{ "id": 8525178, "name": "IN THE MATTER OF: ERIC SHANE MAYNARD and MAURICA IRENE MAYNARD", "name_abbreviation": "In re Maynard", "decision_date": "1994-10-18", "docket_number": "No. 9322DC970", "first_page": "616", "last_page": "622", "citations": [ { "type": "official", "cite": "116 N.C. App. 616" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "129 L.Ed.2d 894", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "436 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "335 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531524, 2529480, 2529071, 2528692, 2526845 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0175-03", "/nc/335/0175-04", "/nc/335/0175-01", "/nc/335/0175-05", "/nc/335/0175-02" ] }, { "cite": "431 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "844" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520465 ], "year": 1993, "pin_cites": [ { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0001-01" ] }, { "cite": "130 S.E.2d 544", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "546", "parenthetical": "stating that \"[i]t is a well established rule of this Court that it will not decide a constitutional question which was not raised or considered in the court below\"" } ], "opinion_index": 0 }, { "cite": "259 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560638 ], "year": 1963, "pin_cites": [ { "page": "373", "parenthetical": "stating that \"[i]t is a well established rule of this Court that it will not decide a constitutional question which was not raised or considered in the court below\"" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0371-01" ] }, { "cite": "408 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "731", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "330 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510111 ], "year": 1991, "pin_cites": [ { "page": "98", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0093-01" ] }, { "cite": "17 L.Ed.2d 121", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1966, "opinion_index": 0 }, { "cite": "385 U.S. 890", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11388630, 11388679 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/us/385/0890-01", "/us/385/0890-02" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 4, "year": 1966, "pin_cites": [ { "page": "474" }, { "page": "723" }, { "page": "475" }, { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "435 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "124", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 196", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520777 ], "year": 1993, "pin_cites": [ { "page": "201", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0196-01" ] } ], "analysis": { "cardinality": 566, "char_count": 13842, "ocr_confidence": 0.731, "pagerank": { "raw": 3.119082018108305e-07, "percentile": 0.8605053808156383 }, "sha256": "d7805df6f4c38d89f54f14215364311e46fc8434457d3931a53891561ea3bbb4", "simhash": "1:4f2735272e69880f", "word_count": 2131 }, "last_updated": "2023-07-14T22:38:55.005039+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and WYNN concur." ], "parties": [ "IN THE MATTER OF: ERIC SHANE MAYNARD and MAURICA IRENE MAYNARD" ], "opinions": [ { "text": "EAGLES, Judge.\nPetitioner DSS (hereinafter petitioner) contends that the trial court erred in setting aside the Surrenders. After careful review of the record and briefs, we affirm.\nI.\nPetitioner first contends that the district court did not have jurisdiction to grant the motion setting aside the Surrenders. We disagree. The district court has \u201cexclusive, original jurisdiction over any case involving a juvenile who is alleged to be delinquent, undisciplined, abused, neglected, or dependent.\u201d G.S. 7A-523. \u201cWhen the court obtains jurisdiction over a juvenile, jurisdiction shall continue until terminated by order of the court or until [the juvenile] reaches his eighteenth birthday.\u201d G.S. 7A-524. Petitioner alleged that respondent\u2019s children were neglected in August of 1991 and the district court adjudicated respondent\u2019s children as neglected and dependent in September 1991. Accordingly, the district court acquired jurisdiction of respondent\u2019s children beginning in late 1991.\nWhile the statutes do not explicitly address who has jurisdiction to consider a motion to set aside a Surrender, we have previously held that a district court\u2019s jurisdiction over a case involving a juvenile ends when an. adoption petition is filed. In Re Adoption Of Duncan, 112 N.C. App. 196, 201, 435 S.E.2d 121, 124 (1993) (citations omitted). Here, no petition for adoption had been filed. On this record, the motion to set aside the Surrenders is a matter properly within the district court\u2019s jurisdiction.\nII.\nPetitioner also contends that the trial court erred by basing its decision to grant respondent\u2019s motion on the ground that respondent was denied her right to counsel. Petitioner argues that counsel\u2019s presence is not required when a parent signs a consent to adoption form. In support of its position, petitioner contends that since Chapter 7A does not address the issue of whether counsel should be present when a parent consents to his or her child\u2019s adoption, the absence of .counsel could not have violated the statute. While Chapter 7A does not explicitly address this issue, G.S. 7A-587 provides that:\n[i]n cases where the juvenile petition alleges that a juvenile is abused, neglected or dependent, the parent has the right to counsel and to appointed counsel in cases of indigency unless the parent waives the right.\nHere, respondent was involved in a case because petitioner alleged that her children were neglected. Because respondent never waived her right to counsel, respondent was entitled to counsel in the neglect proceedings pursuant to G.S. 7A-587. After petitioner initiated the neglect proceedings against respondent, petitioner asked respondent to sign the consent forms during the supervised visitation periods at petitioner\u2019s facilities. Because the signing of the Surrenders occurred following and as a consequence of a neglect proceeding which petitioner initiated, we hold that the signing of the Surrenders directly related to the neglect proceedings and that respondent was entitled to counsel when she signed the forms.\nBecause we have established that respondent had the right to counsel when she signed the Surrenders, we now address the issue of whether petitioner\u2019s actions deprived respondent of her right to counsel. In its order, the trial court made several pertinent findings of fact: 1. Petitioner\u2019s petition alleging neglect of respondent\u2019s children recited that one condition which contributed to the neglect of respondent\u2019s children was respondent\u2019s mental illness. 2. Despite respondent\u2019s illness, DSS workers talked with respondent numerous times, in the absence of her attorney, about consenting to the adoption of her children. 3. Respondent\u2019s counsel advised her not to consent to the adoptions at the regularly scheduled December 1991 review hearing, respondent refused to consent to her childrens\u2019 adoptions at that time, and respondent indicated her interest in having the children placed with her. 4. In February 1992, petitioner had another discussion with respondent about signing the Surrenders without notifying her counsel and respondent signed the Surrenders. 5. Petitioner did not notify respondent\u2019s counsel that respondent had signed the Surrenders until well after the statutory thirty day revocation period had expired. Based on these findings, to which petitioner did not object, the trial court concluded that petitioner violated respondent\u2019s right to counsel in obtaining the Surrenders and that the Surrenders were null and void.\nThe court\u2019s findings show that the situation in this case is analogous to the situation where a defendant in a criminal case has counsel. Once a defendant invokes his right to counsel and counsel is retained or appointed, the defendant has the right to have counsel present during any questioning. Miranda v. Arizona, 384 U.S. 436, 474, 16 L.Ed.2d 694, 723, reh\u2019g denied, California v. Stewart, 385 U.S. 890, 17 L.Ed.2d 121 (1966). Unless the criminal defendant effectively waives his right to have counsel present, no questioning may take place in the absence of counsel or without counsel\u2019s knowledge. Miranda, 384 U.S. at 475, 16 L.Ed.2d at 724.\nHere, respondent requested and was provided the assistance of counsel when petitioner initiated neglect proceedings against respondent. This attorney-client relationship continued to exist during the visitations when petitioner asked respondent to sign the Surrenders. Just as custodial interrogation of a criminal defendant in the absence of his appointed or retained counsel without a waiver is impermissible, petitioner\u2019s continuing discussions, during visitations, urging the reluctant respondent to sign the Surrenders without her counsel being present or at least having any knowledge of the discussions violated respondent\u2019s right to counsel.\nThe court\u2019s findings also show that petitioner is estopped to argue that it properly obtained the Surrenders. The court\u2019s findings show that petitioner continued to pursue the issue of surrendering respondent\u2019s children for adoption with respondent despite petitioner\u2019s contention that respondent was mentally ill. In addition, petitioner never informed respondent\u2019s counsel of these discussions. It is particularly disturbing that petitioner simultaneously contends that respondent was incapable of caring for her children because of her mental illness but was capable of signing consent to adoption forms while functioning under that same mental illness. On this record, we hold that petitioner was estopped from asserting that respondent was competent to make a rational and informed decision to surrender her children when the original action taken by petitioner against respondent appears to have been based in large part upon her mental illness.\nWe hold that petitioner\u2019s actions deprived respondent of her right to counsel, that petitioner is estopped to assert that the Surrenders were properly executed, and that the trial court was correct in ordering that the Surrenders are null and void. For the reasons stated, we hold that the trial court did not abuse its discretion.\nIII.\nFinally, petitioner claims that the trial court erred in granting respondent\u2019s motion to set aside the Surrenders because the ground relied upon by the trial court is not constitutionally sufficient. We do not address this issue because petitioner did not properly preserve this assignment of error for appellate review. \u201c[T]he scope of review on appeal is limited to those issues presented by assignment of error in the record on appeal.\u201d Koufman v. Koufman, 330 N.C. 93, 98, 408 S.E.2d 729, 731 (1991) (citations omitted). Furthermore, from the record it appears that petitioner never raised any constitutional issue below. Therefore, petitioner may not raise it for the first time on appeal. Johnson v. North Carolina State Highway Com\u2019n, 259 N.C. 371, 373, 130 S.E.2d 544, 546 (1963) (stating that \u201c[i]t is a well established rule of this Court that it will not decide a constitutional question which was not raised or considered in the court below\u201d); Kaplan v. Prolife Action League, 111 N.C. App. 1, 31, 431 S.E.2d 828, 844, review denied, 335 N.C. 175, 436 S.E.2d 379 (1993), cert. denied, Winfield v. Kaplan, - U.S. -, 129 L.Ed.2d 894 (1994).\nAffirmed.\nJudges LEWIS and WYNN concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Iredell County Department of Social Services, by Susan Nye Surles, for petitioner-appellant.", "Neel & Randall, by Mark L. Childers, for respondent-appellee." ], "corrections": "", "head_matter": "IN THE MATTER OF: ERIC SHANE MAYNARD and MAURICA IRENE MAYNARD\nNo. 9322DC970\n(Filed 18 October 1994)\n1. Parent and Child \u00a7 111 (NCI4th)\u2014 surrender documents signed by mother \u2014 motion to set aside \u2014 jurisdiction of district court\nThe district court which obtained jurisdiction over respondent\u2019s neglected children in late 1991 had jurisdiction over a motion to set aside documents signed by respondent and entitled \u201cParent\u2019s Release, Surrender, and General Consent to Adoption,\u201d since a district court\u2019s jurisdiction over a case involving a juvenile ends when an adoption petition is filed, and no such petition had been filed in this case.\nAm Jur 2d, Parent and Child \u00a7\u00a7 7, 11.\n2. Parent and Child \u00a7 116 (NCI4th)\u2014 neglect proceeding\u2014 signing of surrender documents \u2014 right to counsel\nBecause respondent\u2019s signing of surrender documents occurred following and as a consequence of a neglect proceeding which petitioner initiated, the signing of the papers directly related to the neglect proceedings, and respondent was entitled to counsel when she signed the forms.\nAm Jur 2d, Parent and Child \u00a7\u00a7 7, 11.\n3. Parent and Child \u00a7 116 (NCI4th)\u2014 mentally ill mother\u2014 signing of surrender documents \u2014 violation of right to counsel \u2014 documents null and void\nPetitioner\u2019s continuing discussions, during supervised visitations, urging the reluctant respondent to sign papers surrendering her parental rights without her counsel being present or at least having any knowledge of the discussions violated respondent\u2019s right to counsel; petitioner was estopped from asserting that respondent was competent to make a rational and informed decision to surrender her children when the original action taken by petitioner against respondent appeared to have been based in large part upon her mental illness; and the trial court was therefore correct in ordering that the surrender documents were null and void.\nAm Jur 2d, Parent and Child \u00a7\u00a7 7, 11.\nAppeal by petitioner from order signed 17 May 1993 by Judge George Fuller in Iredell County District Court. Heard in the Court of Appeals 12 May 1994.\nOn 15 August 1991, the Iredell County Department of Social Services (DSS) filed a petition for neglect against Debra S. Painter (hereinafter respondent) and Maurice Maynard, Jr. alleging that their two minor children, Eric Shane Maynard and Maurica Irene Maynard, were neglected juveniles as defined by G.S. 7A-517(21). Pursuant to G.S. 7A-587, on 26 August 1991 the district court appointed attorney Mark Childers to represent respondent during the neglect proceedings.\nOn 16 September 1991, respondent through her appointed counsel stipulated to the district court that because.of her mental illness her minor children were dependent as defined by G.S. 7A-517(13). The trial court adjudicated the minor children dependent as to their mother and neglected by their father. The court placed legal and physical custody with DSS and granted respondent supervised visitation with her children. A review hearing was set for 16 December 1991. Prior to the 16 December hearing, respondent, unaccompanied by counsel, met with a DSS social worker on 17 October, 21 November, and 3 December 1991. At each of these meetings, the DSS social worker discussed with respondent the possibility of surrendering her children for adoption. Respondent\u2019s attorney was not present and was not notified of these discussions. At the 16 December hearing, respondent conferred with her attorney and decided not to sign the consent to adopt papers. Respondent also stated to the court that she wanted her children returned to her. The court, however, ordered that legal and physical custody remain with DSS and scheduled another review hearing for May 1992. During the interim, at her scheduled supervised visits with her children at DSS\u2019s facility, DSS social workers continued to talk with respondent about surrendering her children for adoption. Respondent\u2019s attorney was not present and was not notified of these discussions.\nOn 27 February 1992, respondent signed two documents entitled \u201cParent\u2019s Release, Surrender, and General Consent to Adoption\u201d (hereinafter \u201cSurrenders\u201d) which gave custody of respondent\u2019s children to DSS pursuant to G.S. 48-9.1. The Surrenders became irrevocable on or about 28 March 1992 pursuant to G.S. 48-11 which provides that the consenting party may not revoke consent after thirty days from the date of giving consent for adoption. Respondent\u2019s counsel learned that his client had signed the Surrenders when counsel conferred with respondent in preparation for the regularly scheduled review hearing set for 18 May 1992. The court continued the hearing until 1 June 1992 at petitioner DSS\u2019s request.\nOn 8 April 1993, respondent\u2019s attorney filed a verified motion to set aside the Surrenders on the grounds that DSS violated respondent\u2019s right to counsel by obtaining the Surrenders and allowing the revocation period to elapse without notifying respondent\u2019s attorney. Between the date that respondent signed the Surrenders and the date she moved to have the Surrenders set aside, respondent was able to discontinue her therapy and medication, resume employment, obtain her own residence, and begin working toward reunification with her children. At the hearing held on 10 May 1993, the district court granted respondent\u2019s motion to set aside the Surrenders. From the order setting aside the Surrenders, DSS appeals.\nIredell County Department of Social Services, by Susan Nye Surles, for petitioner-appellant.\nNeel & Randall, by Mark L. Childers, for respondent-appellee." }, "file_name": "0616-01", "first_page_order": 646, "last_page_order": 652 }