IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-67
No. 24A21
Filed 17 June 2022
IN THE MATTER OF: B.B., S.B., S.B.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) (2019) from an order entered on
29 October 2020 and an order entered on 23 February 2022 after remand, both by
Judge Wesley W. Barkley in District Court, Burke County. Heard originally in the
Supreme Court on 5 October 2021 and calendared again for argument in the Supreme
Court on 10 May 2022 but determined on the record and briefs without further oral
argument pursuant to Rule 30(f) of the North Carolina Rules of Appellate Procedure.
Amanda C. Perez for petitioner-appellee Burke County Department of Social
Services.
Olabisi A. Ofunniyin and Thomas N. Griffin III for appellee Guardian ad
Litem.
W. Michael Spivey for respondent-appellant mother.
BARRINGER, Justice.
¶1 Respondent appeals from an order terminating her parental rights to three of
her minor children, B.B. (Bob), S.B. (Sally) and S.B. (Susan).1 After careful review,
1 Pseudonyms are used in this opinion to protect the juveniles’ identities and for ease
of reading.
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
we affirm the trial court’s order.
I. Background
¶2 On 14 September 2018, the Burke County Department of Social Services (DSS)
received a Child Protective Services (CPS) report stating that respondent was
incarcerated, and Bob, Sally, and Susan were living in a car with their father. The
report further alleged that the father was suspected of using methamphetamine. DSS
confirmed that respondent was incarcerated and met with the father at the home of
his sister. The father claimed that he and the children were staying at his sister’s
home. The father signed a Safety Assessment in which he agreed the children would
remain in his sister’s home, and he would submit to a substance abuse screening
within twenty-four hours. However, when a social worker returned to the home on
19 September 2018, the father had left the home and taken the children with him
without providing any contact information.
¶3 On 21 September 2018, DSS was notified that the father brought Bob to school.
Bob was wearing the same dirty and torn clothing that he had worn the previous day
and stated that he had not eaten since the day before. At the end of the school day,
nobody arrived to pick up Bob from school. DSS then contacted respondent, who was
still incarcerated, and attempted without success to locate an appropriate alternative
caregiver for the children based on information from respondent. Meanwhile, the
father’s sister notified DSS that the father had left Sally and Susan in her care
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
without providing his contact information or making a plan of care for the children.
The father’s sister also refused to continue caring for the children. At the time, Bob
had eight unexcused absences from school and one tardy; Sally had a scar on her
torso, which she stated was a cut with a knife from her father; and Susan had a diaper
rash, fever, and two red bumps on her torso. Additionally, all the children had an odor
about them. DSS was unable to locate the father.
¶4 The same day, DSS filed a petition alleging that the juveniles were neglected
and dependent and obtained non-secure custody of Bob, Sally, and Susan. On
26 September 2018, DSS filed an amended petition.
¶5 Meanwhile, on 24 September 2018, respondent was released from custody, but
she still had pending criminal charges in four counties including a probation
violation. Respondent admitted to DSS the next day that she was unable to get the
juveniles regular medical care and that for the last six months she had unstable
housing. Respondent also refused to submit to a drug screen; she wanted to consult
her attorney first. Respondent had previously tested positive for methamphetamines
in 2017 and had a history of drug use. Susan tested positive at birth in 2017 for
amphetamines, cannabinoids, and methamphetamine via meconium screening.
¶6 Before the hearing on the petition on 10 January 2019, respondent stipulated
to the foregoing facts and stipulated that she was not employed and living with
friends in a home that was not appropriate for children. Based upon stipulations
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
made by respondent and the father, the trial court entered an order on
24 January 2019 adjudicating Bob, Sally, and Susan as neglected and dependent
juveniles. The trial court continued custody of the juveniles with DSS. The trial court
also ordered respondent to comply with an out-of-home family services agreement
(case plan) and granted her supervised visitation.
¶7 The trial court held review hearings on 7 March 2019 and 16 May 2019. The
trial court entered review orders from both hearings in which it found as fact that
respondent was unemployed, did not have stable housing, had not maintained
consistent contact with DSS, and had not engaged in any case plan services.
¶8 Following a permanency-planning-review hearing held on 15 August 2019, the
trial court entered an order on 5 September 2019. The trial court found as fact that
respondent had recently been arrested on drug related charges in Buncombe County.
The trial court again found as fact that respondent was not engaged in case plan
services and had failed to maintain consistent contact with DSS. The trial court
adopted a primary permanent plan of adoption with a secondary plan of reunification.
¶9 On 22 October 2019, DSS moved to terminate respondent’s parental rights to
each of the three juveniles on the grounds of neglect, willful failure to make
reasonable progress, willful failure to pay for the cost of care for the juveniles, and
abandonment. N.C.G.S. § 7B-1111(a)(1)–(3), (7) (2021). Following a hearing held on
4 September 2020, the trial court entered an order on 29 October 2020 in which it
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
determined grounds existed to terminate respondent’s parental rights pursuant to
each of the grounds alleged in the motion. The trial court further concluded it was in
the juveniles’ best interests that respondent’s parental rights be terminated.
Accordingly, the trial court terminated respondent’s parental rights.2 Respondent
entered a notice of appeal on 2 November 2020. On 13 November 2020, the trial court
entered an amended termination order.
¶ 10 On appeal, respondent presents four arguments. First, the trial court lacked
jurisdiction to enter an amended termination order because notice of appeal had
already been given, and the trial court made substantive, not clerical, changes.
Second, the trial court abused its discretion by denying respondent’s motion to
continue. Third, the trial court erred by concluding that grounds existed to terminate
respondent’s parental rights. Fourth, respondent received ineffective assistance of
counsel.
¶ 11 On 5 October 2021, this Court heard oral arguments concerning this appeal.
Thereafter, this Court issued an order in the exercise of its discretion remanding the
case “so the parties may supplement the record with evidence related to the trial
court’s statements on the record concerning respondent-mother’s motion to continue
on 4 September 2020” and “for the trial court to hear respondent-mother’s claim of
2 The trial court’s order also terminated the parental rights of the juveniles’ father,
but he did not appeal and is not a party to the proceedings before this Court.
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
ineffective assistance of counsel.” In re B.B., 379 N.C. 660, 660 (2021) (order
remanding case).
¶ 12 On remand, the trial court made findings of facts and conclusions of law and
denied respondent’s Rule 60(b) motion alleging ineffective assistance of counsel.
Then, consistent with this Court’s order, the parties supplemented the record on
appeal and filed supplemental briefs for this Court. Thus, this appeal is now ripe for
our full consideration.
II. Analysis
A. Jurisdiction
¶ 13 We first consider respondent’s argument that the trial court lacked jurisdiction
to enter the amended termination order after respondent had noticed her appeal
because the trial court made substantive, not clerical, changes to the order. We agree
that the trial court lacked jurisdiction to enter the amended termination order.
¶ 14 Generally, upon perfection of an appeal, N.C.G.S. § 1-294 “stays all further
proceedings in the court below upon the judgment appealed from, or upon the matter
embraced therein.” N.C.G.S. § 1-294 (2021); see also Am. Floor Mach. Co. v. Dixon,
260 N.C. 732, 735 (1963) (“As a general rule, an appeal takes a case out of the
jurisdiction of the trial court.”). However, “[w]hen a specific statute addresses
jurisdiction during an appeal . . . that statute controls over the general rule.” In re
M.I.W., 365 N.C. 374, 377 (2012). This Court recognized in In re M.I.W. that the
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
legislature enacted a specific statute, N.C.G.S. § 7B-1003, regarding jurisdiction
during an appeal for matters arising under the Juvenile Code that controls over
N.C.G.S. § 1-294. Id. at 377–78. The legislature recognized that the “needs of the child
may change while legal proceedings are pending on appeal,” necessitating “a modified
approach” to jurisdiction during an appeal in juvenile cases. Id. at 377.
¶ 15 As relevant to this appeal, N.C.G.S. § 7B-1003(b) provides as follows:
(b) Pending disposition of an appeal, unless directed
otherwise by an appellate court or subsection (c) of this
section applies, the trial court shall:
(1) Continue to exercise jurisdiction and conduct
hearings under this Subchapter with the exception of
Article 11 of the General Statutes; and
(2) Enter orders affecting the custody or placement of
the juvenile as the court finds to be in the best interests
of the juvenile.
N.C.G.S. § 7B-1003(b) (2021).
¶ 16 Article 11 of the Juvenile Code is entitled and addresses termination of
parental rights. N.C.G.S. § 7B-1100 to -1114 (2021). Thus, absent direction from an
appellate court to the contrary, “N.C.G.S. § 7B-1003(b) does not divest the court of
jurisdiction in termination proceedings during an appeal but does . . . prohibit the
trial court from exercising jurisdiction in termination proceedings while disposition
of an appeal is pending.” In re J.M., 377 N.C. 298, 2021-NCSC-48, ¶ 17.
Exercising jurisdiction, in the context of the Juvenile Code,
requires putting the [trial] court’s jurisdiction into action
by holding hearings, entering substantive orders or
decrees, or making substantive decisions on the issues
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
before it. In contrast, having jurisdiction is simply a state
of being that requires, and in some cases allows, no
substantive action from the [trial] court.
In re M.I.W., 365 N.C. at 379.
¶ 17 In this matter, after respondent filed her notice of appeal and before this Court
took any action, the trial court entered an amended order with multiple additional
findings of fact. Several of these findings of fact are neither findings of fact mentioned
in the trial court’s oral ruling nor duplicative of other findings of fact in the original
termination-of-parental-rights order. Thus, we are not persuaded that these changes
corrected a clerical mistake or error arising from oversight or omission. See N.C.G.S.
§ 1A-1, Rule 60(a) (2021) (“Clerical mistakes in judgments, orders or other parts of
the record and errors therein arising from oversight or omission may be corrected by
the judge at any time on his own initiative or on the motion of any party and after
such notice, if any, as the judge orders. During the pendency of an appeal, such
mistakes may be so corrected before the appeal is docketed in the appellate division,
and thereafter while the appeal is pending may be so corrected with leave of the
appellate division.”). Rather, we conclude that the trial court exercised jurisdiction
by entering a termination-of-parental-rights order that made substantive changes
when the trial court lacked jurisdiction to do so under N.C.G.S. § 7B-1003(b). As a
result, the amended termination-of-parental-rights order is void, and we only
consider the original termination-of-parental-rights order that was entered on
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
29 October 2020 and the 23 February 2022 order entered after remand and pursuant
to this Court’s order.
B. Continuance
¶ 18 We next consider respondent’s argument that the trial court abused its
discretion by denying her counsel’s motion to continue the termination hearing.
Assuming without deciding that the trial court erred, we conclude that respondent
has not shown that she was prejudiced by the denial of the motion to continue.
Therefore, respondent is not entitled to any relief.
¶ 19 The record reflects that at the outset of the termination hearing, respondent
had not appeared, and the trial court asked respondent’s counsel if he had any contact
with her. Counsel responded that respondent had bonded out of jail the night before
and he had not heard from her and moved to continue the hearing in order to locate
respondent. The trial court, after again determining that respondent was not in the
courtroom, summarily denied the motion to continue. The trial court noted for the
record that
[respondent] was prepared for transport yesterday at some
point, so she knew of today’s court date. She did bond out,
but she is not present today, despite the fact that she was
aware yesterday and prepared to come to court yesterday.
We do have the Respondent Father here, and we will
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
proceed.3
¶ 20 The standard of review for addressing motions to continue is well-established.
When a respondent “did not assert in the trial court that a continuance was necessary
to protect a constitutional right,” appellate courts “review the trial court’s denial of
her motion to continue only for abuse of discretion.” In re A.L.S., 374 N.C. 515, 517
(2020). “Abuse of discretion results where the court’s ruling is manifestly
unsupported by reason or is so arbitrary that it could not have been the result of a
reasoned decision.” Id. (cleaned up). “Continuances are not favored and the party
seeking a continuance has the burden of showing sufficient grounds for it.” In re J.E.,
377 N.C. 285, 2021-NCSC-47, ¶ 15 (cleaned up). Under the Juvenile Code,
“[c]ontinuances that extend beyond 90 days after the initial petition shall be granted
only in extraordinary circumstances when necessary for the proper administration of
justice.” N.C.G.S. § 7B-1109(d) (2021). “Moreover, regardless of whether the motion
raises a constitutional issue or not, a denial of a motion to continue is only grounds
for a new trial when [the respondent] shows both that the denial was erroneous, and
that [the respondent] suffered prejudice as a result of the error.” In re A.L.S., 374
N.C. at 517 (cleaned up).
3 Pursuant to this Court’s order, the record has been supplemented concerning the
basis for the trial court’s first two statements. It is undisputed that the father was present
for the termination hearing as reflected in the trial court’s last statement.
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
¶ 21 In her supplemental brief, respondent contends that “[t]he trial court
acknowledged that it acted upon incorrect information when it denied counsel’s
motion to continue,” and “[h]ad Judge Barkley known all of the[ ] facts when the
matter was called for hearing on September 4 it seems unlikely that he would have
denied even a few minutes for counsel to locate [respondent].” Yet even taking
respondent’s presumption as true, respondent has not shown how she suffered
prejudice as a result of the alleged error. Respondent has not shown that she “would
have testified and that such testimony would have impacted the outcome of the
proceeding.” In re C.C.G., 380 N.C. 23, 2022-NCSC-3, ¶ 14; see also In re D.J., 378
N.C. 565, 2021-NCSC-105, ¶ 14 (“Based on the record before us, respondent’s offer of
proof fails to demonstrate the significance of the witness’s potential testimony and
any prejudice arising from the trial court’s denial of her motion to continue.”); In re
H.A.J., 377 N.C. 43, 2021-NCSC-26, ¶ 13 (“[B]ased upon the record before us, we
conclude respondent-mother has failed to demonstrate prejudice. She has not
demonstrated how her case would have been better prepared, or a different result
obtained, had a continuance been granted.”). Therefore, regardless of whether the
denial of the motion to continue was erroneous, respondent is not entitled to any
relief.
C. Grounds for Termination
¶ 22 We next consider respondent’s argument that the trial court erred by
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
concluding that grounds existed to terminate her parental rights at the adjudicatory
stage. Since the trial court’s findings of fact support termination on the grounds of
neglect pursuant to N.C.G.S. § 7B-1111(a)(1) and only one ground is necessary for
termination, we conclude that the trial court did not err by adjudicating the ground
of neglect and terminating respondent’s parental rights.
¶ 23 At the adjudicatory stage, the trial court takes evidence, finds facts, and
adjudicates the existence or nonexistence of the grounds for termination set forth in
N.C.G.S. § 7B-1111. N.C.G.S. § 7B-1109(e). The trial court may terminate parental
rights upon an adjudication of any one of the grounds in N.C.G.S. § 7B-1111(a).
N.C.G.S. § 7B-1111(a); see also In re E.H.P., 372 N.C. 388, 395 (2019). We review a
trial court’s adjudication to determine whether the findings are supported by clear,
cogent, and convincing evidence and whether the findings of fact support the
conclusions of law. In re E.H.P., 372 N.C. at 392. “Findings of fact not challenged by
respondent are deemed supported by competent evidence and are binding on appeal.”
In re T.N.H., 372 N.C. 403, 407 (2019).
¶ 24 A trial court may terminate parental rights pursuant to N.C.G.S. § 7B-
1111(a)(1) if “[t]he parent has abused or neglected the juvenile” as defined in N.C.G.S.
§ 7B-101. N.C.G.S. § 7B-1111(a)(1). A neglected juvenile is defined, in pertinent part,
as a juvenile “whose parent, guardian, custodian, or caretaker does not provide proper
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
care, supervision, or discipline; . . . or who lives in an environment injurious to the
juvenile’s welfare . . . .” N.C.G.S. § 7B-101(15) (2019). As explained by this Court,
[t]ermination of parental rights based upon this statutory
ground requires a showing of neglect at the time of the
termination hearing or, if the child has been separated
from the parent for a long period of time, there must be a
showing of a likelihood of future neglect by the parent.
When determining whether such future neglect is likely,
the [trial] court must consider evidence of changed
circumstances occurring between the period of past neglect
and the time of the termination hearing.
In re R.L.D., 375 N.C. 838, 841 (2020) (cleaned up).
¶ 25 In this case, respondent argues that the trial court’s findings of fact are
insufficient to support termination on the ground of neglect because the trial court
did not analyze respondent’s ability to participate in the case plan or provide support
to her children during her incarceration. Respondent also challenges finding of fact
40 as not supported by the evidence. We disagree: competent evidence supports
finding of fact 40, and the findings of fact support the trial court’s adjudication of
neglect.
¶ 26 Here, the trial court’s findings of fact reflect that the juveniles came into the
custody of DSS on 21 September 2018. At that time, respondent was incarcerated.
DSS contacted respondent by phone in jail and made efforts to locate an appropriate
caregiver, but an appropriate caregiver could not be located. Respondent had a
history of drug use and had tested positive for methamphetamines in September
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
2017. Susan also tested positive for amphetamines, cannabinoids, and
methamphetamine at birth in 2017. Respondent stipulated to these facts and others,
and the trial court entered an order adjudicating Bob, Sally, and Susan neglected and
dependent juveniles on 24 January 2018. Thereafter, respondent entered into a case
plan, which included: (1) submitting to a substance abuse assessment and following
all recommended treatment; (2) complying with random drug screens; (3) completing
a parenting capacity evaluation; (4) completing a parenting education program; (5)
obtaining and maintaining safe and stable housing; (6) refraining from criminal
activity; and (7) obtaining and maintaining a legal source of income.
¶ 27 The trial court further found as follows:
28. The respondent mother has not addressed the issues
that led to the juvenile[s] being taken into care.
29. The respondent mother has continued to engage in
criminal behavior, including incurring criminal charges
while the minor children have been in [DSS]’s custody.
30. Respondent mother was arrested in July of 2019 for
felony counts of larceny, fleeing to elude arrest, possession
of a stolen vehicle, driving while license revoked, failure to
maintain lane control, speeding, reckless driving to
endanger, possession of stolen property, and possession of
methamphetamine.
31. At the time of this hearing, the respondent mother
had recently been released from custody and had pending
charges in Burke and Catawba Counties.
....
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
34. [Respondent mother has] been out of custody at times
while the minor children have been in [DSS]’s custody, but
[has not] engaged with [DSS] or completed any part of [her]
case plan[].
....
38. Respondent mother does not have a child support
order established and she has not voluntarily paid any
support for the benefit of the juveniles since they came into
[DSS]’s custody.
....
40. [Respondent mother has not] provided any gifts,
notes, letters or provided any necessities [for the juveniles]
since the children came into [DSS]’s custody.
41. Pursuant to N.C.G.S. § 7B-1111(a)(1), [respondent
mother has] neglected the juveniles as shown by findings
[of] fact and conclusions of law contained in the
adjudication order rendered by the Honorable Wesley W.
Barkley and as specified above. There is a high likelihood
of a repetition of the neglect if the juveniles were returned
to the care and control of the [respondent mother as she
has] not corrected the conditions that led to the removal of
the juveniles.
¶ 28 Respondent only challenges finding of fact 40 as not supported by clear, cogent,
and convincing evidence. However, at the termination-of-parental-rights hearing, a
DSS social worker responded “no” when asked whether respondent had provided
“anything” for her children. Given this testimony, the trial court could find that
respondent had not provided the juveniles with any gifts, notes, letters, or necessities
since they entered into DSS’s custody. See In re D.L.W., 368 N.C. 835, 843 (2016)
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
(stating that it is the trial court’s duty to consider all the evidence, pass upon the
credibility of the witnesses, and determine the reasonable inferences to be drawn
therefrom). Thus, we conclude that finding of fact 40 is supported by clear, cogent,
and convincing evidence.
¶ 29 We also reject respondent’s argument that the findings of fact do not support
the trial court’s adjudication of neglect. This Court has stated:
Our precedents are quite clear—and remain in full force—
that incarceration, standing alone, is neither a sword nor a
shield in a termination of parental rights decision. How
this principle applies in each circumstance is less clear.
While respondent’s incarceration, by itself, cannot serve as
clear, cogent, and convincing evidence of neglect, it may be
relevant to the determination of whether parental rights
should be terminated.
In re J.S., 377 N.C. 73, 2021-NCSC-28 ¶ 21 (cleaned up).
¶ 30 Here, the findings of fact reflect respondent had been out of custody at times
while the juveniles were in DSS’s custody but did not engage with DSS or completed
any part of her case plan. Further, respondent did not provide gifts, notes, letters,
necessities, or financial support to Bob, Sally, or Susan. Notably, respondent also
continued to engage in criminal behavior and incurred criminal charges while Bob,
Sally, and Susan were in DSS’s custody. Respondent’s case plan required her to
refrain from criminal activity.
¶ 31 Given the foregoing, we are not persuaded by respondent’s arguments.
Continued criminal activity and a failure to complete a case plan when not
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
incarcerated for the entirety of the case supports a determination of likelihood of
future neglect. See In re J.E., 377 N.C. 285, 2021-NCSC-47, ¶ 26; In re J.M.J.-J., 374
N.C. 553, 566 (2020). Further, while recognizing the potential limitations of
incarceration, our precedent does not excuse parents who are incarcerated from
“showing interest in the child’s welfare by whatever means available,” and “requir[es
parents] to do what they can to exhibit the required level of concern for their
children.” In re A.G.D., 374 N.C. 317, 320 (2020) (cleaned up). Thus, we are not
convinced that respondent’s periods of incarceration should excuse respondent from
failing to provide any gifts, notes, letters, necessities, or financial support to her
children for almost two years. See In re W.K., 376 N.C. 269, 278–79 (2020) (stating
that father’s failure to send cards or gifts, despite being able to do so, supported a
determination that neglect would reoccur should his children be returned to his care).
Therefore, we conclude that the findings of fact support the trial court’s conclusion of
neglect.
¶ 32 Because the trial court’s conclusion that a ground for termination existed
pursuant to N.C.G.S. § 7B-1111(a)(1) is sufficient in and of itself to support
termination of respondent’s parental rights, In re E.H.P., 372 N.C. at 395, we need
not address respondent’s arguments regarding N.C.G.S. § 7B-1111(a)(2), (3) and (7).
Furthermore, respondent does not challenge the trial court’s conclusion at the
dispositional stage that termination of her parental rights was in the juveniles’ best
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
interests.
D. Ineffective Assistance of Counsel Claim
¶ 33 On appeal in her initial briefs and at oral argument, respondent alleged that
she received ineffective assistance of counsel at the termination hearing and claimed
that her counsel failed to secure her presence at hearings, seek visitation, file a
response to the petition to terminate her parental rights, assert her due process
concerns when moving to continue the termination hearing, and advocate for her at
the termination hearing.
¶ 34 After oral arguments, this Court remanded to the trial court in the exercise of
its discretion “for the trial court to hear respondent-mother’s claim of ineffective
assistance of counsel.” In re B.B., 379 N.C. at 660. We observed that the “record before
this Court contains no findings of fact or conclusions of law as to the claim of
ineffective assistance of counsel because respondent-mother asserted her claim of
ineffective assistance of counsel for the first time on appeal and has not sought relief
from the trial court.” Id. We provided that “within ten days of this order, appellate
counsel for respondent-mother may file a Rule 60(b) motion with evidentiary support
to set aside the termination-of-parental-rights order as to respondent-mother for
ineffective assistance of counsel.” Id. Additionally, if such a motion was filed, we
ordered the trial court to hold an evidentiary hearing if necessary and “enter an order
with any necessary findings of fact and conclusions of law” needed to address
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
respondent-mother’s Rule 60(b) motion regarding ineffective assistance of counsel.
Id. at 661.
¶ 35 On remand, the trial court held an evidentiary hearing and entered an order
with findings of fact and conclusions of law. The trial court concluded that respondent
failed to provide any evidence or argument showing a reasonable probability that, but
for deficient counsel, a different result would have been reached in the termination
proceeding. Thus, the trial court denied respondent’s Rule 60(b) motion.
¶ 36 In her supplemental brief, respondent presented several arguments. First,
respondent challenges the trial court’s finding of fact “that there was no evidence that
could have been presented to alter the result of the termination proceeding” and cites
to findings of fact 42 and 44 through 50. The cited findings of fact from the trial court’s
order are as follows:
42. Throughout the underlying case, the respondent
mother did not inform [her trial counsel] of any
actions she had taken to be reunited with her children
or any argument he needed to make regarding her
progress, despite having the opportunity to do so.
....
44. The respondent mother did not provide evidence of
what she would have testified to at the termination of
parental rights hearing, had she been present.
45. The respondent mother did not identify evidence or
witnesses that should have been presented at the
termination of parental rights hearing, other than
testifying that she wanted to provide gifts and letters
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
to her children. As noted, the court finds that no such
efforts were made prior to the filing of the motion for
termination of parental rights.
46. There is no evidence that the respondent mother could
have been presented in a more favorable manner on
September 4, 2020 at the termination hearing.
47. In the absence of any showing of evidence or testimony
that could have been presented, the court finds that,
even if respondent mother had been present and
available at every hearing throughout the pendency of
the underlying case, the outcome of the termination
hearing would have been the same.
48. The court received no evidence to contradict its
findings in the underlying order supporting grounds
for termination under N.C.G.S. § 7B-1111(a)(l), (2), or
(7).
49. There is no evidence that the outcome of the
termination hearing would have been different had
her trial counsel’s performance been different.
50. The respondent mother was not prejudiced by her trial
counsel’s performance.
¶ 37 However, the cited findings of fact, which are quoted above, do not contain a
finding “that there was no evidence that could have been presented to alter the result
of the termination proceeding.” (Emphasis added.) The trial court did find that
respondent did not put forth material evidence that could have been presented at the
termination hearing, but these are not analogous. Thus, there is no finding of fact for
this Court to review as it relates to respondent’s argument, and we are bound to the
findings of facts. In re K.N.L.P., 2022-NCSC-39, ¶ 15 (2022). Later in this opinion, we
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
address respondent’s argument that the trial court erred by concluding that she failed
to put forward evidence to meet her burden to show that there is a reasonable
probability that, but for counsel’s errors, there would have been a different result in
the proceedings. However, that does not appear to be the argument respondent makes
here.
¶ 38 Second, respondent argues that the trial court erred by not applying the correct
standard to assess prejudice. Respondent-mother claims that the trial court “held
that respondent-mother failed to present evidence at the Rule 60 hearing showing
that she would have ‘won’ and received a favorable ruling at the termination hearing.”
However, as stated in the trial court’s order, the trial court articulated and applied
the standard of “reasonable probability,” which is consistent with our precedent. The
trial court stated:
8. Respondent mother was not prejudiced by her trial
counsel’s performance, either in the termination
hearing or the underlying case, in that she did not
establish a reasonable probability that the outcome of
the termination hearing (or other hearings) would have
been different but for trial counsel’s conduct.
¶ 39 This Court has explained that:
To prevail on a claim of ineffective assistance of counsel,
respondent must show that counsel’s performance was
deficient and the deficiency was so serious as to deprive
him of a fair hearing. To make the latter showing, the
respondent must prove that there is a reasonable probability
that, but for counsel’s errors, there would have been a
different result in the proceedings.
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
In re G.G.M., 377 N.C. 29, 2021-NCSC-25, ¶ 35 (cleaned up) (emphasis added).
Respondent’s initial brief acknowledges that our precedent requires this showing,
citing In re T.N.C., 375 N.C. 849, 854 (2020).
¶ 40 Applying this standard in proceedings under the Juvenile Code, we routinely
resolve claims of ineffective assistance of counsel on the respondent’s failure to show
prejudice. See, e.g., In re Z.M.T., 379 N.C. 44, 2021-NCSC-121, ¶ 17; In re B.S., 378
N.C. 1, 2021-NCSC-71, ¶ 13; In re N.B., 377 N.C. 349, 2021-NCSC-53, ¶ 30; In re
J.M., 377 N.C. 298, 2021-NCSC-48, ¶ 36; In re G.G.M., ¶ 35. Resolving claims of
ineffective assistance of counsel on the respondent’s failure to show prejudice is
consistent with the recommendation by the Supreme Court of the United States and
this Court’s precedent in criminal proceedings. State v. Braswell, 312 N.C. 553, 563
(1985) (“[A] court need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies. The object of an ineffectiveness claim is not to grade counsel’s
performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that course should be
followed. Courts should strive to ensure that ineffectiveness claims not become so
burdensome to defense counsel that the entire criminal justice system suffers as a
result.” (quoting Strickland v. Washington, 466 U.S. 668, 697 (1984)).
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
¶ 41 Third, respondent argues that the trial court erred by failing to consider the
cumulative effect of respondent’s trial counsel’s deficient performance and by not
correctly applying the standard to assess prejudice. However, the trial court’s
conclusion of law eight reflects that the trial court considered cumulative prejudice.
The trial court expressly considered whether respondent was prejudiced by her trial
counsel’s performance both “in the termination hearing” and “in the underlying case.”
Yet, as discussed, the trial court’s findings of fact supporting these conclusions were
either unchallenged or supported by competent evidence. Accordingly, were we to
address this argument, we would be bound to affirm the trial court’s conclusion that
respondent was not cumulatively prejudiced. Because the trial court in this case did
consider cumulative prejudice, we need not address whether cumulative prejudice
must be considered by the trial court in this context.
¶ 42 Given the binding findings of fact before us, we agree with the trial court that
respondent failed to put forward evidence to meet her burden to show that there is a
reasonable probability that, but for counsel’s errors, there would have been a different
result in the proceedings. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury. Some of the factual
findings will have been unaffected by the errors, and
factual findings that were affected will have been affected
in different ways. Some errors will have had a pervasive
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
effect on the inferences to be drawn from the evidence,
altering the entire evidentiary picture, and some will have
had an isolated, trivial effect. Moreover, a verdict or
conclusion only weakly supported by the record is more
likely to have been affected by errors than one with
overwhelming record support. Taking the unaffected
findings as a given, and taking due account of the effect of
the errors on the remaining findings, a court making the
prejudice inquiry must ask if the defendant has met the
burden of showing that the decision reached would
reasonably likely have been different absent the errors.
Id. at 695–96.
¶ 43 In the case before us, the same trial court judge presided over the termination
hearing and respondent’s Rule 60(b) motion. The trial court had the totality of the
evidence before him, and we do as well. We are not persuaded that a probability
sufficient to undermine confidence in the outcome exists. Respondent testified that
throughout the case, her trial counsel called or emailed her back every time she
reached out by phone or email and that they would discuss what she could do to see
her children, what she could do to get visitation, and what she could do to get her
parental rights back. She testified that her trial counsel communicated with her at
least 26 times throughout the length of the case. She further testified that she had
met with the social worker and signed the case plan and knew what she was supposed
to do for her plan without discussing it with her trial counsel. As found by the trial
court, respondent understood her case plan, but respondent did not complete any
element of her case plan and during the pendency of the case was both convicted of
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
new criminal charges and violated her probation. Even if trial counsel has erred in
some aspects of his representation,
[a]ttorney errors come in an infinite variety and are as
likely to be utterly harmless in a particular case as they
are to be prejudicial. They cannot be classified according to
likelihood of causing prejudice. Nor can they be defined
with sufficient precision to inform defense attorneys
correctly just what conduct to avoid.
Strickland, 466 U.S. at 693. Therefore, we do not attempt to define what is correct
and what to avoid, but merely hold that on the record before us, respondent is not
entitled to relief from the trial court’s termination-of-parental-rights order on the
basis of ineffective assistance of counsel. Respondent was given the opportunity to
prove her claim of ineffective assistance of counsel on remand before the trial court
through an evidentiary hearing by an extraordinary act of discretion by this Court.
Respondent failed to do so.
III. Conclusion
¶ 44 While the trial court’s amended termination order was entered without
jurisdiction pursuant to N.C.G.S. § 7B-1003(b), we conclude that the findings of fact
in the trial court’s original 29 October 2020 order supported the adjudication on the
ground of neglect pursuant to N.C.G.S. § 7B-1111(a)(1). Respondent has not
challenged the trial court’s determination at the dispositional phrase. We have also
concluded that the respondent failed to show prejudice from the denial of her
counsel’s motion to continue at the termination-of-parental-rights hearing and failed
IN RE: B.B., S.B., S.B.
2022-NCSC-67
Opinion of the Court
to show prejudice for any alleged error by her trial counsel. Accordingly, we affirm
the trial court’s order terminating respondent’s parental rights to her children, Bob,
Sally, and Susan, and the trial court’s order denying respondent’s Rule 60(b) motion
regarding ineffective assistance of counsel.
AFFIRMED.
Justice EARLS dissenting.
¶ 45 A parent’s right to effective representation in juvenile proceedings is an
individual right that secures a broader structural principle. The right to counsel
safeguards an individual parent’s fundamental liberty interests by ensuring the
parent is not subject to the unnecessary and permanent dissolution of their rights in
their child. In re T.N.C., 375 N.C. 849, 854 (2020) (“By providing a statutory right to
counsel in termination proceedings, our legislature has recognized that this interest
must be safeguarded by adequate legal representation.”) (quoting In re Bishop, 92
N.C. App. 662, 664 (1989)). At the same time, the right to counsel furthers the State’s
parens patriae interest in protecting a child’s welfare by facilitating the “adversarial
system of justice” necessary to “ascertain the truth in any legal proceeding,” in the
process helping the State determine what a child’s best interests require. In re Miller,
357 N.C. 316, 334 (2003). Thus, a deprivation of a parent’s right to counsel imposes
both an individual and systemic harm: it jeopardizes the parent’s constitutional
rights as a parent and diminishes the capacity of juvenile proceedings to deliver just
and accurate results based on something approaching “the truth.”
¶ 46 In this case, there is no real dispute that respondent-mother did not receive
adequate representation during the juvenile and termination proceedings involving
her children: Bob, Sally, and Susan. Respondent-mother was in and out of jail
throughout these proceedings. On numerous occasions, the trial court issued a writ
IN RE B.B., S.B., S.B.
2022-NCSC-67
Earls, J., dissenting.
to bring respondent-mother to court to participate in hearings, but she was not
brought to court. Counsel did not vigorously defend respondent-mother’s interests in
her absence. Instead, at the final permanency planning hearing, another hearing
respondent-mother was not brought to court to attend, respondent-mother’s attorney
informed the court that he “had not had any recent contact from his client,” so he
“consented to the Court receiving the court report and moving forward without his
presence” because “he had another matter in another courtroom.” Counsel did not file
a responsive pleading to DSS’s motion to terminate respondent-mother’s parental
rights, even though respondent-mother mailed the court a handwritten note stating
that she wanted to “stop the termination process of my parental rights.” At the
termination hearing, counsel asked two questions of DSS’s sole witness but otherwise
offered no defense and made no argument on respondent-mother’s behalf.
¶ 47 Under these circumstances, I cannot agree with the majority that respondent-
mother’s ineffective assistance of counsel (IAC) claim should be denied for failure to
show prejudice. Although there is a paucity of evidence in the record indicating how
respondent-mother could have rebutted the grounds for termination found by the
trial court at the termination hearing, counsel’s prolonged, repeated failure to
adequately represent respondent-mother at every stage of these proceedings fatally
undermined their validity as a mechanism for determining “the truth.” Therefore, I
would hold that respondent-mother has demonstrated prejudice because she has
IN RE B.B., S.B., S.B.
2022-NCSC-67
Earls, J., dissenting.
shown that “counsel’s errors were so serious as to deprive the defendant of a fair
[hearing], a [hearing] whose result is reliable.” State v. Braswell, 312 N.C. 553, 562
(1985) (emphasis omitted) (quoting Strickland v. Washington, 466 U.S. 668, 687
(1984)). I respectfully dissent.
I. Prejudice under Strickland
¶ 48 There are two main problems with the majority’s analysis of respondent-
mother’s IAC claim.
¶ 49 The first is that the majority’s articulation of how respondent-mother can
demonstrate prejudice is unduly narrow and ignores a central concern animating
Strickland and IAC doctrine—the critical importance of adequate representation to
ensuring the integrity and validity of the adversarial process. The majority is correct
that a party asserting IAC must demonstrate prejudice, and that the way courts
typically examine prejudice is by assessing whether the party asserting IAC “prove[d]
that there is a reasonable probability that, but for counsel’s errors, there would have
been a different result in the proceeding.” In re G.G.M., 377 N.C. 29, 2021-NCSC-25,
¶ 35 (cleaned up). But the “reasonable probability” standard does not require a party
to establish that counsel’s deficient performance was outcome-determinative.
Strickland, 466 U.S. at 693 (“[A] defendant need not show that counsel's deficient
conduct more likely than not altered the outcome in the case.”). Strickland itself
cautioned that “that the principles we have stated do not establish mechanical rules.”
IN RE B.B., S.B., S.B.
2022-NCSC-67
Earls, J., dissenting.
Id. at 696. Instead, the Supreme Court emphasized that
the ultimate focus of inquiry must be on the fundamental
fairness of the proceeding whose result is being challenged.
In every case the court should be concerned with whether,
despite the strong presumption of reliability, the result of
the particular proceeding is unreliable because of a
breakdown in the adversarial process that our system
counts on to produce just results.
Id.
¶ 50 “The right to counsel exists in order to protect the fundamental right to a fair
trial,” or in this case a fair termination hearing. Lockhart v. Fretwell, 506 U.S. 364,
368 (1993) (cleaned up). Accordingly, the prejudice prong of Strickland is ultimately
concerned with distinguishing between instances of deficient performance that do not
undermine the reliability of an adversarial proceeding and those that do. The goal of
the inquiry is to assess whether counsel’s deficient performance “rose to the level of
compromising the reliability of the [outcome of a proceeding] and undermining
confidence in it.” Theriault v. State, 125 A.3d 1163, 2015 ME 137, ¶ 25; see also
Fretwell, 506 U.S. at 372 (“[T]he ‘prejudice’ component of the Strickland test . . .
focuses on the question whether counsel's deficient performance renders the result of
the trial unreliable or the proceeding fundamentally unfair.”). Oftentimes, this can
be demonstrated by projecting what might have happened had counsel performed
adequately. But in some cases, counsel’s deficient performance completely
undermines the validity of a supposedly adversarial proceeding as a mechanism for
IN RE B.B., S.B., S.B.
2022-NCSC-67
Earls, J., dissenting.
determining facts. In these rare circumstances, it is unnecessary to attempt to
reconstruct what might have happened because what did happen produced a record
and set of facts lacking all indicia of trustworthiness. See, e.g., Williams v. Taylor,
529 U.S. 362, 391 (2000) (“It is true that while the Strickland test provides sufficient
guidance for resolving virtually all ineffective-assistance-of-counsel claims, there are
situations in which the overriding focus on fundamental fairness may affect the
analysis.”); cf. United States v. Cronic, 466 U.S. 648, 658 (1984) (holding in a case
decided the same day as Strickland that in some cases, the circumstances were “so
likely to prejudice the accused” that prejudice does not have to be proven.). In certain
instances, the question the reasonable probability test was designed to answer—
whether or not the proceeding was fundamentally fair—has already been answered.
See Griffin v. Aiken, 775 F.2d 1226, 1229 (4th Cir. 1985) (“[E]ven though it is to be
presumed that counsel is competent, certain circumstances may indicate a
breakdown in the adversarial process which will justify a presumption of
ineffectiveness without inquiry into counsel’s actual performance at trial.”)
¶ 51 In these circumstances, efforts to project what might have happened had
counsel performed adequately will be based on little more than an appellate court’s
speculative guesswork. The reliability of this retrospective exercise is itself
predicated on there being a reasonably well-developed record and established set of
facts, which must be elicited and determined by the trial court. See State v. Smith,
IN RE B.B., S.B., S.B.
2022-NCSC-67
Earls, J., dissenting.
278 N.C. 36, 41 (1971) (explaining that the trial court “sees the witnesses, observes
their demeanor as they testify and by reason of his more favorable position, he is
given the responsibility of discovering the truth”). Assessing prejudice by projecting
what might have happened based on a record and set of facts developed over the
course of multiple hearings where a party repeatedly received deficient
representation places that party “in an impossible bind,” because counsel’s
performance is “so deficient that it deprived her of the opportunity to develop a record
which would support her claim of prejudice[.]” In re Z.M.T., 379 N.C. 44, 2021-NCSC-
121, ¶ 20 (Earls, J., dissenting). Because “[t]he assistance of counsel is often a
requisite to the very existence of a fair [proceeding],” Argersinger v. Hamlin, 407 U.S.
25, 31 (1972), it is perverse to deny a party’s IAC claim on the basis of a retrospective
review of a record and set of facts produced in a set of proceedings where counsel’s
performance was wholly deficient.
¶ 52 Moreover, the majority’s conclusion that it is routine and, indeed, preferable to
resolve IAC claims by presuming that the representation was ineffective and jumping
right to the question of whether there was a sufficient showing of prejudice disserves
justice and the interests IAC doctrine aims to protect. See United States v.
DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987) (“The benchmark for judging any such
claim of ineffectiveness must be whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
IN RE B.B., S.B., S.B.
2022-NCSC-67
Earls, J., dissenting.
produced a just result.”). Resolving IAC claims by explaining why counsel’s
performance was constitutionally inadequate does not require us to inappropriately
“grade counsel’s performance”; rather, our refusal to do so constitutes an
abandonment of our obligation to ensure the fair administration of justice. In our
adversarial system, due process demands that parties have adequate opportunities
to avail themselves of the advice of counsel and the services of an advocate who will
present to a neutral fact finder the evidence and arguments that support their case.
Cf. Herring v. New York, 422 U.S. 853, 862 (1975) (“The very premise of our adversary
system of . . . justice is that partisan advocacy on both sides of a case will best promote
the ultimate objective” of discerning the truth). Concluding that justice has been done
in the absence of a meaningful adversarial process, based upon our own speculation
that the result of a reliable process would not have been different, when our projection
of what the result would have been is itself based upon the record and facts developed
during a wholly untrustworthy proceeding, is little more than a convenient and
comforting fiction.
¶ 53 The second problem with the majority’s prejudice analysis is its refusal to
meaningfully engage respondent-mother’s cumulative prejudice claim. Under the
cumulative prejudice doctrine, “instances of counsel’s deficient performance may be
aggregated to prove cumulative prejudice.” State v. Allen, 378 N.C. 286, 2021-NCSC-
88, ¶ 42. Cumulative prejudice may arise in circumstances such as this one where
IN RE B.B., S.B., S.B.
2022-NCSC-67
Earls, J., dissenting.
counsel performs deficiently numerous times or in various ways while representing a
party. See Cooper v. Fitzharris, 586 F.2d 1325, 1333 (9th Cir. 1978) (“If counsel is
charged with multiple errors at trial, absence of prejudice is not established by
demonstrating that no single error considered alone significantly impaired the
defense [because] prejudice may result from the cumulative impact of multiple
deficiencies.”). Because legal proceedings are dynamic, it is often difficult to isolate
the effects of any one instance of deficient performance—counsel’s failure to provide
adequate representation at multiple points in a proceeding might fundamentally
alter the course of that proceeding, even though the harm to a party’s interests cannot
easily or entirely be traced to a single instance.
¶ 54 In stating that it “need not address whether cumulative prejudice must be
considered by the trial court” because the trial court’s conclusions of law reveal that
it “considered cumulative prejudice,” the majority implies that it is an open question
whether a court must review for cumulative prejudice when a party brings an
ineffective assistance of counsel claim alleging multiple discrete instances of deficient
performance.1 But this question was asked and answered in State v. Allen, 378 N.C.
1 The majority further suggests that because, in their view, respondent-mother did
not challenge the trial court’s findings of fact or those findings were supported by the
evidence, “were we to address this argument, we would be bound to affirm the trial court’s
conclusion that respondent was not cumulatively prejudiced.” However, that is not correct
because it completely abdicates our duty as an appellate court to examine whether the
findings of fact support the trial court’s conclusions of law. See In re E.H.P., 372 N.C. 388,
392 (2019) (“We review a trial court's adjudication under N.C.G.S. § 7B-1111 ‘to determine
whether the findings are supported by clear, cogent and convincing evidence and the findings
IN RE B.B., S.B., S.B.
2022-NCSC-67
Earls, J., dissenting.
286, 2021-NCSC-88. In Allen, we explained that a trial court considering an IAC
claim raised in a motion for appropriate relief
must examine whether any instances of deficient
performance at discrete moments in the trial prejudiced
Allen when considered both individually and cumulatively.
We reject the MAR court's erroneous conclusion that
cumulative prejudice is unavailable to a defendant
asserting multiple IAC claims. . . . [W]e adopt the reasoning
of the unanimous Court of Appeals panel which recently
concluded that “because [IAC] claims focus on the
reasonableness of counsel’s performance, courts can
consider the cumulative effect of alleged errors by counsel.”
State v. Lane, 271 N.C. App. 307, 316, 844 S.E.2d 32, review
dismissed, 376 N.C. 540, 851 S.E.2d 367 (2020), review
denied, ––– N.C. ––––, 851 S.E.2d 624 (2020). To be clear,
only instances of counsel’s deficient performance may be
aggregated to prove cumulative prejudice—the cumulative
prejudice doctrine is not an invitation to reweigh all of the
choices counsel made throughout the course of
representing a defendant.
Id. ¶ 42 (footnote omitted). We further explained that “[o]ur decision to recognize
cumulative prejudice claims is based upon our own interpretation of Strickland and
IAC doctrine,” establishing that cumulative prejudice doctrine applies to all IAC
claims derived from Strickland. Id. ¶ 42 n.8. The dissenting opinion in Allen disputed
the majority’s interpretation of our caselaw and this doctrine, but the dissenting
opinion acknowledged that, post-Allen, cumulative prejudice doctrine would be part
of “North Carolina’s jurisprudence on ineffective assistance of counsel claims,” Id.
support the conclusions of law.’ ” (quoting In re Montgomery, 311 N.C. 101, 111 (1984)
(citing In re Moore, 306 N.C. 394, 404 (1982)).
IN RE B.B., S.B., S.B.
2022-NCSC-67
Earls, J., dissenting.
¶ 80 (Berger, J., dissenting). Allen is controlling precedent, and this Court is “bound
by prior precedent [under] the doctrine of stare decisis.” In re O.E.M., 379 N.C. 27,
2021-NCSC-120, ¶ 12 (quoting Bacon v. Lee, 353 N.C. 696, 712 (2001)). Under Allen,
a trial court is required to review a party’s IAC claim for cumulative prejudice,
notwithstanding the majority’s suggestions to the contrary. This Court must do the
same on appeal, where the trial court’s legal determination that a party has not
demonstrated cumulative prejudice is reviewed de novo. State v. Clark, 380 N.C. 204,
2022-NCSC-13, ¶ 31 (“Whether a defendant was denied the effective assistance of
counsel is a question of law that is reviewed de novo.”).
¶ 55 Applying the proper prejudice standard to the facts of this case, I would
conclude that respondent-mother has demonstrated she was prejudiced by her
counsel’s multiple instances of deficient performance. This case differs significantly
from the typical case involving an IAC claim in a termination proceeding. In most
cases, an appellate court reviews a claim that a respondent-parent received
ineffective assistance in a termination proceeding alone, not that the parent received
ineffective assistance during the underlying juvenile proceedings leading up to the
termination hearing. See, e.g., In re M.Z.M., 251 N.C. App. 120, 124 (2016)
(“Respondent-mother claims she received ineffective assistance of counsel (‘IAC’) at
the termination hearing.”). In those types of cases, an appellate court can conduct a
prejudice analysis based on the record and set of facts developed and determined by
IN RE B.B., S.B., S.B.
2022-NCSC-67
Earls, J., dissenting.
the trial court during the underlying proceedings, which allow the appellate court to
assess with a reasonable degree of certainty the probable impact of counsel’s deficient
performance at the termination hearing.
¶ 56 This case is different. In this case, respondent-mother’s counsel failed to secure
her presence in court on numerous occasions, failed to maintain ongoing
communication with her during the course of proceedings, failed to file a responsive
pleading to DSS’s termination motion, failed to advocate on respondent-mother’s
behalf during the underlying juvenile proceedings, and failed to raise any defense at
the termination hearing. These actions and omissions fall far short of what is
necessary to provide a respondent-parent with adequate representation. While the
precise standard for adequate performance might vary depending upon the context
and nature of a given proceeding, given the stakes involved for parents in juvenile
matters, adequate representation would generally require counsel to do things like
Communicate regularly with clients (at least monthly
and after all significant developments or case changes)
and in-person when possible;”
....
Thoroughly prepare for and attend all court hearings
and reviews.
Thoroughly prepare clients for court, explain the
hearing process and debrief after hearing are complete
to make sure clients understand the results. For
children this must be done in a developmentally
appropriate way.
IN RE B.B., S.B., S.B.
2022-NCSC-67
Earls, J., dissenting.
....
Conduct rigorous and complete discovery on every case.
Independently verify facts contained in allegations and
reports.
Have meaningful and ongoing conversation with all
clients about their strengths, needs, and wishes.
....
Work with every client to identify helpful relatives for
support, safety planning and possible placement.
Attend and participate in case planning, family group
decision-making and other meetings a client may have
with the child welfare agency.
Work with clients individually to develop safety plan
and case plan options to present to the court.
File motions and appeals when necessary to protect
each client’s rights and advocate for his or her needs.
United States Department of Health and Human Services, Administration on
Children, Youth and Families, High Quality Legal Representation for All Parties in
Child Welfare Proceedings 13 (2017). Respondent-mother did not receive adequate
representation under the circumstances of this case.
¶ 57 These repeated failures deprived respondent-mother of a fundamentally fair
termination proceeding and deprive this Court of a record and set of facts that allow
us to reasonably assert respondent-mother’s rights would have been terminated even
if she had received adequate representation. These basic legal principles are usefully
IN RE B.B., S.B., S.B.
2022-NCSC-67
Earls, J., dissenting.
illustrated by a case out of Oregon, In State ex rel. State Office for Services to Children
& Families v. Thomas (In re Stephens), 170 Or. App. 383 (2000). The facts of In re
Stephens are very similar to this case. In In re Stephens, the father failed to appear
for the termination hearing. He was in a residential treatment center at the time of
the hearing, and his attorney did not obtain a subpoena for his attendance or notify
personnel at the center about the need to have the father at the hearing. Although
counsel was present at the hearing, he made no opening statement except to say that
his client could be a good father and was in treatment. He made no closing argument.
He did not call witnesses, offer any exhibits, or cross-examine most of the witnesses.
Counsel also admitted that he was not prepared for trial, in part, because of the
father’s absence. The court concluded that the attorney’s lack of preparation and
failure to advocate any theory for the father rendered his performance inadequate.
The court also, on that record, found that his counsel’s failure to defend his interests
was prejudicial:
Essential to our conclusion is the fact that the trial court
was not given the opportunity to judge the credibility of the
father's case or his evidence, whatever father's case and
evidence may in fact be. . . . In a situation, as here, where
father wanted to put on a case, where there is some credible
evidence that father could be a resource for child, and
where counsel has not effectively advocated any theory of
father's case, father has not been heard. Accordingly, we
will not conclude that the result would have inevitably
been the same.
In re Stephens, 170 Or. App at 395–96; see also In re J.J.L., 2010 MT 4, 355 Mont. 23,
IN RE B.B., S.B., S.B.
2022-NCSC-67
Earls, J., dissenting.
223 P.3d 921 (2010) (concluding that trial counsel rendered deficient performance by
failing to object to hearsay evidence, making no other objections, asking no questions
on cross-examination, and not meeting with client prior to termination hearing). For
similar reasons, the North Dakota Supreme Court has held that failure to provide
counsel to an indigent parent in a juvenile proceeding may never be harmless error:
We are skeptical that the denial of counsel to an indigent
parent in an adoption proceeding which results in the
termination of parental rights can ever be “harmless,”
under any standard. It is, after all, an axiom in criminal
cases that counsel enables an accused to procure a fair
trial, and the formality of these termination and adoption
proceedings, along with their substantial threat to a
fundamental interest of the parent, is not so different from
those in a criminal case.
Matter of Adoption of K.A.S., 499 N.W.2d 558, 567 (N.D. 1993) (citation omitted).
Given how wholly inadequate counsel’s performance was in this case, the logic should
apply.
¶ 58 Here, for example, because respondent-mother was in and out of jail
throughout the course of these proceedings, an assessment of her progress on her case
plan and the applicability of the asserted grounds for termination required an
assessment of the constraints imposed by her incarceration. See In re K.N., 373 N.C.
274, 283 (2020) (“[R]espondent’s incarceration, by itself, cannot serve as clear, cogent,
and convincing evidence of neglect. Instead, the extent to which a parent's
incarceration or violation of the terms and conditions of probation support a finding
IN RE B.B., S.B., S.B.
2022-NCSC-67
Earls, J., dissenting.
of neglect depends upon an analysis of the relevant facts and circumstances.”). But
because counsel never raised the issue at a permanency planning hearing, and
because respondent-mother was never brought to court to raise the issue or present
factual evidence herself, the trial court never considered whether the terms of
respondent-mother’s case plan needed to be adapted in view of the services available
to her in jail. Because counsel did not file an answer to the termination motion and
did not advocate for respondent-mother at the termination hearing, the trial court
never examined the extent to which the existence of grounds for termination resulted
from the fact of respondent-mother’s incarceration alone. In re M.A.W., 370 N.C. 149,
153 (2017) (“Our precedents are quite clear—and remain in full force—that
incarceration, standing alone, is neither a sword nor a shield in a termination of
parental rights decision.”) (cleaned up). The opportunity to create a record that could
support the claim that the outcome of the termination hearing might have been
different was lost due to counsel’s deficient performance at all stages of these
proceedings. In no meaningful sense do these circumstances establish that the
termination of respondent-mother’s parental rights resulted from “a fair trial, a trial
whose result is reliable.” Strickland, 466 U.S. at 687.
II. Respondent-mother’s challenge to the trial court’s findings of fact
¶ 59 In addition to the majority’s improper application of the prejudice standard,
the majority also errs in sidestepping respondent-mother’s challenge to the trial
IN RE B.B., S.B., S.B.
2022-NCSC-67
Earls, J., dissenting.
court’s findings of fact by adopting a strained, unnecessary, and formalistic reading
of the argument raised in her brief. According to the majority, respondent-mother
failed to challenge any of the findings of fact the trial court actually entered because
the trial court did not enter the finding respondent-mother purported to challenge,
the finding “that there was no evidence that could have been presented to alter the
result of the termination proceeding.” It is correct that there is no finding precisely
stating “that there was no evidence that could have been presented to alter the result
of the termination proceeding” in those exact words. But the trial court did find that
“[i]n the absence of any showing of evidence or testimony that could have been
presented, the court finds that, even if respondent-mother had been present and
available at every hearing throughout the pendency of the underlying case, the
outcome of the termination hearing would have been the same.” Substantively, there
is no difference between the finding respondent-mother challenges and the finding
the trial court entered. Both mean exactly the same thing: that, in the trial court’s
view, respondent-mother had failed to note any evidence that “could have been
presented” during the termination proceeding (or underlying juvenile proceeding)
that would have changed its ultimate outcome.
¶ 60 There is no requirement in our rules of appellate procedure stating that
appellants must list the specific findings of fact being challenged using the precise
words utilized by the factfinder in order to challenge findings of fact on appeal. We
IN RE B.B., S.B., S.B.
2022-NCSC-67
Earls, J., dissenting.
have never before imposed such a requirement in our caselaw. There is good reason
not to. This Court has moved away from overly technical rules of appellate procedure
in recent years, amending Rule 10 to eliminate the requirement that litigants must
list specific “exceptions” and “assignments of error” to properly present an issue on
appeal. See Malone-Pass v. Schultz, 868 S.E.2d 327, 2021-NCCOA-656, ¶ 15
(describing changes to Rules of Appellate Procedure effective as of October 2009).
Consistent with this more reasonable approach, and based on the text of the current
Rule 10, we have held that a party preserves an issue for appellate review by making
a general objection when “what action is being challenged and why the challenged
action is thought to be erroneous . . . are ‘apparent from the context[.]’ ” State v.
McLymore, 380 N.C. 185, 2022-NCSC-12, ¶ 17. We should utilize the same approach
in this context. Unchallenged findings of fact are always binding on appeal, but if it
is “apparent from the context” that a party is challenging a particular finding of fact,
we should not evade our obligation to review the trial court’s findings to determine if
they are supported by the record evidence.
III. Conclusion.
¶ 61 Once again, this Court’s decision to deny a respondent-parent’s claim that she
received ineffective assistance of counsel in a juvenile proceeding “gives short shrift
to an important guarantor of the fairness of our juvenile system.” In re Z.M.T., 379
N.C. 44, 2021-NCSC-121, ¶ 21 (Earls, J., dissenting). Although I recognize the State’s
IN RE B.B., S.B., S.B.
2022-NCSC-67
Earls, J., dissenting.
interest in protecting the welfare of the children subject to these proceedings and the
children’s concomitant need for permanency, the juvenile system suffers when we
refuse to correct the erosion of rights guaranteed to parents in juvenile proceedings.
The record in this case demonstrates that respondent-mother’s counsel’s
representation in this instance was so deficient as to undermine the validity and
reliability of the juvenile and termination proceedings entirely. Accordingly, I would
reverse the order terminating respondent-mother’s parental rights and remand for
further proceedings.