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.
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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.
Reversed.
Judges McCULLOUGH and STROUD concur.
Report per Rule 30(e).
Footnote: 1