In re M.T.-L.Y., 265 N.C. App. 454 (2019)
Held:
Affirmed in Part; Vacated in Part; and Remanded
- Facts: DSS filed a TPR motion in an underlying neglect action after the first permanency planning order ceased reunification efforts with mother and entered a primary permanent plan of adoption and secondary plan of guardianship. Although mother was present at the TPR hearing, her attorney moved to continue the TPR hearing on the basis that she had little contact with mother before the hearing date. The motion to continue was denied. After a hearing, the court granted the TPR. Mother appeals arguing the denial of the motion to continue violated her constitutional right to effective assistance of counsel as she was not able to have sufficient in person communication to prepare.
- Continuance and Effective Assistance of Counsel: The appellate court reviews a decision on a motion to continue for an abuse of discretion. If the denial of a motion to continue involves the right to effective assistance of counsel, it is a reviewable question of law, which is reviewed de novo. Parents have a right to effective assistance of counsel in a TPR proceeding, which includes adequate time for the client and counsel to prepare a defense. Prejudice is presumed when a continuance that is essential to allow for adequate time to prepare for trial is denied; however, a court does not err in denying the motion to continue when the lack of preparation results from a party’s own action. Mother’s attorney was the same attorney who had been representing her for a year in the neglect action. They had effectively communicated by alternative means including email, phone, and text. There was three months between the motion and hearing to prepare. Mother was not deprived of effective assistance of counsel and there was no error in denying the motion to continue.
Category:
Termination of Parental RightsStage:
HearingTopic:
Continuance