IN RE:
Mecklenburg County
Nos. 06 JT 915-918
M.M., L.M., Q.M., and R.G.
Mecklenburg County Attorney's Office, by Tyrone C. Wade, for
petitioner-appellee.
Jon W. Myers, for respondent-appellant.
Pamela Newell Williams, for guardian ad litem.
ELMORE, Judge.
Respondent-appellant (respondent) is the mother of four
children, M.M., L.M., Q.M., and R.G. She appeals from an order
terminating her parental rights to them on the grounds that she (1)
neglected the children; (2) left them in foster care or placement
outside the home for more than twelve months without showing to the
court's satisfaction that, under the circumstances, she had made
reasonable progress correcting those conditions which led to the
removal of the children from the home; and (3) willfully failed to
pay a reasonable portion of the cost of care for the children for
a continuous period of six months immediately preceding the filing
of the petition. The Mecklenburg County District Court adjudicated the
juveniles as neglected and dependent on 15 July 2005 and placed
them with the Mecklenburg County Department of Social Services
(petitioner). On 13 February 2006, the court relieved petitioner
of efforts to reunify the children with their parents and on 15
June 2006 signed a permanency planning order establishing the plan
as adoption. On 8 August 2006, petitioner filed petitions to
terminate the parental rights of respondent and the children's
fathers. Petitioner served respondent with the petitions by
certified mail and respondent signed receipts indicating that she
had received the petitions. Respondent's attorney, John Ross,
filed answers to the petitions on respondent's behalf on 11
September 2006. The court conducted a permanency planning review
hearing on 6 November 2006, which respondent's attorney attended,
but respondent did not. The court scheduled the parental rights
termination hearing for 18 December 2006.
At the call of the termination petition for hearing,
respondent's attorney moved to withdraw as counsel. Counsel stated
to the court that he spoke to respondent after the petitions to
terminate parental rights were served on respondent; that
respondent failed to appear for the permanency planning hearing on
6 November 2006; that respondent failed to attend a meeting at his
office a few weeks prior to the termination hearing; that
respondent called his office during the week prior to the hearing,
but he could not meet with her during that week because of his
schedule; and that respondent failed to appear for the terminationhearing. Petitioner did not object to counsel's withdrawal. The
court allowed counsel's motion to withdraw.
The court heard testimony from the social worker assigned to
the children and, at the conclusion of the hearing, rendered a
decision terminating respondent's parental rights to the children.
The court filed a written order on 23 January 2007. Respondent
timely filed notice of appeal.
Respondent first contends that the court erred by allowing
counsel's motion to withdraw. As in a criminal proceeding, an
indigent parent faced with termination of parental rights has the
right to appointed counsel. N.C. Gen. Stat. § 7B-1101.1(a)
(2005). However, we note that in a criminal proceeding, an
attorney may be allowed by the court to withdraw “upon a showing of
good cause.” N.C. Gen. Stat. § 15A-144 (2005). The decision
whether to allow counsel to withdraw is addressed to the discretion
of the trial judge, whose ruling is reversible only for abuse of
discretion. Benton v. Mintz, 97 N.C. App. 583, 587, 389 S.E.2d
410, 412 (1990). An abuse of discretion occurs when the trial
court's ruling is “so arbitrary that it could not have been the
result of a reasoned decision.” White v. White, 312 N.C. 770, 777,
324 S.E.2d 829, 833 (1985).
Here, respondent failed to attend the last review hearing, she
failed to keep the single scheduled appointment with her lawyer,
and she failed to attend the termination hearing, even though her
lawyer had told her about the hearing. When a parent fails to
appear for the first hearing following the filing of a petition alleging neglect or dependency, the court is required to discharge
a provisionally-appointed attorney in cases filed on or after 1
October 2005. N.C. Gen. Stat. § 7B-602(a)(1) (2005). Moreover, a
parent's “inaction prior to the hearing and . . . failure to appear
at the hearing constitute a waiver of [the parent's] right to
counsel,” and the trial court does not err by not appointing
counsel in those circumstances. In re R.R., N.C. App. ,
___, 638 S.E.2d 502, 507 (2006). Accordingly, we hold that the
court did not abuse its discretion by allowing counsel to withdraw.
Respondent next contends that she was denied her right to
effective assistance of counsel by counsel's withdrawal from the
case. “The right to counsel [in a parental rights termination
proceeding] includes the right to effective assistance of counsel.”
In re Oghenekevebe, 123 N.C. App. 434, 436, 473 S.E.2d 393, 396
(1996) (quotation and citation omitted). However, a party's right
to counsel may be waived by failure to appear at the termination
hearing. In re R.R., N.C. App. at , 638 S.E.2d at 507. This
Court will not uphold a claim of ineffective assistance of counsel
if the asserted ineffectiveness is a product of the client's own
actions or lack of cooperation. See In re Bishop, 92 N.C. App.
662, 666-67, 375 S.E.2d 676, 679-80 (1989) (holding that when “the
lack of preparation for trial is due to a party's own actions, the
trial court does not err in denying a motion to continue,” and does
not deprive the party of effective assistance of counsel). This
assignment of error is overruled.
By her next assignments of error, respondent challenges thecourt's conclusions that three grounds exist to terminate her
parental rights. Termination of parental rights requires proof by
clear, cogent, and convincing evidence that a statutory ground to
terminate rights exists. In re Young, 346 N.C. 244, 247, 485
S.E.2d 612, 614 (1997). The court's determination of the existence
of a ground is a conclusion of law. In re Helms, 127 N.C. App.
505, 510, 491 S.E.2d 672, 675-76 (1997). “Our review of a trial
court's conclusions of law is limited to whether they are supported
by the findings of fact.” Id. at 511, 491 S.E.2d at 676 (citation
omitted).
We first address the court's conclusion of law that
respondent neglected the child, a ground for termination of
parental rights established by N.C. Gen. Stat. § 7B-1111(a)(1). A
neglected juvenile is defined as one
who does not receive proper care, supervision,
or discipline from the juvenile's parent,
guardian, custodian, or caretaker; or who has
been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15) (2005). When determining whether a
child is neglected at the time of the termination hearing, the
court considers evidence of neglect by a parent prior to losing
custody of a child, including an adjudication of such neglect, and
“any evidence of changed conditions in light of the evidence of
prior neglect and the probability of a repetition of neglect.” In
re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984) (citationomitted).
The court found that after the children were removed from the
home, domestic violence continued to occur between respondent and
the father of the younger children. Respondent continued to have
a relationship with this man despite the domestic violence, much of
which occurred in the presence of the juveniles. Respondent “has
a dependency on the father and others to meet her needs such that
she poses a significant risk to the well[-]being of her children
and this risk is substantial if not guaranteed.” The court
concluded that the neglect which was in existence at the time of
the original petition is likely to continue into the foreseeable
future given the long history of domestic violence in this case and
the failure of the parents “to address even minimally the issues of
domestic violence . . . .”
These findings are supported by clear, cogent, and convincing
evidence. The social worker testified that petitioner first
received calls regarding domestic violence between respondent and
the father on 5 August 2002. Petitioner subsequently received
three other referrals regarding domestic violence before the
children were removed from the home in July, 2005. On 1 November
2005, the social worker observed that respondent's eye was purple
and black. Respondent related that on 30 October 2005 the father
had pulled her by the hair into a car and punched her in the left
side of her face. The social worker helped respondent obtain a
domestic violence protective order. The social worker later
learned that respondent had resumed a relationship with the father,who never completed a domestic violence program as required by his
case plan. This repetition of the cycle of domestic violence
occurs in part because respondent “has a hard time maintaining
independence on her own.” Respondent has a history of unemployment
and inability to maintain housing. The social worker last spoke
with respondent by telephone on 13 December 2006, a few days before
the termination hearing. She told respondent about the termination
hearing. Respondent failed to appear for the termination hearing.
We hold that the court properly concluded that respondent
neglected the children. Having determined that at least one ground
for termination of rights exists, we need not consider the other
grounds found by the trial court. See In re R.R., ___ N.C. App. at
___, 638 S.E.2d at 505 (“A single ground for termination is all
that is required for proper termination.”) (citation omitted).
By the final assignment of error argued in her brief,
respondent contends that the court erred and abused its discretion
by concluding that the best interests of the children would be
served by termination of respondent's parental rights. She argues
that this conclusion is not supported by findings of fact based
upon clear, cogent, and convincing evidence.
“The trial court has discretion, if it finds that at least one
of the statutory grounds exists, to terminate parental rights upon
a finding that it would be in the child's best interests.” In re
Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001)
(citations omitted). The court is to take “[a]ction which is in
the best interests of the juvenile” when “the interests of thejuvenile and those of the juvenile's parents or other persons are
in conflict.” N.C. Gen. Stat. § 7B-1100(3) (2005). The court's
decision to terminate parental rights is reviewable only for abuse
of discretion. In re McMillon, 143 N.C. App. 402, 408, 546 S.E.2d
169, 174 (2001).
Respondent has failed to show any abuse of discretion. The
court's findings of fact show that the children experienced
emotional and physical trauma and witnessed acts of domestic
violence while in respondent's care. The oldest child had pulled
out her eyebrows and eyelashes because of anxiety. Since being in
foster care and undergoing therapy, her eyebrows are slowly
beginning to grow back. Another child is now receiving medical
services and is doing well. All of the children are now in stable
homes.
The order terminating respondent's parental rights is
affirmed.
Affirmed.
Judges MCGEE and TYSON concur.
Report per Rule 30(e).
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