In re B.E., 381 N.C. 726 (2022)

  • Facts: In 2017, the juveniles were adjudicated neglected and dependent based on parents’ domestic violence, substance use, homelessness, and failure to provide adequate supervision. Later in 2017, respondents were arrested on charges of drug trafficking. Ultimately, father was convicted and incarcerated. In 2019, DSS filed a TPR petition. The TPR hearing was continued 3 times based on father’s request due to his attorney attempting to arrange for father to participate from prison. The attorney’s efforts were unsuccessful. A 4th request for a continuance was made and denied. The hearing proceeded, and the court terminated both parents’ right. Both parents appeal the grounds and father also appeals the denial of his motion to continue.
  • A motion to continue is reviewed for an abuse of discretion. If the motion is based on a constitutional right, it is reviewed de novo.
  • Father argues the denial of his motion to continue violated his due process rights; however, the motion at the trial court did not raise father’s constitutional rights and as such it is waived this appellate argument. The denial is, therefore, reviewed for an abuse of discretion.
  • G.S. 7B-1109 requires the hearing be held within 90 days absent extraordinary circumstances. Continuances are disfavored. Although the court found that father’s attorney made various extensive efforts to ensure father’s participation, those efforts went unanswered by the prison. The hearing had been continued 3 previous times and 8 months had passed since the TPR petition was filed. There was no indication another continuance would improve the chances of father’s participation. Father did not meet his burden to show there were extraordinary circumstances warranting a further continuance.
Termination of Parental Rights
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