A Parent's Right to Be Present in Juvenile Court? Sometimes But Not Always

A recent case handed down by the North Carolina Court of Appeals addresses a question that frequently arises in juvenile court:

To what extent does a parent have a right to be present in their child’s juvenile welfare proceeding?

Addressing this issue in a February 20, 2018 decision, the court, in the case of In Re S.G.V.S, __N.C. App.__,__S.E.2d (February 20, 2018), held that a parent detained by criminal court and prohibited  from attending a termination of parental rights hearing in which she was a respondent had the right “. . . to be present at the termination and best interests hearing, to assist her counsel with the direct and cross-examination of witnesses, to testify on her own behalf, and to present any other evidence in the adjudication and disposition stages of the hearing on DHHS’ motion to terminate her parental rights.”  In the Matter of S.G.V.S. was a Haywood County termination of parental rights case where the mother’s parental rights were terminated. The respondent mother, while present on the first day of the hearing, was not present when the case was continued for further hearing due to a court date in Buncombe County on criminal trespassing charges. The TPR hearing went on in respondent mother’s absence, despite two motions to continue filed by the respondent mother’s attorney at both the adjudicatory and dispositional stages of the termination proceeding. 

Following the hearing where the mother’s parental rights were terminated, the respondent mother’s attorney filed a Rule 59 motion to re-open the evidence at the TPR hearing. Included in the respondent’s post-judgment motion request for relief was an accompanying statement filed by the respondent mother’s attorney alleging that the mother’s was prevented from attending her child’s hearing by a criminal court judge who required her to remain in court until the respondent mother’s criminal case was reached.

Citing the fact that retaining one’s custody over one’s child is a fundamental liberty interest that requires due process protections, the appeals court vacated remanded the case was particularly concerned about the juvenile court’s denial of the mother’s request to continue the termination hearing or re-open the evidence, which the trial court justified in part by a finding that the respondent mother “chose” to attend criminal court rather than attend the termination hearing.

In its decision reversing and remanding the trial court’s decision to terminate parental rights, the Court of Appeals held that “. . .[t]he trial court’s refusal to continue the hearing to a different day and denial of the Rule 59 motion to allow Respondent to attend and participate results from a misapprehension of the law and is an unreasonable and substantial miscarriage of justice.”

In re S.G.V.S, follows a similar line of reasoning articulated earlier in 2017 in the case of In re C.M.P., __N.C. App__, 803 S.E.2d 853 (2017), but reaches a different result . In that case, the Court of Appeals likewise addressed the constitutional implications of a trial court’s denial of a motion to continue at a termination of parental rights hearing. Like in S.G.V.S., a motion to continue was filed at the beginning of the proceeding due to the unanticipated delay of the respondent. The motion was denied and the trial proceeded in the respondent mother’s absence. Id. However, unlike in S.G.V.S., the respondent in C.M.P. did not account for her whereabouts and did not request to re-open the evidence. Throughout the proceeding, the respondent’s attorney was able to cross examine witnesses and object to the admission of evidence but did not preserve the constitutional issues of due process and ineffective assistance of counsel at trial that were later claimed in the appeal.

The Court of Appeals in S.G.V.S. found that the trial court did not abuse its discretion in denying the motion to continue even though it meant that the respondent would not be in court to assist the defense of their case. Among the reasons cited for this holding were that the respondent failed to preserve the issue of whether the denial of the motion violated her constitutional right to effective assistance of counsel, her attorney assisted in her defense in a recorded proceeding and the fact that respondent failed to contact the court or her counsel to inform them of any issue preventing her attendance at the hearing and provided no reason for her absence.  Quoting In re Mitchell, 148 N.C. App. 483, 559 S.E.2d 240, rev other grounds, 356 N.C. 288, 570 S.E. 2d 212 (2002),  the court addressed this last point by stating that "[c]ourts cannot permit parties to disregard the prompt administration of judicial matters. To hold otherwise would let parties determine for themselves when they wish to resolve judicial matters." 

Other reported cases have emphasized the constitutional issue of confrontation rather than effective assistance of counsel or due process. For instance, a parent in the case of In re Barkley, 61 N.C. App. 267, 300 S.E.2d 713 (1983) was removed from the courtroom while the parent's eleven-year-old son testified in a proceeding to terminate respondent's parental rights. In that case, the North Carolina Court of Appeals found no error in the court’s decision to remove the parent since the parent's right to confront the witnesses against her was protected where each party's counsel questioned the child in the courtroom and the same was recorded. Id. Similar results were reached.

In the case of In re D.R., 172 N.C. App. 300, 616 S.E.2d 300 (2005), the court went even further in its responds to a Sixth Amendment claim that a respondent had the right to confront witnesses who made statements that were admitted as out of court testimony in a termination of parental rights case. In overruling that argument, the Court simply noted that the confrontation clause was applicable to criminal proceedings not civil proceedings. Since termination cases were civil, the argument simply did not carry weight.

In summary, it appears that whether a parent has a right to be in the court room depends on several factors. If the parent has representation, if their representation effectively engages in cross examination and objection to the admission of evidence, if the proceeding is recorded, and if the parent has a good excuse for being unavailable and has attempted to continue the matter, then there is a strong likelihood that justice will require their presence. Failing any of these critical ingredients, then it appears that the likelihood that a parent will successfully prevail on a claim of ineffective assistance or lack of due process will be considerably diminished.