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In re B.L.H.

Court of Appeals of North Carolina

January 20, 2015

IN THE MATTER OF: B.L.H. a minor child

Heard in the Court of Appeals 22 December 2014.

Editorial Note:

This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]

Appeal by respondent from order entered 29 April 2014 by Judge Angela B. Puckett in Surry County District Court.

Surry County. No. 13 JT 95.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

H. Lee Merritt, Jr. for petitioner-appellee.

Peter Wood for respondent-appellant.

DAVIS, Judge. Chief Judge McGEE and Judge STEELMAN concur.

OPINION

DAVIS, Judge.

R.H.L. (" Respondent" ) appeals from the trial court's 29 April 2014 order terminating his parental rights to his daughter, B.L.H. (" Barbara" ).[1] On appeal, Respondent argues that (1) the trial court lacked subject matter jurisdiction to terminate his parental rights; and (2) he received ineffective assistance of counsel at the termination of parental rights proceeding. After careful review, we affirm in part, vacate in part, and remand for further proceedings.

Factual Background

M.M.W.N. (" Petitioner" ) and Respondent are the natural parents of Barbara, who was born in 2001. The parties married in February 2003 and lived together with Barbara in Patrick County, Virginia until Respondent and Petitioner separated in December 2003. Following the parties' separation, Petitioner and Barbara moved to Surry County, North Carolina, and Respondent remained in Patrick County, Virginia. The parties subsequently divorced.

On 1 July 2004, a custody order was entered in Patrick County, Virginia granting the parties joint legal custody of Barbara and primary physical custody to Petitioner. The order contained provisions for visitation by Respondent, which he exercised on a regular basis until July 2006. In late July 2006, Respondent was charged with federal drug-related offenses. On 5 October 2006, the Virginia court entered an order modifying the terms of Respondent's visitation to permit supervised visitation only. Respondent was convicted of the drug offenses and sentenced to active imprisonment in May 2007. Respondent is currently serving his sentence at a federal prison in Texas, and his projected date of release is 10 July 2017.

Petitioner remarried in September 2006 and since that time has continuously lived with Barbara and her present husband in Surry County, North Carolina. Petitioner's husband filed a petition to adopt Barbara in October 2013. On 16 December 2013, Petitioner filed a motion in Surry County District Court to terminate Respondent's parental rights, alleging that Respondent had neglected and abandoned Barbara. The summons issued to Respondent in connection with that proceeding contained a notice that an attorney had been temporarily assigned as Respondent's counsel. The notice also contained contact information for the attorney and encouraged Respondent to contact him immediately. The return of service indicated that service was effectuated upon Respondent on 17 January 2014.

Respondent filed a pro se response on 7 February 2014, opposing the termination of his parental rights and the proposed adoption of Barbara by Petitioner's husband. In his response, he asserted that he had written letters to Barbara but that Petitioner had refused to give the letters to her. He also alleged that despite his incarceration, he had made child support payments from 2007 to May 2013, at which time his funds were depleted. The response was addressed to the " Surry County Court" in care of the temporarily-assigned attorney.

On 24 February 2014, the trial court officially appointed the same attorney to represent Respondent in the termination of parental rights proceeding. At a hearing held on 27 February 2014, the trial court concluded that it possessed subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (" UCCJEA" ) and scheduled an adjudication hearing on the motion to terminate Respondent's parental rights for 26 March 2014. Respondent's attorney asked the trial court for sufficient time to communicate with Respondent and expressed concerns about his ability to contact Respondent in prison. However, the attorney ultimately agreed to the 26 March 2014 hearing date and stated that if he encountered a problem, he would discuss it with Petitioner's counsel.

At the beginning of the 26 March 2014 proceeding, Respondent's trial counsel requested that the following information be noted in the record: (1) Respondent was incarcerated in federal prison in Texas; (2) the attorney had not yet spoken to Respondent but had spoken to " Kristin," Respondent's adult daughter who was in " some type" of contact with Respondent; (3) the attorney had not spoken to anyone else about the case after his conversation with Kristin; and (4) even though he had not communicated with Respondent, the attorney believed that he had enough information to cross-examine Petitioner and that " if [Respondent] were present and if he had communicated [with the attorney,]" Respondent would have wanted the attorney to proceed in representing Respondent at the hearing.

After counsel's statements were read into the record, the following colloquy occurred between him and the trial court:

THE COURT: All right. And what efforts have you made to contact [Respondent]?
[COUNSEL]: Your Honor, there was a -- I did not write [Respondent], Your Honor. I sent a request to the prison to find out about the email down there because it is my understanding just through my research that inmates do have, for a fee, an email service that they can use. I heard no response from [Respondent], Judge. I did not write him. Honestly, I did not have a way to phone him and speak to him as well. As I indicated, I spoke to his daughter. She essentially raised some of the same issues as her father had raised in response.
THE COURT: Has she -- had she spoke to him about this trial?
[COUNSEL]: I think she had spoken to him. That's my understanding, Your Honor.
THE COURT: Okay, and has he made any effort to contact you or write ...

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