Opinion of the Court
I. Factual & Procedural Background
On 11 January 2006, Respondent-Father was convicted of committing or
attempting to commit a lewd act on a child under the age of sixteen. Thereafter,
Respondent-Father was arrested on 22 April 2021 and was convicted of and
incarcerated for failing to register as a sex offender. In June 2021, Mother2 gave birth
to Montgomery, who tested positive for THC at birth. On 19 January 2022, while
Montgomery was in Mother’s custody, Chatham County Department of Social
Services (“DSS”) filed a petition alleging that Montgomery was a neglected juvenile
and obtained nonsecure custody. Respondent-Father was served with the juvenile
summons and notice of hearing at his South Carolina detention center.
On 1 February 2022, the trial court held a nonsecure custody hearing.
Respondent-Father did not attend the hearing but was represented by his attorney.
On 26 April 2022, DSS and the Guardian ad Litem made phone contact with
Respondent-Father in prison. Respondent-Father communicated his wishes to be
reunited with Montgomery upon his release from incarceration.
On 12 May 2022, the trial court conducted an adjudication and disposition
hearing. Respondent-Father, though still incarcerated in South Carolina, appeared
in court with his attorney. The trial court adjudicated Montgomery as a neglected
juvenile and ordered Respondent-Father to complete any services requested by DSS
2 Mother relinquished her parental rights and is not a party on appeal.
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that were available during his incarceration. On 1 August 2022, Respondent-Father
was released from incarceration.
On 25 August 2022, the trial court conducted a permanency-planning hearing.
Respondent-Father was not present but was represented by his attorney. The trial
court continued Montgomery’s placement with DSS and selected a primary plan of
reunification with a secondary plan of adoption. The trial court ordered Respondent-
Father to submit to random drug screens, complete a psychosexual assessment,
comply with sex offender registration requirements, and engage in a family services
agreement with DSS. Additionally, the trial court granted Respondent-Father
supervised virtual visitation, at least once per week for up to thirty minutes. The
trial court noted Respondent-Father’s failure to cooperate with his case plan may
result in an order ceasing reunification efforts.
On 30 November 2022, the trial court held another permanency-planning
hearing. Respondent-Father failed to appear but was represented by his attorney.
The trial court made eighteen findings of fact, including that Respondent-Father had
not exercised any visitation with Montgomery. The trial court also found
reunification was no longer recommended, in part because placement with
Respondent-Father within six months was unlikely, Respondent-Father was not
actively participating or cooperating with the necessary services for reunification,
and he had remained unavailable to the trial court, DSS, and the Guardian ad Litem.
The trial court changed the permanency plan to a primary plan of adoption and a
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secondary plan of reunification. It also concluded that proceeding with the
termination of Respondent-Father’s parental rights was necessary to achieve the
permanent plan of adoption.
On 24 May 2023, the trial court conducted another permanency-planning
hearing. Respondent-Father failed to appear but was represented by his attorney.
The trial court continued Montgomery’s placement with DSS and did not change the
permanent plan. A copy of the 24 May 2023 permanency-planning order was served
upon Respondent-Father’s attorney by email.
On 9 August 2023, DSS moved to terminate Respondent-Father’s parental
rights on the grounds of neglect, willful abandonment, failure to make reasonable
progress, and failure to engage in reunification efforts. A notice of the motion seeking
termination of parental rights was served upon Respondent-Father’s trial counsel.
On 11 August 2023, Respondent-Father, through his trial counsel, filed responsive
pleadings and asked the trial court to deny and dismiss the motion.
On 9 November 2023, the trial court conducted a termination hearing. The
trial court admitted a court report prepared by a DSS social worker and the Guardian
ad Litem without objection. Additionally, the trial court admitted a copy of a Bureau
of Prisons inmate search conducted by DSS, revealing Respondent-Father was again
incarcerated and would not be released until August 2024. Respondent-Father’s trial
counsel did not comment on Respondent-Father’s incarceration or explain his
absence. Additionally, Respondent-Father’s trial counsel did not offer evidence or
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question any witnesses at the hearing. The trial court ultimately terminated
Respondent-Father’s parental rights due to neglect, willful failure to make
reasonable progress, and abandonment. The trial court also concluded that
termination was in Montgomery’s best interests. On 22 January 2024, the trial court
entered its order terminating Respondent-Father’s parental rights. Respondent-
Father timely appealed.
II. Jurisdiction
This Court has jurisdiction under N.C. Gen. Stat. § 7B-1001(a)(7) (2023).
III. Issue
The sole issue is whether Respondent-Father received IAC.
IV. Analysis
On appeal, Respondent-Father contends his trial counsel was deficient because
he failed to advocate on Respondent-Father’s behalf during the termination hearing.
Respondent-Father emphasizes that trial counsel “spoke eight times during the
termination hearing,” “uttered around two dozen words,” and “did nothing to
advocate” for him. Respondent-Father also argues the trial court erred by failing to
question trial counsel about Respondent-Father’s absence.
Our Juvenile Code affords parents a statutory right to the assistance of counsel
in all termination proceedings, including court-appointed counsel for indigent
parents who have not waived that right. See N.C. Gen. Stat. § 7B-1101.1(a) (2023).
Included in this right is “the right to effective assistance of counsel.” In re Bishop, 92
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N.C. App. 662, 665, 375 S.E.2d 676, 678 (1989). “To prevail in a claim for ineffective
assistance of counsel, respondent must show: (1) [his] counsel’s performance was
deficient or fell below an objective standard of reasonableness; and (2) [his] attorney’s
performance was so deficient [he] was denied a fair hearing.” In re J.A.A., 175 N.C.
App. 66, 74, 623 S.E.2d 45, 50 (2005).
“When the State moves to destroy weakened familial bonds, it must provide
the parents with fundamentally fair procedures.” Santosky v. Kramer, 455 U.S. 745,
753–54, 102 S. Ct. 1388, 1395, 71 L. Ed. 2d 599, 606 (1982). “[B]efore . . . relieving
an attorney from any obligation to actively participate in a termination of parental
rights proceeding when the parent is absent from a hearing, the trial court must
inquire into the efforts made by counsel to contact the parent in order to ensure that
the parent’s rights are adequately protected.” In re D.E.G., 228 N.C. App. 381, 386–
87, 747 S.E.2d 280, 284 (2013) (emphasis added). “This Court has a duty to ensure
that [the parent] received a fair hearing, and we must adhere to our prior admonition
that ‘procedural safeguards . . . must be followed to ensure the “fundamental fairness”
of termination proceedings.’” In re C.D.H., 265 N.C. App. 609, 614, 829 S.E.2d 690,
694 (2019) (quoting In re S.N.W., 204 N.C. App. 556, 561, 698 S.E.2d 76, 79 (2010)).
Here, the cold record is silent regarding the extent of communication between
Respondent-Father and his trial counsel. The trial court’s orders indicate that
Respondent-Father was represented by the same attorney throughout the
proceedings and was served with the juvenile petition and order for nonsecure
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custody while incarcerated. Notice of the motion to terminate parental rights was
served on trial counsel, not directly on Respondent-Father. The record does not
indicate whether trial counsel informed Respondent-Father of the termination
hearing or any other proceedings following the 12 May 2022 adjudication hearing.
See In re D.E.G., 228 N.C. App. at 386–87, 747 S.E.2d at 284.
Questions also remain as to whether trial counsel was aware of Respondent-
Father’s incarceration at the time of the termination hearing and whether trial
counsel made any effort to facilitate Respondent-Father’s presence or participation
in the hearing. See, e.g., Dunkley v. Shoemate, 350 N.C. 573, 577–78, 515 S.E.2d 442,
445 (1999). (“[A] lawyer cannot properly represent a client with whom he has no
contact.”). Furthermore, the trial court made no findings addressing Respondent-
Father’s absence or trial counsel’s efforts to facilitate his participation at the
termination hearing. See In re D.E.G., 228 N.C. App. at 386–87, 747 S.E.2d at 284;
N.C. Gen. Stat. 7B-1109(b). While ineffective assistance is unlikely to exist when
counsel’s alleged deficiencies result from a respondent’s own actions or inactions, see
Bishop, 92 N.C. App. at 666–67, 375 S.E.2d at 679–80, the limited record before the
Court must be further developed such that we can fully consider the reasons behind
Respondent-Father’s nonattendance and counsel’s limited participation in the
termination hearing, see In re S.N.W., 204 N.C. App. 556, 559, 698 S.E.2d 76, 78
(2010).
On this record, we cannot ascertain whether Respondent-Father had any
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meaningful contact with his attorney or if any efforts were made to secure his
participation. Particularly in cases where a respondent is served through counsel, as
here, the record must be developed further for an appellate court to assess whether
the respondent received notice of the hearing or was provided the opportunity to
assist in trial preparation. See In re A.R.C., 265 N.C. App. 603, 607, 830 S.E.2d 1, 4
(2019) (“Because additional facts regarding the reasons behind counsel’s actions are
needed to resolve [the respondent’s] claim that she was denied a fair hearing, the
appropriate remedy is to remand to the trial court so that it may find those facts and
make a determination as to the adequacy of counsel’s representation.”).
In sum, the cold record is insufficient to determine whether Respondent-Father
received actual notice or an opportunity to participate at the termination hearing.
Further development of the record is necessary to adequately consider Respondent-
Father’s IAC claim. Accordingly, we remand.
V. Conclusion
The record before us raises questions as to whether Respondent-Father was
afforded the proper process necessary to ensure his rights were protected during his
termination of parental rights hearing. See Kramer, 455 U.S. at 753–54, 102 S. Ct.
at 1394–95, 71 L. Ed. 2d at 606. Therefore, we remand for the trial court to develop
the record and determine if Respondent-Father received IAC, making additional
findings of fact and conclusions of law as necessary.
REMANDED.
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Judges TYSON and MURRY concur.
Report per Rule 30(e).
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