{ "id": 11917956, "name": "IN RE THE JOSEPH CHILDREN", "name_abbreviation": "In re the Joseph Children", "decision_date": "1996-05-21", "docket_number": "No. COA95-948", "first_page": "468", "last_page": "473", "citations": [ { "type": "official", "cite": "122 N.C. App. 468" } ], "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": "13 ALR3d 1137", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "315 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 744", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2400561, 2399698, 2394071, 2398716, 2396287 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0744-03", "/nc/310/0744-04", "/nc/310/0744-01", "/nc/310/0744-02", "/nc/310/0744-05" ] }, { "cite": "310 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "29", "parenthetical": "technical errors will not authorize a new trial unless it appears that the respondent was prejudiced, and the burden is on the respondent to show prejudice" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523394 ], "year": 1983, "pin_cites": [ { "page": "274", "parenthetical": "technical errors will not authorize a new trial unless it appears that the respondent was prejudiced, and the burden is on the respondent to show prejudice" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0269-01" ] }, { "cite": "594 P.2d 1", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1979, "pin_cites": [ { "page": "7", "parenthetical": "where law student was supervised and represented criminal defendant, court held that every violation of a rule respecting the practice of law does not require reversal of a judgment in the case in which the violation occurred" } ], "opinion_index": 0 }, { "cite": "902 P.2d 686", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10343112 ], "year": 1995, "pin_cites": [ { "page": "695", "parenthetical": "failure to obtain client's written consent before law student wrote client's appellate brief was a procedural technicality that does not constitute ineffective assistance of counsel" } ], "opinion_index": 0, "case_paths": [ "/p2d/902/0686-01" ] }, { "cite": "276 S.E.2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "489", "parenthetical": "although attorney from Michigan did not comply with statute governing appearance by out-of-state attorneys, new trial not required where no prejudice shown by plaintiff" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 374", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2646898 ], "year": 1981, "pin_cites": [ { "page": "376", "parenthetical": "although attorney from Michigan did not comply with statute governing appearance by out-of-state attorneys, new trial not required where no prejudice shown by plaintiff" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0374-01" ] }, { "cite": "453 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "222", "parenthetical": "even if respondent shows a statute was violated, respondent must also show any error was prejudicial" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 693", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526237 ], "year": 1995, "pin_cites": [ { "page": "696", "parenthetical": "even if respondent shows a statute was violated, respondent must also show any error was prejudicial" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0693-01" ] }, { "cite": "155 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "789", "parenthetical": "new trial will only be granted for errors which were prejudicial" } ], "opinion_index": 0 }, { "cite": "271 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562278 ], "year": 1967, "pin_cites": [ { "page": "22", "parenthetical": "new trial will only be granted for errors which were prejudicial" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0001-01" ] }, { "cite": "335 S.E.2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4690817, 4688041, 4690990, 4689238, 4688571 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0665-02", "/nc/314/0665-01", "/nc/314/0665-04", "/nc/314/0665-05", "/nc/314/0665-03" ] }, { "cite": "332 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "199" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 83", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526628 ], "year": 1985, "pin_cites": [ { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0083-01" ] } ], "analysis": { "cardinality": 552, "char_count": 11814, "ocr_confidence": 0.764, "pagerank": { "raw": 1.8368325105520328e-07, "percentile": 0.7215239189620708 }, "sha256": "2535b455ac150d5a54be5434253b57dd8373c738131e5e5f55768d829030304d", "simhash": "1:dc9720a08c135ec6", "word_count": 1964 }, "last_updated": "2023-07-14T15:39:52.508825+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHN and MARTIN, Mark D., concur." ], "parties": [ "IN RE THE JOSEPH CHILDREN" ], "opinions": [ { "text": "GREENE, Judge.\nReggie McCuller (respondent) appeals an Order Terminating Parental Rights (TPR) as the mother of two minor children, Kalonji Joseph and Ebony Joseph.\nThe children are in the custody of the Durham County Department of Social Services (DSS). Steve Moore (Moore) represented the children\u2019s interests as Guardian ad Litem since 5 October 1993 until the date of the TPR hearing. On 3 November 1993 the children were adjudicated to be dependant and neglected pursuant to N.C. Gen. Stat. \u00a7\u00a7 7A-517(13) and (21) (1995). At the time of respondent\u2019s TPR hearing, respondent had not begun a substance abuse program and had not secured adequate housing or stable employment, as required by the adjudication order. Between the adjudication hearing and the TPR hearing respondent made only two of the scheduled visits with her children, the most recent being 5 January 1994.\nMoore and Janice Paul (Paul), the attorney for the Guardian ad Litem program, brought a petition to terminate respondent\u2019s parental rights. The custody order was not attached to the petition as required by N.C. Gen. Stat. \u00a7 7A-289.25(5) (1995), nor were there statements within the petition explaining petitioner\u2019s efforts to ascertain the whereabouts of respondent, required by section 7A-289.25(3). The petition did include respondent\u2019s last known address and current residence, although no street address was given for her current address.\nA summons was issued pursuant to N.C. Gen. Stat. \u00a7 7A-289.27 (1995), naming respondent as the \u201crespondent.\u201d The summons gives notice that the petition has been filed to terminate parental rights and failure to answer within thirty days will result in parental rights being terminated. The summons also states that:\nParents are entitled to have counsel appointed by the court if they cannot afford one, provided that they request such counsel at or before the time of the hearing .... Parents may contact the Clerk of Superior Court immediately to request counsel. This is a new case and any attorney appointed previously will not represent the parent in this proceeding unless ordered by the court.\nRespondent could not be located, however, to obtain service of process by hand or mail, so service of process was obtained by publication pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 4(j1) (1990). The publication notices, one for each child, ran for three successive weeks in the Durham Herald Sun newspaper and stated:\nSTATE OF NORTH CAROLINA, COUNTY OF DURHAM, FILE NO. 93J211; IN THE GENERAL COURT OF JUSTICE, DISTRICT COURT DIVISION.\nIn the matter of: Kalonji Joseph a minor child.\nNOTICE OF SERVICE OF PROCESS RE: TERMINATION OF PARENTAL RIGHTS TO: Reggie McCuller, Bernard Anthony Thompson and unknown father,\nPlease Take Notice that a petition has been filed by the Durham County Department of Social Services seeking termination of any parental rights that you have to the minors named in the petition. You are required to answer the petition within forty (40) days of the first date of publication (written below) and your failure to do so will result in an order of termination entered against you. The children involved:\nName: Kalonji Attiba Joseph\nDate of Birth: [sic] Brooklyn County, NY\nCounty of residence: Durham County, NC\nYou are entitled to be represented by counsel. If you are indigent, counsel will be appointed for you.\nThe date, time and place of hearing of the petition will be mailed to you on your filing of an answer if your whereabouts are then known.\nYou may call the Deputy Clerk of the Juvenile Court of Durham County at (919) 560-6824 for further information.\nThis the 20th day of February, 1995.\nWENDY C. SOTOLONGO ASSISTANT COUNTY ATTORNEY P.O. BOX 3508 DURHAM, NC 27702 (919) 560-0717\nPaul filed affidavits on 12 April 1995 stating the efforts made to ascertain respondent\u2019s whereabouts before serving process by publication.\nAt the termination hearing, David Swanson (Swanson), a third year law student, presented evidence before the court on behalf of the Guardian ad Litem program. No written consents from the Guardian ad Litem program or the supervising attorney, Paul, were filed with the court or made a part of the record in this case, as required by Chapter 1, Subchapter C, \u00a7 .0206(g) of the North Carolina State Bar Rules, although Paul did supervise Swanson at the hearing.\nBased on its findings of fact the trial court concluded it was in the best interests of the minor children that the parental rights of respondent be terminated.\nThe issues are whether (I) the service of process by publication must comply with both N.C. Gen. Stat. \u00a7 1A-1, Rule 4(j 1) and N.C. Gen. Stat. \u00a7 7A-289.27(b); and (II) a third year law student\u2019s participation in the trial requires reversal'if that student has not been properly certified to practice law.\nI\nRespondent argues that she was \u201cdenied assistance of counsel by petitioner\u2019s failure to follow the mandatory guidelines of the statute\u201d which requires the summons to state that the \u201cparents may contact the clerk immediately to request counsel,\u201d N.C.G.S. \u00a7 7A-289.27(b)(3), and that the TPR hearing is a \u201cnew case\u201d for which a new attorney may be necessary to be appointed. N.C.G.S. \u00a7 7A-289.27(b)(4). In response, petitioner argues that the requirements of section 7A-289.27(b) only govern the summons to be issued by the court upon the filing of a TPR petition and do not govern service of process by publication.\nService of process by publication is governed by N.C. Gen. Stat. \u00a7 1A-1, Rule 4(j1). When the whereabouts of a respondent parent is unknown, \u201cthe petitioner in a parental rights termination case must proceed under G.S. 7A-289.27 and must comply with Rule 4Q1) as regards service by publication.\u201d In re Clark, 76 N.C. App. 83, 86, 332 S.E.2d 196, 199, appeal dismissed, 314 N.C. 665, 335 S.E.2d 322 (1985). In other words, compliance with both Rule 4(j1) and section 7A-289.27(b) is required.\nIn this case, the petitioner\u2019s service by publication complied in every respect with Rule 4(jl). It did not specifically comply with section 7A-289.27(b) and this constitutes error. We do not, however, believe the discrepancy is material in this case so as to result in any prejudice to the respondent. See Highway Comm\u2019n v. Nuckles, 271 N.C. 1, 22, 155 S.E.2d 772, 789 (1967) (new trial will only be granted for errors which were prejudicial). The notice by publication went beyond the Rule 4(jl) requirements and stated that respondent is \u201centitled to be represented by counsel\u201d and if she is indigent, \u201ccounsel will be appointed for you.\u201d It also stated that respondent may \u201ccall the Deputy Clerk of the Juvenile Court of Durham County at (919) 560-6824 for further information.\u201d The notice, therefore, supplied information that if seen by respondent would inform her of the petition filed against her, her need to answer the service of process, the availability of counsel if she was indigent, as well as the phone number of the Deputy Clerk of Juvenile Court if respondent needed further information. From these facts, respondent was supplied with the necessary information from which she could have been represented at the TPR hearing by counsel. See In re Nolen, 117 N.C. App. 693, 696, 453 S.E.2d 220, 222 (1995) (even if respondent shows a statute was violated, respondent must also show any error was prejudicial).\nII\nRespondent also assigns error to a third year law student presenting evidence at the TPR hearing on behalf of the Guardian ad Litem program when the law student had not been properly certified to practice law pursuant to Chapter 1, Subchapter C, \u00a7 .0206 of the North Carolina State Bar Rules. Respondent argues that because the law student was not properly certified, any evidence presented by him was not properly before the court, and therefore, there is no evidence to support the TPR order.\nSection .0206 allows a student to appear in court on behalf of a client if the student has received written consent from both the client and the supervising attorney. Rules and Regulations of the North Carolina State Bar, Subch. C, \u00a7 .0206(g) (1996). That consent must be \u201cfiled with the court and made a part of the record in the case.\u201d Id. The petitioner concedes that \u201cto the extent that written consents from the Durham Guardian ad litem program and its attorney, Janice Paul, were not made a part of the record in this case\u201d there was a violation of the State Bar Rules. Only upon a showing of prejudice by respondent, however, will such a violation mandate a reversal. Pope v. Jacobs, 51 N.C. App. 374, 376, 276 S.E.2d 487, 489 (1981) (although attorney from Michigan did not comply with statute governing appearance by out-of-state attorneys, new trial not required where no prejudice shown by plaintiff); see also Jones v. State, 902 P.2d 686, 695 (Wyo. 1995) (failure to obtain client\u2019s written consent before law student wrote client\u2019s appellate brief was a procedural technicality that does not constitute ineffective assistance of counsel); People v. Perez, 594 P.2d 1, 7 (Cal. 1979) (where law student was supervised and represented criminal defendant, court held that every violation of a rule respecting the practice of law does not require reversal of a judgment in the case in which the violation occurred). Respondent has failed to show that the presentation of evidence by a law student, instead of by the student\u2019s supervising attorney, who was present at the hearing, rose to prejudicial error and this assignment of error is overruled.\nWe have reviewed respondent\u2019s remaining assignments of error and determined that even where there was error, none of the assignments rise to the level of prejudicial error. See In re Norris, 65 N.C. App. 269, 274, 310 S.E.2d 25, 29 (1983) (technical errors will not authorize a new trial unless it appears that the respondent was prejudiced, and the burden is on the respondent to show prejudice), cert. denied, 310 N.C. 744, 315 S.E.2d 703 (1984).\nAffirmed.\nJudges JOHN and MARTIN, Mark D., concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Assistant County Attorney Wendy C. Sotolongo, for appellee Durham County Department of Social Services.", "Browne, Flebotte, Wilson & Horn, by Martin J. Horn, for respondent-appellant." ], "corrections": "", "head_matter": "IN RE THE JOSEPH CHILDREN\nNo. COA95-948\n(Filed 21 May 1996)\n1. Parent and Child \u00a7 115 (NCI4th)\u2014 termination of parental rights \u2014 service by publication \u2014 no specific compliance with statute \u2014 respondent not prejudiced\nEven though petitioner\u2019s service by publication in a proceeding to terminate parental rights did not specifically comply with N.C.G.S. \u00a7 7A-289.27(b) in that it failed to state that the \u201cparents may contact the clerk immediately to request counsel\u201d and that the proceeding is a \u201cnew case\u201d for which a new appointment of counsel will be required, such error was not prejudicial to respondent since the notice supplied information that, if seen by respondent, would inform her of the petition filed ag\u00e1inst her, her need to answer the service of process, the availability of counsel if she was indigent, and the phone number of the Deputy Clerk of Juvenile Court if respondent needed further information.\nAm Jur 2d, Process \u00a7 242.\n2. Attorneys at Law \u00a7 17 (NCI4th)\u2014 evidence presented by law student \u2014 respondent not prejudiced\nRespondent parent failed to show that the presentation of evidence by a law student working with the guardian ad litem program who had not been properly certified to practice law pursuant to the State Bar Rules, instead of by the student\u2019s supervising attorney who was present at the hearing, rose to the level of prejudicial error.\nAm Jur 2d, Attorneys at Law \u00a7 115.\nActivities of law clerks as illegal practice of law. 13 ALR3d 1137.\nAppeal by respondent from order entered 27 April 1995 in Durham County District Court by Judge Carolyn D. Johnson. Heard in the Court of Appeals 23 April 1996.\nAssistant County Attorney Wendy C. Sotolongo, for appellee Durham County Department of Social Services.\nBrowne, Flebotte, Wilson & Horn, by Martin J. Horn, for respondent-appellant." }, "file_name": "0468-01", "first_page_order": 504, "last_page_order": 509 }