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In re M.G.

Court of Appeals of North Carolina

January 20, 2015

IN THE MATTER OF: M.G. and H.G

Heard in the Court of Appeals: December 4, 2014.

Appeal by Respondent-mother from order entered 3 July 2014 by Judge Edward A. Pone in Cumberland County District Court, Nos. 11 JT 501-02.

Elizabeth Kennedy-Gurnee for Petitioner Cumberland County Department of Social Services.

Richard Croutharmel for Respondent-mother.

Beth A. Hall for guardian ad litem.

STEPHENS, Judge. Judges STEELMAN and GEER concur.

OPINION

Page 437

STEPHENS, Judge.

Respondent-mother (" Respondent" ) appeals from an order terminating her parental rights to her minor children, " Melvin" and " Hannah." [1] Respondent argues that the district court abused its discretion by: (1) denying her trial counsel's motion to continue the termination of parental rights (" TPR" ) hearing because Respondent was not present and had not received notice of the hearing date, and (2) by allowing Respondent's trial counsel to withdraw from her representation at the start of the TPR hearing without first confirming that Respondent had been notified of counsel's intent to do so. After careful review of the record, we vacate the TPR order and remand the case to the Cumberland County District Court for further proceedings necessitated by its erroneous decision to allow Respondent's counsel to withdraw.

Facts and Procedural History

On 17 August 2011, Cumberland County Department of Social Services (" DSS" ) filed a juvenile petition alleging abuse, neglect, and dependency (" AND" ) of Respondent's five-year-old son Melvin and eight-year-old daughter Hannah, and also obtained an order for nonsecure custody of them. The petition alleged that on 3 August 2011, Melvin's father beat him severely enough that he sustained " black and blue" bruises from his waistline to his buttocks and thigh, as well as a handprint on his face from multiple slaps, while Hannah sustained bruising on her hip from being beaten or spanked with a belt by

Page 438

her father's girlfriend.[2] Respondent reported her children's injuries to the Fayetteville Police Department, but at that time had no permanent address and a history of unstable housing, unstable employment, drug use, and anger management problems. DSS also presented evidence of domestic violence by the children's father against Respondent, and further alleged that Respondent " put pills in the juice of the children for them to drink." On 22 August 2011, attorney Mona Burke was appointed as Respondent's trial counsel for the AND proceedings and the court continued its order of nonsecure custody for the children with DSS but granted Respondent supervised visitation rights.

On 27 April 2012, the parties engaged in a permanency mediation and agreed for Melvin and Hannah to be adjudicated neglected and for dismissal of the abuse and dependency claims. On 25 July 2012, the district court entered a Dispositional Order wherein Respondent was ordered to complete a psychological evaluation, a parenting assessment, and age appropriate parenting classes, as well as obtain and maintain safe, stable, and suitable housing and employment sufficient to sustain herself and her children.

A permanency planning hearing was held over the course of three days in late October 2012. The hearing was originally scheduled for 23 October 2012, on which date Respondent was initially present in the courthouse but disappeared without explanation prior to the matter being called. The hearing was continued to 25 October 2012, but when Respondent again failed to appear and Ms. Burke could not explain her absence, the court temporarily suspended Respondent's visitation rights with her children. Respondent finally appeared on 31 October 2012, attributing her prior absences to transportation issues; she also informed the court that she had obtained housing and was working cleaning houses, although she did not provide any written verification. The district court reinstated Respondent's visitation rights, contingent on negative drug screens, set the permanent plan for reunification, and ordered Respondent to successfully complete a psychological evaluation, a parenting assessment, age appropriate and cooperative parenting classes, and anger management classes; submit to random drug testing and not use, possess, or consume alcohol or controlled substances; and actively engage in individual therapy and substance abuse counseling and treatment.

Respondent failed to appear at the next permanency planning hearing on 10 January 2013, and Ms. Burke was unaware as to the reasons for her absence. The court found Respondent had not made any progress toward complying with its orders but left the permanent plan as reunification. Respondent did attend the next permanency planning hearing on 29 April 2013, but the court found that she had failed to obtain permanent housing and had not yet completed a psychological evaluation or parenting assessment, and therefore changed the permanent plan to custody with other court-approved caretakers concurrent with reunification. The court also stated that, " [t]he parties have been put on notice ...


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