In re M.M., 272 N.C. App. 55 (2020)

  • Facts: Since the juvenile’s birth in 2010, there has been an extensive litigation history involving custody of the juvenile, including a a previous DSS action in which the juvenile was adjudicated neglected and a Chapter 50 custody action with multiple orders entered. There is significant animosity and conflict between the parents regarding the child’s custody, and the child is often exposed to that and father’s poor boundaries about his anger toward mother. In 2018, DSS filed a new petition. The child was adjudicated abused due to serious emotional damage and neglect due to injurious environment. An initial dispositional order was entered that granted physical and legal custody to mother and visitation to father as well as individual and parent counseling for each parent. Respondent father appeals – one of his arguments is that the court abused its discretion in not allowing him to depose the social worker.
  • Discovery:  Rulings on discovery matters are reviewed for an abuse of discretion. Discovery in an abuse, neglect, or dependency action is governed by G.S. 7B-700. The social worker was noticed and subpoenaed for a deposition by the father’s attorney pursuant to Rule 30 of the Rules of Civil Procedure. A motion for discovery under G.S. 7B-700, which did not have a request for a deposition, was filed with the court on the same day. DSS opposed the noticed deposition, arguing the provisions of G.S. 7B-700(a) and (c) must be followed, which requires information sharing and, if necessary, a motion for discovery requesting the deposition. The trial court instructed father to first seek information under G.S. 7B-700(a) (information sharing) and if needed to file a motion for deposition under G.S. 7B-700(c). This instruction by the trial court was not a denial of the discovery request, as such there was no abuse of discretion. Further, the court did not err when it did not permit the deposition under Rule 30 because “the Rules of Civil Procedure apply only when they do not conflict with the Juvenile Code and only to the extent that the Rules advance the purposes of the legislature as expressed in the Juvenile Code.” Sl.Op. at 11 (citation omitted).
Abuse, Neglect, Dependency
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