In re L.G.A.

857 S.E.2d 761

In the MATTER OF: L.G.A.

No. COA20-148

Court of Appeals of North Carolina.

Filed April 20, 2021

Charles E. Wilson, Jr., Shelby, for petitioner-appellee Cleveland County Department of Social Services.

Benjamin J. Kull, Raleigh, for respondent-appellant-mother.

Michelle FormyDuval Lynch, for Guardian ad Litem.

STROUD, Chief Judge.

¶ 1 Mother appeals from a review hearing order granting sole legal and physical custody of their minor child to Father. Mother argues the trial court erred by denying her motion for a continuance, by concluding it was in Lloyd's¹ best interest for Father to have full custody, and by ordering her to pay for professional visitation supervision without determining her present ability to pay. We affirm as to the denial of her motion to continue and the decision to grant full custody of Lloyd to Father but vacate and remand for additional findings on Mother's present ability to pay for professional visitation supervision.

I. Background

¶ 2 Mother and Father have one child together, Lloyd. One week after Lloyd's birth, the parties were involved in an act of domestic violence while Father was holding Lloyd. Cleveland County Department of Social Services ("DSS") took custody of Lloyd following this incident, and he was adjudicated neglected on 15 December 2017. Father then regained custody of Lloyd, but after another incident of domestic violence Lloyd was placed in the custody of DSS.

¶ 3 On 2 May 2018 Mother and Father stipulated to findings of fact related to the second incident of domestic violence, and Lloyd was adjudicated as a neglected juvenile for a second time. Mother previously had several attorneys withdraw as counsel, and following a 1 May 2019 review hearing, the trial court indicated Mother's visitation would revert to a previous schedule if she was rude to a social worker. The next day Mother demanded to meet with her social worker, complained about the visitation plan entered the day before, and made 14 separate calls to DSS. Mother threatened the social worker and was asked to leave DSS's premises.

¶ 4 Mother was convicted of misdemeanor communicating threats against a previous social worker, and a condition of her bond was that she was prohibited from contacting her previous social worker. Mother violated the condition of her bond by texting her previous social worker; as a result, her bond increased, and she was prohibited from entering DSS's premises.

¶ 5 Father filed a review motion on 9 August 2019 and requested custody of Lloyd. Mother filed a motion to continue the hearing, but her motion was denied. Father's motion was heard on 25 September 2019. An order following the review hearing was entered on 25 November 2019 and granted full physical and legal custody to Father. Mother was incarcerated at that time and the order provided for supervised visitation for Mother upon her release from jail. Mother timely appealed from the order.

II. Continuance

¶ 6 Mother argues, "[t]he court erred by denying [her] motion for a brief continuance because the importance of the constitutional and parental interests at stake far outweighed any competing interests."

A. Standard of Review

¶ 7 "Ordinarily, a motion to continue is addressed to the discretion of the trial court, and absent a gross abuse of that discretion, the trial court's ruling is not subject to review." In re A.L.S. , 374 N.C. 515, 516-17, 843 S.E.2d 89, 91 (2020) (quoting State v. Walls , 342 N.C. 1, 24, 463 S.E.2d 738, 748 (1995) ). "If, however, the motion is based on a right guaranteed by the Federal and State Constitutions, the motion presents a question of law and the order of the court is reviewable." Id. at 517, 843 S.E.2d at 91 (quoting State v. Baldwin , 276 N.C. 690, 698, 174 S.E.2d 526, 531 (1970) ). "[D]enial of a motion to continue is only grounds for a new trial when defendant shows both that the denial was erroneous, and that [s]he suffered prejudice as a result of the error." Id. (quoting State v. Walls , 342 N.C. at 24-25, 463 S.E.2d at 748 ).

¶ 8 Mother's motion for a continuance alleged constitutional violations of her right to due process, and that she would "be obligated to assert her Fifth Amendment right to not incriminate herself in her criminal matter ... if the hearing is scheduled prior to her arraignment date during the October 7, 2019 trial term." Because Mother raised the constitutional basis for her argument before the trial court, we review this issue de novo. See id.

B. Analysis

¶ 9 Mother argues, "[t]he court improperly forced [her] to choose between exercising her right not to incriminate herself and testifying regarding the fate of her son." In her motion, Mother made general allegations about ongoing plea negotiations in her pending criminal charges and alleged she was scheduled to appear in superior court on the criminal matters in October 2019, when all of the criminal matters "will then be resolved in their entirety if she so chooses to tender a plead [sic] of guilty." She also alleged she was a "material witness" in defense of Father's motion for review, although she did not specify any particular issues her testimony may address. She did not allege any need for additional evidence, reports, or assessments that the court had requested or any other additional information regarding the child's best interests. We note that Father's motion for review did not make any allegations regarding Mother other than a reference to their history of a "toxic" relationship with "incidents of domestic violence," referring to incidents that had already been addressed in prior hearings. The motion for review addressed Father's own progress since the prior orders, specifically his completion of "the IMPACT program," his successful unsupervised visitation for over two months, his residence in a "safe and stable home," his "resources to solely provide for the minor child's care," his completion of all requirements in the trial court's dispositional order, and the temporary placement of the child with him for care when the child was sick and the foster parents "were unable to find coverage for him."

¶ 10 Continuances in this context are governed by North Carolina General Statute § 7B-803 :

The court may, for good cause, continue the hearing for as long as is reasonably required to receive additional evidence, reports, or assessments that the court has requested, or other information needed in the best interests of the juvenile and to allow for a reasonable time for the parties to conduct expeditious discovery. Otherwise, continuances shall be granted only in extraordinary circumstances when necessary for the proper administration of justice or in the best interests of the juvenile. Resolution of a pending criminal charge against a respondent arising out of the same transaction or occurrence as the juvenile petition shall not be the sole extraordinary circumstance for granting a continuance.

N.C. Gen. Stat. § 7B-803 (2013). Additionally, N.C. Gen. Stat. § 7B-1109(d) provides: "Continuances that extend beyond 90 days after the initial petition shall be granted only in extraordinary circumstances when necessary for the proper administration of justice, and the court shall issue a written order stating the grounds for granting the continuance." Id. § 7B-1109(d) (2013).

In re C.J.H. , 240 N.C. App. 489, 493, 772 S.E.2d 82, 86 (2015).

¶ 11 Under North Carolina General Statute § 7B-803, Mother had the burden of demonstrating good cause for a continuance, which may include the need for additional time "to receive additional evidence, reports, or assessments that the court has requested, or other information needed in the best interests of the juvenile and to allow for a reasonable time for the parties to conduct expeditious discovery." N.C. Gen. Stat. § 7B-803 (2019). Since she did not allege a need for this type of information, Mother had the burden to demonstrate "extraordinary circumstances when necessary for the proper administration of justice or in the best interests of the juvenile." Id. ¶ 12 Mother's sole basis for requesting a continuance was that she was awaiting trial for charges of communicating threats to a previous social worker and assistant district attorney. She argues she was effectively prevented from testifying to avoid waiver of her Fifth Amendment rights against self-incrimination. Based upon her argument, any parent who has pending criminal charges might be able to delay hearings under Chapter 7B indefinitely, on the theory that the parent may need to present some testimony that could be used against her in a pending criminal charge, even if the charge is unrelated to the "same transaction or occurrence as the juvenile petition." Id. But North Carolina General Statute § 7B-803 does not support this argument, as it provides that even "[r]esolution of a pending criminal charge against a respondent arising out of the same transaction or occurrence as the juvenile petition shall not be the sole extraordinary circumstance for granting a continuance ." Id. (emphasis added). Thus, even if the criminal charges against Mother had arisen from the "same transaction or occurrence as the juvenile petition," she would still have to demonstrate other extraordinary circumstances to support a request for continuance. See id. The charges against Mother did not arise from the "transaction or occurrence" which led to the juvenile petition; they arose after the petition.

¶ 13 The trial court discussed Mother's motion for a continuance and all parties indicated that they did not intend to question her if she chose to testify:

We then discussed testimony, was presented to the Court that Mr. Caulder nor Mr. Wilson nor Ms. Dow had any intent of questioning [Mother] at all. Did not say they wouldn't but said that they were not planning on asking her any questions at all. But, she one hundred percent will not be called as an adverse witness by any parties with the exception of [her own attorney].

The trial court...