IN RE: D.K.
New Hanover County
No. 02 J 403
Julia Talbutt, for petitioner New Hanover County Department of
Social Services.
Regina Floyd-Davis, for Guardian ad Litem-appellee.
Peter Wood, for respondent-appellant father.
Lisa Skinner Lefler, for respondent-appellant mother.
HUDSON, Judge.
In May 2003, New Hanover County Department of Social Services
(DSS) filed a petition to terminate the parental rights of
respondent mother and respondent father as to their three
biological children. A hearing was held on this matter in district
court on 21 July 2003. The court entered an order terminating the
parental rights of both parents on 18 March 2004. Both parents
signed relinquishment of their parental rights as to the older two
children, but appeal the termination of parental rights of the
youngest child, D.K. For the reasons set forth below, we dismiss
respondent mother's appeal and affirm the decision of the trial
court as to respondent father.
D.K. was born in September 2001 and went directly from thehospital into foster care. He was adjudicated a dependent child at
risk of neglect on 17 January 2002. Later in January 2002, DSS
placed D.K. with respondent mother; the two older children were
already living with her at the time. As conditions of this
placement, the child's maternal grandmother was required to reside
in the home with respondent mother and the children were not to be
exposed, without the trial court's permission, to respondent
father, who had committed domestic violence against respondent
mother.
As a result of his premature birth, recurrent respiratory
problems, and weight-gain issues, D.K. requires special services,
such as a parent aide, early childhood intervention, and physical
and occupational therapy. While D.K. was in his mother's care,
respondent mother was inconsistent about keeping D.K.'s
appointments and the physical and occupational therapists reported
having trouble contacting her. Respondent father was also seen
entering the home while the children were placed with respondent
mother. In July 2002, DSS placed D.K. in foster care again.
Thereafter, the maternal grandmother left respondent mother's home
and respondent mother lost her housing. Although respondent mother
went to a domestic violence shelter at least twice, she quickly
returned to living with or near respondent father. Respondent
mother visited with D.K. regularly while he was in foster care, but
respondent father did not participate in regular visitation with
any of his children.
Respondent mother first argues that the trial court erred infailing to appoint a guardian ad litem for her. In support of this
argument, she cites N.C. Gen. Stat. § 7B-602(b)(1). Although this
statute has since been amended, the version effective when the TPR
petition was filed required appointment of a guardian ad litem for
the parent
[w]here it is alleged that the juvenile is a
dependent juvenile within the meaning of G.S.
7B-101 in that the parent is incapable as the
result of substance abuse, mental retardation,
mental illness, organic brain syndrome, or any
other similar cause or condition of providing
for the proper care and supervision of the
juvenile.
N.C. Gen. Stat. § 7B-602(b)(1) (2003). However, N.C. Gen. Stat.
§ 7B-602 governs the appointment of counsel at the time of the
original petition for abuse, neglect, or dependency. Here,
respondent mother is appealing from the TPR, not from the initial
adjudication, and thus N.C. Gen. Stat. § 7B-602(b)(1) is not
applicable. At the time the TPR petition was filed, N.C. Gen.
Stat. § 7B-1101 required that the court appoint a guardian ad litem
where petitioners sought to terminate the parent's rights for
alleged “incapability to provide proper care and supervision . . .
[as a] result of substance abuse, mental retardation, mental
illness, organic brain syndrome, or another similar cause or
condition.” N.C. Gen. Stat. § 7B-1101 (2003). But respondent
mother does not cite or argue N.C. Gen. Stat. § 7B-1101, and more
importantly, she did not include the TPR petition in the record on
appeal.
It is well-established that the appellant bears the duty of
ensuring that the record on appeal is complete. Tucker v. GeneralTel. Co. of the Southeast, 50 N.C. App. 112, 118, 272 S.E.2d 911,
915 (1980). Rule 9 of the Rules of Appellate Procedure requires
that copies of the pleadings be included in the record on appeal.
N.C. R. App. P. 9(1)(d) (2004). The pleadings are an essential
part of the record which advise the Court as to the nature of the
action or proceeding. Allen v. Allen, 235 N.C. 554, 555, 70 S.E.2d
505, 506 (1952). Our Courts have held that the absence of
pleadings or the complaint from the record necessitate dismissal.
Williams v. Asheville Contracting Co., 259 N.C. 232, 234, 130
S.E.2d 340, 341 (1963); Griffin v. Barnes, 242 N.C. 306, 307, 87
S.E.2d 560, 561 (1955). In a TPR case, the relevant pleading is
the petition for termination of parental rights. In re Triscari
Children, 109 N.C. App. 285, 287, 426 S.E.2d 435, 436 (1993). “The
North Carolina Rules of Appellate Procedure are mandatory and
failure to follow these rules will subject an appeal to dismissal.”
Viar v. N.C. DOT, 359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005)
(internal citation and quotations omitted). We conclude that
without the TPR petition in the record, we cannot address
respondent mother's appeal and thus we dismiss her appeal.
We turn now to the appeal of respondent father, who first
argues that the trial court erred in failing to conduct a hearing
to determine if he was entitled to substitute court-appointed
counsel. A parent in a TPR proceeding is entitled to appointed
counsel. N.C. Gen. Stat. § 7A-451(a)(14) (2003). This right
includes the right to effective assistance of counsel. In re
Oghenekevebe, 123 N.C. App. 434, 436, 473 S.E.2d 393, 396 (1996). Here, the court appointed counsel for respondent as required, but
respondent was dissatisfied with the appointed counsel. At the TPR
hearing, the following exchange took place between respondent
father, his attorney (Mr. Owens), and the court:
THE COURT: Okay, [Respondent], Mr. Owens when
we began the trial said that he was not sure
whether you wanted him to represent you or
not. And I at that time ordered that he was
representing you. Do you want Mr. Owens to
represent you or do you want to represent
yourself?
[RESPONDENT]: I mean, I ain't got no choice.
I mean, I want a fair trial, but I want-if my
lawyer don't know what's going on and he
doesn't get no papers, and I don't get no
papers, I didn't get no-
THE COURT: This is a simple question. Do you
want Mr. Owens to represent you or do you want
to represent yourself?
[RESPONDENT]: I guess I'll have Mr. Owens
represent me.
MR. OWENS: Your honor, he has represented to
me that he is very disappointed with my
services, your Honor. I do not feel that I
could adequately represent him at this time.
THE COURT: Well, I appreciate that, but. . .
this is the day of trial, and it's not going
to be continued, and you've been appointed by
the Court. He says he wants you to represent
him.
MR. OWENS: If that is true, I'll be happy to
represent him, your Honor. I don't know if
that is actually-
THE COURT: He just said that.
MR. OWENS: _-a true statement.
THE COURT: Do you want to represent yourself
or do you want Mr. Owens to represent you?
[RESPONDENT]: I guess I have to have Mr. Owensrepresent me.
THE COURT: Okay. Do you have any questions
Mr. Owens?
The right to appointed counsel does not include the right to
appointed counsel of one's choosing. State v. Robinson, 290 N.C.
56, 65-66, 224 S.E.2d 174, 179 (1976). “[I]n 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.” In re S.L.L., 167
N.C. App. 362, 364, 605 S.E.2d 498, 499 (2004). This holds true in
the context of a TPR hearing as well as in a criminal case. Id.
“Mere dissatisfaction with one's counsel is not a substantial
reason for the appointment of replacement counsel.” Id. Whether
or not to appoint replacement counsel rests within the discretion
of the trial court. Robinson, 290 N.C. at 66, 224 S.E.2d at 180.
Respondent has not asserted ineffective assistance of counsel, but
rather, has only expressed “mere dissatisfaction” with his counsel.
Furthermore, the trial court heard respondent on the matter and
respondent fails to cite any authority which would have required
the trial court to make any further inquiry. We conclude that the
trial court did not abuse its discretion and thus overrule this
assignment of error.
Respondent father also argues that several of the court's
findings of fact were not supported by competent evidence and that
the findings do not support the conclusion of law that there were
grounds to terminate his parental rights. We disagree.
In reviewing a TPR order, this Court must determine “whetherthe findings of fact are supported by clear and convincing
evidence,” and “whether the legal conclusions are supported by the
findings of fact.” In re Gleisner, 141 N.C. App. 475, 480, 539
S.E.2d 362, 365 (2000). Our review of the record and transcript
reveals ample clear and convincing evidence to support each of the
contested findings of fact. Prior orders of the court, testimony
from social workers, testimony from respondent mother, and
testimony from respondent father, support the findings. These
findings show, in relevant part: respondent's failure to comply
with court-ordered services required for visitation with D.K.;
respondent's drug use; respondent's failure to visit with and
support D.K.; respondent's failure to maintain communication with
DSS; respondent's violation of the court order that he not have
unsupervised contact with the children in respondent mother's home;
respondent father's domestic violence relationship with respondent
mother; respondent father's unwillingness to cooperate with DSS and
his misrepresentation of material facts to DSS; and that respondent
father has never provided a home or financial or emotional support
for any of his children and has not participated in reunification
plans. We conclude that these findings, as well as those
unchallenged on appeal, support the trial court's conclusion that
grounds existed to terminate respondent's parental rights of D.K.
for neglect.
The court may terminate parental rights upon finding that the
parent has neglected the juvenile, if the court finds the juvenile
to be neglected with the meaning of N.C. Gen. Stat. § 7B-101. N.C.Gen. Stat. § 7B-1111(a)(1) (2003). A neglected juvenile is defined
as
[a] juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; or
who has been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of law. In determining
whether a juvenile is a neglected juvenile, it
is relevant whether that juvenile lives in a
home where another juvenile has died as a
result of suspected abuse or neglect or lives
in a home where another juvenile has been
subjected to abuse or neglect by an adult who
regularly lives in the home.
N.C. Gen. Stat. § 7B-101(15) (2003). Respondent correctly asserts
that “termination of parental rights for neglect may not be based
solely on conditions which existed in the distant past but no
longer exist.” In re Ballard, 311 N.C. 708, 714, 319 S.E.2d 227,
231-32 (1984). “The trial court must [] consider any evidence of
changed conditions in light of the evidence of prior neglect and
the probability of a repetition of neglect.” Id. at 715, 319
S.E.2d at 232 (citation omitted). The court must consider “the
fitness of the parent to care for the child at the time of the
termination proceeding. Id. (emphasis in original). Respondent
contends that because he never had custody of D.K., he never
neglected him, and that there is nothing upon which to base the
probability of future neglect. This argument lacks merit. The
trial court's findings reveal sufficient consideration of
respondent's fitness to parent at the time of the TPR proceeding;
we overrule this assignment of error. Finally, respondent father contends that the trial court
abused its discretion in concluding that termination of his
parental rights was in the best interest of D.K. After the trial
court finds at least one statutory ground for termination of
parental rights, it must then exercise its discretion to determine
whether termination is in the best interest of the child. N.C.
Gen. Stat. § 7B-1110 (2003); In re Blackburn, 142 N.C. App. 607,
610, 543 S.E.2d 906, 908 (2001). We review the trial court's
decision whether to terminate parental rights for abuse of
discretion. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599,
602 (2002). Here, given the trial court's findings and conclusions
of respondent's past neglect and high probability of future
neglect, as well as its determination that D.K. was in a foster
home with committed foster parents who wished to adopt, we cannot
conclude that the trial court abused its discretion in terminating
respondent father's parental rights.
Dismissed as to respondent mother.
Affirmed as to respondent father.
Judges STEELMAN and JACKSON concur.
Report per Rule 30(e).
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