In re S.G.V.S., ___ N.C. App. ___, 811 S.E.2d 718 (2018)

Held: 
Reversed and Remanded
  • Facts: DSS filed petitions to terminate respondent mother’s parental rights to her two children, who had been adjudicated neglected and dependent. The TPR hearing started on December 13, 2016 and was continued to January 18 and 19, 2017. Respondent mother was previously scheduled to be in a different court in a different county for a pending criminal charge on January 18, 2017. At the start of the January 18, 2017 TPR hearing, counsel for respondent mother requested a continuance to January 19 as respondent was present in the other county court for her criminal matter. The court denied the motion to continue. At the conclusion of the TPR hearing, respondent’s counsel requested that matter be left open to allow her client to appear and testify. The court denied the motion. Before a written order was entered, respondent’s attorney filed a Rule 59 motion to re-open the evidence, which was denied after finding that respondent had been advised to continue her criminal matter and that she chose to attend the criminal action rather than the TPR hearing. Respondent mother’s rights were terminated.
  • Due process applies to a parent’s liberty interest to care, custody and control of their child. Due process insures fundamental fairness in a judicial proceeding that may adversely affect the individual’s protected rights. Although “due process does not provide a parent with an absolute right to be present at a termination hearing… the magnitude of ‘the private interests affected by the proceeding, clearly weighs in favor of a parent’s presence at the hearing.’ ” (citing In re Murphy, 105 N.C. App. 651, 654 (1992); In re Quevedo, 106 N.C. App. 574, 580 (1992)).
  • Rule 59 of the N.C. Rules of Civil Procedure allows for a new trial due to “any irregularity by which any party was prevented from having a fair trial,” and a trial court has discretion to re-open a case to admit additional testimony after the conclusion of the hearing. An appellant court may disturb an order made under the discretionary power of Rule 59 when the appellate court “is reasonably convinced by the cold record that the trial judge’s ruling probably amounted to a substantial miscarriage of justice.” Worthington v. Bynum, 305 N.C. 478, 487 (1982). No evidence supports the finding that respondent chose to attend her previously scheduled criminal matter instead of the TPR hearing. In North Carolina, the district attorney controls the calendaring of cases in criminal court, and there was no showing that a motion to continue would have been permitted. Respondent’s choice was to attend her previously scheduled criminal matter or attend the TPR hearing and face a new criminal charge of failing to appear at the criminal hearing.
  • Based on the record and magnitude of the interests at stake in a TPR, the denial of the motion to continue the hearing and to re-open the evidence to allow respondent mother to participate “results from a misapprehension of the law and is an unreasonable and substantial miscarriage of justice.”
Category:
Termination of Parental Rights
Stage:
Hearing
Topic:
Due Process
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