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In re A.R.C.

Court of Appeals of North Carolina

June 5, 2019

IN THE MATTER OF: A.R.C., K.M.W., C.W.S.W., A.S.W.

          Heard in the Court of Appeals 9 May 2019.

          Appeal by respondent from orders entered 26 April 2018 by Judge Mary F. Paul in Davidson County Nos. 15 JT 169-71, 16 JT 67 District Court.

          Assistant Davidson County Attorney Sheri A. Woodyard for petitioner-appellee Davidson County Department of Social Services.

          Anné C. Wright for respondent-appellant mother.

          Stephen M. Schoeberle for guardian ad litem.

          INMAN, Judge.

         Respondent-Mother ("Mother") appeals from orders terminating her parental rights with respect to each of her four children, A.R.C. ("Amy"), K.M.W. ("Kim"), C.W.S.W. ("Connor"), and A.S.W. ("Amber," collectively "the children"), [1] arguing that she was denied effective assistance of counsel because her trial counsel failed to advocate for her in the termination hearing. After careful review of the record and applicable law, we remand for the trial court to determine whether Mother is entitled to relief or whether termination is proper in the absence of a further hearing on the merits.

         I. FACTUAL AND PROCEDURAL HISTORY

         In June 2015, Connor, who was just a few months old, was diagnosed with failure to thrive. Connor was hospitalized and immediately gained significant weight. On 11 August 2015, Mother entered into a case plan with the Davidson County Department of Social Services ("DSS"), which required her to obtain a mental health assessment, obtain stable housing and employment, ensure that the children were adequately fed, and keep a clean family home. Approximately three weeks later, a DSS social worker visited Mother's home and observed that Amy, Kim, and Connor and the home were not being taken care of as agreed. DSS asked Mother to place them in kinship care, to which she consented to having them live with a maternal aunt and the aunt's fiancé. While in kinship care, Kim required medical care, but her parents could not be located to give permission for her treatment.

         On 14 October 2015, after DSS filed petitions alleging that Amy, Kim, and Connor were neglected and dependent juveniles, the trial court awarded nonsecure custody of them to DSS. On 21 March 2016, the trial court entered an order adjudicating the three children as neglected based on stipulated facts. The children remained in DSS custody but were placed with their maternal great-aunt.

         In July 2016, Mother gave birth to Amber. A few days later, DSS filed a petition alleging that Amber was a neglected and dependent juvenile, noting that Mother had open DSS cases with her other three children and had not made suitable progress on her case plan. DSS obtained nonsecure custody of Amber and placed her in foster care with her three siblings. The trial court entered an order adjudicating Amber as neglected on 14 September 2016.

         On 20 February 2017, DSS filed petitions to terminate Mother's parental rights to the children on the grounds of neglect, failure to make reasonable progress, and failure to pay a reasonable portion of the children's cost of care. Following a hearing on 30 November 2017, the trial court determined that Mother required a guardian ad litem pursuant to N.C. Gen. Stat. § 1A-1, Rule 17. The trial court found that Mother "lack[ed] sufficient capacity to manage her own affairs and to communicate important decisions due to mental illness and inebriety." Mother was later hospitalized to receive mental health treatment.

         On 24 January 2018, nearly a year after DSS filed the petitions to terminate Mother's parental rights, her guardian ad litem accepted service of process of the petitions on her behalf. Mother's guardian ad litem and her attorney were notified of a hearing on the petitions scheduled for 29 March 2018.

         On the morning of the hearing, Mother's attorney filed an answer denying many of DSS's allegations and a motion to dismiss the petitions. Mother did not personally attend the hearing, but her guardian ad litem and her court-appointed attorney were present on her behalf. The trial court did not inquire into Mother's absence. Throughout the hearing, Mother's attorney did not object to any evidence ...


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