In re C.M.P., ___ N.C. App. ___, 803 S.E.2d 853 (2017)

Held: 
Affirmed
  • Facts:  Respondent mother received notice of the TPR hearing but was not present for the hearing. Her attorney, who had been representing the mother for three years and expected her to be present for the hearing, sought a motion to continue, which was denied.
  • A trial court’s decision regarding a motion to continue is discretionary. Continuances are generally disfavored; the burden is on the party seeking the continuance; and G.S. 7B-803 sets forth the standard to continue.
    • Author’s Note: Although not cited, G.S. 7B-1109(d) explicitly addresses the standard to continue a TPR.
  • If a motion to continue is based on a constitutional right, the motion raises a question of law that is reviewable on appeal. In this case, respondent argues her constitutional right to due process and effective assistance of a counsel were affected. The reasons presented for a continuance are important when considering whether the request implicates a constitutional right. Here, only one ground was raised as a reason to continue the hearing, which was respondent’s unexplained absence. Respondent did not preserve the issue of whether the motion to continue violated her constitutional right to effective assistance of counsel.
  • Previous court holdings have held that a parent’s due process rights are not violated at a TPR hearing where the parent is not present. As such, the motion to continue was not based on a constitutional right. There was no abuse of discretion in denying the motion. The court conducted a full hearing, where respondent’s attorney participated fully, including objecting, cross examining witnesses, and presenting a closing argument. The hearing was recorded. Respondent was not prejudiced.
Category:
Termination of Parental Rights
Stage:
Hearing
Topic:
Continuance
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