{
  "id": 11793584,
  "name": "IN THE MATTER OF: ZHOMA WILINA LITTLE, minor child v. TINA LITTLE, Respondent v. BUNCOMBE COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner, and GUARDIAN AD LITEM, Petitioner",
  "name_abbreviation": "Little v. Little",
  "decision_date": "1997-08-05",
  "docket_number": "No. COA96-1394",
  "first_page": "191",
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  "casebody": {
    "judges": [
      "Judges WYNN and MARTIN, John C., concur."
    ],
    "parties": [
      "IN THE MATTER OF: ZHOMA WILINA LITTLE, minor child v. TINA LITTLE, Respondent v. BUNCOMBE COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner, and GUARDIAN AD LITEM, Petitioner"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nThe only issue in this appeal from an order terminating respondent\u2019s parental rights is whether the trial court erred in not providing court appointed counsel for respondent at the hearing.\nRespondent is the natural mother of Zhoma Little, born 24 October 1994. The Buncombe County Department of Social Services (\u201cDSS\u201d) took custody of the minor child on 9 November 1994. On 20 February 1996, DSS filed a petition to terminate respondent\u2019s parental rights to the minor child. The initial summons was returned unserved. A second summons was issued and served on 9 April 1996.\nAt the 19 July 1996 hearing, respondent requested court appointed counsel. The trial court found that since she had not filed an answer or any other pleading and had not previously asked for an attorney, she had waived the right to court appointed counsel \u201cby her lack of action.\u201d Respondent appeals.\nOn appeal, respondent makes three assignments of error. However, she does not argue the third in her brief and it is deemed abandoned. See N.C.R. App. P. 28(b)(5) (1997).\nRespondent first argues that the trial court erred by not allowing her the opportunity to obtain counsel at her hearing as she requested. She argues that the trial court failed to properly follow the procedure set forth in N.C. Gen. Stat. sections 7A-289.23, 289.27 and 289.30. Since we conclude that the statutes do not provide for waiver by inaction, we agree.\nWe initially point out that our Court has already recognized that a \u201cparentfs] right to counsel in a proceeding to terminate parental rights is now guaranteed in all cases by statute\u201d and that \u201c[a] parent\u2019s interest in the accuracy and justice of the decision to terminate his or her parental rights is a commanding one.\u201d In re Bishop, 92 N.C. App. 662, 664, 375 S.E.2d 676, 678 (1989). With these thoughts in mind, we entertain the arguments presented by this appeal.\nN.C. Gen. Stat. section 7A-289.23 states that \u201c[t]he parent has the right to counsel and to appointed counsel in cases of indigency unless the parent waives the right.\u201d N.C. Gen. Stat. \u00a7 7A-289.23 (1995). N.C. Gen. Stat. section 7A-289.27 requires a summons issued for the purpose of terminating parental rights to include: \u201cNotice that if they are indigent, the parents are entitled to appointed counsel. The parents may contact the clerk immediately to request counsel.\u201d N.C. Gen. Stat. \u00a7 7A-289.27(b)(3) (1995) (emphasis added). Finally, N.C. Gen. Stat. section 7A-289.30 states:\nThe court shall inquire whether the child\u2019s parents are present at the hearing and, if so, whether they are represented by counsel. If the parents are not represented by counsel, the court shall inquire whether the parents desire counsel but are indigent. In the event that the parents desire counsel but are indigent as defined by G.S. 7A-450(a) and are unable to obtain counsel to represent them, the court shall appoint counsel to represent them. ... In the event that the parents do not desire counsel and are present at the hearing, the court shall examine each parent and make findings of fact sufficient to show that the waivers were knowing and voluntary.\nN.C. Gen. Stat. \u00a7 7A-289.30(al) (1995) (emphasis added).\nIt is clear from reading the above statutes that the General Assembly did not intend to allow for waiver of court appointed counsel due to inaction prior to the hearing. G.S. 7A-289.30 makes it quite clear that if the parent is present at the hearing, which respondent undoubtedly was, and does not waive representation, counsel \u201cshall\u201d be appointed. It is irrelevant how a respondent gets to the hearing. This respondent was in jail and had made no effort to answer or contact anyone. Petitioner sent for her and had her brought into court for the hearing. If the party is present in court, waiver can only result from an examination by the trial court and a finding of knowing and voluntary waiver. This Court has previously held that the hearing must be held even in cases where a parent has failed to answer. See In re Tyner, 106 N.C. App. 480, 483, 417 S.E.2d 260, 261 (1992). Furthermore, the summons issued to respondent in this case clearly states: \u201cParents 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 hearing on this matter.\" (Emphasis added).\nIn the present case, there was no examination as described in G.S. 7A-289.30. Respondent was present at the hearing, requested appointed counsel, but was denied. There is no support, statutory or otherwise, for the trial court\u2019s ruling that in North Carolina the right to counsel can be waived by inaction prior to the termination hearing. This ruling was error and is certainly prejudicial. We remand this matter to the trial court for a new hearing.\nDue to our resolution of this matter, we do not address respondent\u2019s remaining assignment of error.\nReversed and remanded.\nJudges WYNN and MARTIN, John C., concur.",
        "type": "majority",
        "author": "LEWIS, Judge."
      }
    ],
    "attorneys": [
      "Charlotte A. Wade for petitioner-appellee Buncombe County Department of Social Services.",
      "Michael E. Casterline for respondent-appellant."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF: ZHOMA WILINA LITTLE, minor child v. TINA LITTLE, Respondent v. BUNCOMBE COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner, and GUARDIAN AD LITEM, Petitioner\nNo. COA96-1394\n(Filed 5 August 1997)\nParent and Child \u00a7 116 (NCI4th)\u2014 termination of parental rights \u2014 right to counsel \u2014 no waiver by inaction\nIn an action brought by the Department of Social Services to terminate the parental rights of respondent, an indigent, the trial court erred by denying respondent\u2019s request for a court appointed counsel at her hearing even though respondent failed to file an answer or any pleadings and she did not request an attorney prior to the hearing. Pursuant to N.C.G.S. \u00a7 7A-289.23, if a parent is present at the hearing, waiver can result only from an examination by the trial court and a finding of a knowing and voluntary waiver.\nAppeal by respondent from judgment entered 16 August 1996 by Judge Rebecca B. Knight in Buncombe County District Court. Heard in the Court of Appeals 5 June 1997.\nCharlotte A. Wade for petitioner-appellee Buncombe County Department of Social Services.\nMichael E. Casterline for respondent-appellant."
  },
  "file_name": "0191-01",
  "first_page_order": 227,
  "last_page_order": 229
}