In re A.M.C., 381 N.C. 719 (2022)
Held:
Affirmed
- Facts: In 2019, the juveniles were adjudicated neglected and dependent. On January 25, 2021, DSS filed a TPR motion. The TPR hearing was scheduled for April 8th but was continued to April 16th. At the TPR hearing, mother’s attorney requested a continuance that was denied. The TPR was granted, and mother appeals. Mother argues her attorney did not have an opportunity to adequately prepare for the hearing when the motion to continue was denied.
- Requesting a motion to continue to have more time to prepare does not equate to a motion based on a constitutional right. Because the motion to continue before the trial court was not based on a constitutional right, the standard of review is an abuse of discretion. Any argument the motion was based on a constitutional right is waived.
- In considering an abuse of discretion, the appellate court looks to the Juvenile Code, which allows for a continuance beyond 90 days when extraordinary circumstances exist and are necessary for the proper administration of justice. Mother did not show extraordinary circumstances existed to continue the hearing beyond 90 days (the hearing was scheduled on the 81st day). Although mother was incarcerated when the TPR was heard, her 35 days of incarceration out of the 81-day period from the motion being filed and the hearing being held are not extraordinary circumstances. Conjecture that jail staff interfered with her preparation with her attorney is insufficient; there must be direct evidence of interference.
- Mother has not proved ineffective assistance of counsel due to the denial of the motion to continue. Her attorney had been appointed to represented her in 2019, filed an answer to the TPR motion, made objections, and cross-examined a witness.
Category:
Termination of Parental RightsStage:
Appointment of CounselTopic:
Ineffective Assistance of Counsel