Return to
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-291


Filed: 3 July 2007

IN THE MATTER OF:                            Haywood County
                                        No. 05-J-138

    Appeal by respondent from an order entered 5 December 2006 by Judge Steven J. Bryant in Haywood County District Court. Heard in the Court of Appeals 4 June 2007.

    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:

        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.


        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.
    Chief Judge MARTIN and Judge BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***