In re R.A.F., 384 N.C. 505 (2023)
Held:
Reversed and Remanded
There is a dissent
in part by Morgan, J., joined by Earls, J.
- Facts: Mother was served with a TPR petition and summons and was appointed provisional counsel. Her provisional counsel requested an extension of time to respond to the TPR petition, which was granted. Notice of hearing was served by petitioners on provisional counsel but not on mother. Mother did not appear at the TPR hearing. The court held a limited inquiry asking if the provisional counsel had contact with their client. Provisional counsel replied they spoke with mother initially after service and heard from her when she was in a treatment facility. Provisional counsel discovered mother graduated from the facility and had not heard from her. The court released provisional counsel and proceeded with the TPR hearing. The TPR was granted. Mother appealed. In a divided opinion, the court of appeals vacated and remanded for a new hearing based on fundamental fairness principles including whether mother had notice of the hearing. An appeal to the supreme court followed.
- G.S. 7B-1108.1 addresses the pretrial to a TPR and requires the court to consider the retention or release of provisional counsel and whether all summons, services of process and notice requirements have been met.
- G.S. 7B-1101.1 addresses the appointment of counsel for a respondent parent and states “at the first hearing after service upon respondent parent, the court shall dismiss the provisional counsel if the respondent parent does not appear at the hearing….” Sl.Op. at 8. The court of appeals determined this statute presumes the parent has notice of the hearing and there was no evidence mother knew about the hearing. This issue was not raised on appeal before the court of appeals, and the appellate court’s role is to not create an appeal. The parent cannot now change their position and argue before the supreme court that she lacked notice.
- The court found and concluded mother was served and was appointed provisional counsel with return of service in the court file. Notice of the hearing was made. Mother did not appear for the hearing. Service and notice requirements were met, and provisional counsel was released pursuant to statute. The court acted properly.
- Dissent in part: The record shows mother was not served with the notice of hearing and the court’s inquiry to provisional counsel did not adequately focus on the issue of notice yet the court found all notice requirements were met. Fundamental fairness applies to TPRs.
Category:
Termination of Parental RightsStage:
Appointment of CounselTopic: