In re K.M.W.

• Court: Supreme Court of North Carolina
• Decided: December 18, 2020
• Docket: 356A19
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

No. 356A19

Filed 18 December 2020

IN THE MATTER OF: K.M.W. and K.L.W.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from orders entered on 27 June

2019 by Judge Elizabeth Heath in District Court, Lenoir County. Heard in the

Supreme Court on 12 October 2020.

Robert Griffin for petitioner-appellee Lenoir County Department of Social Services.

Michelle FormyDuval Lynch for appellee Guardian ad Litem.

Annick Lenoir-Peek, Deputy Parent Defender, for respondent-appellant mother.

ERVIN, Justice.

Respondent-mother Holly W. appeals from orders terminating her parental

rights in her children K.M.W. and K.L.W.1 After careful consideration of the

arguments advanced in respondent-mother’s brief in light of the record and the

applicable law, we hold that the challenged termination orders should be reversed

and that this case should be remanded to the District Court, Lenoir County, for

further proceedings not inconsistent with this opinion, including a new termination

hearing.

1 K.M.W. and K.L.W. will be referred to throughout the remainder of this opinion as,

respectively, “Khloe” and “Kylee,” which are pseudonyms used to protect the identity of the juveniles and for ease of reading. IN RE K.M.W. AND K.L.W.

Opinion of the Court

Khloe was born on 22 November 2012, while Kylee was born on 25 March 2008.

The Duplin County Department of Social Services became involved with respondent-

mother and the father2 on 9 July 2015 after receiving a report alleging that

respondent-mother—who, at the time, had custody of the children—had engaged in

an incident involving domestic violence with her boyfriend in the presence of the

children and had been administering medicine to the children in order to get them to

sleep. An investigation into this report revealed that domestic violence had occurred,

that respondent-mother had been consuming marijuana, and that respondent-mother

lacked stable housing.

Following the making of this report, the children were voluntarily placed with

their paternal grandparents. On 22 July 2015, respondent-mother broke down an

interior door in the paternal grandparents’ home, at which point the children were

placed with their father and his girlfriend by the consent of all parties.

On 4 April 2016, DSS filed a petition alleging that the children were neglected

juveniles. On 29 July 2016, Judge Sarah C. Seaton entered an order finding that the

children were neglected juveniles. After this case was transferred from Duplin

County to Lenoir County by consent of the parties following respondent-mother’s

move from Swansboro to Kinston, the trial court entered a dispositional order on 20

October 2015 placing the children in the joint custody of their parents, with the father

2 In view of the fact that the father is not a party to the proceedings before this Court

on appeal, we will refrain from discussing information particular to him throughout the remainder of this opinion.

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being awarded primary physical custody and with respondent-mother having been

awarded two hours of visitation each week, and requiring respondent-mother to take

a number of steps in order to alleviate the conditions that had led to the finding that

the children were neglected juveniles, including, but not limited to, obtaining a

mental health assessment and complying with any resulting recommendations,

obtaining a substance abuse assessment and complying with any resulting

recommendations, participating in parental responsibility classes and demonstrating

the ability to use the skills that she had learned, obtaining and maintaining stable

housing and employment, participating in Family Drug Treatment Court,

participating in an anger management course or counseling, and attending victim

empowerment education.

A review hearing was held on 6 December 2016 at which the trial court

instructed respondent-mother to refrain from making unannounced visits to the

father’s home. At a review hearing held on 24 January 2017, the trial court learned

that respondent-mother had made unannounced appearances at the father’s home on

two occasions for the purpose of seeing the children. As a result, the trial court

entered an order granting custody of the children to the father; allowing respondent-

mother to have unsupervised visitation with the children every other weekend and

every Wednesday evening; ordering respondent-mother to abide by many of the same

corrective conditions that she had previously been ordered to comply with and the

additional condition that respondent-mother refrain from having men in her home

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when the children were present; and removing this case from the active review

docket, subject to the understanding that the court remained available to hear any

matter that any party might elect to raise in the future.

After the entry of the 24 January 2017 order, DSS learned that, despite the

trial court’s prior order, respondent-mother had had a male friend in her home while

the children were present and that respondent-mother’s male friend had allegedly

sexually abused Khloe while in respondent-mother’s home. After refusing to

participate in a Safety Assessment, respondent-mother violated a Safety Assessment

that had been entered into by the father by allowing Khloe to speak on the phone

with the alleged perpetrator. Following this conversation, Khloe recanted her

accusation of sexual abuse against respondent-mother’s male friend and

subsequently told respondent-mother that the father had touched her “pee-pee.”

A second petition alleging that the children were neglected juveniles was filed

by the Lenoir County Department of Social Services on 17 May 2017, with James

Perry having been appointed to represent respondent-mother in this matter. On 16

November 2017, the trial court entered an order finding that Khloe and Kylee were

neglected juveniles and putting the children in DSS custody; approving the placement

of the children with their maternal grandparents; terminating respondent-mother’s

visitation with the children until the children and respondent-mother had begun

therapy; and ordering respondent-mother to obtain a mental health assessment and

comply with any resulting recommendations, obtain a substance abuse assessment

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and comply with any resulting recommendations, attend and participate in parenting

responsibility classes and demonstrate the ability to use the skills that she had

learned in those classes, obtain and maintain stable housing and employment, submit

to random drug testing, attend and participate in a victim empowerment class or

address such issues in counseling, and refrain from having any contact with her male

friend.

After a review hearing was held on 14 November 2017, the trial court entered

an order on 30 January 2018 relieving DSS from any obligation to attempt to reunify

respondent-mother with the children and refusing to allow respondent-mother to visit

the children in the absence of a recommendation that such visitation be authorized

by the children’s therapist. After a permanency planning hearing held on 12

December 2017, the trial court entered an order eliminating reunification with the

parents from the children’s permanent plan and changing the children’s permanent

plan to a primary plan of guardianship and a secondary plan of custody with a relative

or other suitable person. In addition, the trial court noted that the children’s

therapist’s was recommending that respondent-mother have no contact with the

children, ordered that respondent-mother not be allowed to visit with the children

until such contact was recommended by the children’s therapist and approved by the

trial court, and authorized respondent-mother to contact the therapist in order to

provide the therapist with respondent-mother’s perspective.

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After a permanency planning review hearing held on 15 May 2018, the trial

court entered an order on 8 June 2018 in which it reiterated that the current

permanent plan for the children remained a primary plan of guardianship and a

secondary plan of custody with a relative or other suitable person. In addition, the

trial court noted that the children’s therapist continued to recommend that

respondent-mother have no contact with the children, pointed out that the therapist’s

recommendation was bolstered by respondent-mother’s failure to comply with prior

orders of the court, and reiterated that respondent-mother might be able to visit with

the children in the future in the event that such visits were recommended by the

children’s therapist and approved by the trial court. Perhaps most importantly, the

trial court acknowledged that the maternal grandparents were no longer interested

in serving as a long-term placement for the children and pointed out that DSS had

identified respondent-mother’s cousins by marriage as a prospective placement for

the children.

On 30 August 2018, the trial court entered a permanency planning order in

which it authorized the placement of the children with respondent-mother’s cousins

by marriage, changed the permanent plan for the children to a primary plan of

adoption and a secondary plan of guardianship, and ordered DSS to file a petition

seeking to have the parents’ parental rights in the children terminated. After a

permanency planning hearing held on 20 November 2018, the trial court entered an

order on 2 January 2019 in which it observed, among other things that, while

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respondent-mother had recently begun to comply with her case plan, she “ha[d] not

adequately addressed issues of domestic violence, housing stability, unemployment,

substance abuse, and mental health concerns in the years that she has been involved

with [DSS.]” As a result of the fact that the trial court had scheduled another

permanency planning review hearing for 16 April 2019, counsel for DSS served a copy

of the 2 January 2019 order upon Mr. Perry on 7 January 2019.

On 21 December 2018, DSS filed petitions seeking to have both parents’

parental rights in Khloe and Kylee terminated on the basis of neglect, N.C.G.S. § 7B-

1111(a)(1) (2019), and willful failure to make reasonable progress toward correcting

the conditions that had led to the children’s removal from the family home, N.C.G.S.

§ 7B-1111(a)(2). On 3 January 2019, Mr. Perry filed a motion seeking leave to

withdraw as respondent-mother’s counsel in light of her decision to retain privately-

employed counsel using funds derived from a back payment that she had received in

connection with a recent SSI award.

At a hearing held on 8 January 2019, respondent-mother confirmed in the

presence of the trial court that she wished to retain privately-employed counsel and

to waive her right to the assistance of court-appointed counsel. In the course of this

hearing, Mr. Perry indicated that his motion was specific to the termination of

parental rights case and that he intended to “stay in the other one until its

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completed.”3 At the conclusion of the hearing, respondent-mother signed a waiver of

counsel form indicating that she “[did] not want a court-appointed lawyer” and

“[would] hire [her] own lawyer at [her] own cost.”

After the trial court entered an order on 9 January 2019 allowing Mr. Perry’s

withdrawal motion, respondent-mother retained Roy Dawson to represent her in the

termination of parental rights proceeding. On 13 February 2019, Mr. Dawson filed

verified answers on respondent-mother’s behalf in which she denied the material

allegations of the termination petitions and requested that those be denied.

On 25 March 2019, respondent-mother made an unannounced visit to the

residence of her cousins by marriage for the purpose of requesting to be allowed to

see the children and to deliver certain gifts to them. As a result of this violation of

prior court orders, the guardian ad litem filed a motion on 8 April 2019 requesting

that an order be entered requiring respondent-mother to show cause why she should

not be held in contempt.

A permanency planning review hearing was held on 16 April 2019, at which

Mr. Perry appeared while respondent-mother did not. The trial court noted in a

subsequent order that respondent-mother had been notified of the 16 April 2019

hearing both in writing and during the 20 November 2018 hearing. In light of the

fact that respondent-mother had not been in contact with Mr. Perry since 20

3 The “other case” to which Mr. Perry made reference was the underlying neglect

proceeding.

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November 2018, the trial court concluded that Mr. Perry should be relieved of his

appointment as respondent-mother’s counsel in the underlying neglect proceeding.

On the same date, the trial court entered an order requiring respondent-mother to

appear on 30 April 2019 and show cause why she should not be held in contempt.

On 30 April 2019, the trial court held a hearing for the purpose of addressing

the show cause motion. In light of her belief that the show cause hearing involved a

criminal, rather than a civil, proceeding, respondent-mother initially appeared in

criminal district court. After Mr. Perry located respondent-mother and brought her

to the correct courtroom and after he explained “what was going on and what her

options were,” respondent-mother left the courtroom. At Mr. Perry’s request, the trial

court continued the show cause hearing until 14 May 2019 so that respondent-mother

could discuss her situation with Mr. Dawson. Later that day, however, Mr. Dawson

filed motions seeking leave to withdraw as respondent-mother’s counsel in the

termination proceedings. Although the withdrawal motions were served upon

counsel for DSS, they do not appear to have been served upon respondent-mother.

On 14 May 2019, the issues arising from Mr. Dawson’s withdrawal motion and

the show cause motion came on for hearing before the trial court in respondent-

mother’s absence. At the hearing, Mr. Dawson informed the trial court that he had

been “requested to withdraw by [respondent-mother]” and that, while he “ha[d]

attempted to secure [respondent-mother’s] presence in court today for this,” he had

“been unable to do so.” As a result, Mr. Dawson asked that he be allowed to withdraw

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from his representation of respondent-mother in the termination of parental rights

proceedings, a request that the trial court granted without further inquiry. In

addition, after finding respondent-mother in contempt, the trial court continued the

disposition of that matter until 11 June 2019. Mr. Dawson served the trial court’s

order allowing his withdrawal motion upon respondent-mother on 15 May 2019.

A notice that a termination of parental rights hearing had been set for

9:00 a.m. on 11 June 2019, which noted that respondent-mother’s attorney had been

discharged, was served on respondent-mother by first-class mail on 21 May 2019. At

the time that the termination petitions were called for hearing at 9:24 a.m. on 11

June 2019, respondent-mother was not present. In response to the trial court’s

inquiry concerning whether DSS had been able to determine whether respondent-

mother lived at the address to which the notice of hearing had been sent, counsel for

DSS responded that “[w]e don’t have any new information about that,” that “[t]hat

[address] was where [Mr.] Dawson said that [respondent-mother] lived,” and that the

address in question was “the address that we’ve been using for processing.”

At 9:40 a.m., after a social worker had begun testifying, respondent-mother

entered the courtroom. The trial court did not, however, make any inquiry of

respondent-mother concerning whether she was represented by counsel, whether she

wished to have counsel appointed, or whether she wished to represent herself. After

respondent-mother objected to certain testimony given by the social worker on the

grounds that the testimony in question was untrue, the trial court overruled

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respondent-mother’s objection. Once the direct examination of the social worker had

been completed, the trial court allowed respondent-mother to cross-examine the

social worker. Subsequently, the trial court allowed respondent-mother to testify on

her own behalf and to make a closing argument concerning the issue of whether

grounds existed to support the termination of her parental rights in the children.

After announcing its decision that grounds for terminating respondent-

mother’s parental rights in the children existed, the trial court proceeded to the

dispositional phase of the proceeding and informed respondent-mother that she

would be able to present dispositional evidence if she wished to do so. Almost

immediately after the beginning of the dispositional hearing, respondent-mother left

the courtroom “without any conversation with the [trial court] about what her

position [was], or where she[ ] [was] going, or whether she intend[ed] to come back.”

Approximately fifteen minutes later, once the presentation of dispositional evidence

had concluded, respondent-mother re-entered the courtroom and apologized to the

trial court for her departure, stating that “I know it was disrespectful, but this is just

a lot—a lot for any parent, I hope, that loves their kids to try and take in at once

because I love my kids and it’s just hard to hear all this..” At the conclusion of the

dispositional proceeding, the trial court announced that respondent-mother’s

parental rights in the children would be terminated and that no punishment would

be imposed upon respondent-mother in the contempt proceeding.

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On 27 June 2019, the trial court entered an order determining that respondent-

mother’s parental rights in the children were subject to termination on the basis of

both of the grounds for termination alleged in the termination petition, that the

termination of respondent mother’s parental rights would be in the children’s best

interests, and that respondent-mother’s parental rights in the children had been

terminated. On 27 June 2019, the trial court entered an order providing that no

punishment be imposed upon respondent-mother for her contemptuous conduct.

Respondent-mother noted an appeal to this Court from the trial court’s termination

orders.

In seeking relief from the trial court’s termination orders before this Court,

respondent-mother argues that the trial court had erred by allowing her retained

counsel to withdraw without proper notice and by allowing her to proceed pro se at

the termination hearing without making proper inquiry into the issue of whether she

wished to be represented by counsel. In respondent-mother’s view, “[t]he record in

this case does not show that [she] received any notice from [Mr. Dawson] that counsel

would seek to withdraw from her representation” in light of the fact that “[n]o

certificates of service, subpoenas, or copies of correspondence confirm that

[respondent-mother] was notified of the motion prior to the hearing,” citing In re

M.G., 239 N.C. App. 77, 83, 767 S.E.2d 436, 441 (2015) (concluding that the

respondent’s right to counsel had been violated in a situation in which the respondent

had no prior notice of her attorney’s intent to withdraw and had not been present at

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the termination hearing), with Mr. Dawson’s representations to the trial court that

he had attempted to secure respondent-mother’s presence “not [being] evidence,”

citing In re D.L., 166 N.C. App. 574, 582, 603 S.E.2d 376, 382 (2004) (noting that

“[s]tatements by an attorney are not considered evidence”). In addition, respondent-

mother asserts that she had not been given notice “that either appointed or retained

counsel sought to withdraw” in either “hearing where counsel was relieved,” citing

In re D.E.G., 228 N.C. App. 381, 383–87 & n.3, 747 S.E.2d 280, 282–85 & n.3 (2013)

(concluding that the respondent’s right to counsel had been violated given the absence

of any indication that the respondent had prior knowledge that his or her attorney

intended to move to withdraw, that the respondent had not been present for the

termination hearing, that the respondent had only been released from prison four

days earlier, and that the respondent’s counsel, rather than appearing in person, had

counsel for DSS relay to the trial court that he had not heard from his client and

wished to withdraw). As a result, respondent-mother contends that “[i]t was error

for the trial court to relieve both attorneys.”

In addition, respondent-mother asserts that the trial court failed to make

proper inquiry concerning whether respondent-mother wished to waive counsel

entirely. Respondent-mother asserts that, when accepting her waiver of court-

appointed counsel, “the [trial court] did not indicate that this would preclude her from

obtaining appointed counsel later if she still qualified,” that “no one understood the

waiver to mean that [respondent-mother] would at any point wish to proceed pro se,”

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and that, “when she signed the waiver [form], everyone understood that it was with

the intention of hiring counsel, not proceeding pro se.” According to respondent-

mother, “[t]here was never an inquiry of any kind” concerning whether respondent-

mother was “ ‘act[ing] with full awareness of [her] rights and of the consequences of

the waiver,’ ” quoting North Carolina Office of Indigent Defense Services Rule 1.6

(2015), with respondent-mother never having been “informed by the trial court that

she had the right to receive appointed counsel even after her retained counsel

withdrew.”

Respondent-mother also argues that “the trial court [never] inquire[d] whether

[Mr. Dawson’s withdrawal] was related to a difference of opinion or due to fees owed,

what ‘attempts’ were made to notify [respondent-mother] of the hearing, and whether

[Mr. Dawson] explained to [respondent-mother] that she had the right to re-apply for

court appointed counsel.” In respondent-mother’s view, “the trial court could not have

interpreted [her] waiver as a waiver of her right to counsel,” citing In re S.L.L., 167

N.C. App. 362, 365 605 S.E.2d 498, 500 (2004) (concluding that “the trial court erred

by equating respondent’s request for new counsel with a waiver of court-appointed

counsel, and requiring respondent to proceed to trial pro se”). After noting that

N.C.G.S. § 7B-1101.1(a) provides that “[t]he court may reconsider a parent’s

eligibility and desire for appointed counsel at any stage of the proceeding,”

respondent-mother contends that the trial court “should have stopped the

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proceedings” when respondent-mother appeared at the termination hearing in order

“to inquire whether [she] had counsel or wished to proceed pro se.”

As a result of the fact that she did not have counsel during the termination

hearing, respondent-mother claims that she was unable to adequately defend herself

at the termination hearing. After pointing out that “[l]awyers know the legal

standard and what evidence is necessary to present to a court to defeat termination

grounds,” respondent-mother asserts that she “had no realistic chance of defeating a

termination hearing without demonstrating,” using adequate documentation, “that

she was compliant with the court’s orders and had remedied the reason the girls came

into care” and that, in order to make such a showing, “[s]he would have needed to be

familiar with our rules of evidence and the burdens of proof,” citing N.C.G.S. § 7B-

1109(f). As an example, respondent-mother argues that, in spite of the fact that “she

testified that she was still engaged in her mental health services, the trial court asked

for documentation” which respondent-mother failed to provide, a deficiency that

resulted in the trial court’s finding that, “[b]ased on the years of noncompliance by

[respondent-mother] with court orders for reunification, the court cannot find that

she has addressed domestic violence, mental health, and substance abuse concerns

without any third-party verification or documentation, which [respondent-mother]

did not offer.”

In urging us to uphold the trial court’s termination orders, DSS argues that,

“[u]ntil she walked in while the hearing on termination of parental rights was in

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progress on 11 June 2019,” respondent-mother “had not been in the courtroom during

a time that her case was being heard since 8 January 2019, a period in excess of five

months.” In view of the fact that respondent-mother had absented herself from the

courtroom for such a lengthy period of time, DSS contends that “there was no

opportunity to advise [respondent-mother] about this because she would not come to

court in a timely fashion” and argues that, had respondent-mother “shown up at 9:00

[a.m.] as directed, the court could have inquired about an attorney at the pre-trial

hearing.” According to DSS, “[e]ven [respondent-mother] does not argue that the

[trial court] should have stopped the testimony while the hearing was underway to

inquire whether or not she wished to have counsel re-appointed,” with such a step

being “the only way to make this happen.” In DSS’s view, “[t]o adopt [respondent-

mother’s] position . . . would be to endorse the proposition that a parent can disregard

notices, deadlines, and rules of court by walking into a [termination] hearing which

is underway and expect that she can bring the proceeding to a halt in the middle of

testimony.”

In addition, DSS points out that Mr. Dawson had informed the trial court that

he had unsuccessfully “attempted to secure [respondent-mother’s] presence in court”

for his withdrawal motion and that the trial court had found that adequate notice of

the making of that motion had been given to the parties. According to DSS, the

reported decisions involving the right to counsel in termination of parental rights

cases all “involve[ ] situations where the parent failed to appear for the [termination]

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hearing and the parent’s attorney moved to withdraw without notice to the parent of

their intention to withdraw.” In this case, however, both of respondent-mother’s

attorneys sought leave to withdraw “well in advance of the [termination] hearing

specifically at the request of [respondent-mother].” For that reason, DSS asserts that

“[f]undamental fairness did not require the [trial court] to inquire whether

[respondent-mother] had been notified of the specific date of hearing her attorney’s

motion to withdraw when the motion was being made at her request,” citing

In re M.G., 239 N.C. App. at 83, 767 S.E.2d at 441; In re D.E.G., 228 N.C. App. at 381,

747 S.E.2d at 280; In re T.E.G., 2018 WL 4201263, at *7 (N.C. Ct. App. 2018)

(unpublished); and In re A.D.S., 2019 WL 1283851, at *12–13 (N.C. Ct. App. 2019)

(unpublished).

Finally, DSS contends that Mr. Dawson’s statements to the trial court that he

had attempted to get respondent-mother to come to court for his withdrawal motion

hearing are “his own” statements rather than a summary of statements describing

information in the possession of others. DSS argues that, in view of the fact that

attorneys are “officer[s] of the court,” “[t]here is no requirement that he or she be

sworn before offering information about the client’s absence from court.”

The guardian ad litem argues that, “[a]fter she chose to retain counsel,

[respondent-mother] did not qualify for appointed counsel as she was not indigent”

due to her SSI disability back payment in the amount of $7,440,” so that “the trial

court had no duty to inquire as to her representing herself pro se or appoint counsel

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for her in the [termination] proceeding,” citing N.C.G.S. § 7B-1101.1(a1) for the

proposition that an inquiry into a parent’s indigence is only necessary when “[a]

parent qualifying for appointed counsel” requests to proceed without the assistance

of counsel. “Alternatively,” according to the guardian ad litem, “if [respondent-

mother] did have [a] right to counsel after her retained counsel withdrew at her

request, she waived or forfeited that right by her actions.”

In spite of the fact that she had notice of Mr. Dawson’s withdrawal motion and

of the date and time at which the termination hearing would be held, the guardian

ad litem notes that respondent-mother made no effort to request the appointment of

counsel when she arrived at the termination hearing. Moreover, the guardian ad

litem asserts that respondent-mother’s late arrival at the termination hearing

constituted a “failure to appear,” citing Brenda D. v. Department of Child Safety, Z.D.,

243 Ariz. 437, 440, 410 P.3d 419, 422, (2018).4 The guardian ad litem contends that,

when taken together, these actions constitute “willful conduct result[ing] in her

waiver and forfeiture of the right to counsel,” citing State v. Montgomery, 138 N.C.

App. 521, 525, 530 S.E.2d 66, 69 (2000) (concluding that the defendant had forfeited

his right to counsel given that he “was twice appointed counsel as an indigent”;

4 As respondent-mother correctly notes in her reply brief, the Arizona Supreme Court

held in Brenda D. v. Department of Child Safety, Z.D., that, while the rights to be present, participate, and testify may be waived by a parent’s failure to appear at the hearing, “[t]hese waiver rules . . . do not apply to a parent’s right to counsel at a termination adjudication hearing, a right that is unaffected by the parent’s appearance or absence.” 243 Ariz. at 440, 410 P.3d at 422.

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released those attorneys from their representation of him in order to retain private

counsel; was disruptive in the courtroom on two occasions, resulting in a delay in the

trial proceedings; and assaulted his attorney, resulting in further delay, on the

grounds that “[s]uch purposeful conduct and tactics to delay and frustrate the orderly

processes of our trial courts simply cannot be condoned”); and In re R.R., 180 N.C.

App. 628, 636, 638 S.E.2d 502, 507 (2006) (concluding that the respondent had waived

his right to counsel given that he had failed to apply for court appointed counsel prior

to the termination hearing and failed to appear at the hearing).

The guardian ad litem contends that, once respondent-mother retained Mr.

Dawson to represent her, “she had the burden to show a change in the desire for

appointed counsel,” citing State v. Hyatt, 132 N.C. App. 697, 700, 513 S.E.2d 90, 93

(1999), with “the stringent statutory requirements of inquiry by the trial court when

a [criminal] defendant waives counsel” being inapplicable to “parents in [termination

of parental rights] proceedings,” citing In re P.D.R., 365 N.C. 533, 538, 723 S.E.2d

335, 338 (2012). According to the guardian ad litem, the facts of this case are

distinguishable from those at issue in In re S.L.L., which involved a parent who asked

that his counsel withdraw and that the trial court appoint new counsel, citing 167

N.C. App. at 364, 605 S.E.2d at 499. In the guardian ad litem’s view, “[respondent-

mother’s] late appearance at the hearing did not cure her waiver of counsel or transfer

the burden onto the trial court,” with “[t]he trial court [being unable to] ‘restart’ the

hearing due to [respondent-mother’s] tardiness.”

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In addition, the guardian ad litem argues that “the trial court did not commit

an abuse of discretion in allowing retained counsel to withdraw.”5 More particularly,

the guardian ad litem contends that “[respondent-mother’s] counsel was not required

to formally serve her with the motion to withdraw” given that N.C.G.S. § 1A-1, Rule

5, which governs the service of motions, is not applicable to withdrawal motions,

which require “no more than ‘adequate’ or ‘reasonable’ notice to the client,” citing

Hensgen v. Hensgen, 53 N.C. App. 331, 335, 280 S.E.2d 766, 769 (1981); Perkins v.

Sykes, 233 N.C. 147, 152–53, 63 S.E.2d 133, 137–38 (1951); and Trust Co. v. Morgan-

Schultheiss and Poston v. Morgan-Schultheiss, 33 N.C. App. 406, 414, 235 S.E.2d 693,

697–98 (1978). According to the guardian ad litem, Mr. Dawson’s representations to

the trial court that respondent-mother had asked him to withdraw amply

demonstrated that respondent-mother “had adequate and reasonable notice” that he

intended to seek leave to withdraw from his representation of respondent-mother

given that trial courts “should be able to reasonably consider the statements of

counsel in regards to notice to a client in a motion to withdraw,” citing Baker v.

Varser, 240 N.C. 260, 267, 82 S.E.2d 90, 95 (1954); Rule 3.3 of the N.C. Rules of

5 Although the guardian ad litem asserts that the lawfulness of the trial court’s decision to allow Mr. Dawson to withdraw is not properly before the Court given respondent- mother’s failure to note an appeal from that order, citing Von Ramm v. Von Ramm, 99 N.C. App. 153, 156–57, 392 S.E.2d 422, 424 (1990), and N.C. R. App. P. 3(d), respondent-mother correctly notes in her reply brief that the trial court’s order allowing Mr. Dawson’s withdrawal was not independently appealable pursuant to N.C.G.S. § 7B-1001, so that any challenge to that order had to be brought as part of her appeal from the trial court’s termination orders.

-20- IN RE K.M.W. AND K.L.W.

Professional Conduct; and State v. Choudhry, 365 N.C. 215, 223, 717 S.E.2d 348, 354

(2011). In the event that this Court concludes that the trial court failed to make

“specific findings regarding notice to [respondent-mother]” of Mr. Dawson’s

withdrawal motion, the guardian ad litem requested “the [C]ourt [to] remand this

matter in order that the trial court may do so.”

Finally, the guardian ad litem contends that, even if the trial court erred by

allowing Mr. Dawson to withdraw or failing to inquire into the issue of whether new

counsel should be appointed, any such error was harmless. The guardian ad litem

suggests that, even though errors implicating constitutional rights are ordinarily

presumed to be prejudicial, “at least one . . . appellate court has held that the

erroneous deprivation of counsel at a [termination] proceeding can be subject to a

harmless error analysis,” citing In re McBride, 483 Mich. 1095, 766 N.W.2d 857

(2009). In the guardian ad litem’s view, any error that the trial court might have

committed in this case was harmless given that “[a]n attorney could not have cured

her failure to bring documentation to the hearing” or “changed the court’s findings as

to grounds for the [termination of parental rights] and the best interests

determination” in light of respondent-mother’s extensive child protective services

history, her repeated failure to comply with her case plan and various orders of the

court, her refusal to believe Khloe’s claim that she had been sexually abused by

respondent-mother’s male friend, and the fact that the children had not been placed

with respondent-mother since 2015 or visited with her since 2017.

-21- IN RE K.M.W. AND K.L.W.

According to well-established federal and North Carolina law, “[w]hen the

State moves to destroy weakened familial bonds, it must provide the parents with

fundamentally fair procedures,” In re Murphy, 105 N.C. App. 651, 653, 414 S.E.2d

396, 397–98, aff’d per curiam, 332 N.C. 663, 422 S.E.2d 577 (1992) (quoting Santosky

v. Kramer, 455 U.S. 745, 753–54, 102 S. Ct. 1388, 71 L.Ed.2d 599, 606 (1982)), with

the existence of such procedures being an inherent part of the State’s efforts to protect

the best interests of the affected children by preventing unnecessary interference

with the parent-child relationship. N.C.G.S. § 7B-100(4) (stating that one of the

purposes of the relevant statutory provisions is to “prevent[ ] the unnecessary or

inappropriate separation of juveniles from their parents”). In order to adequately

protect a parent’s due process rights in a termination of parental rights proceeding,

the General Assembly has created a statutory right to counsel for parents involved in

termination proceedings. More specifically, N.C.G.S. § 1101.1(a) provides that “[t]he

parent [in a termination of parental rights proceeding] has the right to counsel, and

to appointed counsel in cases of indigency, unless the parent waives the right.”

Although parents eligible for the appointment of counsel in termination of parental

rights proceedings may waive their right to counsel, they are entitled to do so only

“after the court examines the parent and makes findings of fact sufficient to show

that the waiver is knowing and voluntary.” N.C.G.S. § 7B-1101.1(a1).

Consistently with the provisions of N.C.G.S. §7B-1101.1(a1), Rule 16 of the

General Rules of Practice prohibits an attorney from withdrawing from his or her

-22- IN RE K.M.W. AND K.L.W.

representation of a client in the absence of “(1) justifiable cause, (2) reasonable notice

to the client, and (3) the permission of the court.” N.C. Gen. R. Pract. Super. and

Dist. Ct. 16. As the Court of Appeals has correctly held, a trial court’s decision

concerning whether to allow the withdrawal of a parent’s counsel in a termination of

parental rights proceeding is discretionary in nature, with any such decision being

subject to reversal on appeal only in the event that the trial court’s ruling constitutes

an abuse of discretion. Benton v. Mintz, 97 N.C. App. 583, 587, 389 S.E.2d 410, 412

(1990) (citing Brown v. Rowe Chevrolet-Buick, Inc., 86 N.C. App. 222, 357 S.E.2d 181

(1987)). “An abuse of discretion occurs when the trial court’s ruling is so arbitrary

that it could not have been the result of a reasoned decision.” In re J.H., 373 N.C.

264, 268, 837 S.E.2d 847, 850 (2020) (quoting In re N.G., 186 N.C. App. 1, 10–11, 650

S.E.2d 45, 51 (2007)). However, this “general rule presupposes that an attorney’s

withdrawal has been properly investigated and authorized by the court,” so that,

“[w]here an attorney has given his client no prior notice of an intent to withdraw, the

trial judge has no discretion.” Williams & Michael, P.A. v. Kennamer, 71 N.C. App.

215, 217, 321 S.E.2d 514, 516 (1984).

Although a waiver of counsel, generally speaking, requires a knowing and

intentional relinquishment of that right, State v. Thomas, 331 N.C. 671, 673–74, 417

S.E.2d 473, 475–76 (1992), “the trial court is not required to abide by the . . . directive

to engage in a colloquy regarding a knowing waiver” where the litigant has forfeited

his right to counsel by engaging in “actions [which] totally undermine the purposes

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of the right itself by making representation impossible and seeking to prevent a trial

from happening at all.” State v. Simpkins, 373 N.C. 530, 536–38, 838 S.E.2d 439,

446–47 (N.C. 2020). However, “[a] finding that a defendant has forfeited the right to

counsel” has been restricted to situations involving “egregious dilatory or abusive

conduct on the part of the [litigant].” Id. at 541, 838 S.E.2d at 449. A trial court’s

determination concerning whether a parent has waived his or her right to counsel is

a conclusion of law that must be made in light of the statutorily prescribed criteria,

so we review the question of whether the trial court erroneously determined that a

parent waived or forfeited his or her statutory right to counsel in a termination of

parental rights proceeding using a de novo standard of review. In re C.B.C., 373 N.C.

16, 19, 832 S.E.2d 692, 695 (2019) (citing In re S.N., 194 N.C. App. 142, 146, 669

S.E.2d 55, 59 (2008), aff’d per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009)).

After examining the unique circumstances that occurred in this case, we

conclude that the trial court erred by allowing Mr. Dawson’s motion to withdraw from

his representation of respondent-mother and permitting respondent-mother to

represent herself at the termination hearing without ensuring that she had

knowingly and voluntarily waived her right to the assistance of counsel. Admittedly,

the Court of Appeals has correctly held on a number of occasions that attorneys were

properly allowed to withdraw from their representation of a parent in a termination

proceeding in instances in which the parent failed to appear at scheduled proceedings

or to maintain contact with his or her counsel, see, e.g., In re M.G., 239 N.C. App. at

-24- IN RE K.M.W. AND K.L.W.

77, 767 S.E.2d at 436; In re D.E.G., 228 N.C. App. at 381, 747 S.E.2d at 280; In re

K.N., 181 N.C. App. 736, 741, 640 S.E.2d 813, 817 (2007), in light of the fact that “a

lawyer cannot properly represent a client with whom [he or she] has [had] no contact.”

Dunkley v. Shoemate, 350 N.C. 573, 578, 515 S.E.2d 442, 445 (1999). However, these

decisions also recognize that, “before allowing an attorney to withdraw or 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.” In re D.E.G., 228 N.C. App. at 386–87,

747 S.E.2d at 284 (2013) (citing In re S.N.W., 204 N.C. App. 556, 698 S.E.2d 76

(2010)).

For example, in In re M.G., while DSS sent “notice of the date, time, and

location of the [termination] hearing to [r]espondent” at her last known address, the

parent contended that she never received the notice that had been mailed to her. 239

N.C. App. at 80, 767 S.E.2d at 439. After the respondent failed to appear at the

termination hearing, the trial court allowed the parent’s attorney to withdraw given

that “the [r]espondent was served but has failed to appear.” Id. at 81–82, 767 S.E.2d

at 440. Following the allowance of the withdrawal motion, the parent’s attorney

neither participated in nor presented any evidence on the parent’s behalf at the

termination hearing. Id. After determining that the record was “devoid of any

evidence whatsoever that [r]espondent received any notice from her trial counsel that

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counsel would seek to withdraw from her representation at the start of the

[termination] hearing,” id. at 84, 767 S.E.2d at 441, the Court of Appeals vacated the

trial court’s termination order on the grounds that it “ha[d] consistently vacated or

remanded [termination] orders when questions of ‘fundamental fairness’ have arisen

due to failures to follow basic procedural safeguards.” Id. at 83, S.E.2d at 441.

A careful examination of the record that has been presented for our review in

this case indicates that neither the certificate of service attached to Mr. Dawson’s

withdrawal motion nor any related correspondence shows that respondent-mother

was served with a copy of the withdrawal motion prior to the date upon which Mr.

Dawson was allowed to withdraw. On the contrary, the certificate of service attached

to Mr. Dawson’s withdrawal motion appears to reflect that the only party upon whom

that motion was served was DSS. Although Mr. Dawson told the trial court that

respondent-mother had “requested” that he withdraw from his representation of her

and that he had “attempted to secure [respondent-mother’s] presence in court” at the

time that his withdrawal motion was heard, the trial court does not appear to have

made any inquiry into whether respondent-mother had been served with the

withdrawal motion; whether Mr. Dawson had informed respondent-mother that he

intended to move to withdraw on that date; why respondent-mother had requested

Mr. Dawson to withdraw, including whether his withdrawal motion resulted from

respondent-mother’s inability to pay for his services; and what efforts Mr. Dawson

had made to ensure that respondent-mother understood the implications of the action

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that he proposed to take or to protect her statutory right to the assistance of counsel.

As a result, given the very limited inquiry that the trial court undertook before

allowing Mr. Dawson’s withdrawal motion, we conclude that the trial court erred by

allowing that motion.

In addition, we hold that, even if the trial court did not err by allowing Mr.

Dawson’s withdrawal motion, it erred by allowing respondent-mother to represent

herself at the termination hearing without making adequate inquiry into the issue of

whether she wished to appear pro se. As the record clearly reflects, the waiver of

counsel form that respondent-mother completed at the time that Mr. Perry was

allowed to withdraw from his representation of respondent-mother in the termination

proceeding was intended to facilitate her employment of privately-retained counsel

and did not constitute a waiver of her right to any and all counsel. On the contrary,

a careful examination of the waiver of counsel form that respondent-mother

completed reflects that respondent-mother checked the box relating to a waiver of her

right to court-appointed counsel and did not check the box stating that “I do not want

the assistance of any lawyer. I understand that I have the right to represent myself,

and that is what I intend to do.” For that reason, the record amply demonstrates that

respondent-mother had generally wished to be represented by counsel, had been

represented by counsel in the termination proceeding until the allowance of Mr.

Dawson’s withdrawal motion, and had never expressed the intention of representing

herself. In light of that set of circumstances, we believe that the trial court had an

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obligation to make inquiry of respondent-mother concerning the issue of whether she

wished to represent herself at the time that she made her tardy appearance at the

termination hearing as required by N.C.G.S. § 7B-1101.1(a1).

Admittedly, respondent-mother did not ask the trial court to conduct an

inquiry into the issue of whether she wished to represent herself or desired to request

the appointment of counsel following her tardy arrival at the termination hearing.

On the other hand, nothing in the record suggests that respondent-mother knew that

she had the right to do so or that the trial court informed her that such an option was

available. The fact that respondent-mother had been represented by counsel at the

underlying juvenile proceeding and had been provisionally appointed counsel to

represent respondent-mother in the termination proceeding provides ample basis for

believing that respondent-mother was indigent at the beginning of the termination

proceeding.6 In addition, the fact that respondent-mother was able to retain counsel

as the result of a one-time increase in her income and the fact that the financial status

of litigants can change over time suggests that it would have been appropriate for the

trial court to have made further inquiry into the issue of whether respondent-mother

was indigent and wished to be represented by court-appointed counsel following the

allowance of Mr. Dawson’s withdrawal motion. At an absolute minimum, given that

respondent-mother had never waived the right to all counsel, the trial court violated

6 We note that the record on appeal presented for our consideration in this case does

not contain any affidavit of indigency that had been executed by respondent-mother during the course of the trial court proceedings.

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N.C.G.S. § 7B-1101.1(a1) by allowing respondent-mother to represent herself at the

termination hearing without having “examin[ed] [respondent-mother] and mak[ing]

findings of fact sufficient to show that” respondent-mother “knowing[ly] and

voluntary[ily]” wished to appear pro se.

Although respondent-mother’s level of engagement with the proceedings before

the trial court in connection with this termination proceeding was certainly less than

exemplary, nothing in respondent-mother’s conduct had the repeatedly disruptive

effect necessary to constitute the “egregious” conduct that is required to support a

determination that respondent-mother had forfeited her statutory right to counsel.

Simpkins, 373 N.C. at 535, 838 S.E.2d at 446. Simply put, this is not a case in which

a respondent-parent has acted to delay or disrupt the proceedings in such a manner

as to work a forfeiture of the right to counsel. As a result, in addition to rejecting the

argument that respondent-mother waived her right to counsel in a valid manner, we

reject the guardian ad litem’s contention that she forfeited her right to counsel by

engaging in serious misconduct.7

7 Similarly, we are not inclined to hold that respondent-mother waived her right to

the assistance of counsel based upon her less-than-stellar record for attending court. Assuming, without in any way deciding, that such an implicit waiver is possible despite our admonition that a waiver of the right to the assistance of counsel involves a knowing and intentional relinquishment of that right, Thomas, 331 N.C. at 673–74, 417 S.E.2d at 475–76, we are unable to interpret respondent-mother’s conduct as being sufficient to support a finding of implied waiver given her prior invocation of the right to counsel; the fact that she had consistently had the assistance of counsel throughout the underlying abuse, neglect, and dependency proceeding; the lack of any explanation for her request that Mr. Dawson withdraw from his representation of her in the termination proceeding; and the fact that respondent-mother had not previously failed to appear in the termination proceeding. In our

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Finally, we decline to adopt the guardian ad litem’s suggestion that we require

a showing of prejudice as a prerequisite for obtaining an award of appellate relief in

cases involving the erroneous deprivation of the right to counsel. In the criminal

context, no showing of prejudice is required in instances like this one, see, e.g., State

v. Colbert, 311 N.C. 283, 286, 316 S.E.2d 79, 81 (1984), and we decline to adopt a

different rule for use in termination of parental rights proceedings. See, e.g., In re

D.E.G., 228 N.C. App. at 388 n.6, 747 S.E.2d at 285 (declining an invitation by DSS

and the guardian ad litem to “uphold the termination order on non-prejudice grounds”

in light of “the absence of any information tending to show the extent, if any, to which

[the respondent’s] trial counsel attempted to contact [the respondent] prior to the

hearing in question”); In re N.T.S., 2011 WL 3891795, at *4 (N.C. App. Ct. 2011)

(unpublished) (stating that, “given the fundamental nature of the right to counsel in

juvenile abuse, neglect, and dependency cases, our cases have not required parents

to demonstrate prejudice in order to obtain appellate relief based upon a violation of

their right to counsel”). Aside from the fact that the effect of such a deprivation upon

a parent involved in a termination proceeding can be quite significant, it is simply

impossible for a reviewing court to know what difference the availability of counsel

might have made in any particular termination proceeding. For example, we cannot

know whether counsel for respondent-mother in this case would have been able to

view, at least, a much stronger showing than that which exists in this case is necessary to establish the existence of an implied waiver of the right to counsel in a termination of parental rights proceedings, to the extent that such an implied waiver can occur at all.

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provide documentation that respondent-mother did, in fact, make progress toward

addressing the mental health, substance abuse, and domestic violence problems that

led to the trial court’s decision that grounds for terminating respondent-mother’s

parental rights in the children existed here. As a result, we conclude that respondent-

mother is entitled to a new termination hearing in which her statutory right to

counsel has been adequately protected.

Thus, for the reasons set forth above, we conclude that the trial court erred by

allowing Mr. Dawson to withdraw from his representation of respondent-mother

without making an adequate inquiry into the circumstances surrounding the making

of that motion and by failing to inquire, at the time that respondent-mother appeared

at the termination hearing, whether she was represented by counsel, whether she

wished to apply for court-appointed counsel, or whether she wished to represent

herself. As a result, the trial court’s termination orders are reversed and this case is

remanded to the District Court, Lenoir County, for further proceedings not

inconsistent with this opinion, including the holding of a new termination hearing.

REVERSED AND REMANDED.

-31- Justice MORGAN dissenting.

I respectfully dissent from the majority view in this case. While I appreciate

the laudable foundation upon which my distinguished colleagues of the majority

construct their determinations in this case, this foundation perilously undermines

and potentially supplants more deeply fundamental aims of justice relating to the

best interests of children and the integrity of the judicial process. With this concern,

I disagree with the conclusion of the majority that “the trial court erred by allowing

[respondent-mother’s privately retained counsel] Mr. Dawson’s motion to withdraw

from his representation of respondent-mother and permitting respondent-mother to

represent herself at the termination hearing without ensuring that she had

knowingly and voluntarily waived her right to the assistance of counsel.” I likewise

take issue with the majority’s expansion of this determination that “the trial court

erred by allowing Mr. Dawson to withdraw from his representation of respondent-

mother without making an adequate inquiry into the circumstances surrounding the

making of that motion and by failing to inquire, at the time that respondent-mother

appeared at the termination hearing, whether she was represented by counsel,

whether she wished to apply for court-appointed counsel, or whether she wished to

represent herself.” While I agree with the majority that respondent-mother’s behavior

regarding the status of her legal representation was not so egregious as to amount to

her forfeiture of the right to counsel, nonetheless I am convinced that respondent- IN RE K.M.W. AND K.L.W.

Morgan, J., dissenting

mother’s conduct was sufficiently serious to constitute waiver of counsel. Therefore,

I would affirm the trial court’s actions in this matter and would find that there was

no error committed by the trial court.

The majority is excruciatingly generous in observing that “respondent-

mother’s level of engagement with the proceedings before the trial court in connection

with this termination proceeding was certainly less than exemplary”; indeed, the

termination of parental rights hearing served as the capstone of trial court

proceedings in which respondent-mother was cavalier in her interactions with her

attorneys and with the judicial system. Utilizing the majority’s own opinion here to

chronicle examples of respondent-mother’s approach to these important proceedings:

1) respondent-mother failed to appear for a permanency planning review hearing held

on 16 April 2019 at which her court-appointed counsel appeared and for which

respondent-mother had notice; 2) respondent-mother had not been in contact with

her court-appointed counsel since the previous trial court hearing which had been

conducted on 20 November 2018; 3) respondent-mother failed to appear for her

contempt hearing on 30 April 2019 concerning her failure to appear for the 16 April

2019 permanency planning review hearing because she reported to a different

courtroom in which her former counsel located her and aided the attainment of

another court date for respondent-mother’s contempt hearing; 4) respondent-mother

failed to appear for her rescheduled contempt hearing on 14 May 2019, with her

counsel reporting to the trial court on this occasion that the attorney “attempted to

secure [respondent-mother’s] presence in court today for this” but was “unable to do

so”; 5) respondent-mother appeared for the 11 June 2019 termination of parental

rights hearing some sixteen minutes after the matter had been called to be conducted;

6) as a participant in the 11 June 2019 termination hearing, respondent-mother

abruptly left the courtroom without explanation during the proceedings.

Amidst all of this, the majority secures its view in the operation of N.C.G.S. §

7B-1101.1(a) (2019), which states, in pertinent part, that in a termination of parental

rights case, “[t]he parent has the right to counsel, and to appointed counsel in cases

of indigency, unless the parent waives the right.” Based on this statute, the majority

cobbles together a series of acts which the trial court should have performed at certain

stages of respondent-mother’s maneuvers with her counsel and resulting

consequences: 1) at an 8 January 2019 hearing, the trial court honored respondent-

mother’s desire to waive her right to the assistance of court-appointed counsel and to

hire her own counsel; however, in the majority’s view, “the waiver of counsel form

that respondent-mother completed at the time that [respondent-mother’s court-

appointed counsel] Mr. Perry was allowed to withdraw from his representation of

respondent-mother in the termination proceeding was intended to facilitate her

employment of privately-retained counsel and did not constitute a waiver of her right

to any and all counsel”; 2) at the 14 May 2019 show cause hearing at which

respondent-mother failed to appear, the trial court allowed the motion of her retained

counsel, Mr. Dawson, to withdraw, based on the counsel’s representations that the

attorney had not been able to obtain respondent-mother’s presence in court for the

hearing; however, in the majority’s view, despite the retained counsel’s status as an

officer of the court and his representation to the trial court that respondent-mother

had requested the retained counsel to withdraw from his representation of her,

nonetheless the majority expresses concern that “neither the certificate of service

attached to Mr. Dawson’s withdrawal motion nor any related correspondence shows

that respondent-mother was served with a copy of the withdrawal motion prior to the

date upon which Mr. Dawson was allowed to withdraw” and also that,

at the time that his withdrawal motion was heard, the trial court does not appear to have made any inquiry into whether respondent-mother had been served with the withdrawal motion; whether Mr. Dawson had informed respondent-mother that he intended to move to withdraw on that date; why respondent-mother had requested Mr. Dawson to withdraw, including whether his withdrawal motion resulted from respondent-mother’s inability to pay for his services; and what efforts Mr. Dawson had made to ensure that respondent-mother understood the implications of the action that he proposed to take or to protect her statutory right to the assistance of counsel. As a result, given the very limited inquiry that the trial court undertook before allowing Mr. Dawson’s withdrawal motion, we conclude that the trial court erred by allowing that motion[;]

3) at the 11 June 2019 termination of parental rights hearing at which respondent-

mother made a tardy appearance after the hearing had already begun, respondent-

mother had already been granted her request by the trial court to sign a waiver of

counsel form to indicate that she would be responsible for hiring her own attorney for

representation in these proceedings, and had already expressed her desire for her

retained counsel to cease representation of her, as related to the trial court by the

attorney and upon such information, the trial court granted counsel’s motion to

withdraw; however, while the majority frankly acknowledges that, at the 11 June

2019 termination hearing

respondent-mother did not ask the trial court to conduct an inquiry into the issue of whether she wished to represent herself or desired to request the appointment of counsel following her tardy arrival at the termination hearing. On the other hand, nothing in the record suggests that respondent-mother knew that she had the right to do so or that the trial court informed her that such an option was available. . . . At an absolute minimum, given that respondent-mother had never waived the right to all counsel, the trial court violated N.C.G.S. § 7B-1101.1(a1) by allowing respondent-mother to represent herself at the termination hearing without having “examin[ed] [respondent-mother] and mak[ing] findings of fact sufficient to show that” respondent-mother “knowing[ly] and voluntar[ily]” wished to proceed pro se.

At most, these numerous requirements which the majority has imposed upon

trial courts in circumstances in which N.C.G.S. § 7B-1101.1(a1) (2019) is invoked as

an issue constitute best practices for a trial court to implement; however, in my

estimation, the failure to follow them as detailed by the majority does not constitute

error as the majority has decreed here. A trial court should not be compelled to look

at the circumstances in a vacuum at the termination of parental rights hearing with

regard to the sanctity of a respondent parent’s right to counsel; a trial court should

be allowed to look at the circumstances surrounding the termination of parental

rights hearing with regard to a parent’s right to counsel. In the present case,

respondent-mother had routinely frustrated her attorneys’ efforts and flouted the

trial court’s administration of justice in the choices that she elected to make regarding

her adherence to the judicial process.

The best interests of the juvenile are of paramount consideration by the court.

N.C.G.S. § 7B-100(5) (2019). This state’s approach to controversies involving child

neglect is that the best interest of the child is the polar star. In re Montgomery, 311

N.C. 101, 109, 316 S.E.2d 246, 251–52 (1984). The power of the trial judge to maintain

absolute control of his courtroom is essential to the maintenance of proper decorum

and the effective administration of justice. State v. Ford, 323 N.C. 466, 469, 373

S.E.2d 420, 422 (1988). From my vantage point, the trial court properly balanced all

of the potentially competing interests before it in properly applying N.C.G.S. § 7B-

1101.1(a1) on its face regarding respondent-mother’s right to counsel in a termination

of parental rights proceeding, promoting the best interests of the two children at issue

in the present case by conducting the termination hearing in an effort to bring the

juveniles to permanence rather than to yield to further upheaval of court proceedings

by respondent-mother, and preserving proper decorum and the effective

administration of justice by including respondent-mother as a participant in the

termination hearing to represent her own interests after her desire to relieve her

previous two attorneys from responsibility for her representation was allowed by the

trial court. On the other hand, the new duty for a trial court which the majority

creates upon its expansion of N.C.G.S. § 7B-1101.1(a1) requires, in a case like this

one, that after a respondent-parent in a termination of parental rights case has

signed a knowing and voluntary waiver to court-appointed counsel and subsequently

gotten retained counsel to withdraw, that the trial court must halt the termination

proceedings during the presentation of evidence in order to accommodate the late

arrival of the respondent-parent in order to make a new inquiry of the respondent-

parent’s desire for counsel, thereby potentially suspending the hearing and delaying

the establishment of a permanent home for the juveniles. Based upon my recognition

of this needless collision of critical fundamental principles which could and should be

mutually promoted, I respectfully dissent.

Justice NEWBY joins in this dissenting opinion.

-7-