In re C.A.B., 381 N.C. 105 (2022)

• Facts: Father was incarcerated during juvenile proceedings, where his son was adjudicated neglected and dependent. The primary permanent plan was identified as adoption, and DSS filed a TPR motion regarding father’s parental rights in August 2020. The TPR hearing had been continued twice, first because father’s counsel was not available and second because of the Emergency Directive from the Chief Justice responding to COVID-19. Father’s counsel requested a third continuance of the January 2021 hearing for more than 5 days later as the case manager notified him that the federal prison was under lockdown until January 25, with no movement allowed, including no ability for father to call in, for the January 20 TPR hearing. The court heard the motion to continue and denied the motion after recognizing the statutory 90-day period to hold the hearing was exceeded, the prior continuances, the unpredictability of the COVID-19 pandemic and continuing restrictions, the ability of father’s attorney to present evidence and cross-examine witnesses, and the agreement that father’s report would be admitted into evidence such that due process would be satisfied. The hearing was held, and the TPR was granted. Father appeals.
• A motion to continue based on a constitutional right that is asserted before the trial court presents a question of law and is reviewed de novo. In his motion to continue, father raised his due process rights to be heard in a case that would impact his constitutionally protected parental rights. Father must show the court’s denial of the motion to continue was made in error and that he was prejudiced as a result of the error.
• Parents have a fundamental liberty interest in raising their children, and the state must provide fundamentally fair procedures when seeking to destroy weakened familial bonds. The denial of the motion to continue undermined the fairness of the hearing as father was denied the opportunity to testify and to work with his counsel to develop a strategy to oppose the TPR, and the substantive findings in the TPR order related to father’s conduct in prison, which his testimony could have assisted the court in assessing.
• G.S. 7B-1109 allows for a continuance of a TPR beyond 90 days when there are “extraordinary circumstances.” “ ‘Extraordinary circumstances’ may occur both within and beyond ninety days after the filing of a termination motion or petition.” 381 N.C. at 114. The court determined the COVID-19 restrictions were an extraordinary circumstance when granting the second continuance, so logically, another disruption caused by COVID-19 was also an extraordinary circumstance. The existence of an “ ‘extraordinary circumstance’ does not require a trial court to continue the hearing under N.C.G.S. 7B-1109(d).” 381 N.C. at 115 (emphasis in original).
• In assessing due process, courts consider “the private interests affected by the proceeding; the risk of error created by the State’s chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure.” 381 N.C. at 115 (citation omitted). “Procedural due process ‘is a flexible, not fixed, concept governed by the unique circumstances and characteristics of the interest sought to be protected.’ " 381 N.C. at 119 (citation omitted).
  • Regarding the first prong, father has a “commanding” interest in the proceeding. DSS also has an interest but that interest was not to quickly terminate father’s rights so the child could be adopted but “was in protecting [the juvenile’s] welfare through a proceeding that reaches ‘a correct decision’ regarding whether respondent-father’s parental right rights could and should be terminated.” 381 N.C. at 116.
  • Regarding the second prong, although a parent who is incarcerated does not have an absolute right to be present at the hearing, the father’s absence here “created a meaningful risk of error that undermined the fundamental fairness of this adjudicatory hearing.” 381 N.C. at 117. The factual basis for the TPR adjudication was father’s conduct while he was incarcerated, yet father was denied the opportunity to address his first- hand knowledge of the limitations while in prison and with the COVID-19 restrictions on his ability to access services and comply with his case plan. The denial of the motion to continue “deprived the court of a crucial source of information about a topic central to the court’s resolution of the termination motion.” 381 N.C. at 117. The presence of father’s attorney did not extinguish the risk of error as counsel was not able to effectively communicate with father because of the COVID-19 restrictions. The father’s report was made to address the father’s wishes not to provide factual information about the grounds alleged. There was not another witness who could make up the informational deficiency created by father’s absence. The denial of the request for a brief continuance undermined the fairness of the hearing and was error.
• Father was prejudiced by the denial of his motion to continue. When a parent’s due process rights are violated by a motion to continue, “the challenged order must be overturned unless ‘the error was harmless beyond a reasonable doubt.’ ” 381 N.C. at 120 (citation omitted). DSS must prove the error was harmless. Regarding a parent’s testimony at a TPR hearing, although it is not an absolute right, it is a “vital source of information” and “is especially vital when it addresses facts that are central to the trial court’s adjudication of asserted grounds for termination and when no other witness is available who can accurately convey to the court the information the parent possesses.” 381 N.C. at 121. DSS and the GAL failed to meet the burden of proof that the violation of father’s due process rights was harmless beyond a reasonable doubt.

Dissent: Respondent father has not shown that but for his absence at the TPR hearing, the court would not have terminated his parental rights under any of the grounds alleged, specifically the ground that he willfully failed to pay the reasonable cost of the child’s care for the 6 months immediately preceding the TPR motion. Respondent paid zero despite being employed in the prison dining room and receiving money from his family. Respondent’s presence would not have changed the result of that ground. This ground does not require an examination of the father’s current conduct as it is focused on the six months immediately before the TPR motion is filed. There was no prejudice.