IN THE MATTER OF: Haywood County
No. 05-J-138
N.A.F.
Ira L. Dove for petitioner-appellee Haywood County Department
of Social Services.
Ann H. Davis for appellee Guardian ad Litem.
Keith Clark for respondent-appellee.
Peter Wood for respondent-appellant.
HUNTER, Judge.
Respondent is the father of N.A.F., a child born in 2001. On
22 September 2005 the Haywood County Department of Social Services
(“DSS”) filed a petition seeking to terminate respondent's parental
rights to the child. Respondent was served with a summons and the
petition on 27 September 2005. Respondent did not file a
responsive pleading nor appear at the hearing held upon the
petition to terminate his parental rights on 23 March 2006. The
court filed an order on 11 April 2006 terminating respondent's
parental rights.
On 28 July 2006 respondent filed a motion to set aside the
order terminating his parental rights. In the motion he allegedthat he believed that an attorney, Caleb Decker (“Mr. Decker”), had
been appointed to represent him in the case; that he sent e-mails
and left telephone messages with Mr. Decker; that Mr. Decker
notified respondent to make an appointment with him but that Mr.
Decker failed to return respondent's telephone calls; and that on
23 March 2006 respondent arrived late for court and learned that
the hearing had already been concluded and that Mr. Decker had
never been appointed to represent him at the hearing.
The court heard respondent's motion on 16 November 2006 and
entered an order on 5 December 2006 in which it found as fact,
inter alia, that respondent was given direct personal notice of the
hearing on the petition to terminate parental rights and that
respondent failed to appear in court on 23 March 2006 until after
the conclusion of both the adjudication and disposition hearings.
The court further found that at the time respondent appeared in
court on 23 March 2006, the court appointed counsel to represent
respondent in review proceedings. Respondent did not appeal the
order terminating his parental rights but instead filed a motion to
set aside the order on 28 July 2006, several months after entry of
the order on 11 April 2006. The court also found as fact that
although respondent testified that he contacted and left unanswered
telephone messages for Mr. Decker, who had represented respondent
in a prior proceeding in this matter, at no time did respondent
apply for counsel through the Haywood County Clerk of Superior
Court or directly through the court in this termination proceeding,
nor did he appear in court at the call of the case for hearing. The court found and concluded that respondent presented no evidence
as to any meritorious defense he may have to the termination
proceeding and that respondent failed to show excusable neglect for
his failure to appear for the termination hearing. Accordingly,
the court denied respondent's motion to set aside the order
terminating his parental rights. From the order denying his
motion, respondent appeals.
A trial court's determination of a motion to set aside an
order or judgment is reviewable only for abuse of discretion.
Blankenship v. Town & Country Ford, Inc., 155 N.C. App. 161, 165,
574 S.E.2d 132, 134 (2002), appeal dismissed and disc. review
denied, 357 N.C. 61, 579 S.E.2d 384 (2003). “A judge is subject to
reversal for abuse of discretion only upon a showing by a litigant
that the challenged actions are manifestly unsupported by reason.”
Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980). The
trial court's findings are conclusive on appeal if they are
supported by competent evidence. Gentry v. Hill, 57 N.C. App. 151,
154, 290 S.E.2d 777, 779 (1982).
“To set aside a judgment on the grounds of excusable neglect
under Rule 60(b), the moving party must show that the judgment
rendered against him was due to his excusable neglect and that he
has a meritorious defense.” Thomas M. McInnis & Assoc., Inc. v.
Hall, 318 N.C. 421, 424, 349 S.E.2d 552, 554 (1986). If a
meritorious defense is shown but not excusable neglect, the showing
of a meritorious defense is rendered immaterial and vice versa.
Greitzer v. Eastham, 254 N.C. 752, 755, 119 S.E.2d 884, 887 (1961). What constitutes “excusable neglect” depends
on what may be reasonably expected of a party
in paying proper attention to his case under
all the surrounding circumstances. When a
litigant has not properly prosecuted his case
because of some reliance on his counsel, the
excusability of the neglect on which relief is
granted is that of the litigant, not of the
attorney. The neglect of the attorney will
not be imputed to the litigant unless he is
guilty of inexcusable neglect. The law does
not demand that a litigant in effect be his
own attorney, when he employs one to represent
him. The litigant must exercise proper care.
But the litigant who employs counsel and
communicates the merits of his case may
reasonably rely on his counsel and counsel's
negligence will not be imputed to him unless
he has ample notice either of counsel's
negligence or of a need for his own action.
Dishman v. Dishman, 37 N.C. App. 543, 547-48, 246 S.E.2d 819,
822-23 (1978) (citations omitted), overruled on other grounds by
Pulliam v. Smith, 348 N.C. 616, 620, 501 S.E.2d 898, 900 (1998).
The summons that was served on respondent on 27 September 2005
contains the following notice in clearly legible print:
TO EACH OF THE RESPONDENT(S) NAMED ABOVE:
You are summoned and notified to answer the
attached petition in which the petitioner asks
the Court to terminate the parental rights of
the above named parent(s) to the above named
juvenile. Any written answer to the petition
must be signed within thirty (30) days after
service on you of this summons and a copy of
the petition. A copy of the answer must also
be served on the petitioner or his/her lawyer.
The Court will conduct a hearing to determine
whether one or more grounds alleged in the
petition for terminating parental rights
exist. If the Court finds that one or more
grounds exist, the Court will proceed at that
hearing or a later hearing to determine
whether parental rights should be terminated.
Notice of the date, time and location of the
hearing will be mailed to you by the Clerk ofSuperior Court after you file an answer or
thirty (30) days from the date of service if
you do not file an answer.
ADDITIONAL NOTICE TO THE PARENT(S) NAMED
ABOVE:
If you do not file a written answer to the
attached petition with the Clerk of Superior
Court within thirty (30) days, the Court may
terminate your parental rights.
You have a right to be represented by a lawyer
in this case. If you want a lawyer and cannot
afford one, the Court will appoint a lawyer
for you. You may contact the Clerk of
Superior Court immediately to ask for a court-
appointed lawyer. This is a new case, and any
lawyer appointed to represent you in another
case will not represent you in this case
unless the Court appoints that person
again. . . .
You are entitled to attend any hearing
affecting your parental rights. As described
above, the Clerk will mail you notice of the
date, time, and location of the hearing.
The notice makes it clear in accordance with N.C. Gen. Stat. § 7B-
1106(b)(4) (2005) that this is a new case and that any attorney
previously appointed to represent the parent will not be
representing the parent in this proceeding unless the Court
appoints the lawyer again. The notice also makes it clear that the
parent should ask for the appointment of a lawyer.
Considering respondent received this clear notice, we conclude
respondent should not be allowed to absolve himself of all
responsibility and place all of the blame on a lawyer who was never
appointed to represent him in the termination proceeding.
Respondent failed to appear in a timely fashion for the termination
hearing despite having notice of the time and place of the hearing. Respondent even failed to appear on time for the hearing on his
motion to set aside the judgment.
Respondent cites In re Hopkins, 163 N.C. App. 38, 44, 592
S.E.2d 22, 26 (2004), overruled on other grounds by In re R.T.W.,
359 N.C. 539, 542, 614 S.E.2d 489, 491 (2005), and Little v.
Little, 127 N.C. App. 191, 193, 487 S.E.2d 823, 825 (1997), for the
proposition that the trial court must appoint counsel to represent
a parent despite the parent's inaction prior to the termination
hearing. These cases are distinguishable because the parent in
each case appeared for the termination of parental rights hearing
and requested appointment of counsel prior to commencement of the
termination hearing. Here, respondent did not appear for the
termination hearing until after the hearing had concluded. At
respondent's request, the court did appoint an attorney to
represent respondent on appeal. Respondent did not file notice of
appeal from the order terminating his parental rights.
Respondent also argues that the deprivation of his right to
counsel constituted a meritorious defense. In the context of a
motion to set aside a judgment, a meritorious defense is one which
will constitute a defense to the allegations of the pleadings.
“Unless the Court can now see reasonably that defendants had a good
defense, or that they could make a defense that would affect the
judgment, why should it engage in the vain work of setting the
judgment aside?” Glisson v. Glisson, 153 N.C. 185, 188, 69 S.E.
55, 56 (1910). Whether a person was denied his right to counsel is
a question of law. In re Bishop, 92 N.C. App. 662, 666, 375 S.E.2d676, 679 (1989). “The appropriate remedy for errors of law
committed by the [trial] court is either appeal or a timely motion
for relief under N.C.G.S. Sec. 1A-1, Rule 59(a)(8) (1983).”
Hagwood v. Odom, 88 N.C. App. 513, 519, 364 S.E.2d 190, 193 (1988).
A motion pursuant to Rule 60(b) is not a substitute for an appeal
to review errors of law. Davis v. Davis, 360 N.C. 518, 523, 631
S.E.2d 114, 118 (2006).
We hold respondent has neither shown excusable neglect nor the
existence of a meritorious defense to the petition. We conclude
the court did not abuse its discretion by denying the motion.
Affirmed.
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).
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