In re M.R.B., ___ N.C. App. ___ (December 17, 2024)
Held:
Affirmed
There is a dissent
by Collins, J.
- Facts: Mother appeals TPR adjudication and disposition orders. The child at issue was adjudicated neglected. During permanency planning, Mother was regularly absent but represented by counsel at hearings. The child’s permanent plan was changed to adoption after Mother was found to have not made sufficient progress on her case plan. Mother was present and represented at a TPR filing status hearing, after which DSS filed a motion to TPR Mother’s rights the same day. DSS failed to issue notice until over two weeks after filing the TPR motion. When DSS issued the TPR notice, the notice also noticed the TPR hearing date, time and place, set for 27 days later. The morning of the TPR hearing, Mother’s attorney moved to continue on the grounds that Mother’s statutory 30-day window to file a written response to the TPR notice had not expired and counsel had been unable to contact Mother prior to the day of the hearing. The motion was denied. The court proceeded to hold the hearing and concluded grounds existed to TPR and that TPR was in the child’s best interest. Mother argues the trial court prejudicially erred in denying her motion to continue.
- When a motion to TPR is filed in a pending juvenile proceeding, G.S. 7B-1106.1(a) requires the movant to prepare a notice to listed individuals, including parents of the juvenile. G.S. 7B-1106.1(b) lists required content of the notice: name of the juvenile, the purpose of the hearing, the parents’ rights with regard to response and representation, and notice that the date, time, and place of the hearing will be mailed by the moving party upon filing of a response or 30 days from the date of service if no response if filed. Two notices are contemplated by the statute.
- Appellate case law has held that failure to provide the TPR notice required by G.S. 7B-1106.1 is necessarily prejudicial and requires a new hearing, while failure to timely serve the subsequent notice of hearing identifying the date, time, and place pursuant to G.S. 7B-1106.1(b)(5), where the TPR notice was given, is subject to a harmless error analysis.
- DSS collapsed the notice requirements into one notice. DSS erred in untimely serving the TPR notice as it did not issue until weeks after the TPR motion was filed and prematurely issued the notice of hearing, which included the hearing date, time, and place required by G.S. 7B-1106.1(b)(5). Additionally, the hearing date noticed was a date prior to the expiration of time Mother had to respond to the TPR notice pursuant to G.S. 7B-1106.1(b). However, Mother failed to demonstrate prejudice from the untimely notice(s). The notice satisfied all the elements of G.S. 7B-1106.1. Mother (and counsel) were present at the status hearing, which was on the same day the TPR motion was filed; was served and had actual notice of the TPR hearing; did not object to the notice or move for a continuance prior to the date of the hearing; proffered no responsive pleading or defenses for which she argued she needed more time to prepare; was able to contact her counsel; and was present and testified at the hearing. Further, Mother did not challenge the adjudication of TPR grounds or the court’s disposition. The court did not commit prejudicial error in denying the motion to continue.
- Dissent: Mother was prejudiced by DSS’s failure to provide the statutorily required notice. The trial court committed reversible error by holding the proceeding in violation of the statutory mandates of G.S. 7B-1106.1. Mother was entitled to rely upon the 30-day time period afforded by G.S. 7B-1106.1(b)(5) to prepare her case.
Category:
Termination of Parental RightsStage:
HearingTopic:
Continuance