In re H.A.J., ___ N.C. ___ (March 19, 2021)

Held: 
Affirmed
  • Facts: In 2018, the juveniles were adjudicated neglected based on circumstances related to mother’s substance use and the children’s exposure to domestic violence. At a 2019 permanency planning hearing, DSS and the children’s GAL recommended that reunification be eliminated as a permanent plan. Mother objected due to lack of notice of that recommendation and due process concerns. The court proceeded with the hearing and ordered concurrent plans of adoption and guardianship, eliminating reunification as a permanent plan. Mother preserved her right to appeal. DSS filed a TPR petition, which was granted on the ground of neglect. Mother appeals both orders.
  • A motion to continue is reviewed for an abuse of discretion, but if it is based on a constitutional right, it is a question of law that is fully reviewable. A respondent must show material prejudice or how her case would have been better prepared when arguing the trial court’s failure to provide additional time is a constitutional violation. Here there was no error or violation of mother’s due process rights.
    • The hearing was designated as a permanency planning hearing such that mother had notice that the court could change the children’s permanent plan and that she needed to present evidence regarding her position for the proper disposition for the juvenile. The Juvenile Code does not require notice of a change in recommendations be provided. Further, a court is not required to follow a DSS recommendation.
    • It is unclear if mother requested a continuance as opposed to making an objection, but if it were a request for a continuance, nothing in the record demonstrated how mother was materially prejudiced by a denial of a motion to continue and her brief does not identify evidence, defenses, or testimony she was unable to present at trial.
  • Findings under G.S. 7B-906.2(b) and (d) are required when eliminating reunification as a permanent plan. A verbatim recitation of the statutory language is not required. Although not using that precise statutory language, the court addressed the statutory factors required by G.S. 7B-906.2(d) “by showing ‘that the trial court considered the evidence in light of whether reunification would be futile or would be inconsistent with the juvenile’s health, safety, and need for a safe, permanent home within a reasonable period of time’ ” Sl.Op. ¶16.
Category:
Abuse, Neglect, Dependency
Stage:
Cease Reunification
Topic:
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