IN THE MATTER OF: A.R.C., K.M.W., C.W.S.W., A.S.W.
in the Court of Appeals 9 May 2019.
by respondent from orders entered 26 April 2018 by Judge Mary
F. Paul in Davidson County Nos. 15 JT 169-71, 16 JT 67
Assistant Davidson County Attorney Sheri A. Woodyard for
petitioner-appellee Davidson County Department of Social
Anné C. Wright for respondent-appellant mother.
Stephen M. Schoeberle for guardian ad litem.
("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"),  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.
FACTUAL AND PROCEDURAL HISTORY
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
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
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
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.
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.
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