Matter of Maynard

448 S.E.2d 871 (1994)

In the Matter of Eric Shane MAYNARD and Maurica Irene Maynard.

No. 9322DC970.

Court of Appeals of North Carolina.

October 18, 1994.

*872 Iredell County Dept. of Social Services, by Susan Nye Surles, Statesville, for petitioner-appellant.

*873 Neel & Randall, by Mark L. Childers, Mooresville, for respondent-appellee.

EAGLES, Judge.

Petitioner DSS (hereinafter petitioner) contends that the trial court erred in setting aside the Surrenders. After careful review of the record and briefs, we affirm.

I.

Petitioner first contends that the district court did not have jurisdiction to grant the motion setting aside the Surrenders. We disagree. The district court has "exclusive, original jurisdiction over any case involving a juvenile who is alleged to be delinquent, undisciplined, abused, neglected, or dependent." G.S. 7A-523. "When 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." G.S. 7A-524. Petitioner alleged that respondent's children were neglected in August of 1991 and the district court adjudicated respondent's children as neglected and dependent in September 1991. Accordingly, the district court acquired jurisdiction of respondent's children beginning in late 1991.

While 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's 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's jurisdiction.

II.

Petitioner also contends that the trial court erred by basing its decision to grant respondent's motion on the ground that respondent was denied her right to counsel. Petitioner argues that counsel's 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's 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:

[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.

Here, 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's 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.

Because we have established that respondent had the right to counsel when she signed the Surrenders, we now address the issue of whether petitioner's actions deprived respondent of her right to counsel. In its order, the trial court made several pertinent findings of fact: 1. Petitioner's petition alleging neglect of respondent's children recited that one condition which contributed to the neglect of respondent's children was respondent's mental illness. 2. Despite respondent's illness, DSS workers talked with respondent numerous times, in the absence of her attorney, about consenting to the adoption of her children. 3. Respondent's counsel advised her not to consent to the adoptions at the regularly scheduled December 1991 review hearing, respondent refused to consent to her childrens' 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's counsel that respondent had signed the Surrenders until well after the statutory thirty day revocation *874 period had expired. Based on these findings, to which petitioner did not object, the trial court concluded that petitioner violated respondent's right to counsel in obtaining the Surrenders and that the Surrenders were null and void.

The court's 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, 86 S. Ct. 1602, 1628, 16 L. Ed. 2d 694, 723, reh'g denied, California v. Stewart, 385 U.S. 890, 87 S. Ct. 11, 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's knowledge. Miranda, 384 U.S. at 475, 86 S. Ct. at 1628, 16 L. Ed. 2d at 724.

Here, 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's 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's right to counsel.

The court's findings also show that petitioner is estopped to argue that it properly obtained the Surrenders. The court's findings show that petitioner continued to pursue the issue of surrendering respondent's children for adoption with respondent despite petitioner's contention that respondent was mentally ill. In addition, petitioner never informed respondent's 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.

We hold that petitioner's 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.

III.

Finally, petitioner claims that the trial court erred in granting respondent's 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. "[T]he scope of review on appeal is limited to those issues presented by assignment of error in the record on appeal." 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'n, 259 N.C. 371, 373, 130 S.E.2d 544, 546 (1963) (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"); 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. ___, 114 S. Ct. 2783, 129 L. Ed. 2d 894 (1994).

Affirmed.

LEWIS and WYNN, JJ., concur. *875