Opinion
No. COA12–650.
2012-11-6
In the Matter of T.V.O., A.H.
Mecklenburg County Department of Social Services, Youth and Family Services, by Twyla Hollingsworth–Richardson, for Petitioner–Appellee. Womble, Carlyle Sandridge & Rice, LLP, by Murray C. Greason, III, for Guardian ad Litem.
Appeal by Respondent from order entered 22 February 2012 by Judge Louis A. Trosch, Jr. in Mecklenburg County District Court. Heard in the Court of Appeals 9 October 2012. Mecklenburg County Department of Social Services, Youth and Family Services, by Twyla Hollingsworth–Richardson, for Petitioner–Appellee. Womble, Carlyle Sandridge & Rice, LLP, by Murray C. Greason, III, for Guardian ad Litem.
W. Michael Spivey, for Respondent–Appellant.
BEASLEY, Judge.
Respondent's parental rights to his children T.O. and A.H. were terminated by an order filed 26 October 2010. Contending he was denied effective assistance of counsel, Respondent appealed to this Court, which remanded the matter to the trial court “for a determination by the trial court regarding efforts by respondent-father's counsel to contact and adequately represent respondent-father during the proceedings to terminate his parental rights.” In re T.O. and A.H., ––– N.C.App. ––––, ––– S.E.2d –––– (COA11–377), slip opinion at p. 7 (filed 20 September 2011). The trial court conducted a hearing on 9 January 2012 and on 22 February 2012, filed an order concluding trial counsel provided effective assistance of counsel. Respondent appeals from that order.
To protect the privacy of the minor children, their initials are used in this opinion.
In our prior opinion in this case, we noted that based upon our review of the record and transcript, we were unable to determine whether his attorney, Jennifer Coulter, “made sufficient efforts to communicate with and consult with respondent-father.” Id. at p. 6. We noted that the trial court did not make an “extended inquiry into trial counsel's efforts to communicate with and locate respondent-father, simply relying on counsel's statement that she had lost contact with respondent-father and had received no instructions on how to proceed.” Id. We also noted the record raised questions regarding “whether counsel provided respondent-father with effective representation during the entirety of the matter” and “ ‘whether Respondent was afforded with the proper procedures to ensure that his rights were protected during the termination of his parental rights to the minor children.’ “ Id. at pp. 6–7 (quoting In re S.N.W. & A.Z.W., 204 N.C.App. 556, 561, 698 S.E.2d 76, 79 (2010)). With these deficiencies in the prior order and proceedings in mind, we review the present order.
In the order under review, the trial court took judicial notice of the files in the underlying abuse/neglect/dependency and termination of parental rights proceedings. The trial court found that Ms. Coulter was originally appointed to represent Respondent in the underlying abuse/neglect/dependency proceedings and was his attorney throughout all of the proceedings, including the termination of parental rights hearing on 12 October 2010, until she was allowed to withdraw as counsel on the same date. At the filing of all petitions, Respondent was incarcerated in the North Carolina Department of Correction until he was released in July 2010. Not long thereafter, Respondent was arrested in Buncombe County and released. He was incarcerated again in the North Carolina Department of Correction in May 2011 and remained incarcerated at the time of the remand hearing on 9 January 2012.
With regard to counsel's efforts to contact Respondent, the court found that on 14 July 2009, Ms. Coulter mailed a letter and copy of the petition to terminate parental rights to A.H. and instructed Respondent to contact her and let her know his wishes concerning the petition. Respondent mailed a letter postmarked 28 July 2009 to the clerk of court and Ms. Coulter. In this letter he expressed concern about Ms. Coulter's representation of Respondent because of her lack of contact with him. He indicated that he opposed termination of parental rights.
Ms. Coulter subsequently obtained a writ of habeas corpus to permit Respondent to attend a permanency planning hearing on 12 August 2009. Ms. Coulter discussed the petition to terminate parental rights with him. Respondent expressed a desire to relinquish his parental rights so his mother could adopt the younger child, A.H.
The order contains the following additional findings of fact:
12. That pursuant to a Writ, [Respondent] was transported to the 7 June 2010 Permanency Planning Hearing regarding the above referenced juveniles. During the June 2010 Permanency Planning Hearing, all parties, based on information reported by [Respondent], were aware that [Respondent] was going to be released from North Carolina Department of Correction[ ] on 8 July 2010. During the hearing, there was some discussion that [Respondent] would probably go to a halfway house upon his release. At that time, he was not able to provide Ms. Coulter with an address or contact information for the halfway house. As of June 2010, he did not know the address for the halfway house. During the hearing, [Respondent] expressed a desire to reunite with the juveniles, work a case plan towards reunification, and visit the juveniles. He did not want his parental rights terminated. He was given an opportunity to participate in visits upon his release and an opportunity to develop/work on a case plan. Ms. Coulter informed [Respondent] that if he desired to contest the Petition to Terminate Parental Rights, there would be certain steps he would need to take. She also encouraged him to contact the YFS social worker upon his release. Ms. Coulter urged [Respondent] to contact her upon his release.
13. That Ms. Coulter's last face to face contact with [Respondent] was in June 2010.
14. That after the June 2010 hearing, Ms. Coulter met with [Respondent] in the Mecklenburg County Jail. Ms. Coulter discussed the status of the Petition to Terminate Parental Rights. They also discussed the next court hearing, the need for him to provide her with his contact information i.e. phone and address once he is released from the custody of the North Carolina Department of Correction[ ]. Ms. Coulter also informed [Respondent] that there were certain actions/steps that they would need to take in order to prepare for the Termination of Parental Rights Hearing.
15. That Ms. Coulter sent a letter, dated 16 June 2010, to [Respondent] to remind him the next court hearing date. Ms. Coulter also provided [Respondent] with her contact information. Ms. Coulter's contact information has not changed since providing the information to [Respondent]. The letter was sent to [r-espondent's] prior North Carolina Department of Correction[ ] location in Tabor City, North Carolina. [Respondent] reported that by this time, he had moved to Lincoln County Department of Correction facility. [Respondent] indicated he never received the June 2010 letter from Ms. Coulter. The letter was not returned to Ms. Coulter.
16. That [Respondent] was on notice that there was a pending hearing to terminate his parental rights to the above referenced juveniles. [Respondent] was present for the 7 June 2010 Permanency Planning hearing when the next hearing date of 14 July 2010 was given. Furthermore, the 8 June 2010 Permanency Planning Hearing Order Subsequent # 5 (hearing date of 7 June 2010) lists the Pre–Trial Termination of Parental Rights Hearing date and time as 14 July 2010 at 11:30 a.m. The aforementioned Order also lists the Termination of Parental Rights trial date of 12 October 2010.
17. That [Respondent] was released on 8 July 2010. After his release, he resided in Asheville, North Carolina. He resided in Asheville, North Carolina until his subsequent arrest on other charges in August 2010 and then later arrest in May 2011. [Respondent] did not contact Ms. Coulter once he was released from the North Carolina Department of Correction[ ].
18. That neither Ms. Coulter nor any other party had reason to believe that [Respondent] could be incarcerated in the Buncombe County jail during the scheduled Termination of Parental Rights Hearing.
19. That [Respondent] did not appear for the 14 July 2010 Pre–Trial Termination of Parental Rights Hearing. He did not appear for the Termination of Parental Rights Hearing in October 2010.
20. That in July 2009 [Respondent] previously raised concerns about protection of his rights and lack of contact with his court appointed attorney. He did not raise these concerns during the August 2009 or June 2010 Permanency Planning Hearings/Review Hearings. He did not appeal the Orders resulting from these hearings.
21. That prior to the Termination of Parental Rights trial date, Ms. Coulter engaged in efforts to locate [Respondent]. Ms. Coulter searched the North Carolina Department of Correction's website; Mecklenburg County Jail website and V.I.N.E. She was not able to locate [Respondent] using either search engine. These search engines would not have uncovered [Respondent's] incarceration in the Buncombe County Jail. Ms. Coulter also conducted an internet People Search. She was unsuccessful in her efforts to locate [Respondent].
22. That between July 2010 and the Termination of Parental Rights trial date of October 2010, [Respondent] did not contact Ms. Coulter. Therefore Ms. Coulter waited until the day of the Termination of Parental Rights Hearing to withdraw as counsel for [Respondent]. Ms. Coulter hoped that [respondent] would contact her and provide her with direction on how to proceed regarding the Petition to Terminate Parental Rights. Ms. Coulter was allowed to withdraw as court appointed counsel on 12 October 2010.
23. That Ms. Coulter's next contact with [Respondent] occurred sometime between December 2010 and January 2011 as a result of contact initiated by [Respondent]. After learning from the juveniles' paternal grandmother that his rights had been terminated and receiving a copy of the Order Terminating Parental Rights, [Respondent] then contacted Ms. Coulter in late December 2010/early January 2011 to request an appeal.
24. That during her representation of [Respondent], Ms. Coulter sent many letters to [Respondent] to apprise him of the status of the case and the steps he needed to take in order to prepare for the hearings in the case.
25. That Ms. Coulter was provided with the contact information for [Respondent's] mother. [Respondent's] mother resides in Charlotte, Mecklenburg County, North Carolina. Ms. Coulter did not attempt to contact [Respondent] using his mother's address.
The trial court concluded as a matter of law that Respondent received effective assistance of counsel. The court concluded that Ms. Coulter did not have clear instruction from Respondent regarding his position as to the petition for termination of parental rights and that Respondent failed to provide Ms. Coulter with his contact information as she requested so she could contact him.
Respondent contends the trial court erred in concluding he received effective assistance of counsel. Respondent argues counsel's performance was deficient because his attorney: (1) failed to secure his attendance at the initial adjudication and disposition hearing and six subsequent review hearings; (2) never offered any evidence on his behalf at any hearing; (3) failed to obtain any reunification plan for Respondent; (4) failed to file any response to the petitions to terminate his parental rights; and (5) failed to make reasonable efforts to locate him and notify him of the hearing to terminate his parental rights. Respondent argues he was prejudiced by counsel's deficient performance because multiple findings in the termination order were based upon his failure to appear for hearings, respond to pleadings, or seek reunification with the children.
To establish a successful claim that counsel's assistance was ineffective, a parent must “show that counsel's performance was deficient and the deficiency was so serious as to deprive the represented party of a fair hearing.” In re Oghenekevebe, 123 N.C.App. 434, 436, 473 S.E.2d 393, 396 (1996). “A parent must also establish he suffered prejudice in order to show that he was denied a fair hearing.” In re S.C.R., 198 N.C.App. 525, 531, 679 S.E.2d 905, 909,appeal dismissed,363 N.C. 654, 686 S.E.2d 676 (2009). “Judicial review of counsel's performance must be highly deferential so as to avoid the prejudicial effects of hindsight.” State v. Lawson, 159 N.C.App. 534, 543, 583 S.E.2d 354, 360 (2003). “Action which is in the best interests of the juvenile should be taken in all cases where the interests of the juvenile and those of the juvenile's parents or other persons are in conflict.” N.C. Gen.Stat. § 7B–1100(3) (2011).
The trial court's findings reflect that counsel made multiple attempts to contact Respondent; that counsel advised Respondent to contact the social worker and counsel upon his release from incarceration, to keep both the social worker and counsel informed as to his whereabouts, and to provide them with his contact information; that Respondent failed to notify counsel of his release from incarceration; that Respondent failed to provide counsel with his contact information; and that Respondent failed to notify counsel of his arrest and incarceration in the Buncombe County jail prior to the termination of parental rights hearing. When an attorney's lack of preparation is due to the client's failure to communicate or cooperate with counsel, we are unwilling to find counsel's assistance was ineffective. See In re Bishop, 92 N.C.App. 662, 666, 375 S.E.2d 676, 679 (1989) (holding counsel's assistance was not ineffective when parent failed to contact counsel and provide contact information).
We are also unwilling to find ineffective assistance of counsel if it is apparent that the parent has no defense upon which it can prevail. In re Dj.L, 184 N.C.App. 76, 87, 646 S.E.2d 134, 142 (2007). As reflected in the termination of parental rights order and other orders, Respondent has been incarcerated all but a few months of the juveniles' lives. Soon after completing service of a sentence, Respondent would be convicted of another crime resulting in his incarceration and consequent inability to provide proper care and supervision of his children. When he was not incarcerated, Respondent made no efforts to seek reunification with the juveniles. Respondent failed to exercise his right to visitation with the juveniles. Respondent never paid any support for his children.
We hold the trial court properly concluded Respondent was not denied effective assistance of counsel. We affirm the trial court's order.
Affirmed. Judges CALABRIA and THIGPEN concur.
Report per Rule 30(e).