In re L.Z.S.

• Court: Supreme Court of North Carolina
• Decided: December 16, 2022
• Docket: 216A21
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-129

No. 216A21

Filed 16 December 2022

IN THE MATTER OF: L.Z.S.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) (2019) from orders entered on

26 March 2021 by Judge Eula E. Reid in District Court, Chowan County, and on writ

of certiorari to review orders entered on 13 August 2020 and 22 September 2020 by

Judge Eula E. Reid in District Court, Chowan County. Heard in the Supreme Court

on 22 March 2022.

Lauren Arizaga-Womble for petitioner-appellee Chowan County Department of Social Services.

A. Grant Simpkins for appellee Guardian ad Litem.

Wendy C. Sotolongo, Parent Defender, by Annick Lenoir-Peek, Deputy Parent Defender, for respondent-appellant father.

MORGAN, Justice.

¶1 Respondent-father appeals from several orders of the District Court, Chowan

County: an order permitting respondent-father’s court-appointed counsel to withdraw

from representation of respondent-father in the case proceedings; an order ceasing

efforts to reunify respondent-father with his son, Leon1; and two orders collectively

1 A pseudonym is used to protect the identity of the juvenile and to promote ease of reading. IN RE L.Z.S.

Opinion of the Court

terminating respondent-father’s parental rights to Leon. Because the record is

completely devoid of any mention of notice to respondent-father of the prospect that

his appointed counsel might withdraw from the case, we reverse the trial court’s order

allowing respondent-father’s appointed counsel to withdraw and the trial court’s

order ceasing reunification efforts and remand this case to the trial court for

additional proceedings consistent with this opinion.

I. Factual and Procedural History

¶2 On 17 April 2019, the Chowan County Department of Social Services (DSS)

obtained nonsecure custody of one-year-old Leon and removed the child from the

custody of his mother, who is not a party to this appeal. DSS also filed a juvenile

petition on 17 April 2019, alleging that Leon was a neglected juvenile because he had

not received proper care, supervision, or discipline from his parents. Respondent-

father, whose paternity had not yet been established at the time that the petition was

filed, was incarcerated at Columbus Correctional Institution at the time that DSS

initiated the matter. Respondent-father was served on 24 June 2019 with the juvenile

petition, along with a summons for an adjudication hearing scheduled for 27 June

2019. Respondent-father was absent from the 27 June 2019 adjudication hearing due

to his ongoing incarceration. Respondent-father’s counsel, who had been provisionally

appointed by the trial court to represent respondent-father, then moved to withdraw

from representation of respondent-father; the trial court allowed the motion to IN RE L.Z.S.

withdraw. At the adjudication hearing, Leon’s mother stipulated that the child was a

neglected juvenile, prompting the trial court to find that Leon was neglected as

defined in N.C.G.S. § 7B-101(15). At a disposition hearing which was also conducted

in the case on 27 June 2019, the record reflects that respondent-father was

represented by newly appointed counsel. The trial court ordered a permanent plan of

reunification of Leon with his mother, with no mention of respondent-father’s

continued involvement in the case. A review hearing was scheduled for 22 August

2019.

¶3 At the 22 August 2019 review hearing, respondent-father’s new appointed

counsel appeared on respondent-father’s behalf. In an order entered on 23 September

2019 which resulted from the 22 August review hearing, the trial court found that

respondent-father was incarcerated at Columbus Correctional Institution, located a

considerable distance away from the juvenile Leon’s home county of Chowan. The

trial court also found that, since Leon’s birth, respondent-father had “not provided

the juvenile with any care, supervision or discipline and since the filing of [the

neglect] petition has not been able to do so due to his incarceration.” The 23

September 2019 order further reflected that respondent-father “is expected to be

released from prison in November of 2019 and would like to have a relationship with

the juvenile and would like to be considered as a placement resource for the juvenile.”

The trial court ordered a permanent plan of custody for Leon with his mother and a IN RE L.Z.S.

concurrent plan of custody for the child with respondent-father or a court-approved

caretaker.

¶4 Between June 2019 and October 2019, DSS engaged with respondent-father

telephonically while he was still incarcerated, including facilitating respondent-

father’s attendance at Child and Family Team Meetings and obtaining respondent-

father’s cooperation with an Out-of-Home Agreement. A DNA test ordered by the trial

court confirmed that respondent-father was the biological father of Leon, whose

paternity had remained at issue due to suspicion that Leon’s mother had been

married to another man at the time of Leon’s birth. Respondent-father exhibited

misconduct at the correctional facility shortly prior to his initial release date in

November 2019, which caused a delay of respondent-father’s release from

incarceration until 21 December 2019. After his release, respondent-father planned

to live and work with his father in Moyock, North Carolina, and indicated a desire to

serve as a placement for Leon.

¶5 Upon respondent-father’s release from prison on 21 December 2019, his contact

with the trial court and DSS was sparse and ineffectual. When respondent-father left

Columbus Correctional Institution, he did not contact DSS in order to provide an

address at which to locate him. DSS contacted the father of respondent-father by

telephone on 2 January 2020 in an effort to ascertain the whereabouts of respondent-

father. Respondent-father called DSS by telephone two days later but would not IN RE L.Z.S.

provide an address; instead, respondent-father indicated that he would contact DSS

by telephone at a later date in order to schedule a meeting. After DSS did not receive

communication from respondent-father within a reasonable period of time, the

agency attempted to contact respondent-father on 20 January 2020 at the telephone

number that he had provided but did not reach him. DSS unsuccessfully tried to

contact respondent-father again by telephone on 5 February 2020, but his telephone

was off and no voicemail message opportunity was available. On 6 February 2020,

during a visitation session between Leon and the child’s mother, DSS was able to

make contact with respondent-father utilizing the mother’s Facebook social media

account to inform him of an upcoming Child and Family Team Meeting. Over the

ensuing three months, DSS regularly attempted to contact respondent-father by

telephone, and he would answer the calls on some occasions and ignore the calls at

other times. During the brief conversations that DSS social workers were able to have

with respondent-father, he would (1) refuse to provide an address so that DSS could

complete a home assessment for the possible placement of Leon with respondent-

father, (2) indicate that he would call DSS back via telephone with an address for the

home assessment on a later date, and then (3) fail to call DSS back by telephone in

order to provide the promised address. Respondent-father participated over the

telephone in a Child and Family Team Meeting on 6 May 2020 during which

respondent-father indicated that he was working for a construction company in IN RE L.Z.S.

Virginia, but respondent-father did not provide any information about his employer

or his address. When a DSS representative asked respondent-father during a

telephone call if respondent-father had provided any support for Leon since his

release from incarceration, respondent-father responded that he considered DSS to

be disrespecting him, and respondent-father ended the call. Respondent-father never

provided a home address to DSS.

¶6 The trial court conducted a permanency planning review hearing during the

two-day period of 11 June 2020 and 22 June 2020. Respondent-father did not appear

at the hearing but was represented by his court-appointed counsel. The trial court

maintained Leon’s permanent plan as reunification with his parents with a

concurrent plan of custody with a court-approved caretaker, and found that the

barriers to reunification for respondent-father specifically were his lack of a

relationship with Leon, respondent-father’s failure to provide respondent-father’s

address to DSS, and respondent-father’s lack of participation in this matter with

DSS. The trial court ordered respondent-father to provide his home address to DSS

and to engage in an Out-of-Home Services Agreement. The tribunal set the next

review hearing for 13 August 2020.

¶7 On the day of the 13 August 2020 permanency planning review hearing and

prior to its start, respondent-father’s court-appointed attorney filed a written notice

to withdraw as counsel. The motion explained that respondent-father had not IN RE L.Z.S.

appeared at any of the court proceedings since respondent-father’s release from

prison, despite advising his counsel that he would do so. The motion further asserted

that, “despite his attorney’s requests,” respondent-father had failed to contact his

attorney and failed to be present for the case’s court proceedings. On the same day of

13 August 2020 on which the motion to withdraw was filed, the trial court granted

the motion. The record does not indicate that respondent-father was served with

notice that his court-appointed counsel was withdrawing from the case or that there

was any attempt to serve respondent-father with such notice. After respondent-

father’s counsel was allowed to withdraw from representation of respondent-father

after regularly appearing on behalf of the parent at the case’s court proceedings, the

trial court then went on to conduct the scheduled permanency planning review

hearing in the absence of respondent-father or any legal representation on his behalf.

Following the solicitation of testimony from a DSS social worker and the juvenile’s

guardian ad litem, the trial court entered an order on 22 September 2020 pursuant

to the 13 August 2020 permanency planning review hearing. In the order, the trial

court found that the return of Leon to the custody of either parent “would be contrary

to the welfare of said child at this time” and that continued efforts to reunify Leon

with respondent-father “would clearly be futile or would be inconsistent with the

child’s health and safety.” The trial court eliminated reunification of the juvenile Leon

with either parent as a permanent plan, and instead the trial court identified IN RE L.Z.S.

adoption as a primary plan with a concurrent plan of guardianship with a relative or

court-approved caretaker.

¶8 In the months following the 13 August 2020 permanency planning review

hearing, DSS attempted to contact respondent-father a total of eleven times through

the mail and by telephone. DSS sent a letter to respondent-father via certified mail

on 24 August 2020 which informed him of the trial court’s decision to cease

reunification efforts; respondent-father signed the receipt of the certified letter on 8

September 2020. On 9 September 2020, DSS sent to respondent-father a second

certified letter with identical content, for which respondent-father’s signature

indicated receipt on 16 September 2020. On two occasions, DSS was able to

successfully contact respondent-father by way of telephone; however, respondent-

father became upset during each of the calls, refused to meet with DSS, and ended

each call.

¶9 On 20 November 2020, DSS filed a petition to terminate respondent-father’s

parental rights to the juvenile Leon, on the grounds of neglect under N.C.G.S. § 7B-

1111(a)(1), failure to make reasonable progress in correcting the conditions which led

to Leon’s removal from his parents’ custody in the first instance under N.C.G.S. § 7B-

1111(a)(2), failure to pay a reasonable portion of the costs of care for Leon despite the

ability to do so under N.C.G.S. § 7B-1111(a)(3), and abandonment under N.C.G.S. §

7B-1111(a)(7). See N.C.G.S. § 7B-1111(a) (2021). Respondent-father was appointed IN RE L.Z.S.

the same attorney for the termination of parental rights matter as had been allowed

to withdraw at the 13 August 2020 hearing. At the termination of parental rights

adjudication and disposition hearings which began on 14 January 2021 and resumed

on 11 February 2021, respondent-father attended with his appointed counsel. The

trial court heard testimony from DSS social workers, Leon’s guardian ad litem, and

respondent-father himself. Respondent-father’s attorney cross-examined DSS’s

witnesses and gave thorough closing arguments on respondent-father’s behalf. In two

separate orders which were both entered on 26 March 2021, the trial court found that

all four of the alleged grounds for the termination of respondent-father’s parental

rights existed and determined that Leon’s best interests would be served by the

termination of respondent-father’s parental rights.

II. Analysis

¶ 10 Respondent-father appeals from the trial court’s 13 August 2020 order which

allowed his court-appointed counsel to withdraw from representation of respondent-

father and from the trial court’s 22 September 2020 order which eliminated

reunification as a permanent plan for Leon. In addition to these contentions,

respondent-father also submits that the trial court’s orders which terminated his

parental rights must be vacated if this Court determines that the trial court’s order

which eliminated reunification as a permanent plan should be vacated, according to

N.C.G.S. § 7B-1001(a2). See N.C.G.S. § 7B-1001(a2) (2019). IN RE L.Z.S.

¶ 11 North Carolina law is replete with demonstrations of the established right of

a parent to be represented by legal counsel in proceedings in which a child of the

parent is in the nonsecure custody of a county’s department of social services.

Subsection 7B-602(a) of the General Statutes of North Carolina establishes that “[i]n

cases where the juvenile petition alleges that a juvenile is abused, neglected, or

dependent, the parent has the right to counsel and to appointed counsel in cases of

indigency unless that person waives the right.” N.C.G.S. § 7B-602(a) (2021).

Subsection 7B-906.1(a) requires the trial court to conduct a hearing in such abuse,

neglect, and dependency cases “within 90 days from the date of the initial

dispositional hearing” and “hearings shall be held at least every six months

thereafter,” with the hearing “be[ing] designated as [a] permanency planning

hearing” in the event that “custody has been removed from a parent.” N.C.G.S. § 7B-

906.1(a) (2021). In a termination of parental rights case, N.C.G.S. § 7B-1101.1(a)

guarantees that “[t]he parent has the right to counsel, and to appointed counsel in

cases of indigency, unless the parent waives the right.” N.C.G.S. § 7B-1101.1(a)

(2021). As to waiver of counsel by parents in cases in which the outcomes of

permanency planning review hearings may result in termination of parental rights

proceedings, this Court has adopted the standard that “ ‘[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].’ ” In re K.M.W., 376 N.C. 195, IN RE L.Z.S.

209 (2020) (alterations in original) (quoting State v. Simpkins, 373 N.C. 530, 541

(2020)). Furthermore, as we also noted in our decision in In re K.M.W., “Rule 16 of

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

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

to the client, and (3) the permission of the court.’ ” Id. (emphasis added) (quoting N.C.

Gen. R. Prac. Super. & Dist. Ct. 16). “[T]his ‘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 [to allow withdrawal].’ ” Id. (second

alteration in original) (quoting Williams & Michael, P.A. v. Kennamer, 71 N.C. App.

215, 516 (1984)). “Under no circumstances may an attorney of record be permitted to

withdraw on the day of trial without first satisfying the court that he has given his

client prior notice which is both specific and reasonable.” Williams & Michael, P.A.,

71 N.C. App. at 216–17.

¶ 12 In In re K.M.W., two children were removed from the care of their mother after

the local department of social services (DSS) became involved with the parents after

the agency received a report concerning the alleged occurrence of domestic violence

between the mother and her boyfriend in the presence of the children and the alleged

administration of medicine to the children in order to get the children to sleep. In re

K.M.W., 376 N.C. at 196. DSS filed a petition alleging that the children were IN RE L.Z.S.

neglected juveniles, and the trial court determined that the children were neglected

juveniles. Id. at 197. After a number of hearings in the matter which included

permanency planning review hearings conducted in December 2017, May 2018,

August 2018, and November 2018, the respondent-mother indicated to the trial court

at a hearing conducted on 8 January 2019 that she wanted to waive her right to a

court-appointed attorney in the pending termination of parental rights case and that

she desired to hire her own counsel for the matter. Id. at 197–200. The court-

appointed counsel continued to represent the respondent-mother in the underlying

neglect proceeding, while on 9 January 2019 the trial court entered an order allowing

the court-appointed attorney’s 3 January 2019 motion to withdraw as the respondent-

mother’s counsel based upon the respondent-mother’s articulated wish to privately

retain an attorney to represent the respondent-mother in the termination proceeding.

Id. at 199–200. After the fifth permanency planning review hearing which occurred

on 16 April 2019, the trial court relieved the respondent-mother’s court-appointed

attorney of representation responsibilities in the underlying neglect case after

counsel was present for the hearing and the respondent-mother was absent, and in

light of the fact that the respondent-mother had not been in contact with her court-

appointed attorney since 20 November 2018. Id. at 200. On 30 April 2019, the

respondent-mother’s privately retained counsel filed motions to withdraw as the

respondent-mother’s attorney in the termination of parental rights phase of the case. IN RE L.Z.S.

Id. at 201. We observed that “[a]lthough the withdrawal motions were served upon

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

Id. During a hearing that transpired on 14 May 2019 in the absence of the

respondent-mother, her privately retained counsel reported to the trial court that the

respondent-mother had requested him to withdraw from the termination of parental

rights proceedings and that he had been unable to secure the respondent-mother’s

presence for the hearing. Id. Without further inquiry, the trial court granted counsel’s

motion to withdraw. Id. The respondent-mother was subsequently served with the

trial court’s order which allowed the withdrawal of her attorney. Id. A termination of

parental rights hearing was conducted on 11 June 2019; the respondent-mother

arrived late for the proceedings, which began in her absence, and she represented

herself. Id. at 201–02. Ultimately, the trial court announced in open court that

grounds existed for the termination of the respondent-mother’s parental rights and

that her parental rights would be terminated. Id. at 202. The trial court formalized

these determinations in an order issued on 27 June 2019. Id. On appeal to this Court,

the respondent-mother argued that the record in the case did not show that she had

received any notice that her privately retained attorney would seek to withdraw from

representing her. Id. We agreed with the respondent-mother that the trial court erred

by allowing the motion to withdraw of the respondent-mother’s privately retained

attorney, as we reasoned, among several considerations, that IN RE L.Z.S.

[a] careful examination of the record . . . indicates that neither the certificate of service attached to [the respondent-mother’s attorney’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 [the respondent-mother’s attorney] was allowed to withdraw. On the contrary, the certificate of service attached to [the respondent-mother’s attorney’s] withdrawal motion appears to reflect that the only party upon whom that motion was served was DSS.

Id. at 211.

¶ 13 In the present case, just as in In re K.M.W., respondent-father had the

statutory right to counsel in this matter which resulted from his juvenile son Leon

being taken into the nonsecure custody of DSS due to the trial court’s determination

of the child’s status as a neglected juvenile and remained throughout the trial court’s

administration of permanency planning review hearings and the eventual

termination of parental rights hearing. Since respondent-father refrained from

maintaining consistent communication with DSS and with his court-appointed

counsel in a manner similar to the respondent-mother’s failure to stay in contact with

her counsel in In re K.M.W., respondent-father’s conduct in this regard cannot be

deemed to be so egregious, dilatory, or abusive here so as to constitute a waiver or

forfeiture of counsel in light of the determination that the respondent-mother’s

inconsistent interaction with her counsel in In re K.M.W. did not rise to such a level.

Based on the trial record in In re K.M.W., the respondent-mother was not provided

with reasonable notice that her privately retained attorney would request the trial IN RE L.Z.S.

court to relieve him from representation of the respondent-mother at the termination

of parental rights hearing, after the trial court had excused the respondent-mother’s

court-appointed attorney from representing the parent in the pivotal underlying

neglect proceedings. Likewise, respondent-father in the instant case was not apprised

in advance by his counsel that the attorney would pursue withdrawal from the case

on the day of the 13 August 2020 permanency planning review hearing and the record

is bereft of any such notice to respondent-father. In both In re K.M.W. and the case

at bar, the trial court allowed the motion to withdraw of the parent’s attorney,

without prior notice to the parent being apparent from the trial record, on the same

day of the hearing during which the attorney’s motion to withdraw was formally

considered by the trial court, in the absence of the affected parent who had a statutory

right to counsel at the hearing at which the motion to withdraw was allowed and

without further inquiry by the trial court appearing in the record. This confluence of

salient circumstances between the two cases mandates reversal here.

¶ 14 Although this Court has decided the case of In re T.A.M., 378 N.C. 64, 2021-

NCSC-77, which presented issues similar to those which are found in the current case

but compelled us to conclude that the trial court had the discretion to properly grant

the motion of the parent’s attorney to withdraw from representation, the differences

between these cases regarding the critical concept of prior notice provide the

important distinctions between them so as to justify their different outcomes. In In IN RE L.Z.S.

re T.A.M., the local DSS filed a petition which alleged that the child Tam was a

neglected juvenile based on reports that the respondent-mother and the respondent-

father were engaged in activities of substance abuse, domestic violence, and criminal

offenses involving controlled substances. Id. ¶¶ 2, 7. The trial court found that the

juvenile Tam2 was neglected after an adjudicatory hearing and the parents’

stipulation that the petition’s allegations were accurate. Id. ¶ 8. Subsequently, Tam

was placed in the nonsecure custody of DSS by the trial court. Id. After the

respondent-mother gave birth to the child Kam while the parents were still involved

in trial proceedings relating to Tam, DSS filed a petition in which it was alleged that

the newborn child was a neglected juvenile. Id. ¶¶ 11–12. The trial court issued an

order which authorized DSS to obtain nonsecure custody of Kam. Id. ¶ 12. As they

did with their child Tam, the parents stipulated to the existence of the allegations

contained in the DSS petition regarding Kam, and the trial court found that Kam was

a neglected juvenile. Id. ¶ 14. Permanency planning and review hearings were

conducted in the case. Id. ¶¶ 15–16. Eventually, DSS filed petitions to terminate the

parental rights of both parents. Id. ¶ 17. The respondent-father’s whereabouts were

unknown at the time of the filing of the termination petitions. Id. After the

respondent-father was unsuccessfully given notice of the termination of parental

In In re T.A.M., pseudonyms were used to protect the identity of the juveniles and to 2

promote ease of reading. IN RE L.Z.S.

rights proceedings by publication, the trial court granted the motion of the

respondent-father’s counsel to withdraw from representation of the respondent-

father due to the parent’s failure to maintain contact with his attorney. Id. Several

months later, the respondent-father appeared in the matter, and the trial court

therefore reappointed the same attorney to represent the respondent-father and

continued the hearing until three-and-one-half months later. Id. Upon the arrival of

the new date for the termination of parental rights hearing, counsel for the

respondent-father filed another motion to withdraw based upon the respondent-

father’s lack of communication with his attorney, the attorney’s inability to know the

respondent-father’s wishes regarding the case, and the attorney’s resulting lack of

ability to properly represent the respondent-father’s interests at the termination

hearing. Id. Without the presence of the respondent-father’s counsel due to the trial

court’s allowance of the attorney’s motion to withdraw, and in the absence of the

respondent-father, the trial court conducted the termination of parental rights

hearing and ultimately terminated the parental rights of both parents. Id. ¶ 18. Both

parents appealed to this Court, with the respondent-father’s arguments being

germane to the case sub judice in light of his contention that the trial court erred in

granting his counsel’s motion to withdraw at the termination of parental rights

hearing in light of the respondent-father’s statutory right to counsel. Id. ¶¶ 18–19. In

determining that the trial court did not abuse its discretion in In re T.A.M. to grant IN RE L.Z.S.

the motion to withdraw of the respondent-father’s counsel—as opposed to the trial

court’s presumed exercise of discretion in the present case which it did not possess

pursuant to In re K.M.W.—we emphasized the following indications of notice to the

respondent-father which were given to the parent in In re T.A.M. regarding the

potential withdrawal of counsel from representation which do not exist regarding the

potential withdrawal of counsel from representation of respondent-father here:

The trial court first advised respondent-father of his responsibility to attend all trial court hearings and maintain communication with his court appointed attorney at the first appearance hearing on DSS’s juvenile petition of neglect for Tam held on 11 October 2016. Furthermore, the trial court advised respondent-father that if he failed to attend trial court hearings or failed to maintain communication with his attorney, his attorney “may ask and be permitted to withdraw as his attorney of record, and the case may proceed without him being represented by an attorney.”

....

. . . The trial court advised respondent-father for a third time that it was “his responsibility to maintain contact with his appointed attorney and . . . to attend all [trial c]ourt hearings” and that if he failed to communicate or attend all trial court hearings, his attorney “may ask and be permitted to withdraw as his attorney of record, and the case may proceed without him being represented by an attorney.”

. . . Counsel for respondent-father informed the trial court that she had spoken to respondent-father that day [of IN RE L.Z.S.

the 30 January 2020 session of the termination of parental rights hearing] and informed respondent-father that if he did not appear at the termination-of-parental-rights hearing, she “would need to withdraw and the case would proceed in his absence.” The attorney also stated that respondent-father did not object to his attorney’s withdrawal as counsel. The trial court then granted respondent-father’s attorney’s motion to withdraw.

Id. ¶¶ 22, 25, 27 (third and fourth alterations in original) (footnote omitted).

¶ 15 We summarized these circumstances in which the respondent-father in In re

T.A.M. was given notice that his counsel might be allowed to withdraw from

representation in the event that the respondent-father failed to remain in

communication with his attorney throughout the proceedings as we recounted that

“[t]he trial court advised respondent-father on three separate occasions that it was

his responsibility to maintain contact with his attorney and attend all trial court

hearings.” Id. ¶ 29. In addition to the trial court’s efforts in conveying notice to the

respondent-father in In re T.A.M. about the prospects of the withdrawal of the

parent’s counsel from representation, the respondent-father’s attorney also

reinforced the potential of counsel’s withdrawal with notice being given to the

respondent-father that this could occur if the respondent-father failed to heed the

trial court’s admonitions on this subject. In further drawing the stark distinctions

between the procedural facts of In re T.A.M. and the present case with regard to the

withdrawal-of-counsel issue, it is particularly noteworthy that in In re T.A.M., the

respondent-father’s attorney spoke with the respondent-father on the day of the IN RE L.Z.S.

termination hearing prior to the beginning of the hearing and directly informed the

parent that counsel would need to withdraw from the case and the termination

hearing would occur in the absence of the respondent-father if the respondent-father

was not present for it. On the other hand, respondent-father’s court-appointed

attorney in the present case—as well as the privately retained attorney for the

respondent-mother in In re K.M.W.—did not provide prior notice to the parent who

had a statutory right to counsel that the attorney would seek to withdraw from

representation at the hearing at which the parent had the statutory right to counsel.

Furthermore, in both the present case and in In re K.M.W., as opposed to In re T.A.M.,

the trial court did not engage in further inquiry or expressly provide notice to the

affected parent prior to the trial court granting the motion to withdraw from

representation by counsel for the parent.

¶ 16 This Court stresses, as we similarly underscored in In re T.A.M., that “such

cases as these are fact-specific and hence dependent on the unique facts of any given

case.” Id. ¶ 30. Even with the differing outcomes of In re K.M.W., In re T.A.M., and

the case at bar as a result of the varying facts which are singular to each case, the

principle which is consistently implemented in, and commonly shown by, all of them

is that “the trial court’s discretion [to allow a respondent-parent’s counsel to

withdraw from representation] only comes into play when the parent has been

provided adequate notice of counsel’s intent to seek leave of court to withdraw and IN RE L.Z.S.

the trial court has adequately inquired into the basis for counsel’s withdrawal

motion.” Id. ¶ 28 (quoting In re K.M.W., 376 N.C. at 211). Completely absent from the

record in the present case is any indication of notice to respondent-father from his

counsel that the attorney was seeking to withdraw, any indication on the part of

respondent-father’s counsel that reasonable efforts were made by the attorney to

provide notice of counsel’s intention to withdraw, or any inquiry conducted by the

trial court regarding the basis for the motion to withdraw of respondent-father’s

counsel. These circumstances require both a reversal of the trial court’s order which

allowed respondent-father’s counsel to withdraw from representation and a remand

of the case to the trial court in order to reconstitute the permanency planning review

hearing originally held on 13 August 2020 at which the trial court erroneously

permitted respondent-father’s counsel to withdraw and where the trial court shall

reconsider the propriety of ongoing reunification efforts for the juvenile Leon and

respondent-father.

¶ 17 In light of our conclusion in In re K.M.W., which was expressly based on the

unequivocal premises espoused in the Court of Appeals case of Williams & Michael,

P.A. and the governance of Rule 16 of the General Rules of Practice, we determine in

the present case—consistent with the outcome in In re K.M.W.—that the trial court

erred in allowing counsel for respondent-father to withdraw from representation

without proper notice evident in the record of the attorney’s intent to withdraw as IN RE L.Z.S.

counsel and without making further inquiry about the circumstances regarding the

motion, in the absence of respondent-father at a hearing at which he had a statutory

right to counsel, had not waived or forfeited counsel, and consequently did not have

counsel to represent his parental interests.

III. Conclusion

¶ 18 Based upon the foregoing reasoning, we reverse the trial court’s 13 August

2020 order allowing respondent-father’s counsel to withdraw, reverse the trial court’s

22 September 2020 order eliminating reunification as the case’s permanent plan, and

remand the case to the trial court for further proceedings not inconsistent with this

opinion. Upon remand, the trial court is to determine respondent-father’s eligibility

for court-appointed counsel, appoint counsel for respondent-father if the parent is

entitled to court-appointed counsel, and reconstitute the permanency planning

review hearing which was originally conducted on 13 August 2020. In the event that

the trial court determines upon remand that reunification efforts were properly

ceased on 13 August 2020, then the trial court shall enter an order to that effect and

the trial court’s order which terminated the parental rights of respondent-father shall

remain undisturbed. In the event that the trial court determines upon remand, after

respondent-father’s exercise or waiver of his statutory right to counsel, that

reunification efforts were improperly ceased on 13 August 2020, then the trial court

shall enter an order to that effect and the trial court’s order which terminated the IN RE L.Z.S.

parental rights of respondent-father shall be vacated, without prejudice to DSS to

pursue further proceedings.

REVERSED AND REMANDED. Justice BERGER dissenting.

¶ 19 Because the trial court’s order allowing withdrawal of counsel should be

affirmed, as should the order eliminating reunification as the permanent plan, I

respectfully dissent.

I. Withdrawal of Counsel

¶ 20 Parents have a statutory right to counsel in cases when the parent is named

in a juvenile petition alleging abuse, neglect, or dependency. N.C.G.S. § 7B-602(a)

(2021). Respondent-father was served with the juvenile petition on June 24, 2019,

and it is undisputed that counsel was appointed for him on June 27, 2019.1 However,

from the time of counsel’s appointment until the motion to withdraw was allowed on

August 13, 2020, respondent-father failed to contact his counsel, failed to appear at

any hearing, and failed to work with the department to have a role in his child’s life

1 Although unclear from the record, it appears that attorney Brandon Belcher initially may have been appointed as provisional counsel as he was allowed to withdraw at the June 27, 2019 hearing. There is no order of appointment concerning Mr. Belcher in the record, and the trial court’s order allowing Mr. Belcher’s withdrawal has a blank in which the trial court should have listed the grounds for withdrawal, but that blank was not completed. Attorney Preston Tyndall appears to have been appointed following Mr. Belcher’s withdrawal. However, Mr. Tyndall’s motion to withdraw states that he was appointed as provisional counsel, even though the notice of appointment does not designate that Mr. Tyndall was appointed as provisional counsel. Given the lack of clarity in the record, remand to the trial court for additional findings because if Mr. Tyndall was indeed provisional counsel, this issue may be controlled by the plain language of N.C.G.S. § 7B-602. See N.C.G.S. § 7B-602(a) (2021) (“[T]he court shall dismiss the provisional counsel if the respondent parent . . . [d]oes not appear at the hearing . . . .”). I also note that reliance on Rule 16 of the General Rules of Practice as in In re K.M.W., 376 N.C. 195, 851 S.E.2d 849 (2020), is misplaced as it relates to provisional counsel because the rule requiring notice contradicts the plain language of the statute. Even if Rule 16 was applicable, the record contains no transcript of the hearing on the motion to withdraw such that we are able to discern what efforts were made by counsel to contact respondent-father. Remand, again, may be appropriate for additional findings on this issue. IN RE L.Z.S.

Berger, J., dissenting

despite having been served with the petition.

¶ 21 As this Court recently stated, “[a] parent, by repeatedly failing to communicate

with appointed counsel, by failing to attend numerous hearings, and by admittedly

avoiding receiving mail and other communications from [the department] and other

interested parties,” should not be permitted to “successfully manipulate the judicial

system to seriously delay [ ] termination of parental rights proceeding[s].” In re

T.A.M., 378 N.C. 64, 2021-NCSC-77, ¶ 31. Sanctioning obstructive and dilatory

tactics by uninterested parents “impair[s] judicial efficiency and drain[s] already

scarce judicial resources, while thwarting the over-arching North Carolina policy to

find permanency for the juvenile at the earliest possible age.” Id.; see also N.C.G.S.

§ 7B-1100(2) (2021).

¶ 22 Here, respondent-father was served with a petition alleging that L.Z.S. was a

neglected juvenile because he did not receive proper care, supervision, or discipline.

Despite service of the petition and, therefore, knowledge of the proceedings affecting

his rights as a parent, respondent-father did not appear at the permanency planning

hearings that occurred in February and June 2020 prior to filing of the motion to

withdraw. Nor was respondent-father present on August 13, 2020, when the motion

to withdraw was allowed by the trial court. In his motion to withdraw, respondent-

father’s attorney noted that respondent-father had failed to appear at any hearing

since his release from prison in December 2019 and had never contacted his attorney. IN RE L.Z.S.

Further, the record is replete with findings that respondent-father failed to contact

the department and failed to provide an address even after the department’s

numerous attempts to establish contact with him.

¶ 23 Consistent with our holding in In re T.A.M., and because “a lawyer cannot

properly represent a client with whom he has no contact,” Dunkley v. Shoemate, 350

N.C. 573, 578, 515 S.E.2d 442, 445 (1999), the trial court did not err when it allowed

counsel to withdraw.

II. Sufficiency of Findings to Eliminate Reunification

¶ 24 This Court will review a permanency planning review order to determine

“ ‘whether there is competent evidence in the record to support the findings [of fact]

and whether the findings support the conclusions of law.’ The trial court’s findings

of fact are conclusive on appeal if supported by any competent evidence.” In re A.P.W.,

378 N.C. 405, 2021-NCSC-93, ¶ 14 (alteration in original) (quoting In re H.A.J., 377

N.C. 43, 2021-NCSC-26, ¶ 14). Further, “uncontested findings are binding on

appeal.” Id. ¶ 14.

¶ 25 This Court may take the findings from the order eliminating reunification as

the permanent plan together with the order terminating parental rights in

determining whether the findings suffice. In re A.P.W., ¶ 16. This Court considers

both orders together. Id.

¶ 26 “At any permanency planning hearing pursuant to [N.C.]G.S. [§] 7B-906.1, the IN RE L.Z.S.

court shall adopt one or more . . . permanent plans the court finds is in the juvenile’s

best interest.” N.C.G.S. § 7B-906.2(a) (2021). “Reunification shall be a primary or

secondary plan unless the court made written findings under . . . [N.C.]G.S. [§] 7B-

906.1(d)(3) . . . or the court makes written findings that reunification efforts clearly

would be unsuccessful or would be inconsistent with the juvenile’s health or safety.”

N.C.G.S. § 7B-906.2(b). Pursuant to N.C.G.S. § 7B-906.1(d), the trial court must

“make written findings regarding . . . [w]hether efforts to reunite the juvenile with

either parent clearly would be unsuccessful or inconsistent with the juvenile’s health

or safety and need for a safe, permanent home within a reasonable period of time.”

N.C.G.S. § 7B-906.1(d) (2021).

¶ 27 To assess reunification as part of the child’s permanent plan, the trial court

must do the following:

make written findings as to each of the following, which shall demonstrate the degree of success or failure toward reunification:

(1) Whether the parent is making adequate progress within a reasonable period of time under the plan.

(2) Whether the parent is actively participating in or cooperating with the plan, the department, and the guardian ad litem for the juvenile.

(3) Whether the parent remains available to the court, the department, and the guardian ad litem for the juvenile.

(4) Whether the parent is acting in a manner inconsistent with the health or safety of the juvenile. IN RE L.Z.S.

N.C.G.S. § 7B-906.2(d).

¶ 28 As this Court recognized in In re L.E.W.,

[a]lthough “use of the actual statutory language [is] the best practice, the statute does not demand a verbatim recitation of its language.” Instead, “the order must make clear that the trial court considered the evidence in light of whether reunification would be futile or would be inconsistent with the juvenile’s health, safety, and need for a safe, permanent home within a reasonable period of time.”

375 N.C. 124, 129–30, 846 S.E.2d 460, 465 (2020) (citations omitted). The trial court

need only use language “sufficient to invoke th[e] statutory provision.” See In re

L.N.H., 2022-NCSC-109, ¶ 31 (citing In re A.P.W., ¶ 20). Thus, in making these

findings, the trial court “must address the statute’s concerns, but need not quote its

exact language.” In re L.M.T., 367 N.C. 165, 168, 752 S.E.2d 453, 455 (2013).

¶ 29 Respondent-father does not contest the trial court’s findings of fact related to

elimination of reunification as a permanent plan, and therefore, the findings are

binding on appeal. The only question for consideration on this issue is whether the

trial court’s findings of fact support the conclusions of law. Here, the trial court made

the following relevant findings of fact in the September 22, 2020 permanency

planning order:

7. [Respondent-father] is the biological father of the minor child. His last known address is c/o Columbus County Correctional facility, however, he was released on December 21, 2019, and his current address is IN RE L.Z.S.

unknown . . . . Upon information and belief, [respondent- father] is residing in the State of Virginia. [Respondent- father] was served with the juvenile petition by personal service by the Columbus County Sheriff Department on June 24, 2019.

42. Upon his release, [respondent-father] did not contact the Department or provide the Department with a current address. The Department has made numerous attempts to establish contact [with respondent-father] and, in an effort to talk with him, has also spoken with his father, who advised that [respondent-father] is not residing with him. . . . [T]he Department also spoke with [respondent-father] via Facebook. On February 10, 2020, the Department spoke with him to remind him of CFT. [Respondent-father] continued to be unable to provide the Department with his address but asserted that he would attend the upcoming meeting. He did not engage further with staff and hung up. To date, [respondent-father] has still not provided the Department with a current address.

43. The Department has made repeated attempts to contact [respondent-father] in reference to a home study and Out-of-Home service agreement being completed. On April 28, 2020, the Department spoke with [respondent- father] to inform him of the upcoming CFT on May 6, 2020, which he attended via phone call. During the CFT, [respondent-father] expressed that he wants his son back and he feels that if he was out of jail, none of this would have happened. [Respondent-father] informed the Department that he has been working for a construction company in Virginia, but due to COVID he does not work as much. . . . When asked if he provides anything for [Leon] he responded “no.” [Respondent-father] became very upset with the facilitator saying “don’t disrespect me” and “I’m grown just like you;” and then hung up. No further information regarding employment for [respondent-father] has been received. IN RE L.Z.S.

44. After the CFT on May 6, 2020, the Department followed up with [respondent-father] to discuss being a placement provider for [Leon]. [Respondent-father] maintained that he would have to check with his grandmother. He did not provide an address and indicated he would call back after he spoke with his grandmother. On June 1, 2020, the Department again followed up with [respondent-father] in regards to his involvement with the Department and [Leon]. [Respondent-father] advised that he was in the process of moving again and trying to find his own place. He continues to not provide his address to the Department.

48. With regard to the criminal history of [respondent-father], he was convicted of possession of [a firearm] by a felon and incarcerated in Columbus County Correctional Institute. [Respondent-father] has previous convictions of discharge of [a firearm], trespassing, and resisting officer. His scheduled release date was postponed due to pending infractions and the North Carolina Department of Public Safety website reflects he was released on December 21, 2019.

60. That the [trial c]ourt finds that conditions which led to the filing of the petition continue to exist; and that the return of the child . . . to the custody of either parent would be contrary to the welfare of said child at this time.

61: Pursuant to [N.C.G.S. § 7B-507]:

2. The Chowan County Department of Social Services should no longer be required to make reasonable efforts in this matter to IN RE L.Z.S.

reunify the child . . . with [respondent-]father . . . as those efforts would clearly be futile or would be inconsistent with the child’s health and safety, and need for a safe, permanent home within a reasonable period of time.

¶ 30 As noted above, this Court takes the findings from the permanency planning

orders together with those from the termination of parental rights orders. In the

termination of parental rights pre-trial and adjudication order from March 26, 2021,

the court made the following relevant findings of fact:

30. On December 20, 2019, [respondent-father] was released from Columbus County Correctional facility. Upon his release, he did not contact the Department to provide an[ ] updated address[ ] and phone number. The Department made contact with the prison to obtain his reported address and phone number upon his release.

34. [Respondent-father] is and was aware that his child was and is in the custody of the Chowan County Department of Social Services, of his current placement, and has failed to participate in this case, has not made inquiry as to [Leon]’s health/welfare, nor sent any letters/cards/gifts for [Leon], has not attended one court date prior to this termination proceeding; engaged in child support in January 2021 after this matter was filed and set for hearing.

36. [Respondent-father] refused to engage and participate with the Department. He did not provide an address to the Department . . . . He did not request the Department assess his residence for placement. All the contact [respondent-father] had with the Department was initiated by the Department. IN RE L.Z.S.

37. [Respondent-father] only attended one PPAT meeting after being released from prison in December 2019 although he could have continued to do so virtually or in person.

38. [Respondent-father] expressed a desire to visit his son and arrange for a placement for his son, but he never submitted to a case plan, service plan, a visitation plan or requested the Department to assess his residence for placement.

39. [Respondent-father] has provided no love, nurturance, or care for the minor child and has failed to exhibit any interest in the welfare of the minor child.

40. Though duly notified of [c]ourt proceedings, [respondent-father], has provided no love, nurturance, or care for the minor child and has failed to exhibit any interest in the welfare of the minor child; has failed to engage with the Department and work toward reunification; has failed to participate in the [c]ourt process, all of which reflect a pattern consistent with willful or intentional conduct that evinces a settled purpose to forego all parental duties with regard to the minor child. In light of the evidence of the child being in custody for 16 months and based on the pattern of willful or intentional conduct that evinces a settled purpose to forego all parental duties with regard to the minor child regarding [respondent-father], the [c]ourt finds this is sufficient to establish the abandonment ground exists at the time of hearing.

41. There is a substantial risk of physical, mental, or emotional impairment of the juvenile as a consequence of the actions of [respondent-]father and the failure by [respondent-]father to provide proper care, supervision or discipline.

42. [Respondent-father] has made insufficient progress as to a change in condition in that he has failed to fully engage with the Department and work toward IN RE L.Z.S.

reunification; and he has failed to engage in contact/visits with his child, all of which reflect a pattern consistent with the neglect of the child. Thus, there is a strong probability of repetition of neglect if the child were returned to his care. In light of the evidence of the child being in custody for sixteen months, and [respondent-]father’s conduct and failure to make any progress in a reasonable amount of time; and based on the high probability of repetition of neglect and pattern of neglect regarding [respondent- father], the [c]ourt finds this is sufficient to establish the neglect ground exists at the time of hearing.

43. In October 2019, a referral was made by Chowan County Department of Social Services to Child Support Enforcement (CSE) for [respondent-father] to pay monthly child support [for Leon]. Although [respondent-father] asserts that he has been employed for periods of time since his release from prison in December 2019, he did not engage in child support until January 2021.

44. In October 2020, CSE filed a complaint for child support and made multiple service attempts on [respondent-father]. CSE had made several calls and left messages with [respondent-father] where he promised to come to the office but never appeared at the agreed upon times. During the contacts with CSE [respondent-father] did not provide an updated address for service or further contact.

45. On November 4, 2020, CSE sent a letter to [respondent-father] at his last known address . . . and advised him to contact the agency. CSE was unable to serve [respondent-father] until after [respondent-father] finally provided his Elizabeth City address to the Department in December 2020.

46. Prior to the filing of the petition for termination of parent[al] rights [respondent-father] had paid $0.00 towards the cost of care for [Leon].

47. On January 8, 2021 [respondent-father] signed a IN RE L.Z.S.

Voluntary Support Agreement stating that he will pay $50.00 a month and $10.00 towards his arrears beginning on February 1, 2021. To date [respondent-father] has paid $120.00, on February 10, 2021.

49. [Respondent-father] is healthy; has been under no disability that would prevent him from working; has a duty of care and support of his child; and has had the ability to pay support for [Leon] in an amount greater than $0.00.

¶ 31 While the exact statutory language was not used, these findings satisfy the

statutory requirements of N.C.G.S. § 7B-906.2(b) and (d)(1) through (4). See In re

L.M.T., 367 N.C. at 168, 752 S.E.2d at 455 (explaining that the trial court “must

address the statute’s concerns[ ] but need not quote its exact language”). The findings

satisfied N.C.G.S. § 7B-906.2(b) as they clearly demonstrate that “reunification

efforts clearly would be unsuccessful or would be inconsistent with the juvenile’s

health or safety,” and, as determined by the trial court in the permanency planning

order, that efforts to reunify the child with respondent-father “would clearly be futile

or would be inconsistent with the child’s health and safety.”

¶ 32 Turning next to the required findings under subsection 7B-906.2(d)(1), which

requires the trial court to make written findings on “[w]hether the parent is making

adequate progress within a reasonable period of time under the plan,” the trial court

detailed the department’s attempts to contact respondent-father to no avail in its

findings in the permanency planning order and found that “conditions which led to IN RE L.Z.S.

the filing of the petition continue to exist,” further indicating a lack of progress. In

addition, the trial court specifically found in the termination of parental rights order

that “[respondent-father] has made insufficient progress as to a change in condition”

and noted that the child had been in custody for sixteen months and respondent-

father had “fail[ed] to make any progress in a reasonable amount of time.”

¶ 33 In making the required findings under subsection 7B-906.2(d)(2) on “[w]hether

the parent is actively participating in or cooperating with the plan, the department,

and the guardian ad litem for the juvenile,” the trial court found in the permanency

planning order that despite the repeated attempts of the department to contact

respondent-father, respondent-father often could not be reached, displaying a lack of

participation. Further, the trial court cited numerous examples in the termination

of parental rights order that respondent-father had failed to participate with the plan

and the department, finding that “[respondent-father] refused to engage and

participate with the Department[,] [h]e did not provide an address to the

Department,” and “he never submitted to a case plan, service plan, . . . visitation

plan[,] or requested the Department to assess his residence for placement.”

¶ 34 Additionally, with regard to the required findings under subsection 7B-

906.2(d)(3) concerning “[w]hether the parent remains available to the court, the

department, and the guardian ad litem for the juvenile,” the trial court found in the

permanency planning order that the department was unable to establish contact with IN RE L.Z.S.

respondent-father despite “numerous attempts” and that respondent-father

“continued to be unable to provide the Department with his address.”

¶ 35 Finally, pursuant to subsection 7B-906.2(d)(4), the trial court found in its

permanency planning order that efforts to reunify Leon with respondent-father

“would clearly be futile or would be inconsistent with the child’s health and safety.”

The trial court included in its findings that respondent-father had a criminal history

and found that the conditions which led to the filing of the petition to adjudicate Leon

as a neglected juvenile “continue to exist.”

¶ 36 The trial court also found in its termination of parental rights order that

respondent-father had provided “no love, nurturance, or care . . . and has failed to

exhibit any interest in the welfare of the minor child.” Further, the trial court found

that respondent-father exhibited “a pattern consistent with willful or intentional

conduct that evinces a settled purpose to forego all parental duties with regard to the

minor child” and that “[t]here is a substantial risk of physical, mental, or emotional

impairment of the juvenile as a consequence of the actions of [respondent-]father.”

The trial court also found that respondent-father failed to maintain his child support

obligations.

¶ 37 Even though the findings did not use the exact statutory language, these were

sufficient to satisfy N.C.G.S. § 7B-906.2(b) and (d)(1) through (4), and the trial court’s

findings supported its conclusion that elimination of reunification was appropriate. IN RE L.Z.S.

¶ 38 For the reasons stated herein, I would affirm the trial court’s order allowing

withdrawal of counsel and its order eliminating reunification as the permanent plan.

Chief Justice NEWBY and Justice BARRINGER join in this dissenting

opinion.