In re A.L.S., ___ N.C. ___ (June 5, 2020)

Held: 
Affirmed
  • Facts: In 2016, petitioners obtained a G.S. Chapter 50 custody order awarding them sole legal and physical custody of the child after determining both parents had acted inconsistently with their parental rights. In 2018, petitioners filed a TPR against both parents. Respondent mother requested a continuance, which was granted, so that her minor son could testify. When the TPR hearing resumed, respondent mother requested another continuance because her son was not present although he was subpoenaed through the adult he was living with. The court denied the second motion to continue. The TPR was granted, and respondent mother appeals challenging the court’s denial of her motion to continue and the ground of abandonment.
  • The standard of a review for a ruling on a motion to continue is reviewed for an abuse of discretion, unless the motion is based on a constitutional right that presents a question of law for the appellate court. “[R]egardless of whether the motion raises a constitutional issue or not, a denial of a motion to continue is only grounds for a new trial when defendant shows both that the denial was erroneous, and that he suffered prejudice as a result of the error.” Sl.Op. at 3 (citation omitted). This case does not raise a constitutional issue and is reviewed for an abuse of discretion.
  • There was no abuse of discretion in denying the motion to continue the resumed the TPR hearing, which was scheduled one month after the first motion to continue was granted. G.S. 7B-1109(d) allows for continuances beyond 90 days after the petition is filed “only in extraordinary circumstances when necessary for the proper administration of justice.” The TPR petition was filed on August 28, 2018, and the continued TPR hearing was scheduled to be heard on March 27, 2019, Mother made no showing of extraordinary circumstances. With only a vague description of the expected testimony and no affidavit or offer of proof, respondent mother failed to demonstrate any prejudice from the denial of her motion to continue.
Category:
Termination of Parental Rights
Stage:
Hearing
Topic:
Continuance
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