In re A.K., ___ N.C. App. ___ (August 6, 2024)
Held:
Vacated
- Facts: DSS filed a neglect petition and obtained nonsecure custody of two children. Mother was appointed provisional counsel. After the hearing on the need for continued nonsecure custody and before the scheduled pre-adjudication, adjudication, and disposition hearing, Mother retained counsel. Mother’s retained counsel filed a notice of appearance and served the notice on opposing counsel and the children’s GAL prior to the scheduled hearing. Both appointed and retained counsel appeared at the scheduled hearing. The court ordered the hearing to be continued and sua sponte appointed a Rule 17 GAL for Mother. The Rule 17 GAL appointment occurred without an evidentiary hearing and was based upon a review of the court file and attorney arguments. In the continuance order, a Rule 17 GAL was appointed to Mother because of allegations in the petition, Mother’s inability to understand the proceedings, and cultural barriers. Mother speaks Albanian, is Muslim, and the petition alleged in part that Mother suffered from mental health issues. The GAL Order (AOC-J-206) concluded mother is incompetent but did not include any findings of fact. At the later held pre-adjudication hearing, Mother and retained counsel requested that retained counsel, rather than appointed counsel, represent Mother. The trial court and counsel put on the record the court’s previous discussions regarding Mother’s representation. The trial court denied the request after determining retained counsel was not qualified under the local rules for appointed counsel to represent Mother. As a result, Mother was represented by her appointed counsel. The children were adjudicated neglected. Mother appeals, challenging the denial of her right to be represented by retained counsel on constitutional due process and statutory grounds, the Rule 17 GAL appointment, and the adjudication and disposition orders. The merits of the adjudication and disposition appeals were not addressed because this opinion vacates those orders as a result of mother’s inability to proceed with her retained counsel at hearing.
- G.S. 7B-1001(a)(3) allows for direct appeal of any initial order of disposition and the adjudication order upon which it is based. The ruling about Mother’s retained counsel is addressed in the pre-adjudication/adjudication order (a single order) and was properly noticed for appeal.
- Standard of review: Under In re K.M.W., 376 N.C. 195 (2020) (concerning a parent’s waiver of their right to counsel), the appellate court applies a de novo review to conclusions of law addressing a parent’s right to counsel based on statutory criteria. Additionally, “de novo review is appropriate in cases where constitutional rights are implicated[.]” Sl. Op. at 12 (citation omitted). The issue in this case does not involve a substitution of appointed counsel or a motion to continue made by respondent so that retained counsel can be obtained in lieu of appointed counsel, both of which apply an abuse of discretion review.
- The parent of a child alleged in a juvenile petition to be abused, neglected, or dependent has a right to counsel, and to appointed counsel in cases of indigency. G.S. 7B-602(a). Under G.S. 7B-602(a)(3), the trial court “shall” dismiss provisional counsel at the first hearing if the respondent parent has retained counsel. This statutory language means that a parent has the right to be represented by retained counsel of the parent’s choosing. “The use of the word ‘shall’ by our Legislature has been held by this Court to be a mandate, and failure to comply with this mandate constitutes reversible error.” Sl. Op. at 15 (citation omitted).
- The court erred in not allowing mother to be represented by her retained counsel. Although the court relied on the local rules governing abuse, neglect, and dependency cases that establish standards for court appointed attorneys who represent indigent parents, those standards do not apply to privately retained attorneys. For a retained attorney, “[t]he only required credential or qualification for an attorney to represent a respondent-parent is a valid license to practice law in North Carolina[.]” Sl. Op. at 19. The argument by DSS that trial courts have “the inherent authority or power to regulate the attorneys appearing before them” does not apply in this case as that inherent authority is when an attorney is “engaged in unethical or potentially unethical conduct”, neither of which is at issue in this case. Sl. Op. at 19.
- The record shows that retained counsel held a license to practice law in the State, filed and served a notice of appearance before the scheduled hearing, and appeared at both the scheduled hearing and the pre-adjudication hearing requesting to represent Mother. Findings at the pre-adjudication hearing include that the trial court made an inquiry into counsel’s experience representing parents in abuse, neglect, and dependency cases and found counsel did not have any requisite experience or knowledge in the subject area. After determining counsel’s representation would be detrimental to Mother, given the primary plan of reunification, the trial court erroneously found counsel was unqualified to represent Mother and released retained counsel without addressing the statutory mandate of G.S. 7B-602. The record shows retained counsel acted appropriately and there was no indication his representation of Mother would be unethical or violate the Rules of Professional Conduct regarding competence. Additionally, assuming the GAL order was proper, there are no findings in the GAL order to support the GAL’s argument that Mother lacked capacity to select counsel.
- Appointment of the Rule 17 GAL for Mother is not reviewable. While continuance orders and GAL orders are not appealable under G.S. 7B-1001(a), the court noted it would be “inclined to invoke Rule 2 [of the Rules of Appellate Procedure] to address Mother’s argument that the appointment of her [Rule 17] GAL” at the scheduled hearing was improper, given the apparent lack of notice and absence of findings of fact or evidence to support the appointment. Sl. Op. at 9. However, the appellate court was unable to review the issue without a transcript of the scheduled hearing to determine whether Mother objected to the GAL’s appointment. On remand the trial court is directed to hold a hearing upon request of any party to consider whether Mother is still in need of a Rule 17 GAL based on incompetence rather than mother’s language barriers and culture, and if it is determined Mother is still in need, to enter an order with findings of fact to support its conclusion.
Category:
Abuse, Neglect, DependencyStage:
Topic: