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No. COA10-1519 JUDICIAL DISTRICT 26
NORTH CAROLINA COURT OF APPEALS
* * * * * * * * * * * * * * * * * * *
)
IN THE MATTER OF:)From Mecklenburg
P.D.R., L.S.R., J.K.R.)08 JT 701-03
)
* * * * * * * * * * * * * * * * * * *
BRIEF FOR RESPONDENT-MOTHER
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INDEX
TABLE OF CASES AND AUTHORITIES
QUESTION PRESENTED FOR REVIEW
STATEMENT OF THE CASE
JURISDICTION
STATEMENT OF THE FACTS
ARGUMENT
THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT RESPONDENT-MOTHER WAS COMPETENT TO WAIVE COUNSEL AND REPRESENT HERSELF AT HER TPR HEARING AFTER (1) HAVING PREVIOUSLY DETERMINED SHE NEEDED A RULE 17 GUARDIAN AD LITEM TO ASSIST HER IN THE TPR MATTER, (2) FAILING TO CONDUCT A PROPER INQUIRY INTO WHETHER HER COMPETENCE HAD RETURNED, AND (3) CONTINUING HER RULE 17 GUARDIAN AD LITEM’S ASSISTANCE DURING THE TPR HEARING.
CONCLUSION
CERTIFICATE OF SERVICE
TABLE OF CASES AND AUTHORITIES
CASES
In re A.S.Y., ___ N.C. App. ___,
___ S.E.2d ___ (21 December 2010)...... 27
State v. Atkinson, 51 N.C. App.683,
277 S.E.2d 464 (1981)...... 28
State v. Cassell, 2004 N.C. App. LEXIS 35
(January 6, 2004) (unpublished)...... 19
Chicora Country Club, Inc. v. Town of Erwin,
128 N.C. App. 101, 493 S.E.2d 797 (1997),
disc. rev. denied, 347 N.C. 670,
500 S.E.2d 84 (1998)...... 15
Godinez v. Moran, 509 U.S. 389, 125 L. Ed. 2d
321, 113 S. Ct. 2680 (1993)...... 18,19,22
In re J.A.A. &S.A.A., 175 N.C. App. 66,
623 S.E.2d 45 (2005)...... 27
State v. Jackson, 302 N.C. 101,
273 S.E.2d 666 (1981)...... 24
In re M.H.B., 192 N.C. App. 258,
664 S.E.2d 583 (2008)...... 18
In re Oghenekevebe, 123 N.C. App. 434,
473 S.E.2d 393 (1996)...... 16
In re S.L.L., 167 N.C. App. 362,
605 S.E.2d 498 (2004)...... 17,18
State v. Staten, 172 N.C. App. 673,
616 S.E.2d 650 (2005)...... 15
State v. Thacker, 301 N.C. 348,
271 S.E.2d 252 (1980)...... 17
White v. White, 312 N.C. 770,
324 S.E.2d 829 (1985)...... 15
State v. Wolfe, 157 N.C. App. 22, 577 S.E.2d
655,disc. review denied, 357 N.C. 255,
583 S.E.2d 289 (2003)...... 15
STATUTES
N.C. Gen. Stat. § 7A-27(c) (2010)...... 3
N.C. Gen. Stat. § 7B-1001(a)(6) (2010)...... 3
N.C. Gen. Stat. § 7B-1002(4) (2010)...... 3
N.C. Gen. Stat. § 7B-1101.1 (2009)...... 16,29
N.C. Gen. Stat. § 7B-1101.1(c) (2009)...... 17,26
N.C. Gen. Stat. § 35A-1101 (2009)...... 17
OTHER AUTHORITIES
N.C. R. App. P. 10(a)(1)...... 28
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No. COA10-1519 JUDICIAL DISTRICT 26
NORTH CAROLINA COURT OF APPEALS
* * * * * * * * * * * * * * * * * * *
)
IN THE MATTER OF:)From Mecklenburg
P.D.R., L.S.R., J.K.R.)08 JT 701-03
)
* * * * * * * * * * * * * * * * * * *
QUESTION PRESENTED FOR REVIEW
DID THE TRIAL COURT ABUSE ITS DISCRETION BY FINDING THAT RESPONDENT-MOTHER WAS COMPETENT TO WAIVE COUNSEL AND REPRESENT HERSELF AT HER TPR HEARING?
STATEMENT OF THE CASE
On 5 October 2008 the Mecklenburg County Department of Social Services (“DSS”) filed a juvenile petition alleging neglect and dependency of the minor children P.D.R., L.S.R., and J.K.R. (“the children”) (R 2-4). On 31 October 2008 DSS filed an amended juvenile petition (R 26-30). On 14 November 2008 the trial court adjudicated the children neglected and dependent as to the father onlyand continued the adjudication hearing as to the children’s mother(“Respondent-Mother”) (the appellant in this appeal) (R 46-52).
On 29 July 2009 the trial court adjudicated the children neglected and dependent as to Respondent-Motherand it ceased reunification efforts with the father (163-76). On 9 September 2009 the trial court ceased reunification efforts with Respondent-Motherand ordered DSS to proceed with a Termination of Parental Rights (“TPR”) action (R 196-202).
On 19 November 2009 DSS filed a TPR petition (R 260-73). On 13 May and 18 June 2010 the trial court conducted the TPR hearing and at the conclusion of the 18 June 2010 hearing the trial court took the matter under advisement (T 179; R 285). On 27September 2010 the trial court entered an order terminatingRespondent-Mother’s parental rights(R 285-98). Respondent-Motherfiled notice of appeal on 4 October 2010 (R 300-01).
JURISDICTION
The General Assembly has authorized Respondent-Motherto appeal under N.C. Gen. Stat. §§ 7A-27(c), 7B-1001(a)(6), and 7B-1002(4) (2010). Respondent-Mother timely filed written notice of appeal on 4October 2010 (R 300-01).
STATEMENT OF THE FACTS
At the initial seven-day hearing on 10 October 2010 the trial court appointed attorney Aaron Michel to represent the Respondent-Mother and Evelyn Earnest to be her guardian ad litem(“GAL”) (R 19). On 31 October 2008 DSS filed an amended juvenile petition specifically alleging that Respondent-Mother “did not understand questions asked of her and did not appear able to respond appropriately.”(R 28) DSS further alleged that Respondent-Mother “has ongoing mental health issues.” (R 28)
On 14 November 2008 the trial court adjudicated the children neglected and dependent as to the father onlyand continued the adjudication hearing as to Respondent-Motherto 9 April 2009 (R 46-52). On 21 January 2009 the trial court conducted an emergency hearing pursuant to DSS’s motionand found that Respondent-Mother would not communicate with her attorney or her GAL (R 68). Respondent-Mother made an oral motion to release her attorney and her GAL (R 68). DSS asked the trial court to order Respondent-Mother to submit to a mental health evaluationand the trial court granted that request (R 68-69). The trial court also released Respondent-Mother’s attorney and GAL (R 69). The trial court subsequently appointed Christian Hoel(“Hoel”) to be her attorney and Mary Alice Dixon (“Dixon”) to be her GAL(R 70). On 2 February 2009 Hoel asked the trial court to hold Respondent-Mother’s mental health evaluation in abeyance and the trial court denied that request (R 74).
Sometime between February and April 2009 Respondent-Mother wrote Hoel a letter telling him he was fired (R 101-02). On 9 April 2009 the trial court began Respondent-Mother’s adjudication hearing but continued it in progress to 21 May 2009 (R 103). On 21 May 2009 the trial court ceased reunification efforts with the father (R 120). The trial court failed to reach Respondent-Mother’s adjudication hearing that day and continued it to 10 July 2009 (R 123). Sometime after that Respondent-Mother wrote a letter asking that Hoel and Dixon withdraw from representing her (R 138). On 10 July 2009 the trial court ordered Hoel and Dixon to give copies of their files to the court because Respondent-Mother had insisted on proceeding pro se (R 139). The trial court concluded Respondent-Mother’s adjudication hearing on 10 July 2009 but held its decision in abeyance to review its notes from the 9 April 2009 hearing (R 140).
On 29 July 2009 the trial court adjudicated the children neglected and dependent as to Respondent-Mother (163-76). The trial court found that the children were exposed to domestic violence and unstable living conditions (R 164-67). The trial court also found that Respondent-Mother acted erratically, had difficulty focusing, would not take responsibility for her situation, and that DSS had concerns with her mental health functioning (R 167). On disposition the trial court ordered a plan of reunification with Respondent-Mother but also ordered a concurrent plan of adoption (R 168). The trial court suspended Respondent-Mother’s contact with the children until she complied with a mental health evaluation (R 169).
On 9 September 2009 the trial court ceased reunification efforts with Respondent-Mother and ordered DSS to proceed with a TPR action (R 196-202). DSS filed a TPR petitionon 19 November 2009 (R 260-73). The trial court appointed Hoel to be Respondent-Mother’s attorney and it appointed Rhonda Wilson to be her GALfor the TPR action (R 274-75).
The trial court began the TPR hearing on 13 May 2010. At the outset Hoel made a motion to withdraw (T 4-8). He claimed Respondent-Mother refused to talk to him and as such he could not do his job (T 4-5). DSS objected to Hoel being released and pointed out that the trial court had found Respondent-Mother was not competent to waive counsel at the last hearing (T 5-6). The trial court asked Respondent-Mother’s GAL if she had any response to Hoel’s motion and the GAL said she would leave it up to the trial court (T 5). Respondent-Mother said she wanted to represent herself (T 7, line 25). The trial court allowed Hoel to withdraw (T 8, lines 1-2). However, the trial court subsequently ordered that Respondent-Mother’s GAL was to continue her representation(T 20).
The trial court continued the TPR hearing as to the father to a future court date and Respondent-Mother objected to his leaving the courtroom saying she needed him as a witness (T 24-25). Trial court had him remain in the hallway outside the courtroom (T 24-25). At the start of the hearing DSS offered Respondent-Mother’s criminal record into evidence and Respondent-Mother objected saying that she did not get a copy of it (T28). The DSS attorney said they had given Respondent-Mother’s GAL a copy and the trial court ruled that was sufficient (T 28). The trial court then asked Respondent-Mother if she objected to her criminal record coming into evidence and Respondent-Mother said “I don’t have a criminal record. . . . What kind of evidence is that? Ma’am, I know I may seem crazy, but I don't know what’s going on, what they’re doing. That’s why I'm acting this way, ‘cause I don't understand this.” (T 29) Respondent-Mother’s GAL then told the trial court she had no objection to the criminal record coming into evidence and the trial court accepted the criminal record into evidence (T 29). The trial court then explained to Respondent-Mother how the hearing would proceed (T 30-32).
DSS called social worker Shea Laws (“Laws”) whose testimony showed the following. Respondent-Mother’s underlying issues were domestic violence, lack of supervision of the children, mental health, and substance abuse (T 34). DSS presented Respondent-Mother with a case plan at the disposition hearing in July 2009 the goals of which were the following: mental health, substance abuse, domestic violence, parenting capacity evaluation, employment, housing, parenting skills, visitation with the children, and communication with the social worker (T 40-41). Respondent-Mother said she was not going to comply with the case plan because DSS had kidnapped her children (T 42). Respondent-Mother never completed any of the goals of her case plan (T 42-49).
Laws testified that on the rare occasions Respondent-Mother would meet with DSS personnel she would stay for 10 minutes and then jump up and start yelling and leave the room and not return (T 52). This occurred throughout the case (T 52). Initially Respondent-Mother had weekly supervised visits with the children for one hour each visit (T 52). There was no set day of the week for the visits due to “a lot of chaos and conflict” (T 53). The October and November 2008 visits Laws observed went well: Respondent-Mother arrived on time, brought snacks, stayed the entire visit, and acted appropriately during the visits (T 53-55). However, the December 2008 visit Laws observed was chaotic and hectic: Respondent-Mother did not want to follow the rules, she did not clean up after the children, and she became agitated and started using profanity which resulted in DSS having to call law enforcement (T 55). When law enforcement arrived they asked Respondent-Mother to leave and told DSS personnel they could not continue to be called to Respondent-Mother’s visits (T 55-56).
Laws further testified that DSS scheduled an emergency hearing in January 2009 and asked the trial court to suspend Respondent-Mother’s visits (T 55). The trial court granted that request and ordered that visits could resume when Respondent-Mother had complied with a mental health assessment (T 56). December 2008 was the last time Respondent-Mother saw her children (T 56). Respondent-Mother verbally requested that visits resume when she sporadically visited DSS after that (T 59). DSS assessed family members for placement but the home studies were denied because the family members could not come up with a safety plan that would keep the children safe from Respondent-Mother (T 61-62).
During Laws’ direct examination the DSS attorney asked the trial court if it would continue the case after Laws testified (T 64). The trial court asked Respondent-Mother’s GAL if she had any objections and the GAL answered in the negative (T 64). Respondent-Mother then objected and said she did not want the case continued; she wanted to finish it that day (T 64-65). Respondent-Mother began arguing with the trial judge and the bailiff had to intervene to calm her down (T 65). After a few more minutes about whether to continue the hearing the trial court took its lunch recess without continuing the hearing (T 67).
Upon returning from lunch Respondent-Mother’s GAL objected to continuing the hearing without Respondent-Mother having an attorney (T 68). She argued that Respondent-Mother had a constitutional right to raise her children and the ramifications of proceeding pro se had not been explained to Respondent-Mother (T 68). She had not discussed the ramifications of proceeding pro se with Respondent-Mother and she believed that Hoel had not done so either (T 68). Respondent-Mother’s GAL believed that Respondent-Mother did not understand the process (T 68). The GAL argued that the trial court had not explained to Respondent-Mother her rights to object, to cross-examine witnesses, and to present evidence (T 69). Respondent-Mother’s GAL believed that Respondent-Mother needed an attorney, at least in an advisory capacity (T 69). Respondent-Mother’s GAL also objected to going forward without Respondent-Mother being able to call the children’s father as a witness (Respondent-Mother had earlier said she was willing to refrain from calling the father as a witness if the trial court would finish the TPR hearing that day) (T 69).
DSS objected to Respondent-Mother’s GAL’s motion to continue and argued that the consequences of proceeding pro se had been explained to Respondent-Mother by past judges throughout the case (T 70). The children’sGAL also objected and pointed out that Respondent-Mother’s GAL had not objected when the trial court releasedHoel earlier that morning (T 70).
The trial judge then addressed Respondent-Mother (T 72-76). The exchange was not an easy one: at one point the trial judge said “Oh my God -- Ms. [R], I desperately need you to answer my question.” (T 73) The trial judge asked Respondent-Mother if she knew that she was at a TPR hearing and that the result could be the permanent cessation of her legal relationship with the children and Respondent-Mother answered in the affirmative (T 72-73). The trial judge asked her if she understood that she had a right to a lawyer and that the trial court would appoint her a lawyer if she could not hire one and Respondent-Mother said she understood that (T 73-74). Respondent-Mother said that she did not want a lawyer and that she wanted to represent herself (T 74). The trial judge explained to Respondent-Mother that she had the right to object and to call her own witnesses and Respondent-Mother said she understood that (T 74). The trial judge then asked Respondent-Mother if she had any questions and Respondent-Mother asked why DSS had taken her children and what she needed to do to get them back (T 74-75).
The trial judge then asked Respondent-Mother’s GAL if she had any reason to believe that Respondent-Mother had not understood the conversation the trial judge had just had with Respondent-Mother (T 76). Respondent-Mother’s GAL pointed out that at the last hearing she (the trial judge) ruled that Respondent-Mother was not competent to represent herself and that is why the trial court appointed Hoel to represent Respondent-Mother (T 76). Thus, Respondent-Mother’s GALwas objecting“on the record” (T 76). However, Respondent-Mother’s GAL then added that if Respondent-Mother strongly feltthat she can represent herself, then the GAL had done all she could do to protect Respondent-Mother’s due process rights (T 76). The GAL went on to say that she had never seen Respondent-Mother demonstrate an inability to understand the nature of the proceedings (T 77). The trial judge then spoke openly and said the following:
I realize that at a prior hearing several months [ago], I did not find that Ms. Reaves was responding to the Court's questions about her ability to understand her right to counsel and the nature of those proceedings. Her responses indicated to me at that time that she didn't understand the nature of those proceedings. However, there has been nothing about her responses to the Court today or any of the comments that she has made during these proceedings that give me any hesitation in concluding that she understands why we are here, that she understands that this is a termination of parental rights proceeding, that if the department were to prevail that she would lose any parental rights to her three children. She has demonstrated that she understands that she has a right to a lawyer and she has stated over and over again that she does not want a lawyer, any lawyer, to hire a lawyer, a different appointed lawyer, any lawyer, but that she wants to represent herself. And while there was some confusion at the last hearing, there is no -- I have not seen any confusion or apparent misunderstanding by Ms. Reaves about what we are doing today and the seriousness of this case and her decision to waive her right to counsel.
(T 77-78)
The TPR hearing resumed with Laws’ testimony (T 79). When it came time for Laws to be cross-examined, the trial court allowed Respondent-Mother’s GAL to cross-examine her first (T 85). The trial court then allowed Respondent-Mother to cross-examine Laws (T 88). At the finish of Laws’ testimony DSS rested (T 110).
Respondent-Mother took the witness stand in her own behalf (T 111). She testified that the case was by-and-large about her having lost her Section 8 housing (T 112). DSS would not help her maintain her housing and that is why she lost the children (T 113). Respondent-Mother tried to introduce some documents into evidence but she had not made copies of them and she did not want to give up the originals (T 117). She asked that copies be made and the trial court denied her request (T 118).