In re S.M., 375 N.C. 673 (2020)

  • Facts: The six children had been adjudicated neglected based on dirty conditions in the home, poor hygiene, lack of schooling, domestic violence, and substance abuse. A case plan addressing these issues, the need for a mental health assessment, and a psychosexual evaluation by father due to allegations of sexual abuse of one of the children was ordered. After the parents' noncompliance with the case plan, DSS filed TPR petitions alleging neglect and failure to correct the conditions. On the day of the TPR hearing, 89 days after the TPR was filed, father’s attorney moved for a continuance because the psychosexual evaluation had been received the day before. The court denied the request based on the father’s choosing to significantly delay obtaining the evaluation. The TPR was granted, and both parents appeal challenging the best interests determination. Mother challenges the grounds as well. Father also challenges the court’s denial of his motion to continue the hearing.
  • Father argues the denial of the continuance violated his constitutional right to due process, and combined with the right to counsel and to confront witnesses includes a reasonable time to prepare for the hearing. When the motion is based on a constitutional right, it is a question of law that is reviewed de novo. Otherwise, the denial of a motion to continue is reviewed for an abuse of discretion.
  • Father did not raise the constitutional issue at the hearing requesting the continuance but instead states the continuance was needed so father could respond to the evaluation by following the recommendations. As such, father waived this argument such that an abuse of discretion review is appropriate.
  • G.S. 7B-1109(d) addresses continuances in a TPR with the chief consideration being whether the continuance will further substantial justice. Continuances are not favored, and the party seeking the continuance has the burden of showing the grounds to continue exist. Father failed to prove extraordinary circumstances for the proper administration of justice existed such that the hearing should be continued beyond the 90-day time limit. Father’s procrastination was the reason for the delay in the psychosexual evaluation and did not rise to extraordinary circumstances. There was no abuse of discretion.
Termination of Parental Rights
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