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In re J.K.P.

Court of Appeals of North Carolina

December 31, 2014

IN THE MATTER OF: J.K.P

Heard in the Court of Appeals: December 9, 2014.

Appeal by respondent mother from order entered 4 April 2014 by Judge Monica M. Bousman in Wake County District Court, No. 12 JT 150.

Roger A. Askew for petitioner-appellee Wake County Human Services.

Administrative Office of the Courts Appellate Counsel, Tawanda N. Foster, for guardian ad litem.

Edward Eldred for respondent-appellant mother.

DIETZ, Judge. Judges STROUD and DILLON concur.

OPINION

Page 120

DIETZ, Judge.

Respondent, the mother of J.K.P., appeals from an order terminating her parental rights. She argues that the trial court erred in allowing her to waive her right to counsel and represent herself at the termination hearing. She also contends that the trial court improperly corrected a clerical mistake on the waiver-of-counsel form after entering judgment. We reject Respondent's arguments and affirm.

Facts and Procedural Background

The Wake County Department of Human Services (WCHS) filed a petition on 29 May 2012 alleging that J.K.P. was a neglected juvenile. By order filed 17 August 2012, the trial court adjudicated J.K.P. neglected. Respondent appealed and this Court affirmed the adjudication on 7 May 2013. In re J.P., ___ N.C.App. ___, 741 S.E.2d 928 (2013) (unpublished). WCHS filed a motion to terminate Respondent's parental rights on 18 September 2013.

The trial court held a review and permanency planning hearing on 2 October 2013, at which Respondent indicated she did not wish to have her court-appointed attorney, Mr. Milholland, represent her. The trial court allowed both Respondent's court-appointed attorney and her guardian ad litem to withdraw. Respondent later filed an affidavit of indigency requesting court-appointed counsel, and the trial court appointed Ms. Ferrell to represent Respondent in the termination hearing.

Page 121

Then, at a January 2014 pre-trial hearing, Respondent informed the trial court that she changed her mind, did not want Ms. Ferrell to represent her, and intended to retain an attorney.

The trial court held the termination hearing on 28 February 2014. Ms. Ferrell advised the court that " [Respondent] has informed me that she wishes to represent herself in this matter." The trial court engaged in a lengthy colloquy with Respondent about her desire to proceed pro se and her understanding of the consequences, and then asked Respondent to read and sign a waiver-of-counsel form. Respondent checked the box indicating that she intended to represent herself and signed her name. On the signed form, the court made written findings of fact to show that Respondent's waiver was " knowing and voluntary" ; however, the court checked the box corresponding with the conclusion of law that " [p]arent's waiver is not knowing and voluntary." Respondent proceeded pro se at the termination hearing.

By order filed 4 April 2014, the trial court terminated Respondent's parental rights. Respondent timely filed her notice of appeal on 6 May 2014. Three days later, before the record on appeal was docketed with this Court, the trial court signed appellate entries and amended Respondent's waiver form to correct the court's mistaken check mark in the wrong box on the waiver-of-counsel form.

Analysis

I. Request to Relieve Counsel and Proceed Pro Se

On appeal, Respondent contends the trial court erred in allowing her to waive her right to counsel and proceed pro se at the termination hearing. A parent's right to counsel in a termination of parental rights proceeding is governed by N.C. Gen. Stat. § 7B-1101.1, which provides:

(a) The parent has the right to counsel, and to appointed counsel in cases of indigency, unless the parent waives the right.
. . . .
(a1) A parent qualifying for appointed counsel may be permitted to proceed without the assistance of counsel only after the court examines the parent and makes findings of fact sufficient to show that the waiver is knowing and voluntary.

N.C. Gen. Stat. § 7B-1101.1 (2013).

Here, after the trial court explained the nature of the proceeding and the consequences of waiving the right to counsel, Respondent read and signed a waiver form containing the following language:

I am the parent of the juvenile named above. I have been told that I have the right to have a lawyer represent me. I have been told of my right to have a lawyer appointed by the Court if I cannot afford to hire one. With full knowledge of these rights, I knowingly, willingly, and understandingly choose as follows:
. . . .
I do not want the assistance of any lawyer. I understand that I have the right to represent myself, and that is what I intend to do.

Below Respondent's signature on the form, the trial court made specific factual findings supporting its conclusion that Respondent's waiver of counsel was knowing and voluntary. The court found that Respondent understood she was represented by a court-appointed attorney and agreed that her court-appointed attorney " has not been ineffective." The court also found that Respondent knew she " was expected to know the law of [termination of parental rights], rules of evidence, [and] rules of court."

Respondent does not challenge these findings by the trial court, nor does she argue that these findings are insufficient to support the trial court's conclusion that her waiver was knowing and voluntary. Instead, Respondent argues that she never requested to represent herself and that the court never told her she had a right to counsel. We disagree.

First, the transcript unquestionably shows that Respondent asked to represent herself. Before the proceedings began, the trial court

Page 122

engaged in the following lengthy colloquy about Respondent's right to counsel:

MS. FERRELL: Okay. But I would make my motion to withdraw at this time based on my client's wishes for me to do so, Your Honor.
THE COURT: And, [Respondent], why is it that you wish to represent yourself?
[RESPONDENT]: Because every attorney that you put on my case has given me ineffective assistance of counsel and y'all violating my constitutional rights.
. . . .
THE COURT: All right. On October the 2nd you said in the underlying case that you did not want a court-appointed attorney. When we -- in the underlying case. On the TPR I asked you what you wanted to do about a lawyer and on November the 25th you filed an affidavit of indigency and I appointed Ms. Ferrell to represent you. Is that correct?
[RESPONDENT]: Yes, you did.
THE COURT: Okay. And what is your basis for saying that you have been given ineffective assistance ...

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