In re K.M.W., 376 N.C. 195

Background

Two daughters (born 2008 and 2012) were placed in DSS custody after findings of neglect and subsequent safety concerns (domestic violence, substance use, unstable housing, and an allegation of sexual abuse in respondent-mother’s home).
Court-ordered reunification services and conditions were imposed; visitation was restricted based on therapist recommendations and court orders.
Lenoir County DSS filed termination petitions (neglect and willful failure to make reasonable progress) in Dec. 2018.
Respondent initially had appointed counsel, waived appointed counsel to retain private counsel, then retained counsel (Dawson) who moved to withdraw shortly before the termination hearing; the withdrawal was allowed after limited inquiry.
Respondent arrived late to the termination hearing, represented herself without the court conducting a colloquy to establish a knowing, voluntary waiver of counsel, and the trial court terminated her parental rights. The N.C. Supreme Court reversed and remanded for a new termination hearing.

Issues

Issue	Petitioner (DSS / GAL) Argument	Respondent (mother) Argument	Held
Whether trial court properly allowed retained counsel to withdraw without adequate notice/inquiry	Withdrawal appropriate: counsel attempted to contact client; withdrawal was at client’s request; courts may rely on counsel’s statements and exercise discretion	No evidence client received notice of withdrawal motion; counsel’s unsworn statements aren’t proof; withdrawal denied due process	Error. Court reversed: trial court failed to inquire into notice/efforts and circumstances before allowing withdrawal.
Whether respondent validly waived right to counsel / whether court had to conduct colloquy before allowing pro se representation	Respondent had waived appointed counsel earlier and didn’t seek appointment when late; court needn’t halt proceedings mid-testimony	Waiver form only waived court-appointed counsel (not all counsel); respondent never knowingly/voluntarily waived right to any counsel and court made no §7B-1101.1(a1) inquiry	Error. Court held trial court should have examined respondent and made factual findings to show waiver was knowing and voluntary; reversal required.
Whether respondent forfeited right to counsel by her conduct (nonappearance, tardiness, leaving courtroom)	Her tardiness and failure to request appointment amounted to waiver/forfeiture	Conduct not egregious enough to constitute forfeiture; she had previously relied on counsel	Held: No forfeiture. Conduct did not meet the high standard for forfeiture (egregious dilatory or abusive conduct).
Whether any error was harmless / whether prejudice must be shown to obtain relief	Any error was harmless given extensive evidence of neglect and noncompliance	Deprivation of counsel is structural; prejudice analysis inappropriate	Held: No prejudice showing required. Erroneous denial of counsel mandated reversal and new hearing.

Key Cases Cited

In re M.G., 239 N.C. App. 77, 767 S.E.2d 436 (2015) (vacating termination where record lacked evidence parent received notice of counsel’s withdrawal)
In re D.E.G., 228 N.C. App. 381, 747 S.E.2d 280 (2013) (trial court must inquire into counsel’s efforts to contact absent parent before permitting withdrawal)
In re S.L.L., 167 N.C. App. 362, 605 S.E.2d 498 (2004) (distinguishing request to withdraw from an effective waiver of appointed counsel)
State v. Simpkins, 373 N.C. 530, 838 S.E.2d 439 (2020) (forfeiture of counsel limited to egregious, dilatory, or abusive conduct)
In re C.B.C., 373 N.C. 16, 832 S.E.2d 692 (2019) (standard of review for waiver/forfeiture issues in parental-rights context)
Williams & Michael, P.A. v. Kennamer, 71 N.C. App. 215, 321 S.E.2d 514 (1984) (no discretion to permit withdrawal when attorney gave client no prior notice)
Dunkley v. Shoemate, 350 N.C. 573, 515 S.E.2d 442 (1999) (attorney cannot properly represent a client with whom there has been no contact)
State v. Thomas, 331 N.C. 671, 417 S.E.2d 473 (1992) (knowing and intentional waiver of counsel required)
In re Murphy, 105 N.C. App. 651, 414 S.E.2d 396 (1992) (due process protections required in parental-termination proceedings)