In re D.J., 2021-NCSC-105

Held: 
Affirmed
  • Facts: Mother, through counsel, requested a continuance of the TPR adjudicatory hearing so that a witness from Lincoln Community Health Center could testify. The motion was denied but the court ruled the witness could testify by phone or WebEx and allowed the attorney to call the witness. The attorney made an offer of proof that the witness was involved with mother, see her twice a month, and connects mother with services mother receives at the health center. DSS clarified there was no dispute the mother received services at the health center and that DSS had contact with the health center including the DSS worker’s unsuccessful attempts to obtain records from the witness. Mother’s attorney heard from the witness that her employer would not allow her to testify. After the conclusion of DSS’s case, the motion to continue was renewed and denied. Mother’s rights were terminated, and she appeals (she also raised an ICWA issue on appeal).
  • A motion to continue is reviewed for an abuse of discretion, unless is raises a constitutional right. Mother did not raise a constitutional right such that any argument on that issue is waived. A denial of a motion to continue requires a showing that the denial was erroneous and caused prejudice.
  • The court is guided by the Juvenile Code, which allows for a continuance beyond 90 days of the petition being filed only in extraordinary circumstances. Continuances are disfavored, and the party seeking the continuance has the burden of proving there are sufficient grounds for the continuance. The court considers whether granting or denying the continuance furthers substantial justice.
  • Mother was not prejudiced by the denial.Mother’s offer of proof was vague as it does not say what the testimony would be. There was no dispute that mother received some services at the health center. The offer of proof does not address the significance of the witness’s potential testimony and any prejudice that would arise.
Category:
Termination of Parental Rights
Stage:
Hearing
Topic:
Continuance
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