In re B.B.

• Decision Date: 14 December 2021
• Docket Number: No. 24A21,24A21
• Citation: 865 S.E.2d 848 (Mem),379 N.C. 660
• Parties: IN RE: B.B., S.B., S.B.
• Court: North Carolina Supreme Court

379 N.C. 660

865 S.E.2d 848 (Mem)

IN RE: B.B., S.B., S.B.

No. 24A21

Supreme Court of North Carolina.

December 14, 2021

Jeffrey L. Miller, Attorney at Law, Greenville.

Sydney Batch, Attorney at Law, Raleigh.

Daniel Russell Talbert, Attorney at Law, Shelby.

ORDER

Confronted with unique circumstances and potentially speculative requests for inferences from both parties, this Court, in the exercise of its discretion, finds it prudent to remand this 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: specifically, the statement that "[respondent-mother] 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."¹

Given these unique circumstances, this Court, in the exercise of its discretion, also remands this case to the trial court for the trial court to hear respondent-mother's claim of ineffective assistance of counsel. 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.

Hence, 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 and serve such on the trial counsel for respondent-mother, the Guardian ad Litem (GAL), and Burke County Department of Social Services (DSS). Other parties should serve any responsive materials within ten days of receiving respondent-mother's motion.

If any evidentiary hearing is necessary, it shall be calendared with priority and in no event later than twenty-five days from this order. The trial court shall enter an order with any necessary findings of fact and conclusions of law within five days of the evidentiary hearing.

If the Rule 60(b) motion is granted, the trial court shall set aside the termination-of-parental-rights order as to respondent-mother and hold a new hearing on DSS's motion to terminate the parental rights of respondent-mother, and respondent-mother's appellate counsel shall file a notice of dismissal of the appeal before this Court.

If the Rule 60(b) motion is denied, appellate counsel for respondent-mother shall, in consultation with appellate counsel for other parties, file any supplement to the...