Dad Not Required To Proceed Pro Se In Neglect Case Father Had Fired Two Court-Appointed Lawyers

Even though the father in a Haywood County neglect case fired both of his court-appointed attorneys, a trial judge erred by making him proceed pro se, the Court of Appeals has ruled.

The Dec. 7 opinion, In the Matter of S.L.L (North Carolina Lawyers Weekly No. 04-07-1460, 5 pages), marks a first-impression look at the right to counsel under the state’s child abuse and neglect laws.

The trial judge did not necessarily have to grant the father’s request to discharge his second lawyer, Judge Patricia Timmons-Goodson wrote, with Chief Judge John Martin and Judge Robin Hudson concurring. But once that request was granted, the trial court had an obligation to either obtain a knowing waiver of counsel from the father or appoint another lawyer.

Judge Timmons-Goodson reversed and remanded for a new hearing, ruling there was no evidence in the record that indicated the father knowingly waived his right to counsel. The father objected to proceeding without an attorney and asked that another be appointed, she said.

“We conclude that the trial court erred by equating respondent’s request for new counsel with a waiver of court-appointed counsel, and requiring respondent to proceed to trial pro se,” Judge Timmons-Goodson wrote.

Morganton attorney Susan P. Hall, who represented the father, said G.S. Sect. 7B-602(a) gives indigent parents the right to a court-appointed lawyer but does not spell out how that right is waived.

“That’s why I compared it to the waiver you do in a criminal case,” she said.

The court turned to criminal case law in ruling there had to be a voluntary and informed waiver, she said.

“Just saying you want to fire somebody is not knowingly waiving your right to counsel,” Hall told Lawyers Weekly. “The judge could have said, ‘You’re welcome to fire your attorney but you’re not getting another, so think hard before you do that.'”

“I’m glad to see the court is looking more closely at these juvenile cases,” Hall said. “This is not a [termination of parental rights] case, but it still involves losing your liberty and going to jail. It’s a very important issue, and needs to be given close scrutiny.”

The appeal stemmed from a Haywood County District Court order in which a minor boy was adjudicated a neglected child.

The Haywood County Department of Social Services alleged neglect in a January 2003 petition. The father apparently fired his first attorney before the case was called for trial on May 15, 2003.

When the father fired his second attorney during the May 15 hearing, District Judge Bradley B. Letts required him to proceed pro se. During an exchange in open court, Judge Letts stated: “Well, this is the second attorney that you’ve let go, so we’ve appointed two attorneys to represent you. They’ve both been very competent. You’ve elected not to proceed with them. I can’t continue the case ad infinitum until you find an attorney you’re pleased with, so you’re just going to have to represent yourself. Okay?”

The father formally objected, but the case proceeded and the court adjudicated the son neglected. The father appealed.

Ruling

The appeals panel reversed and remanded, ruling the trial court erred by failing to obtain a written waiver of counsel from the father.

Under G.S. Sect. 7B-602(a), an indigent parent has the right to court-appointed counsel in neglect and abuse cases unless that right is waived.

The scope of the right under that statute has not yet been addressed and the S.L.L. court turned to criminal case law for guidance.

Under those cases, an indigent party is entitled to a court-appointed lawyer unless he wishes to waive counsel and represent himself. Once a lawyer is appointed, the party must show a substantial reason for switching to another one. Mere dissatisfaction with the first lawyer is not sufficient grounds for a new appointment.

However, a party’s desire to fire a court-appointed lawyer does not mean he wants to proceed pro se, the S.L.L. panel said, citing State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981). Given the fundamental right at issue, the waiver of counsel must be knowing and voluntary. The record must show that the party understood the consequences of his waiver and made that choice voluntarily.

Examining the record in S.L.L., Judge Timmons-Goodson concluded the father’s request to get rid of his lawyer was not a waiver of further court-appointed counsel. Nor did it show the father intended to represent himself, she said.

“On the contrary, respondent repeatedly requested new counsel,” according to the opinion. “Although the trial court was not required to grant respondent’s request to release counsel absent a substantial reason, once the court decided to release [the second attorney] it had an obligation to either obtain a knowing waiver of counsel from respondent or appoint substitute counsel.”

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