summons in this proceeding, the record is in the file, was served on [respondent-mother] on 8/21 [sic]. The summons gave her written notice that she needed to come file for a court ordered attorney if she wanted one. She had 30 days to file an answer to this petition to terminate her parental rights.

        Let the record further show that she did not either appear in court, or ask for a court appointed attorney in the scheduled session that was scheduled for review of this matter - -June 13. Nor did she appear before the clerk at any time since the service of the petition to apply for a court appointed attorney. She has not filed a written response to the petition. The time for filing such a response has expired. She was informed by the clerk on the telephone in the clerk's office on June 13 that she needed to appear and apply for a court appointed attorney prior to the -- today's date, if she wanted one. And she was further informed that the proceedings to terminate her parental rights scheduled for today would not be delayed as a result of her failure to do so. . . .

        She's appeared in court this date to apply for a court appointed attorney and the questioningcontinues. The court will deny her application . . . for a court appointed attorney for her failure to appear and apply for an attorney. Because the time to file an answer has expired, and because ths has failed to appear at any proceedings in this matter, at least the last two scheduled sessions. This matter needs to be tried. . . .

    It is apparent from both the order and the transcript that the district court denied respondent-mother's request for court-appointed counsel because of her inaction prior to the termination hearing, not because of her informed and knowing waiver at the hearing. Here, as in Little, respondent-mother was present at the termination hearing, requested appointed counsel, and was denied one because she had not filed an answer or requested a court-appointed attorney prior to the termination hearing. We are thus bound by our previous conclusion in Little that “[t]here is no support, statutory or otherwise, for the trial court's ruling that in North Carolina the right to counsel can be waived by inaction prior to the termination hearing.” Id. at 193, 487 S.E.2d at 825.
    Accordingly, we remand this matter for a new termination hearing with regard to respondent-mother's parental rights. However, we affirm the district court's order terminating respondent-father's parental rights.
    Affirmed in part, remanded in part.
    Judges TIMMONS-GOODSON and HUNTER concur.
    Report per Rule 30(e).


Footnote: 1
     David, a pseudonym, will be used throughout the opinion to protect the minor's privacy.

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