IN RE: J.T.S. Rockingham County
Nos. 05 JT 128
05 JA 128
Jacqueline D. Stanley, for respondent-appellant.
No brief filed by petitioner-appellee.
CALABRIA, Judge.
B.J.S. (“respondent”) appeals from an order terminating his
parental rights to J.T.S. (“J.T.S.”), a minor child, on the ground
that he was denied effective assistance of counsel. Although the
order also terminated the parental rights of respondent-mother
B.M.T. (“B.M.T.”), she is not a party to the instant appeal. We
affirm.
The record shows that J.T.S. was born prematurely at Forsyth
Medical Center in July of 2005. The child tested positive for
cocaine and was diagnosed with a heart condition called
supraventricular tachycardia. B.M.T. admitted using cocaine within
two weeks of the child's birth and identified respondent, who was
incarcerated, as the child's putative father. Other than a single
telephone call on 1 August 2005, B.M.T. ceased her involvement withthe child after leaving the hospital on 19 July 2005. J.T.S.
remained in neonatal intensive care until being transferred to
Brenner's Children's Hospital on 27 July 2005. Attempts by
Rockingham County Department of Social Services (“DSS”) to locate
B.M.T. were unavailing.
J.T.S. was placed in therapeutic foster care due to the lack
of an available parent and the special care required for her heart
condition. DSS filed a petition for temporary custody on grounds
of neglect and dependency in August of 2005. Respondent was
released from prison in September of 2005. The District Court heard
the petition on 29 November 2005, and entered an adjudication of
neglect and dependency on 29 November 2005. The court found, inter
alia, that respondent had no driver's license, lacked stable
employment or suitable housing, and was in treatment for an
“admitted cocaine habit.” It further found that his incarceration
for selling cocaine at the time of J.T.S.'s gestation and birth
constituted neglect, and that his “failure to have a stable home
for [himself] and the child, both at the time of her birth and at
the time of th[e] hearing, consitute[d] dependence.” Inasmuch as
respondent had not sought services from DSS, the court found it
reasonable for DSS to await the results of his paternity test
before developing a case plan for him. The court noted that
respondent did not return to the hearing after the midday recess.
Following a permanency planning hearing held 16 February 2006,
the court ceased reunification efforts and changed J.T.S.'spermanent placement plan to adoption. In its order entered 5 April
2006, the court made the following findings related to respondent:
3. Since the previous hearing, paternity of
the juvenile has been established through
genetic testing. [Respondent ] was found to be
the child's father by more than a 99%
probability. A letter was sent to
[respondent] informing him of this and asking
that he contact RCDSS but he has not done so.
His last contact with RCDSS was at the
Adjudication court date. Although he received
notice of today's hearing, he is not present.
. . .
5. The juvenile has been in a placement
outside the home for six months, since August
2005, and the parents have not entered a
services agreement or made any effort to
correct the conditions that led to the child's
removal. The parents have not even contacted
RCDSS to request visitation with the child.
DSS filed a motion seeking termination of respondent's
parental rights on 1 May 2006, on grounds that he had neglected
J.T.S. and had willfully failed to pay a reasonable portion of the
cost of her foster care for the six months preceding the motion's
filing. N.C. Gen. Stat. § 7B-1111(a)(1), (3) (2005). At a hearing
on the motion held 19 July 2006, DSS social worker Jan Williams
(“Williams”) testified that she wrote to respondent on 12 January
2006, asking him to contact her to begin reunification services and
visitation with J.T.S. Williams also provided respondent with the
name and telephone number of his child-support caseworker, Christy
Bray, and instructed him to contact her. Respondent did not
contact Williams until April of 2006. After a single visit with
J.T.S. in April, respondent did not attempt to contact Williams
again until leaving a telephone message for her two weeks prior tothe termination hearing. Williams attempted to contact respondent,
leaving a message for him at his parents' home, but never heard
back from him. Respondent never contacted his child-support
caseworker. Williams also testified that J.T.S. remained in
therapeutic foster care costing $1500 per month and that respondent
had contributed nothing toward the child's care.
In his testimony, respondent acknowledged that he received
Williams' letter in January of 2006, had not asked to visit J.T.S.
until April, and had visited her only once. He testified that he
stayed the majority of the time with his son in Winston-Salem,
North Carolina. Although he also stayed occasionally with his
parents in Belews Creek, North Carolina, respondent considered his
residence to be the mobile home he owned “about 500 yards up the
road” from his parents' house. His mobile home had running water
but no electricity.
After he was released from prison in October of 2005,
respondent worked for four weeks through a temporary agency in
Winston-Salem, North Carolina. In the six months prior to the
hearing, he had earned approximately $2000 hauling scrap with his
brother. Although he did not need all of this money to support
himself and “could have” paid child support, he “never did get
around to it.” Respondent was in good health and had applied for
jobs in Pine Hall and Kernersville, North Carolina, but had not yet
applied for work in Winston-Salem. He believed he could care for
J.T.S. in his mobile home but did not know when he would be able to
obtain electricity for the residence. In its order terminating respondent's parental rights, the
District Court concluded that respondent had neglected J.T.S. and
had willfully failed to pay a reasonable portion of the cost of her
foster care in the six months preceding DSS's filing of its motion.
N.C. Gen. Stat. § 7B-1111(a)(1), (3) (2005). The court further
concluded that J.T.S. had been born out of wedlock and that
respondent had failed to (1) establish paternity judicially or by
affidavit filed with the Department of Health and Human Services;
(2) legitimate the child; or (3) provide substantial financial
support or consistent care to the child or her mother. N.C. Gen.
Stat. § 7B-1111(a)(5) (2005). Having found grounds for termination
under N.C. Gen. Stat. § 7B-1111(a) (2005), the court determined
that J.T.S.'s best interests would be served by termination of
respondent's parental rights.
In his lone assignment of error on appeal, respondent asserts
that he “was denied due process of law in that he was denied his
right to effective counsel.” We note that this assignment of error
does not identify any particular aspect of counsel's performance
that was wanting and is unsupported by page references to the
hearing transcript. Cf. State v. Walters, 357 N.C. 68, 95, 588
S.E.2d 344, 360 (citing N.C. R. App. P. 10(c)(1)) (2003).
Notwithstanding the broadside nature of respondent's assignment of
error, we will address the series of claims about counsel presented
in his brief.
“A parent has a right to counsel in termination of parental
rights proceedings.” In re J.A.A., 175 N.C. App. 66, 74, 623 S.E.2d45, 50 (2005). “To prevail in a claim for ineffective assistance
of counsel, respondent must show: (1) h[is] counsel's performance
was deficient or fell below an objective standard of
reasonableness; and (2) h[is] attorney's performance was so
deficient [h]e was denied a fair hearing.” Id. Respondent must
also overcome a “strong presumption that trial counsel's
representation is within the boundaries of acceptable professional
conduct.” State v. al-Bayyinah, 359 N.C. 741, 752, 616 S.E.2d 500,
509 (2005) (citing State v. Fisher, 318 N.C. 512, 532, 350 S.E.2d
334, 346 (1986)).
Respondent asserts that counsel held only one thirty-minute
meeting with him prior to the termination hearing, devoted only
nine and one-half hours outside of court to his case, and generally
did not “invest the time and effort needed” to represent him
properly. He suggests that counsel's failure to interview him in
detail prior to the termination hearing prevented counsel from
raising unspecified objections to Williams' testimony thereby
waiving respondent's “right to challenge any discrepancies in the
testimony on appeal.” Respondent characterizes counsel's cross-
examination of Williams as “pedestrian” and suggests that his
direct examination of respondent “clearly does not reflect nine
hours of preparation.” Respondent also notes counsel's failure to
file responsive pleadings on his behalf.
The record reflects that counsel was appointed to represent
respondent in the original neglect and dependency proceedings on 15
August 2005, representing respondent at each hearing in this causeand filing timely notice of appeal after entry of the termination
order. Although the record does not reflect the number and length
of respondent's meetings with counsel, respondent does not assert
that he sought additional meetings with counsel or that he made
himself available for such meetings. Indeed, respondent chose to
absent himself from hearings in this cause which would have
afforded him the opportunity to meet with counsel and discuss his
case. While complaining of counsel's “pedestrian” performance at
the termination hearing, respondent does not point to any evidence
improperly admitted or excluded at the hearing due to counsel's
handling of the witnesses. In re L.C., __ N.C. App. __, __, 638
S.E.2d 638, 641 (2007). Likewise, respondent does not suggest any
manner in which he was prejudiced by counsel's failure to file a
written response to DSS's motion. Accordingly, we conclude
respondent has not presented a “credible argument to establish how
such counsel's alleged deficiency deprived h[im] of a fair
hearing.” In re B.P., 169 N.C. App. 728, 733, 612 S.E.2d 328, 332
(2005); see also State v. Harris, 338 N.C. 129, 143, 449 S.E.2d
371, 376-77 (1994).
Respondent's remaining allegations find no support in the
materials before this Court and do not suggest any deficiency by
counsel affecting the fundamental fairness of the termination
proceedings. While conceding that counsel advised him to pay child
support and to obtain employment, transportation, and substance
abuse treatment, respondent claims counsel failed to explain the
potential consequences of not paying child support. He furtheravers that there is “no evidence” his counsel arranged his child
support payments with DSS. Similarly, respondent faults counsel
for failing to explain “in terms that he could understand” the
potential consequences of not visiting J.T.S., and for not
arranging his visitation schedule with DSS. According to
respondent, counsel also did not explain the importance of
legitimating J.T.S. pursuant to N.C. Gen. Stat. § 49-10 (2005).
Finally, respondent finds “no indication” that counsel assessed
the extent of his substance abuse problem in order to determine if
he was entitled to appointment of a guardian ad litem pursuant to
N.C. Gen. Stat. § 7B-1101.1 (2005).
“There is a presumption of regularity in a trial. In order to
overcome this presumption, it is necessary that matters which
constitute material and reversible error appear in the record on
appeal.” In re Howell, 161 N.C. App. 650, 654, 589 S.E.2d 157, 159
(2003) (citing State v. Sanders, 280 N.C. 67, 72, 185 S.E.2d 137,
140 (1971)). The record before this Court does not reveal the
nature or extent of counsel's advice to respondent regarding his
responsibilities as a parent. However, the evidence does show that
DSS social worker Williams contacted respondent directly on 12
January 2006, providing respondent with the information necessary
to schedule visitations with J.T.S. and to begin paying child
support if he were inclined to do so. It was not counsel's duty to
convince respondent to show an interest in his child before the
motion for termination was filed. Inasmuch as counsel did not
impede respondent's ability to visit or provide support for J.T.S.,respondent's allegations do not touch upon the fundamental fairness
of these proceedings.
To the extent respondent asserts that counsel should have
advised him to legitimate J.T.S. pursuant to N.C. Gen. Stat. § 49-
10 (2005), we note that lack of legitimation was not alleged as a
ground for termination by DSS; nor was respondent's failure to
legitimate J.T.S. the sole ground for termination found by the
court. Cf. In re B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d 89,
93-94 (2004) (providing that any single valid ground for
termination is sufficient). Finally, while respondent suggests
that counsel should have investigated the extent of his substance
abuse with an eye to seeking appointment of a guardian ad litem
under N.C. Gen. Stat. § 7B-1101.1 (2005), he does not assert that
he qualified for appointment of a guardian. As amended effective
1 October 2005, the statute authorizes the appointment of a
guardian ad litem for a parent only where “there is a reasonable
basis to believe that the parent is incompetent or has diminished
capacity and cannot adequately act in his or her own interest.”
N.C. Gen. Stat. § 7B-1101.1(c) (2005). Absent some indication that
he was incompetent or suffering from diminished capacity,
respondent cannot show deficient performance by counsel or
prejudice arising therefrom.
Affirmed.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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