Court of Appeals: counsel's few words during 19 minute TPR hearing troubling but not per se inneffective assistance.

     What is a defense attorney to do? One attorney no doubt was asking this question in a 2015 Orange County, North Carolina District Court case that landed this summer before the North Carolina Court of Appeals. The case, In the Matter of T.D. and J.D., __N.C. App.__,__S.E.2d__(July 19, 2016), involved a Respondent with a long history of serious substance abuse issues and a history
of not complying with court directives. The hearing before the Orange County District Court lasted all of 19 minutes. During that time, the Respondent alleged in her appeal, that her counsel " . .uttered fewer than fifty words during the entire termination hearing , most of which were irrelevant to the proceeding. . .did not introduce any evidence at either the adjudication or the disposition stage of the hearing; and. . .never objected to the trial court finding termination of parental rights in the juveniles’ best interests."

     Such allegations are no doubt serious, especially when the Court of Appeals in its opinion found the "respondent’s characterizations of her trial counsel’s actions, or lack thereof. . . . fully supported by the record." Not surprisingly, the case was remanded to the trial court for further fact finding on the issue of effective assistance of counsel and if present, whether such a deficient performance prejudiced respondent such that she is entitled to a new termination of parental rights hearing.

     On remand, a number of questions will indeed have to be asked, particularly with regard to counsel's ability to consult with the respondent and whether she had adequately assisted counsel in the preparation of the defense of the hearing. Notwithstanding the ultimate outcome of the case, a few things bear emphasis with regard to defense counsel's obligation at any juvenile hearing, regardless of the assistance provided by the client.

     First, if the client is absent, has provided counsel no assistance and no direction as to the client's position, this same fact should be placed on the record. In fact, ethical requirements may mandate such behavior. (See RPC 223- mandatory withdrawal where attorney unable to locate client after diligent search; 03 FEO 16 same as applied to dependency proceedings with the addition that counsel may not advocate for a particular position). Second, when the client is present at the hearing and is available for consultation, the attorney not only has the obligation to consult with the client about the direction they wish to take during the litigation but advocate zealously on the client's behalf to the extent permitted by legal and ethical constraints. (See In re S.N.W., 204 N.C. App. 556, 560, 698 S.E.2d 76, 79 (2010)). This may not give the attorney much to work with in terms of a substantive defense. However,  it must be remembered that it is not the respondent's obligation to provide any evidence at the adjudicatory stage of an dependency or termination proceeding. Accordingly,  it is entirely appropriate to follow a strategy where the defense confines its case to taking pot shots, if you will, at the evidence provided by the county department of social services: challenging witnesses and evidence provided by the petitioner or movant calculated to establish the dependency case. Under very few circumstances is it legally or ethically acceptable to remain essentially silent if a client's wishes are clearly able to be ascertained through simple consultation. Doing so is perilous, exposes one to an ineffective assistance claim, and probably will result in an unpleasant call to one's liability insurance carrier.