In re B.B., 381 N.C. 343 (2022)
Held:
Affirmed
There is a dissent
by Earls, J. (IAC Claim)
- Facts: In 2019, the juveniles were adjudicated neglected and dependent. Later that year, DSS filed a TPR motion. Mother had been incarcerated but was released the day before the TPR hearing. Mother did not appear at the TPR hearing. A motion to continue was requested by mother’s counsel, which was denied. The TPR was granted. Respondent appealed.
- Continuances are disfavored. The party seeking the continuance has the burden of showing there are grounds to continue under G.S. 7B-1109, which requires extraordinary circumstances when a continuance goes beyond 90 days from when the petition is filed. A denial of a motion to continue is grounds for a new trial when (1) the denial was an error, and (2) the respondent was prejudiced by the denial. Mother did not show she was prejudiced as she did not show that she would have testified and that her testimony would have changed the outcome.
- Mother argues she received ineffective assistance of counsel because they did not ensure she was present at the TPR hearing. Mother must show (1) the counsel’s performance was deficient such that she was denied a fair hearing, and (2) that there was a reasonable probability that there would have been a different outcome but for her attorney’s deficient performance. The binding findings of fact show respondent mother did not meet her burden that there was a reasonable probability of a different result.
Category:
Termination of Parental RightsStage:
Appointment of CounselTopic:
Ineffective Assistance of Counsel