In re J.E., 377 N.C. 285 (2021)

Held: 
Affirmed
  • Facts:  Father appeals a TPR, arguing the court erred in denying his motion to continue, depriving him of a fair hearing and his right to due process. The TPR petition was filed on July 2, 2019, and respondent was served and in court on July 11, 2019. The hearing was continued twice upon motion of the parents – September 2019 and November 2019. At the last hearing, the respondents’ attorneys agreed to a special setting of the TPR hearing in December. At that December hearing, counsel for each parent were present but the parents were absent.
  • Standard of review of a motion to continue is an abused of discretion unless it is based on a constitutional right, which if fully reviewable as a question of law.
  • “A parent’s absence from a termination proceeding does not itself amount to a violation of due process.” 377 N.C. at 290. Father waived the argument that the denial of his motion to continue violated his constitutional rights when the reason for the motion to continue did not assert father’s constitutional rights or lack of notice to preserve due process.
  • G.S. 7B-1109 governs motions to continue a TPR and requires extraordinary circumstances when necessary for the administration of justice for any continuance going beyond 90 days after the initial petition is filed. Continuances are disfavored, and the burden of showing sufficient grounds is on the party seeking the continuance. “The chief consideration is whether granting or denying a continuance will further substantial justice.” 377 N.C. at 291. Five months had passed from the filing of the TPR petition. Father did not explain is absence or lack of contact with his attorney or DSS knowing the TPR was pending. Father did not show extraordinary circumstances. There was no abuse of discretion. Father did not argue how he was prejudiced, and such prejudice seems unlikely given his attorney’s advocacy at trial and the unchallenged findings of fact supporting the TPR.
Category:
Termination of Parental Rights
Stage:
Hearing
Topic:
Continuance
Tags:
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7B-1109
prejudice
due process