In re B.B.
*1 IN THE SUPREME COURT OF NORTH CAROLINA
No. 24A21 Filed 17 June 2022 IN THE MATTER OF: B.B., S.B., S.B.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) (2019) from an order entered on 29 October 2020 and an order entered on 23 February 2022 after remand, both by Judge Wesley W. Barkley in District Court, Burke County. Heard originally in the Supreme Court on 5 October 2021 and calendared again for argument in the Supreme Court on 10 May 2022 but determined on the record and briefs without further oral argument pursuant to Rule 30(f) of the North Carolina Rules of Appellate Procedure.
Amanda C. Perez for petitioner-appellee Burke County Department of Social Services.
Olabisi A. Ofunniyin and Thomas N. Griffin III for appellee Guardian ad Litem.
W. Michael Spivey for respondent-appellant mother . BARRINGER, Justice. Respondent appeals from an order terminating her parental rights to three of
her minor children, B.B. (Bob), S.B. (Sally) and S.B. (Susan). [1] After careful review, we affirm the trial court’s order.
I. Background On 14 September 2018, the Burke County Department of Social Services (DSS)
¶ 2 received a Child Protective Services (CPS) report stating that respondent was incarcerated, and Bob, Sally, and Susan were living in a car with their father. The report further alleged that the father was suspected of using methamphetamine. DSS confirmed that respondent was incarcerated and met with the father at the home of his sister. The father claimed that he and the children were staying at his sister’s home. The father signed a Safety Assessment in which he agreed the children would remain in his sister’s home, and he would submit to a substance abuse screening within twenty-four hours. However, when a social worker returned to the home on 19 September 2018, the father had left the home and taken the children with him without providing any contact information. On 21 September 2018, DSS was notified that the father brought Bob to school.
Bob was wearing the same dirty and torn clothing that he had worn the previous day and stated that he had not eaten since the day before. At the end of the school day, nobody arrived to pick up Bob from school. DSS then contacted respondent, who was still incarcerated, and attempted without success to locate an appropriate alternative caregiver for the children based on information from respondent. Meanwhile, the father’s sister notified DSS that the father had left Sally and Susan in her care without providing his contact information or making a plan of care for the children. The father’s sister also refused to continue caring for the children. At the time, Bob had eight unexcused absences from school and one tardy; Sally had a scar on her torso, which she stated was a cut with a knife from her father; and Susan had a diaper rash, fever, and two red bumps on her torso. Additionally, all the children had an odor about them. DSS was unable to locate the father. The same day, DSS filed a petition alleging that the juveniles were negleсted
¶ 4 and dependent and obtained non-secure custody of Bob, Sally, and Susan. On 26 September 2018, DSS filed an amended petition. Meanwhile, on 24 September 2018, respondent was released from custody, but
¶ 5 she still had pending criminal charges in four counties including a probation violation. Respondent admitted to DSS the next day that she was unable to get the juveniles regular medical care and that for the last six months she had unstable housing. Respondent also refused to submit to a drug screen; she wanted to consult her attorney first. Respondent had previously tested positive for methamphetamines in 2017 and had a history of drug use. Susan tested positive at birth in 2017 for amphetamines, cannabinoids, and methamphetamine via meconium screening. Before the hearing on the petition on 10 January 2019, respondent stipulated to the foregoing facts and stipulated that she was not employed and living with friends in a home that was not appropriate for children. Based upon stipulations made by respondent and the father, the trial court entered an order on 24 January 2019 adjudicating Bob, Sally, and Susan as neglected and dependent juveniles. The trial court continued custody of the juveniles with DSS. The trial court also ordered respondent to comply with an out-of-home family services agreement (case plan) and granted hеr supervised visitation. The trial court held review hearings on 7 March 2019 and 16 May 2019. The
¶ 7 trial court entered review orders from both hearings in which it found as fact that respondent was unemployed, did not have stable housing, had not maintained consistent contact with DSS, and had not engaged in any case plan services. Following a permanency-planning-review hearing held on 15 August 2019, the
¶ 8 trial court entered an order on 5 September 2019. The trial court found as fact that respondent had recently been arrested on drug related charges in Buncombe County. The trial court again found as fact that respondent was not engaged in case plan services and had failed to maintain consistent contact with DSS. The trial court adopted a primary permanent plan of adoption with a secondary plan of reunification. On 22 October 2019, DSS moved to terminate respondent’s parental rights to each of the three juveniles on the grounds of neglect, willful failure to make reasonable progress, willful failure to pay for the cost of care for the juveniles, and abandonment. N.C.G.S. § 7B-1111(a)(1)–(3), (7) (2021). Following a hearing held on 4 September 2020, the trial court entered an order on 29 October 2020 in which it determined grounds existed to terminate respondent’s parental rights pursuant to each of the grounds alleged in the motion. The trial court further concluded it was in the juveniles’ best interests that respondent’s parental rights be terminated. Accordingly, the trial court terminated respondent’s parental rights. [2] Respondent entered a notice of appeal on 2 November 2020. On 13 November 2020, the trial court entered an amended termination order. On appeal, respondent presents four arguments. First, the trial court lacked
¶ 10 jurisdiction to enter an amended termination order because notice of appeal had already been given, and the trial court made substantive, not clerical, changes. Second, the trial court abused its discretion by denying respondent’s motion to continue. Third, the trial court erred by concluding that grounds existed to terminate respondent’s parental rights. Fourth, respondent received ineffective assistance of counsel. On 5 October 2021, this Court heard oral arguments concerning this appeal.
Thereafter, this Court issued an order in the exercise of its discretion remanding the case “so the parties may supplement the record with evidence related to the trial court’s statements on the record concerning respondent-mother’s motion to continue on 4 September 2020” and “for the trial court to hear respondent-mother’s claim of ineffective assistance of counsеl.” In re B.B. , 379 N.C. 660, 660 (2021) (order remanding case). On remand, the trial court made findings of facts and conclusions of law and
¶ 12 denied respondent’s Rule 60(b) motion alleging ineffective assistance of counsel. Then, consistent with this Court’s order, the parties supplemented the record on appeal and filed supplemental briefs for this Court. Thus, this appeal is now ripe for our full consideration.
II. Analysis
A. Jurisdiction We first consider respondent’s argument that the trial court lacked jurisdiction ¶ 13 to enter the amended termination order after respondent had noticed her appeal because the trial court made substantive, not clerical, changes to the order. We agree that the trial court lacked jurisdiction to enter the amended termination order. Generally, upon perfection of an appeal, N.C.G.S. § 1-294 “stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein.” N.C.G.S. § 1-294 (2021); see also Am. Floor Mach. Co. v. Dixon , 260 N.C. 732, 735 (1963) (“As a general rule, an appeal takes a case out of the jurisdiction of the trial court.”). However, “[w]hen a specific statute addresses jurisdiction during an appeal . . . that statute controls over the general rule.” In re M.I.W. , 365 N.C. 374, 377 (2012). This Court recognized in In re M.I.W. that the legislature enacted a specific statute, N.C.G.S. § 7B-1003, regarding jurisdiction during an appeal for matters arising under the Juvenile Codе that controls over N.C.G.S. § 1-294. Id. at 377–78. The legislature recognized that the “needs of the child may change while legal proceedings are pending on appeal,” necessitating “a modified approach” to jurisdiction during an appeal in juvenile cases. Id. at 377. As relevant to this appeal, N.C.G.S. § 7B-1003(b) provides as follows:
¶ 15
(b) Pending disposition of an appeal, unless directed otherwise by an appellate court or subsection (c) of this section applies, the trial court shall: (1) Continue to exercise jurisdiction and conduct hearings under this Subchapter with the exception of Article 11 of the General Statutes; and (2) Enter orders affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile.
N.C.G.S. § 7B-1003(b) (2021). Article 11 of the Juvenile Code is entitled and addresses termination of
parental rights. N.C.G.S. § 7B-1100 to -1114 (2021). Thus, absent direction from an
appellate court to the contrary, “N.C.G.S. § 7B-1003(b) does not divest the court of
jurisdiction in termination proceedings during an appeal but does . . . prohibit the
trial court from exercising jurisdiction in termination proceedings while disposition
of an appeal is pending.”
In re J.M.
,
Exercising jurisdiction, in the context of the Juvenile Code, requires putting the [trial] court’s jurisdiction into action by holding hearings, entering substantive orders or decrees, or making substantive decisions on the issues before it. In contrast, having jurisdiction is simply a state of being that requires, and in some cases allows, no substantive action from the [trial] court.
In re M.I.W.
,
took any action, the trial court entered an amended order with multiple additional findings of fact. Several of these findings of fact are neither findings of fact mentioned in the trial court’s oral ruling nor duplicative of other findings of fact in the original termination-of-parental-rights order. Thus, we are not persuaded that these changes corrected a clerical mistake or error arising from oversight or omission. See N.C.G.S. § 1A-1, Rule 60(a) (2021) (“Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the judge at any time on his own initiative or on the motion of any party and after such notice, if any, as the judge orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate division, and thereafter while the appeal is pending may be so corrected with leave of the appellate division.”). Rather, we conclude that the trial court exercised jurisdiction by entering a termination-of-parental-rights order that made substantive changes when the trial court lacked jurisdiction to do so under N.C.G.S. § 7B-1003(b). As a result, the amended termination-of-parental-rights order is void, and we only consider the original termination-of-parental-rights order that was entered on 29 October 2020 and the 23 February 2022 order entered after remand and pursuant to this Court’s order.
B. Continuance We next consider respondent’s argument that the trial court abused its ¶ 18 discretion by denying her counsel’s motion to continue the termination hearing. Assuming without deciding that the trial court erred, we conclude that respondent has not shown that she was prejudiced by the denial of the motion to continue. Therefore, respondent is not entitled to any relief. The record reflects that at the outset of the termination hearing, respondent
had not appeared, and the trial court asked respondent’s counsel if he had any contact with her. Counsel responded that respondent had bonded out of jail the night before and he had not heard from her and moved to continue the hearing in order to locate respondent. The trial court, after again determining that respondent was not in the courtroom, summarily denied the motion to continue. The trial court noted for the record that
[respondent] was prepared for transport yesterday at some point, so she knew of today’s court date. She did bond out, but she is not present today, despite the fact that she was aware yesterday and prepared to come to court yesterday. We do have the Respondent Father here, and we will proceed. [3] The standard of review for addressing motions to continue is well-established.
When a respondent “did not assert in the trial court that a continuance was necessary
to protect a constitutional right,” appellate courts “review the trial court’s denial of
her motion to continue only for abuse of discretion.”
In re A.L.S.
,
In her supplemental brief, respondent contends that “[t]he trial court
¶ 21
acknowledged that it acted upon incorrect information when it denied counsel’s
motion to continue,” and “[h]ad Judge Barkley known all of the[ ] facts when the
matter was called for hearing on September 4 it seems unlikely that he would have
denied even a few minutes for counsel to locate [respondent].” Yet even taking
respondent’s presumption as true, respondent has not shown how she suffered
prejudice as a result of the alleged error. Respondent has not shown that she “would
have testified and that such testimony would have impacted the outcome of the
proceeding.”
In re C.C.G.
,
C. Grounds for Termination We next consider respondent’s argument that the trial court erred by
concluding that grounds existed to terminate her parental rights at the adjudicatory stage. Since the trial court’s findings of fact support termination on the grounds of neglect pursuant to N.C.G.S. § 7B-1111(a)(1) and only one ground is necessary for termination, we conclude that the trial court did not err by adjudicating the ground of neglect and terminating respondent’s parental rights. At the adjudicatory stage, the trial court takes evidence, finds facts, and
¶ 23
adjudicates the existence or nonexistence of the grounds for termination set forth in
N.C.G.S. § 7B-1111. N.C.G.S. § 7B-1109(e). The trial court may terminate parental
rights upon an adjudication of any one of the grounds in N.C.G.S. § 7B-1111(a).
N.C.G.S. § 7B-1111(a);
see also In re E.H.P.
,
1111(a)(1) if “[t]he parent has abused or neglected the juvenile” as defined in N.C.G.S. § 7B-101. N.C.G.S. § 7B-1111(a)(1). A neglected juvenile is defined, in pertinent part, as a juvenile “whose parent, guаrdian, custodian, or caretaker does not provide proper care, supervision, or discipline; . . . or who lives in an environment injurious to the juvenile’s welfare . . . .” N.C.G.S. § 7B-101(15) (2019). As explained by this Court,
[t]ermination of parental rights based upon this statutory ground requires a showing of neglect at the time of the termination hearing or, if the child has been separated from the parent for a long period of time, there must be a showing of a likelihood of future neglect by the parent. When determining whether such future neglect is likely, the [trial] court must consider evidence of changed circumstances occurring between the period of past neglect and the time of the termination hearing.
In re R.L.D.
,
custody of DSS on 21 September 2018. At that time, respondent was incarcerated. DSS contacted respondent by phone in jail and made efforts to locate an appropriate caregiver, but an appropriate caregiver could not be located. Respondent had a history of drug use and had tested positive for methamphetamines in September 2017. Susan also tested positive for amphetamines, cannabinoids, and methamphetamine at birth in 2017. Respondent stipulated to these facts and others, and the trial court entered an order adjudicating Bob, Sally, and Susan neglected and dependent juveniles on 24 January 2018. Thereafter, respondent entered into a case plan, which included: (1) submitting to a substance abuse assessment and following all recommended treatment; (2) complying with random drug screens; (3) completing a parenting capacity evaluation; (4) completing a parenting education program; (5) obtaining and maintaining safe and stable housing; (6) refraining from criminal activity; and (7) obtaining and maintaining a legal source of income. The trial court further found as follows:
28. The respondent mother has not addressed the issues that led to the juvenile[s] being taken into care. 29. The respondent mother has continued to engage in criminal behavior, including incurring criminal charges while the minor children have been in [DSS]’s custody. 30. Respondent mother was arrested in July of 2019 for felony counts of larceny, fleeing to elude arrest, possession of a stolen vehicle, driving while license revoked, failure to maintain lane control, speeding, reckless driving to endanger, possession of stolen property, and possession of methamphetamine.
31. At the time of this hearing, the respondent mother had recently been released from custody and had pending charges in Burke and Catawba Counties.
. . . .
34. [Respondent mother has] been out of custody at times while the minor children have been in [DSS]’s custody, but [has not] engaged with [DSS] or completed any part of [her] case plan[].
. . . .
38. Respondent mother does not have a child support order established and she has not voluntarily paid any support for the benefit of the juveniles since they came into [DSS]’s custody.
. . . .
40. [Respondent mother has not] provided any gifts, notes, letters or provided any necessities [for the juveniles] since the children came into [DSS]’s custody.
41. Pursuant to N.C.G.S. § 7B-1111(a)(1), [respondent mother has] neglected the juveniles as shown by findings [of] fact and conclusions of law contained in the adjudication order rendered by the Honorable Wesley W. Barkley and as specified above. There is a high likelihood of a repetition of the nеglect if the juveniles were returned to the care and control of the [respondent mother as she has] not corrected the conditions that led to the removal of the juveniles. Respondent only challenges finding of fact 40 as not supported by clear, cogent,
and convincing evidence. However, at the termination-of-parental-rights hearing, a DSS social worker responded “no” when asked whether respondent had provided “anything” for her children. Given this testimony, the trial court could find that respondent had not provided the juveniles with any gifts, notes, letters, or necessities since they entered into DSS’s custody. See In re D.L.W. , 368 N.C. 835, 843 (2016) (stating that it is the trial court’s duty to consider all the evidence, pass upon the credibility of the witnesses, and determine the reasonable inferences to be drawn therefrom). Thus, we conclude that finding of fact 40 is supported by clear, cogent, and convincing evidence. We also reject respondent’s argument that the findings of fact do not support
¶ 29 the trial court’s adjudication of neglect. This Court has stated:
Our precedents are quite clear—and remain in full force— that incarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision. How this principle applies in each circumstance is less clear. While respondent’s incаrceration, by itself, cannot serve as clear, cogent, and convincing evidence of neglect, it may be relevant to the determination of whether parental rights should be terminated.
In re J.S.
,
Continued criminal activity and a failure to complete a case plan when not
incarcerated for the entirety of the case supports a determination of likelihood of
future neglect.
See In re J.E.
,
pursuant to N.C.G.S. § 7B-1111(a)(1) is sufficient in and of itself to support
termination of respondent’s parental rights,
In re E.H.P.
,
D. Ineffective Assistance of Counsel Claim On appeal in her initial briefs and at oral argument, respondent alleged that ¶ 33 she received ineffective assistance of counsel at the termination hearing and claimed that her counsel failed to secure her presence at hearings, seek visitation, file a response to the petition to terminate her parental rights, assert her due process concerns when moving to continue the termination hearing, and advocate for her at the termination hearing. After oral arguments, this Court remanded to the trial court in the exercise of
its discretion “for the trial court to hear respondent-mother’s claim of ineffective
assistance of counsel.”
In re B.B.
,
¶ 35 with findings of fact and conclusions of law. The trial court concluded that respondent failed to provide any evidence or argument showing a reasonable probability that, but for deficient counsel, a different result would have been reached in the termination proceeding. Thus, the trial court denied respondent’s Rule 60(b) motion. In her supplemental brief, respondent presented several arguments. First,
respondent challenges the trial court’s finding of fact “that there was no evidence that could have been presented to alter the result of the termination proceeding” and cites to findings of fact 42 and 44 through 50. The cited findings of fact from the trial court’s order are as follows:
42. Throughout the underlying case, the respondent mother did not inform [her trial counsel] of any actions she had taken to be reunited with her children or any argument he needed to make regarding her progress, despite having the opportunity to do so.
. . . .
44. The respondent mother did not provide evidence of what she would have testified to at the termination of parental rights hearing, had she been present.
45. The respondent mother did not identify evidence or witnesses that should have been presented at the termination of parental rights hearing, other than testifying that she wanted to provide gifts and letters to her children. As noted, the court finds that no such efforts were made prior to the filing of the motion for termination of parental rights.
46. There is no evidence that the respondent mother could have been presented in a more favorable manner on September 4, 2020 at the termination hearing.
47. In the absence of any showing of evidence or testimony that could have been presented, the court finds that, even if respondent mother had been present and available at every hearing throughout the pendency of the underlying case, the outcome of the termination hearing would have been the same.
48. The court received no evidence to contradict its findings in the underlying order supporting grounds for termination under N.C.G.S. § 7B-1111(a)(l), (2), or (7).
49. There is no evidence that the outcome of the termination hearing would have been different had her trial counsel’s performance been different.
50. The respondent mother was not prejudiced by her trial counsel’s performance. However, the cited findings of fact, which are quoted above, do not contain a
finding “that there was no evidence that could have been presented to alter the result of the termination proceeding.” (Emphasis added.) The trial court did find that respondent did not put forth material evidence that could have been presented at the termination hearing, but these arе not analogous. Thus, there is no finding of fact for this Court to review as it relates to respondent’s argument, and we are bound to the findings of facts. In re K.N.L.P. , 2022-NCSC-39, ¶ 15 (2022). Later in this opinion, we address respondent’s argument that the trial court erred by concluding that she failed to put forward evidence to meet her burden to show that there is a reasonable probability that, but for counsel’s errors, there would have been a different result in the proceedings. However, that does not appear to be the argument respondent makes here. Second, respondent argues that the trial court erred by not applying the correct
¶ 38 standard to assess prejudice. Respondent-mother claims that the trial court “held that respondent-mother failed to present evidence at the Rule 60 hearing showing that she would have ‘won’ and received a favorable ruling at the termination hearing.” However, as stated in the trial court’s order, the trial court articulated and applied the standard of “reasonable probability,” which is consistent with our precedent. The trial court stated:
8. Respondent mother was not prejudiced by her trial counsel’s performance, either in the termination hearing or the underlying case, in that she did not establish a reasonable probability that the outcome of the termination hearing (or other hearings) would have been different but for trial counsel’s conduct. This Court has explained that:
To prevail on a claim of ineffective assistance of counsel, respondent must show that counsel’s performance was deficient and the deficiency was so serious as to deprive him of a fair hearing. To make the latter showing, the respondent must prove that there is a reasonable probability that, but for counsel’s errors, there would have been a different result in the proceedings .
In re G.G.M.
, 377 N.C. 29, 2021-NCSC-25, ¶ 35 (cleaned up) (emphasis added).
Respondent’s initial brief acknowledges that our precedent requires this showing,
citing
In re T.N.C.
,
resolve claims of ineffective assistance of counsel on the respondent’s failure to show
prejudice. S
ee, e.g.
,
In re Z.M.T.
,
¶ 41 cumulative effect of respondent’s trial counsel’s deficient performance and by not correctly applying the standard to assess prejudice. However, the trial court’s conclusion of law eight reflects that the trial court considered cumulative prejudice. The trial court expressly considered whether respondent was prejudiced by her trial counsel’s performance both “in the termination hearing” and “in the underlying case.” Yet, as discussed, the trial court’s findings of fact supporting these conclusions were either unchallenged or supported by competent evidence. Accordingly, were we to address this argument, we would be bound to affirm the trial court’s conclusion that respondent was not cumulatively prejudiced. Because the trial court in this case did consider cumulative prejudice, we need not address whether cumulative рrejudice must be considered by the trial court in this context. Given the binding findings of fact before us, we agree with the trial court that
respondent failed to put forward evidence to meet her burden to show that there is a
reasonable probability that, but for counsel’s errors, there would have been a different
result in the proceedings. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”
Strickland
,
In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reachеd would reasonably likely have been different absent the errors.
Id. at 695–96. In the case before us, the same trial court judge presided over the termination
hearing and respondent’s Rule 60(b) motion. The trial court had the totality of the evidence before him, and we do as well. We are not persuaded that a probability sufficient to undermine confidence in the outcome exists. Respondent testified that throughout the case, her trial counsel called or emailed her back every time she reached out by phone or email and that they would discuss what she could do to see her children, what she could do to get visitation, and what she could do to get her parental rights back. She testified that her trial counsel communicated with her at least 26 times throughout the length of the case. She further testified that she had met with the social worker and signed the case plan and knew what she was supposed to do for her plan without discussing it with her trial counsel. As found by the trial court, respondent understood her case plan, but respondent did not complete any element of her case plan and during the pendency of the case was both convicted of new criminal charges and violated her probation. Even if trial counsel has erred in some aspects of his representation,
[a]ttorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid.
Strickland
,
III. Conclusion While the trial court’s amended termination order was entered without jurisdiction pursuant to N.C.G.S. § 7B-1003(b), we conclude that the findings of fact in the trial court’s original 29 October 2020 order supported the adjudication on the ground of neglect pursuant to N.C.G.S. § 7B-1111(a)(1). Respondent has not challenged the trial court’s determination at the dispositional phrase. We have also concluded that the respondent failed to show prejudice from the denial of her counsel’s motion to continue at the termination-of-parental-rights hearing and failed to show prejudice for any alleged error by her trial counsel. Accordingly, we affirm the trial court’s order terminating respondent’s parental rights to her children, Bob, Sally, and Susan, and the trial court’s order denying respondent’s Rule 60(b) motion regarding ineffective assistance of counsel.
AFFIRMED.
Justice EARLS dissenting.
A parent’s right to effective representation in juvenile proceedings is an
¶ 45
individual right that secures a broader structural principle. The right to counsel
safeguards an individual parent’s fundamental liberty interests by ensuring the
parent is not subject to the unnecessary and permanent dissolution of their rights in
their child.
In re T.N.C.
,
2022-NCSC-67 Earls, J., dissenting.
to bring respondent-mother to court to participate in hearings, but she was not brought to court. Counsel did not vigorously defend respondent-mother’s interests in her absence. Instead, at the final permanency planning hearing, another hearing respondent-mother was not brought to court to attend, respondent-mother’s attorney informed the court that he “had not had any recent contact from his client,” so he “consented to the Court receiving the court report and moving forward without his presence” because “he had another matter in another courtroom.” Counsel did not file a responsive pleading to DSS’s motion to terminate respondent-mother’s parental rights, even though respondent-mother mailed the court a handwritten note stating that she wanted to “stop the termination process of my parental rights.” At the termination hearing, cоunsel asked two questions of DSS’s sole witness but otherwise offered no defense and made no argument on respondent-mother’s behalf. Under these circumstances, I cannot agree with the majority that respondent- mother’s ineffective assistance of counsel (IAC) claim should be denied for failure to show prejudice. Although there is a paucity of evidence in the record indicating how respondent-mother could have rebutted the grounds for termination found by the trial court at the termination hearing, counsel’s prolonged, repeated failure to adequately represent respondent-mother at every stage of these proceedings fatally undermined their validity as a mechanism for determining “the truth.” Therefore, I would hold that respondent-mother has demonstrated prejudice because she has N RE B.B., S.B., S.B.
2022-NCSC-67 Earls, J., dissenting.
shown that “counsel’s errors were so serious as to deprive the defendant of a fair
[hearing], a [hearing] whose result is reliable.”
State v. Braswell
,
I. Prejudice under Strickland There are two main problems with the majority’s analysis of respondent-
¶ 48 mother’s IAC claim. The first is that the majority’s articulation of how respondent-mother can
demonstrate prejudice is unduly narrow and ignores a central concern animating
Strickland
and IAC doctrine—the critical importance of adequate representation to
ensuring the integrity and validity of the advеrsarial process. The majority is correct
that a party asserting IAC must demonstrate prejudice, and that the way courts
typically examine prejudice is by assessing whether the party asserting IAC “prove[d]
that there is a reasonable probability that, but for counsel’s errors, there would have
been a different result in the proceeding.”
In re G.G.M.
,
2022-NCSC-67 Earls, J., dissenting.
Id. at 696. Instead, the Supreme Court emphasized that
the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.
Id. “The right to counsel exists in order to protect the fundamental right to a fair
trial,” or in this case a fair termination hearing.
Lockhart v. Fretwell
,
2022-NCSC-67 Earls, J., dissenting.
determining facts. In these rare circumstances, it is unnecessary to attempt to
reconstruct what
might
have happened because what
did
happen produced a record
and set of facts lacking all indicia of trustworthiness.
See, e.g.
,
Williams v. Taylor
,
2022-NCSC-67 Earls, J., dissenting.
resolve IAC claims by presuming that the representation was ineffective and jumping
right to the question of whether there was a sufficient showing of prejudice disserves
justice and the interests IAC doctrine aims to protect.
See United States v.
DiTommaso
,
2022-NCSC-67 Earls, J., dissenting.
produced a just result.”). Resolving IAC claims by explaining why counsel’s
performance was constitutionally inadequate does not require us to inappropriately
“grade counsel’s performance”; rather, our refusal to do so constitutes an
abandonment of our obligation to ensure the fair administration of justice. In our
adversarial system, due process demands that parties have adequate opportunities
to avail themselves of the advice of counsel and the services of an advocate who will
present to a neutral fact finder the evidence and arguments that support their case.
Cf. Herring v. New York
,
meaningfully engage respondent-mother’s cumulative prejudice claim. Under the
cumulative prejudice doctrine, “instances of counsel’s deficient performance may be
aggregated to prove cumulative prejudice.”
State v. Allen
,
2022-NCSC-67 Earls, J., dissenting.
counsel performs deficiently numerous times or in various ways while representing a party. See Cooper v. Fitzharris , 586 F.2d 1325, 1333 (9th Cir. 1978) (“If counsel is charged with multiple errors at trial, absence of prejudice is not established by demonstrating that no single error considered alone significantly impaired the defense [because] prejudice may result from the cumulative impact of multiple deficiencies.”). Because legal proceedings are dynamic, it is often difficult to isolate the effects of any one instance of deficient performance—counsel’s failure to provide adequate representation at multiple points in a proceeding might fundamentally alter the course of that proceeding, even though the harm to a party’s interests cannot easily or entirely be traced to a single instance. In stating that it “need not address whether cumulative prejudice must be
considered by the trial court” because the trial court’s conclusions of law reveal that it “considered cumulative prejudice,” the majority implies that it is an open question whether a court must review for cumulative prejudice when a party brings an ineffective assistance of counsel claim alleging multiple discrete instances of deficient performance. [1] But this question was asked and answered in State v. Allen , 378 N.C. N RE B.B., S.B., S.B. 2022-NCSC-67 Earls, J., dissenting.
286, 2021-NCSC-88. In Allen , we explained that a trial court considering an IAC claim raised in a motion for appropriate relief
must examine whether any instances of deficient performance at discrete moments in the trial prejudiced Allen when considered both individually and cumulatively. We reject the MAR court's erroneous conclusion that cumulative prejudice is unavailable to a defendant asserting multiple IAC claims. . . . [W]e adopt the reasoning of the unanimous Court of Appeals panel which recently concluded that “because [IAC] claims focus on the reasonableness of counsel’s performance, courts can consider the cumulative effect of alleged errors by counsel.” State v. Lane ,271 N.C. App. 307 , 316,844 S.E.2d 32 , review dismissed , 376 N.C. 540, 851 S.E.2d 367 (2020), review denied , ––– N.C. ––––,851 S.E.2d 624 (2020). To be clear, only instances of counsel’s deficient performance may be aggregated to prove cumulative prejudice—the cumulative prejudice doctrine is not an invitation to reweigh all of the choices counsel made throughout the course of representing a defendant.
Id. ¶
42 (footnote omitted). We further explained that “[o]ur decision to recognize
cumulative prejudice claims is based upon our own interpretation of
Strickland
and
IAC doctrine,” establishing that cumulative prejudice doctrine applies to
all
IAC
claims derived from
Strickland
.
Id.
¶ 42 n.8. The dissenting opinion in
Allen
disputed
the majority’s interpretation of our caselaw and this doctrine, but the dissenting
opinion acknowledged that, post-
Allen,
cumulative prejudice doctrine would be part
of “North Carolina’s jurisprudence on ineffective assistance of counsel claims,”
Id.
support the conclusions of law.’ ” (quoting
In re Montgomery
, 311 N.C. 101, 111 (1984)
(citing
In re Moore
,
2022-NCSC-67 Earls, J., dissenting.
¶ 80 (Berger, J., dissenting).
Allen
is controlling precedent, and this Court is “bound
by prior precedent [under] the doctrine of stare decisis.”
In re O.E.M.
,
conclude that respondent-mother has demonstrated she was prejudiced by her counsel’s multiple instances of deficient performance. This case differs significantly from the typical case involving an IAC claim in a termination proceeding. In most cases, an appellate court reviews a claim that a respondent-parent reсeived ineffective assistance in a termination proceeding alone, not that the parent received ineffective assistance during the underlying juvenile proceedings leading up to the termination hearing. See, e.g. , In re M.Z.M. , 251 N.C. App. 120, 124 (2016) (“Respondent-mother claims she received ineffective assistance of counsel (‘IAC’) at the termination hearing.”). In those types of cases, an appellate court can conduct a prejudice analysis based on the record and set of facts developed and determined by N RE B.B., S.B., S.B.
2022-NCSC-67 Earls, J., dissenting.
the trial court during the underlying proceedings, which allow the appellate court to assess with a reasonable degree of certainty the probable impact of counsel’s deficient performance at the termination hearing. This case is different. In this case, respondent-mother’s counsel failed to secure
her presence in court on numerous occasions, failed to maintain ongoing communication with her during the course of proceedings, failed to file a responsive pleading to DSS’s termination motion, failed to advocate on respondent-mother’s behalf during the underlying juvenile proceedings, and failed to raise any defense at the termination hearing. These actions and omissions fall far short of what is necessary to provide a respondent-parent with adequate representation. While the precise standard for adequate performance might vary depending upon the context and nature of a given proceeding, given the stakes involved for parents in juvenile matters, adequate representation would generally require counsel to do things like
Communicate regularly with clients (at least monthly and after all significant developments or case changes) and in-person when possible;” . . . .
Thoroughly prepare for and attend all court hearings and reviews.
Thoroughly prepare clients for court, explain the hearing process and debrief after hearing are complete to make sure clients understand the results. For children this must be done in a developmentally appropriate way. N RE B.B., S.B., S.B.
2022-NCSC-67 Earls, J., dissenting.
. . . .
Conduct rigorous and complete discovery on every case. Independently verify facts contained in allegations and reports.
Have meaningful and ongoing conversation with all clients about their strengths, needs, and wishes.
. . . .
Work with every client to identify helpful relatives for support, safety planning and possible placement.
Attend and participate in case planning, family group decision-making and other meetings a client may have with the child welfare agency.
Work with clients individually to devеlop safety plan and case plan options to present to the court.
File motions and appeals when necessary to protect each client’s rights and advocate for his or her needs.
United States Department of Health and Human Services, Administration on Children, Youth and Families, High Quality Legal Representation for All Parties in Child Welfare Proceedings 13 (2017). Respondent-mother did not receive adequate representation under the circumstances of this case. These repeated failures deprived respondent-mother of a fundamentally fair
termination proceeding and deprive this Court of a record and set of facts that allow us to reasonably assert respondent-mother’s rights would have been terminated even if she had received adequate representation. These basic legal principles are usefully N RE B.B., S.B., S.B.
2022-NCSC-67 Earls, J., dissenting.
illustrated by a case out of Oregon,
In State ex rel. State Office for Services to Children
& Families v. Thomas (In re Stephens),
Essential to our conclusion is the fact that the trial court was not given the opportunity to judge the credibility of the father's case or his evidence, whatever father's case and evidence may in fact be. . . . In a situation, as here, where father wanted to put on a case, where there is some credible evidence that father could be a resource for child, and where counsel has not effectively advocated any theory of father's case, father has not been heard. Accordingly, we will not conclude that the result would have inevitably been the same.
In re Stephens,
170 Or. App at 395–96;
see also In re J.J.L.
,
2022-NCSC-67 Earls, J., dissenting.
We are skeptical that the denial of counsel to an indigent parent in an adoption proceeding which results in the termination of parental rights can ever be “harmless,” under any standard. It is, after all, an axiom in criminal cases that counsel enables an accused to procure a fair trial, and the formality of these termination and adoption proceedings, along with their substantial threat to a fundamental interest of the parent, is not so different from those in a criminal case.
Matter of Adoption of K.A.S. , 499 N.W.2d 558, 567 (N.D. 1993) (citation omitted). Given how wholly inadequate counsel’s performance was in this case, the logic should apply. Here, for example, because respondent-mother was in and out of jail
throughout the course of these proceedings, an assessment of her progress on her case plan and the applicability of the asserted grounds for termination required an assessment of the constraints imposed by her incarceration. See In re K.N. , 373 N.C. 274, 283 (2020) (“[R]espondent’s incarceration, by itself, cannot serve as clear, cogent, and convincing evidence of neglect. Instead, the extent to which a parent's incarceration or violation of the terms and conditions of probation support a finding N RE B.B., S.B., S.B.
2022-NCSC-67 Earls, J., dissenting.
of neglect depends upon an analysis of the relevant facts and circumstances.”). But
because counsel never raised the issue at a permanency planning hearing, and
because respondent-mother was never brought to court to raise the issue or present
factual evidence herself, the trial court never considered whether the terms of
respondent-mother’s case plan needed to be adapted in view of the services available
to her in jail. Because counsel did not file an answer to the termination motion and
did not advocate for respondent-mother at the termination hearing, the trial court
never examined the extent to which the existence of grounds for termination resulted
from the fact of respondent-mother’s incarceration alone.
In re M.A.W.
,
II. Respondent-mother’s challenge to the trial court’s findings of fact In addition to the majority’s improper application of the prejudice standard, the majority also errs in sidestepping respondent-mother’s challenge to the trial N RE B.B., S.B., S.B.
2022-NCSC-67 Earls, J., dissenting.
court’s findings of fact by adopting a strained, unnecessary, and formalistic reading of the argument raised in her brief. According to the majority, respondent-mother failed to challenge any of the findings of fact the trial court actually entered because the trial court did not enter the finding respondent-mother purported to challenge, the finding “that there was no evidence that could have been presented to alter the result of the termination proceeding.” It is correct that there is no finding precisely stating “that there was no evidence that could have been presented to alter the result of the termination proceeding” in those exact words. But the trial court did find that “[i]n the absence of any showing of evidence or testimony that could have been presented, the court finds that, even if respondent-mother hаd been present and available at every hearing throughout the pendency of the underlying case, the outcome of the termination hearing would have been the same.” Substantively, there is no difference between the finding respondent-mother challenges and the finding the trial court entered. Both mean exactly the same thing: that, in the trial court’s view, respondent-mother had failed to note any evidence that “could have been presented” during the termination proceeding (or underlying juvenile proceeding) that would have changed its ultimate outcome. There is no requirement in our rules of appellate procedure stating that
appellants must list the specific findings of fact being challenged using the precise words utilized by the factfinder in order to challenge findings of fact on appeal. We N RE B.B., S.B., S.B.
2022-NCSC-67 Earls, J., dissenting.
have never before imposed such a requirement in our caselaw. There is good reason
not to. This Court has moved away from overly technical rules of appellate procedure
in recent years, amending Rule 10 to eliminate the requirement that litigants must
list specific “exceptions” and “assignments of error” to properly present an issue on
appeal.
See Malone-Pass v. Schultz
, 868 S.E.2d 327, 2021-NCCOA-656, ¶ 15
(describing changes to Rules of Appellate Procedure effective as of October 2009).
Consistеnt with this more reasonable approach, and based on the text of the current
Rule 10, we have held that a party preserves an issue for appellate review by making
a general objection when “what action is being challenged and why the challenged
action is thought to be erroneous . . . are ‘apparent from the context[.]’ ”
State v.
McLymore
,
III. Conclusion. Once again, this Court’s decision to deny a respondent-parent’s claim that she received ineffective assistance of counsel in a juvenile proceeding “gives short shrift to an important guarantor of the fairness of our juvenile system.” In re Z.M.T. , 379 N.C. 44, 2021-NCSC-121, ¶ 21 (Earls, J., dissenting). Although I recognize the State’s N RE B.B., S.B., S.B.
2022-NCSC-67 Earls, J., dissenting.
interest in protecting the welfare of the children subject to these proceedings and the children’s concomitant need for permanency, the juvenile system suffers when we refuse to correct the erosion of rights guaranteed to parents in juvenile proceedings. The record in this case demonstrates that respondent-mother’s counsel’s representation in this instance was so deficient as to undermine the validity and reliability of the juvenile and termination proceedings entirely. Accordingly, I would reverse the order terminating respondent-mother’s parental rights and remand for further proceedings.
Notes
[1] Pseudonyms are used in this opinion to protect the juveniles’ identities and for ease of reading.
[2] The trial court’s order also terminated the parental rights of the juveniles’ father, but he did not appeal and is not a party to the proceedings before this Court.
[3] Pursuant to this Court’s order, the record has been supplemented concerning the basis for the trial court’s first two statements. It is undisputed that the father was present for the termination hearing as reflected in the trial court’s last statement.
[1] The majority further suggests that because, in their view, respondent-mother did not challenge the trial court’s findings of fact or those findings were supported by the evidence, “were we to address this argument, we would be bound to affirm the trial court’s conclusion that respondent was not cumulatively prejudiced.” However, that is not correct because it completely abdicates our duty as an appellate court to examine whether the findings of fact support the trial court’s conclusions of law. See In re E.H.P. ,372 N.C. 388 , 392 (2019) (“We review a trial court's adjudication under N.C.G.S. § 7B-1111 ‘to determine whether the findings are supported by clear, cogent and convincing evidence and the findings