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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA06-1366


Filed: 19 June 2007


    I.S.K.,                    Mecklenburg County
    a Minor Child.                No. 05-JT-916

    Appeal by respondent from an order entered 16 February 2006 by Judge Lillian B. Jordan in Mecklenburg County District Court. Heard in the Court of Appeals 26 April 2007.

    Tyrone C. Wade for petitioner Mecklenburg County Department of Social Services.

    Katharine Chester for respondent-father.

    Kilpatrick Stockton LLP, by Susan H. Boyles, for the Guardian ad Litem.

    BRYANT, Judge.

    W.B.   (See footnote 1)  (respondent) appeals from an order entered 16 February 2006 terminating his parental rights to his minor child, I.S.K. For the reasons stated herein, we reverse and remand for a new hearing.

Facts and Procedural History

    On 9 February 2005, Mecklenburg County Department of Social Services (DSS) filed a petition alleging three minor children, I.K., I.S.K., and Z.J., were neglected and dependent. The petition alleged neglect by their mother and three different fathers. Respondent is the father of I.S.K. and has been incarcerated in federal prison since I.S.K. was a baby and is not scheduled for release until 21 July 2016. I.S.K. and the other two children were subsequently adjudicated neglected and dependent on 28 April 2005.
    DSS and the courts worked with the mother and available fathers until 13 October 2005 at which time, due to lack of progress, the court changed the permanent plan to termination/adoption with a concurrent plan of guardianship. Termination petitions were filed on 13 September 2005 and this matter came on for hearing on 10 January 2006 before the Honorable Lillian B. Jordan. On 9 February 2006, the court entered an order terminating parental rights of respondent to I.S.K. Respondent appeals.

    The dispositive issue before this Court is whether respondent received ineffective assistance of counsel at the hearing on the petition to terminate his parental rights regarding I.S.K. We first note that this Court's review of claims of ineffective assistance of counsel “will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). Based on our review of the record before this Court, we concludethat we may address defendant's claim of ineffective assistance of counsel on the merits.
    It is well established that “[a] parent has a right to counsel in termination of parental rights proceedings.” In re J.A.A. & S.A.A., 175 N.C. App. 66, 74, 623 S.E.2d 45, 50 (2005); see also N.C. Gen. Stat. § 7B-1101.1(a) (2005). Implicit in this right to counsel is the right to effective assistance of counsel. In re Oghenekevebe, 123 N.C. App. 434, 436, 473 S.E.2d 393, 396 (1996). “To prevail in a claim for ineffective assistance of counsel, respondent must show: (1) [the] counsel's performance was deficient or fell below an objective standard of reasonableness; and (2) [the] attorney's performance was so deficient [respondent] was denied a fair hearing.” In re J.A.A., 175 N.C. App. at 74, 623 S.E.2d at 50.
    Here, the record shows that, on 9 February 2005, an Assistant Clerk of Superior Court for Mecklenburg County appointed Mr. Lucky Osho to represent respondent in this matter. On the day of the hearing, Mr. Osho informed the trial court that respondent was not and did not wish to be present at the hearing, as indicated in a letter respondent sent to both Mr. Osho and the trial court. Mr. Osho also informed the trial court that he was required to attend a calendar call in federal court that morning and moved to continue the hearing until later the same day. The trial court initially was amenable to the continuance, but upon objection by petitioner the trial court asked if Mr. Osho could obtain substitute counsel to represent respondent in the hearing to terminate respondent'sparental rights. The proceedings briefly halted and upon resumption a Mr. Michael McDonald identified himself as substitute counsel for Mr. Osho. Mr. Osho did not object to the trial court's suggestion of substitute counsel, even though the Rules of the Commission on Indigent Defense Services provide that “[t]he attorney named in the appointment order shall not delegate to another attorney any material responsibilities to the client, including representation at critical stages of the case.” Rules of the Commission on Indigent Defense Services, R. 1.5(d)(2) (Jul. 8 2005); Cf. State v. Carter, 66 N.C. App. 21, 23, 311 S.E.2d 5, 7 (1984) (“In any criminal case where the defendant is found to be indigent and receives the services of court-appointed counsel it is only the specifically named counsel . . . that has the delegated right and duty to appear and participate in the case.”).
    There is no indication in the record before this Court detailing a conference between Mr. Osho and Mr. McDonald regarding respondent's wishes or any possible trial strategy. During the hearing, Mr. McDonald conducted a brief cross-examination of the DSS social worker assigned to this case, concentrating mainly on issues of respondent's ability to financially support his child. However, Mr. McDonald never objected to a single question asked by opposing counsel, even after the trial court sustained its own objection to hearsay testimony and stated, “I don't know what these lawyers do in here.” Mr. McDonald did not present any direct evidence regarding respondent's case. His only advocacy other thanthe brief cross-examination of the DSS social worker, came during his closing argument, where he stated:
        As it pertains to [respondent], I guess this Court has already determined the child is neglected and dependant as to (inaudible). (Inaudible) being the first time on this case, there still is the question as far as neglect. As to dependency, the child is dependent financially. The petition in this case was filed after [respondent] was incarcerated. Therefore, any circumstances which led to the child being neglected, he didn't have a direct correlation in that. Talking to his attorney, Mr. Osho, it is my understanding that [respondent] will be incarcerated until 2016, and it's his intent, you know, he will not be able to care for the child in the manner in which the child needs to be taken care of during her minority because of the incarceration. So for that extent, Your Honor, we have no objection to the Department's recommendations.

    Mr. McDonald's closing statement is in direct conflict with respondent's position expressed in a letter sent on 3 October 2005 to the trial court and Mr. Osho, detailing his wishes and how he would like to see this matter resolved:
        I [W.B.] . . . am writing this letter on behalf of my concern concerning [I.S.K.] my daughter. Unfortunately I am unable to be present at the current time do [sic] to my incarceration and need of rehabilitation for a crime. . . . Do [sic] to my lack of willingness to chose [sic] and achieve a better future for tomorrow has cost me a great deal of freedom and the chance to be in my little girls [sic] presence and life right now. . . . I would like to thank the Youth and Family Services division for steping [sic] in and helping do what is best for my daughter. So I [W.B.] am giving the maternal grandmother all legal rights to primary custody of [I.S.K.] on my behalf until I get my life together and be able to provied [sic] for the child physically as well as financially to do so. I would like for the maternal grandmotheron my behalf to make all the right decision concerning my daughter needs [sic] and legal rights. . . . I [W.B.] give up primary custody rights to the maternal grandmother. . . . Thank you kindly. . . .

This letter does not indicate that respondent intended to relinquish his parental rights as to I.S.K. Rather, the letter establishes that respondent realized granting custody of I.S.K. to the maternal grandmother was prudent under the circumstances, but that he also wanted his parental rights protected so that he could develop a future parental relationship with I.S.K.
    Due to Mr. McDonald's misstatement of respondent's position in this matter, the trial court found that grounds existed to terminate respondent's parental rights to I.S.K., so finding “especially since apparently [respondent] has no objection to the termination.” From the record before this Court it is clear that Mr. McDonald's representation of respondent in this matter was so deficient that respondent was denied a fair hearing. Because we find this issue dispositive of this case on appeal, we need not consider respondent's remaining arguments. Accordingly, we reverse and remand for a new hearing.
    Judges McCULLOUGH and STROUD concur.
    Report per Rule 30(e).

Footnote: 1
    Initials are used throughout to protect the identity of the juvenile.

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