                 IN THE COURT OF APPEALS OF NORTH CAROLINA

                                          No. COA18-791

                                        Filed: 4 June 2019

Davidson County, Nos. 15 JT 169-71, 16 JT 67

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


      Appeal by respondent from orders entered 26 April 2018 by Judge Mary F.

Paul in Davidson County District Court. Heard in the Court of Appeals 9 May 2019.


      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.


      1   Pseudonyms are used to protect the identities of the children and for ease of reading.
                      IN RE: A.R.C., K.M.W., C.W.S.W., A.S.W.

                                 Opinion of the Court



                 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



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                      IN RE: A.R.C., K.M.W., C.W.S.W., A.S.W.

                                   Opinion of the Court



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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                       IN RE: A.R.C., K.M.W., C.W.S.W., A.S.W.

                                   Opinion of the Court



presented by DSS, cross-examine DSS’s witnesses, or present any evidence or

arguments challenging termination.

      On 26 April 2018, the trial court entered orders terminating Mother’s parental

rights based on neglect and failure to pay a reasonable portion of the children’s cost

of care. N.C. Gen. Stat. §§ 7B-1111(a)(1), (4) (2017). The trial court further concluded

that termination was in the children’s best interests. Mother filed timely notice of

appeal.

                                    II. ANALYSIS

      Mother’s sole argument is that she received ineffective assistance of counsel

because her attorney failed to advocate for her during the termination hearing.

Because the record on appeal is insufficient for adequate appellate review, we

conclude that further proceedings in the trial court are necessary to resolve this issue.

      “ ‘When the State moves to destroy weakened familial bonds, it must provide

the parents with fundamentally fair procedures,’ which in North Carolina has been

achieved in part through statutory provisions that ensure a parent’s right to

counsel[.]” In re K.N., 181 N.C. App. 736, 737, 640 S.E.2d 813, 814 (2007) (quoting

Santosky v. Kramer, 455 U.S. 745, 753-54, 71 L. Ed. 2d 599, 606 (1982)).            The

statutory right to counsel “includes the right to effective assistance of counsel.” In re

Bishop, 92 N.C. App. 662, 665, 375 S.E.2d 676, 678 (1989). “To prevail in a claim for

ineffective assistance of counsel, respondent must show: (1) her counsel’s



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                          IN RE: A.R.C., K.M.W., C.W.S.W., A.S.W.

                                        Opinion of the Court



performance was deficient or fell below an objective standard of reasonableness; and

(2) her attorney’s performance was so deficient she was denied a fair hearing.” In re

J.A.A., 175 N.C. App. 66, 74, 623 S.E.2d 45, 50 (2005).

                                   A. Deficient Performance

       Mother contends that her attorney was deficient because he failed to advocate

on her behalf during the termination hearing. See In re S.N.W., 204 N.C. App. 556,

560, 698 S.E.2d 76, 79 (2010) (“It is well established that attorneys have a

responsibility to advocate on the behalf of their clients.”). The transcript reflects that,

as the termination hearing was about to begin, Mother’s absence was acknowledged,

but no reasons for the absence were discussed. On the morning of the hearing,

Mother’s attorney had filed answers to the termination petitions and moved for the

trial court to consider them, which it did.

       But once the hearing began, Mother’s attorney ceased to advocate. While he

remained present in the courtroom, Mother’s attorney did not object during the

testimony of DSS’s witnesses, did not cross-examine those witnesses, and did not

present any evidence.2 At the conclusion of both the adjudication and dispositional

phases of the hearing, Mother’s attorney did not make any argument on her behalf.




       2  Mother’s Rule 17 guardian ad litem was also given the opportunity to question witnesses and
offer arguments on Mother’s behalf, but declined to do so. This Court has held that “Rule 17
contemplates active participation of a GAL in the proceedings for which the GAL is appointed.” In re
A.S.Y., 208 N.C. App. 530, 538, 703 S.E.2d 797, 802 (2010). However, because Mother does not present
any issues regarding her guardian ad litem’s conduct on appeal, we will not address it further.

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                       IN RE: A.R.C., K.M.W., C.W.S.W., A.S.W.

                                  Opinion of the Court



      The transcript and the remainder of the record on appeal is insufficient for this

Court to adjudicate Mother’s ineffective assistance of counsel claim. As an appellate

court, we can only know what is included in the record before us. See State v. Lawson,

310 N.C. 632, 641, 314 S.E.2d 493, 499 (1984) (“[T]his Court is bound on appeal by

the record on appeal as certified and can judicially know only what appears in it.”),

cert. denied, 471 U.S. 1120, 86 L. Ed. 2d 267 (1985). The record here provides only

limited evidence regarding Mother’s relationship with her attorney, and neither the

parties nor the trial court addressed the issue on the record with sufficient enough

detail at the termination hearing.

      Of particular concern here is the period between when Mother was appointed

a substitutive guardian ad litem and the termination hearing. Mother attended the

hearing that resulted in an order appointing a guardian ad litem; however, she did

not attend the only permanency planning hearing conducted between that

appointment and the termination hearing. The order entered in the permanency

planning hearing indicated that Mother “was admitted to High Point Regional

Hospital after November 30, 2017, due to her severe mental health needs, depression,

and suicidal ideations.” But neither the termination order nor any other trial court

order addresses what happened to Mother between her hospital admission and the

termination hearing.




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                      IN RE: A.R.C., K.M.W., C.W.S.W., A.S.W.

                                  Opinion of the Court



      On this record, we cannot determine why Mother did not attend the

termination hearing, or what her condition was on the date of the hearing. Nor can

we determine whether Mother had contact with her attorney or her guardian ad litem

or what instructions she may have given them about her cases. Mother’s attorney

did indeed file answers denying the allegations in the petitions on the morning of the

termination hearing, suggesting that the attorney had some reason to believe that

she wanted to contest the termination and that the attorney believed there was a

good faith basis to do so. Yet Mother’s attorney did nothing to advocate for Mother

once the termination hearing began. Nothing in the record explains this discrepancy.

      Mother’s attorney’s general silence during the termination hearing is puzzling,

but without knowing the reasons for this silence, we cannot determine whether this

lack of advocacy constituted deficient representation. At best, we can only engage in

speculation as to the reasons why counsel did not advocate for Mother. Cf. State v.

Taylor, 79 N.C. App. 635, 637, 339 S.E.2d 859, 861 (“While we find the absence of

positive advocacy at the sentencing hearing troublesome, we do not believe we can

hold, on this record, that it constituted deficient performance prejudicial to the

defendant.”), disc. review denied, 317 N.C. 340, 346 S.E.2d 146 (1986).

      Because additional facts regarding the reasons behind counsel’s actions are

needed to resolve Mother’s claim that she was denied a fair hearing, the appropriate

remedy is to remand to the trial court so that it may find those facts and make a



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                       IN RE: A.R.C., K.M.W., C.W.S.W., A.S.W.

                                   Opinion of the Court



determination as to the adequacy of counsel’s representation. See In re S.N.W., 204

N.C. App. at 561, 698 S.E.2d at 79 (“[W]e remand for determination by the trial court

regarding efforts by Respondent’s counsel to contact and adequately represent

Respondent at the termination of parental rights hearing and whether Respondent is

entitled to appointment of counsel in a new termination of parental rights

proceeding.”); cf. State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001) (“Indeed,

because of the nature of IAC claims, defendants likely will not be in a position to

adequately develop many IAC claims on direct appeal.”), cert. denied, 535 U.S. 1114,

153 L. Ed. 2d 162 (2002). On remand, the trial court should inquire into “efforts by

[Mother’s] counsel to contact and adequately represent [her] at the termination of

parental rights hearing” and determine “whether [she] is entitled to appointment of

counsel in a new termination of parental rights proceeding.” In re S.N.W., 204 N.C.

App. at 561, 698 S.E.2d at 79; see also In re D.E.G., 228 N.C. App. 381, 386-87, 747

S.E.2d 280, 284 (2013) (“[B]efore . . . relieving an attorney from any obligation to

actively participate in a termination of parental rights proceeding when the parent is

absent from a hearing, the trial court must inquire into the efforts made by counsel

to contact the parent in order to ensure that the parent’s rights are adequately

protected.”).

                                     B. Prejudice




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                       IN RE: A.R.C., K.M.W., C.W.S.W., A.S.W.

                                   Opinion of the Court



      Both DSS and the children’s guardian ad litem encourage us to hold that

Mother’s ineffective assistance claim must fail because, even if her counsel was

deficient, she cannot show prejudice from her counsel’s allegedly deficient conduct. If

we were to follow this argument, then counsel’s total lack of advocacy throughout the

termination hearing would be immaterial as not even the most compelling advocate

would have changed the outcome and stopped the trial court from terminating

Mother’s parental rights. This is not a conclusion we can reach from the sparse record

before us. See In re S.N.W., 204 N.C. App. at 561, 698 S.E.2d at 79 (“We are mindful

that the record is replete with evidence which casts doubt on Respondent’s ability to

parent. Nonetheless, Respondent is entitled to procedures which provide him with

fundamental fairness in this type of action.”). We decline to speculate about what

trial counsel “could have” argued or presented below or how it would have affected

the outcome of the case without being privy to counsel’s knowledge of the underlying

facts. If a prejudice determination is necessary, it should be made by the trial court,

after it is in full possession of all the facts surrounding counsel’s and Mother’s conduct

and the facts of the case.

                                 III. CONCLUSION

      This Court has made clear that certain “procedural safeguards . . . must be

followed to ensure the fundamental fairness of termination proceedings.”               Id.

(quotations omitted). Because the record before us is silent as to Mother’s attorney’s



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                      IN RE: A.R.C., K.M.W., C.W.S.W., A.S.W.

                                  Opinion of the Court



justification for his actions during the termination hearing, the appropriate remedy

is to remand to the trial court for a hearing to determine whether counsel’s actions

were deficient, and, if so, whether those deficiencies deprived Mother of a fair

hearing. See In re M.G., 239 N.C. App. 77, 83, 767 S.E.2d 436, 441 (2015) (“[T]his

Court has consistently vacated or remanded [termination of parental rights] orders

when questions of ‘fundamental fairness’ have arisen due to failures to follow basic

procedural safeguards.” (citation omitted)). Accordingly, this case is remanded to the

trial court to determine whether Mother received ineffective assistance of counsel.

      REMANDED.

      Judges STROUD and ZACHARY concur.




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