Very
often juvenile court judges encounter indigent parties in their courts who have
been appointed court appointed counsel who, for one reason or another, wish no
longer to be represented by their appointed attorney. The reasons can be many,
from a clash of personalities, to disagreements over legal strategy, to more
egregious situations such as ineffective assistance of counsel. When a motion
is made by a party or the party’s attorney to allow appointed counsel to
withdraw, it is especially important to keep a few critical guidelines in mind
in order to avoid an appeal and subsequent reversal, which not only may be
frustrating but most significantly can cause a delay in permanence for children
in juvenile court.
The
first principle to keep in mind is that a parent in a juvenile proceeding has
an absolute right to representation. In
re L.C., 181 N.C. App. 278, 638 S.E.2d 638 (2007). This right permits the
parent to hire their own counsel or, if they are indigent, to court appointed
counsel. N.C. Gen. Stat. §7B-602; §7B-1101.1. The only exception to the representational
rule is if the parent waives their right to counsel. Id.
To be
effective, a waiver must both be knowing and voluntary. Id.; In re J.K.P., 238 N.C. App. 334, 767
S.E.2d 119, (2014). It is important to note that the North Carolina Court has
identified a number of instances which do not constitute a waiver of the right
to counsel. For example, requesting new counsel be appointed by a party does
not constitute a waiver of court appointed counsel. See In re S.L.L., 167 N.C. App. 362, 605 S.E.2d 498 (2004) (request for different counsel is not a
waiver of counsel). Additionally, it should be pointed out that if a parent
does waive the right to hire their own counsel or have court appointed counsel,
the parent has the right to represent themselves. N.C. Gen. Stat. §7B-602 Regarding
this, such pro se representation is
very often discouraged given the complexity of juvenile law. The trial judge
must assure that the parent is carefully examined and makes sufficient findings
of fact to any subsequent appellate tribunal that the waiver given was both knowing and voluntary. Id; In re A.Y, 225 N.C.
App. 29, 737 S.E.2d 160 (2013).
The
second principle to keep in mind is that while a parent has an absolute right
to representation, a parent is not entitled to representation of their choice
in a court appointed setting. In order to release court appointed counsel, the
court is not release counsel unless the reason for the relief counsel involves egregious
conduct. Here, a number of possibilities come to mind which tend toward
attorney negligence and lack of involvement in the case. It is important to
note, however, that mere dissatisfaction with counsel, without more, is
insufficient for the court to withdraw counsel. In re S.L.L., 167 N.C. App. 362, 605 S.E.2d 498 (2004)
The third principle to keep in
mind is that on occasion, a parent’s behavior may be so egregious that they may
forfeit their right to counsel. State v.
Blakeney, 245 N.C. App., 782 S.E.2d 88 (2016). Forfeiture, unlike waiver,
does not depend upon a parent’s knowing and voluntary waiver but instead
relates specifically to extreme conduct which prejudices the administration of
justice. Examples of where forfeiture might exist include multiple attempts to
delay trial; offensive or abusive behavior; disruption of court proceedings; or
refusal to acknowledge the trial court’s authority. Id.
Finally,
when allowing counsel to withdraw, it must be done following notice being given
to the parent by counsel. Notice is required to a parent of an attorney’s
intention to withdraw. This act assures that the parent has the ability to
request new court appointed counsel if it is their intention to do so. In re M.G., 239 N.C. App. 77, 767 S.E.2d
346 (2015). Without some evidence of a parent receiving some form of notice
from their attorney, a trial court cannot adequately assure that a parent’s
rights are being protected or know the parent’s position regarding representation.
Proceeding to allow counsel to withdraw in such circumstances brings into
question whether the court is upholding fundamentally fair procedures in any
ensuing trial. Where such questions arise on appeal, it almost invariably leads
to reversal or vacation of the order and remand.
