In juvenile court, often the most feared word uttered in the
courtroom is that of “continuance”. There are a lot of reasons for this fear
and a number of good arguments that continuances in a juvenile case may not be
the best thing for children. Many would agree that at the top of the list of
arguments against continuances in juvenile court, one could say that by
continuing a case, the child who is the subject of the case will be have their
permanence delayed. Permanence in this context means one of two things: either
the child returns back to the parental home or the child continues on to a home
that is not that of a parent, either to one of a relative or nonrelative
kinship, or a foster care placement, in the shortest possible time. This notion
of expedited juvenile permanence has a long history, dating back to the passage
of the Adoption and Safe Families Act of 1997, where the specter of children
languishing in the child welfare system and long term foster care--the chief
enemies confronted by Congress with this legislation—were sought to be forever
banished from American juvenile courts. Since
1997, North Carolina has increasingly seen an amplification of concern about
timeliness in juvenile proceedings, from the passage and imposition of a number
of increasing time standards for juvenile hearings to the adoption of expedited
appellate procedures by the North Carolina Court of Appeals.
While in most respects the attention to timeliness of
juvenile hearings and concern for attaining permanence for children in the
shortest time possible is a good thing, it should also be remembered that there
is another side of the story out there that must be taken into consideration
when decisions are made regarding whether to continue a case. That other side
of the story is that relating to the constitutionally protected due process rights
of parents in juvenile proceedings.
Due process in juvenile court takes in a great deal of territory,
from issues of service and notice of the issues alleged in a juvenile petition
to able to be present in court and to have the effective assistance of counsel.
Not every one of these rights are absolute: they may be waived or, in the case
of a parent who engages in belligerent or disruptive behavior in the courtroom,
may be nullified by parental behavior inconsistent with the rights afforded by
the Constitution. Nonetheless, in every consideration by a judicial official
with regard to whether to grant a motion to continue in a juvenile case, both
the best interest of the juvenile as well as the rights of the parent or
parents need to be fully considered and appropriately weighed before a ruling
is handed down.
But isn’t this obvious to everyone?
Not necessarily. There are a number of advocates in the
North Carolina legal community who favor strict adherence to statutory guidelines,
adopting the mantra that “if the statute says shall, then “shall” means “shall.”
These advocates would most certainly be right if the courtroom reality was that
DSS attorneys, GAL attorney advocates, or court appointed attorneys had witnesses
who stuck with their original story, if subpoenaed records arrived in court on
time, if there were no such thing as secure leave or personal illness, or if no
attorney had other court obligations other than that of juvenile court.
But this is not the reality in North Carolina’s juvenile
court rooms. Even though the word “shall” is used, sometimes that term must be
used in the aspirational sense with due emphasis placed on the famous footnote of
all economic literature, that “shall” shall mean “shall” under conditions of “ceteris paribus” or “if all other things
are equal”.
Legal dogmatism has its place but divorced from the facts of
everyday reality, such dogmatism places undue emphasis on form over substance. The
United States has long rejected the feudal legal notion where legal form was equivalent
to the notion of possession: being nine-tenths of the law. Insistence upon a “no
continuance policy” is just another legal feudalism. It must be rejected in
favor of the trial judge’s full consideration of the substantive as well as the
procedural facts, with both the needs of the juvenile and the rights of the
parents being taken into consideration.
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