In re L.G.A., 277 N.C. App. 46 (2021)
Held:
Affirmed in Part
Vacated and Remanded in Part
- Facts: The juvenile was adjudicated neglected due to domestic violence between the parents and the case continued through dispositional hearings. During the course of the case, the mother had been represented by multiple attorneys and had been convicted of misdemeanor communicating threats against a previous DSS social worker. She was also banned from contacting that social worker or from entering the DSS office. In 2019, father filed a motion for review seeking custody of the juvenile, alleging positive changes to his situation. Mother requested a continuance which was denied. The court awarded full legal and physical custody of the juvenile to father and provided supervised visitation to mother upon her release from jail. Mother appealed. One issue is focused on whether the court erred in denying her continuance based on constitutional rights.
- Standard of review for a motion to continue is an abuse of discretion unless the motion is based on a constitutional right, which presents a question of law. A new trial is required when there is a showing that both (1) the denial was erroneous and (2) the party suffered prejudice as a result.
- G.S. 7B-803 addresses motions to continue, which requires mother meet the burden of showing good cause regarding the need additional evidence requested by the court or other information addressing the best interests of the juvenile or the completion of expeditious discovery. Mother did not allege this type of information, such that mother had the burden of proving extraordinary circumstances for the proper administration of justice or the child’s best interests. Mother’s request is based on her constitutional right against self-incrimination while she had a pending criminal charge for communicating threats. G.S. 7B-803 does not support her argument since a pending criminal charge arising out of the same incident as the juvenile case shall not be the sole extraordinary circumstance. She was not statutorily entitled to a continuance. Additionally, mother’s criminal charges did not arise from the same incident; they were based on her actions after the petition was filed. The parties indicated they had no intention of questioning her if she chose to testify. The trial court offered to act as a gatekeeper. Mother did not testify. “The trial court provided adequate safeguards to protect Mother’s due process rights.” 277 N.C. App. at 51.
Category:
Abuse, Neglect, DependencyStage:
Disposition (All Stages Post-Adjudication)Topic: