Ineffective Assistance Claim Draws Remand

The right to counsel in an abuse and neglect matter embraces a right to effective assistance ofcounsel, according to an unpublished opinion of the North Carolina Court of Appeals.

Respondent asserts counsel’s performance was deficient when counsel did not object to the introduction of Ms. Miller’s forensic report, to the introduction of Detective Hines’s investigative report, and to the testimony of Ms. Miller, Ms. Bookman, and Detective Hines. Respondent argues that, had counsel objected to this evidence, the trial court would have been required to exclude the evidence and, as a result, would not have had competent evidence to support its findings of fact and conclusions of law, since the trial court expressly stated that its adjudication of M.B. as abused and neglected and G.B. as neglected was based upon the testimony of these three witnesses. Respondent also asserts counsel was deficient by failing to present any evidence to refute the petitions and by failing to “formulate any reasonable trial strategy and/or a coherent closing argument.”

The record reflects that Respondent’s counsel did not object to any testimony offered by Ms. Miller, Ms. Bookman, or Detective Hines, did not object to the reports tendered as evidence, and did not offer any evidence on Respondent’s behalf. However, counsel did cross-examine DSS’s witnesses, moved to dismiss the petition, and made an argument on Respondent’s behalf at the adjudication phase. Thus, on the cold record before us, we simply cannot adequately address the merits of Respondent’s claim, including any prejudice Respondent may have suffered.

The court remanded the case for an evidentiary hearing. (Mike Frisch)