In re B.S.
| Decision Date | 18 June 2021 |
| Docket Number | No. 322A20,322A20 |
| Citation | 859 S.E.2d 159 |
| Parties | In the MATTER OF: B.S. |
| Court | North Carolina Supreme Court |
Mary Boyce Wells, Raleigh, for petitioner-appellee Wake County Human Services.
Michelle FormyDuval Lynch, for appellee Guardian ad Litem.
Garron T. Michael, for respondent-appellant father.
¶ 1 Respondent appeals from the order terminating his parental rights to his minor child B.S. (Bailey).1 The trial court found that grounds existed to terminate respondent's parental rights pursuant to N.C.G.S. § 7B-1111(a)(1), (2), and (5) and that termination was in Bailey's best interests. Respondent has not challenged on appeal the trial court's conclusion that the ground for termination pursuant to N.C.G.S. § 7B-1111(a)(5) existed or that termination was in Bailey's best interests. Respondent instead contends that this Court should reverse the trial court's order as to this ground for termination of respondent's parental rights because he received ineffective assistance of counsel. As we conclude that respondent has not carried his burden to show ineffective assistance of counsel, we affirm the trial court's order terminating the parental rights of respondent to Bailey.
¶ 2 Wake County Human Services (WCHS) became involved with Bailey at the time of her birth when Bailey and her mother tested positive for cocaine. Bailey's mother was also homeless and suffering from mental health issues which required hospitalization.
¶ 3 On 18 July 2018, WCHS filed a petition alleging that Bailey and her two half-siblings were neglected juveniles.2 Respondent and Bailey's mother subsequently consented to the entry of an order adjudicating Bailey a neglected juvenile, which was entered on 16 October 2018. In this consent order on adjudication and disposition, the trial court ordered respondent to submit to genetic marker testing and to establish legal paternity if found to be the biological father of Bailey. At the time, respondent was incarcerated and denied knowing Bailey's mother and being Bailey's biological father. Nevertheless, on 15 January 2019, respondent was determined to be the biological father of Bailey after respondent submitted to genetic marker testing. Respondent continued to deny that he was the biological father of Bailey until a social worker sent him a copy of the genetic marker report in late January 2019.
¶ 4 After respondent was released from incarceration, WCHS filed a motion for termination of the parental rights of Bailey's mother, respondent, and the known or unknown fathers of Bailey's two half-siblings. WCHS alleged that grounds existed to terminate respondent's parental rights pursuant to N.C.G.S. § 7B-1111(a)(1), (2), and (5). The termination-of-parental-rights hearing was conducted over four days in November 2019 and January and February 2020. On 16 March 2020, the trial court entered an order terminating respondent's parental rights. The trial court concluded that WCHS had proven all three alleged grounds for termination, see N.C.G.S. § 7B-1111(a)(1), (2), (5), and that termination of respondent's parental rights was in Bailey's best interests. The trial court's findings of fact included that:
[Respondent] was served with a copy of the petition filed July 18, 2018 which contained the name of the child and her date of birth. He had access to paper, envelopes, and stamps while he was incarcerated. He corresponded via U.S. Mail with both the social worker and his attorney in this case. He had the means to file an affidavit of paternity with [WCHS]. The same attorney has been appointed to represent him in this case and also in cases involving two other children. In a termination of parental rights order filed for two of [respondent]’s other children on August 7, 2019, finding of fact #31 indicates that [respondent] filed an affidavit of parentage for another of his children. In orders filed on October 16, 2018, February 1, 2019, and July 24, 2019 the [c]ourt ordered ... [respondent] to establish "legal paternity" if genetic marker testing showed him to be the biological father of the child. While N.C.G.S. §[ ]7B-1111(a)(5) does not require that an unwed father have actual notice that a ground exist[s] for termination of parental rights unless paternity and/or legitimation is established prior to the filing of a termination of ... parental rights action, [respondent] was on "notice" that he was to establish legal paternity beginning with the disposition order filed October 16, 2018. He had "notice" that he could have sired a child when he had a sexual encounter with [Bailey's mother]. He further knew by late January 2019 that genetic marker testing showed him to be the biological father of [Bailey] which was more than six months before the motion to terminate his parental rights was filed.
¶ 5 Respondent appealed.
¶ 6 On appeal, respondent challenges several findings of fact as not supported by competent evidence and the trial court's conclusion that grounds existed for termination pursuant to N.C.G.S. § 7B-1111(a)(1) and (2). However, respondent has neither challenged the trial court's conclusion that the ground for termination pursuant to N.C.G.S. § 7B-1111(a)(5) had been established nor challenged any findings of fact supporting this conclusion. Thus, it is undisputed that respondent failed to establish legal paternity as required by the trial court's order and failed to do any of the acts specified in N.C.G.S. § 7B-1111(a)(5)(a)–(e).
¶ 7 Subsection 7B-1111(a)(5) provides that a trial court may terminate parental rights upon a finding that:
N.C.G.S. § 7B-1111(a)(5) (2019).
¶ 8 Respondent, however, argues for the first time on appeal that his appointed trial counsel was ineffective. Respondent contends that because he received ineffective assistance of counsel, this Court should reverse the portion of the trial court's order concluding that the ground set forth in N.C.G.S. § 7B-1111(a)(5) existed to terminate his parental rights.
¶ 9 As "a finding of only one ground is necessary to support a termination of parental rights," In re A.R.A. , 373 N.C. 190, 194, 835 S.E.2d 417 (2019), and respondent has not challenged the conclusion or findings of fact supporting the trial court's conclusion that the ground set forth in N.C.G.S. § 7B-1111(a)(5) existed to terminate his parental rights, we must affirm the trial court's order terminating respondent's parental rights if respondent has not shown that he received ineffective assistance of counsel. The Juvenile Code provides that "[i]n cases where the juvenile petition alleges that a juvenile is abused, neglected, or dependent," N.C.G.S. § 7B-602(a) (2019), and "[w]hen a petition [for termination of parental rights] is filed," the parent "has the right to counsel, and to appointed counsel in cases of indigency, unless the parent waives the right," N.C.G.S. § 7B-1101.1(a) (2019). When addressing a contention by a respondent that he or she received ineffective assistance of counsel, this Court has explained that:
Parents have a right to counsel in all proceedings dedicated to the termination of parental rights. Counsel necessarily must provide effective assistance, as the alternative would render any statutory right to counsel potentially meaningless. 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 G.G.M. , 377 N.C. 29, 2021-NCSC-25, ¶ 35, 855 S.E.2d 478 (cleaned up).
¶ 10 Respondent's argument in his brief to this Court is as follows:
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