[1] Respondent presents a single argument on appeal, in which
he asserts that the trial court committed reversible error by
denying his motion for a continuance. We disagree.
In the introduction to its order the trial court states:
[Defense counsel] made a motion to continue
the hearing on behalf of [respondent] to allow
additional time for preparation. After
hearing arguments from the parties, the motion
to continue was denied.
Defendant failed to include in the record either his motion to
continue or a transcript of the proceedings. Accordingly, our
review of the court's ruling is based on the trial court's
statement and on other record evidence. “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.”
State v. Taylor, 354 N.C. 28, 33, 550 S.E.2d 141, 146 (2001)
(citing State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430, 433
(1981)). “'Continuances are not favored and the party seeking a
continuance has the burden of showing sufficient grounds for it.
The chief consideration is whether granting or denying a
continuance will further substantial justice.'” In re Humphrey,
156 N.C. App. 533, 538, 577 S.E.2d 421, 425 (2003) (quoting Doby v.
Lowder, 72 N.C. App. 22, 24, 324 S.E.2d 26, 28 (1984)). “However,
if 'a motion to continue is based on a constitutional right, then
the motion presents a question of law which is fully reviewable on
appeal.'” State v. Jones, 342 N.C. 523, 530-31, 467 S.E.2d 12, 17
(1996) (quoting State v. Covington, 317 N.C. 127, 129, 343 S.E.2d
524, 526 (1986)).
Although respondent argues on appeal that the trial court's
denial of his continuance motion implicates his due process right
to effective assistance of counsel, his continuance motion is not
in the record, so there is no way to know if the original motion
was based on constitutional grounds. However, even assuming,
arguendo, that respondent's continuance motion was based on a
constitutional right, respondent nonetheless failed to show
prejudice:
To establish that the trial court's failure to
give additional time to prepare constituted a
constitutional violation, defendant must show
“how his case would have been better preparedhad the continuance been granted or that he
was materially prejudiced by the denial of his
motion.” “[A] motion for a continuance should
be supported by an affidavit showing
sufficient grounds for the continuance.”
“'[A] postponement is proper if there is a
belief that material evidence will come to
light and such belief is reasonably grounded
on known facts.”
State v. McCullers, 341 N.C. 19, 31-32, 460 S.E.2d 163, 170 (1995)
(quoting State v. Covington, 317 N.C. 127, 130, 343 S.E.2d 524, 526
(1986); State v. Kuplen, 316 N.C. 387, 403, 343 S.E.2d 793, 802
(1986); and State v. Tolley, 290 N.C. 349, 357, 226 S.E.2d 353, 362
(1976) (other citation omitted)).
Respondent has cited general authority for his right to due
process and the effective assistance of counsel, guaranteed under
the United States and North Carolina Constitutions. However, he
does not explain why his counsel had inadequate time to prepare for
the hearing; what specifically his counsel hoped to accomplish
during the continuance; or even how much additional time was
requested. For example, although respondent asserts that he was
unable to meet with counsel until the night before the hearing, the
record is uncontradicted that counsel was appointed three weeks
before the hearing. Respondent offers no explanation for his
counsel's failure to interview him in the Wake County jail until
the day before the hearing. Nor does he indicate with any
specificity in what way his preparation would have been more
complete had the continuance motion been granted. Instead,
respondent concedes that “there is no way of knowing how Respondent
Thorpe's counsel might have performed had he had adequate time.” Moreover, “numerous factors . . . are weighed to determine
whether the failure to grant a continuance rises to constitutional
dimensions. Of particular importance are the reasons for the
requested continuance presented to the trial judge at the time the
request is denied.” State v. Roper, 328 N.C. 337, 349, 402 S.E.2d
600, 607 (1991) (citing Ungar v. Sarafite, 376 U.S. 575, 589, 11 L.
Ed. 2d 921, 931 (1964)). As noted above, the record does not
include the trial transcript or the continuance motion. We are,
therefore, unable to determine the nature of the reasons proffered
at the hearing in support of his continuance motion.
On this record we are unable to conclude that the trial court
abused its discretion in denying respondent's motion to continue,
or that the denial of respondent's continuance motion resulted in
a denial of respondent's constitutional rights. This assignment of
error is overruled.
[2] The cross-appellant, Wake County Human Services, appeals
the trial court's denial of its motion to dismiss respondent's
appeal. Cross-appellant argues that respondent was required to
serve on it a copy of the affidavit of indigency executed by
respondent for determination of his eligibility for appointed
counsel. Cross-appellant does not argue that it was prejudiced by
the failure of respondent to serve a copy of the affidavit.
Instead, cross-appellant contends that respondent's failure to
serve a copy of the affidavit of indigency deprives this Court ofjurisdiction, and requires dismissal of respondent's appeal. We
disagree for several reasons.
First, cross-appellant's argument is based on the erroneous
premise that “entitlement of [respondent] to appeal as an indigent
is controlled by N.C.G.S. § 1-288[.]” We conclude that, on the
facts of this case, respondent's status as an indigent was not
determined or governed by this statute. N.C.G.S. § 1-288 (2003)
provides in part that:
When any party to a civil action . . . desires
an appeal from the judgment rendered in the
action to the Appellate Division, and is
unable, by reason of poverty, to make the
deposit or to give the security required by
law for the appeal . . . [t]he party desiring
to appeal . . . shall, within 30 days after
the entry of the judgment or order, make
affidavit that he or she is unable by reason
of poverty to give the security required by
law. . . .
G.S. § 1-288 is a broad statute addressing the general right of
“any party to a civil action” to pursue an appeal as an indigent.
Thus the statute could theoretically, in appropriate factual
circumstances, apply to an appellant from a termination of parental
rights proceeding.
However, in the instant case, as in the vast majority of
termination of parental rights appeals, respondent sought appointed
counsel at the hearing and on appeal. Accordingly, the
determination of his indigency was governed by N.C.G.S. § 7A-450
(2003),
et seq. N.C.G.S. § 7A-450 (a) (2003) states that an
“indigent person is a person who is financially unable to secure
legal representation and to provide all other necessary expenses ofrepresentation in an action or proceeding enumerated in this
Subchapter.” G.S. § 7A-450,
et seq. deals specifically with the
determination of indigency of a termination of parental rights
respondent seeking appointed counsel, while G.S. § 1-288 addresses
general procedures for indigent appeals in civil cases. “Where one
of two statutes might apply to the same situation, the statute
which deals more directly and specifically with the situation
controls over the statute of more general applicability.”
Trustees
of Rowan Tech. v. Hammond Assoc., 313 N.C. 230, 238, 328 S.E.2d
274, 279 (1985) (citations omitted). We conclude that where, as in
the instant case, the respondent seeks appointed counsel,
procedures for determining indigency are governed by G.S. § 7A-450,
et seq. This conclusion is further bolstered by
N.C.R. App. P. 12,
which acknowledges that certain indigent appeals are governed by
G.S. § 7A-450,
et seq. See N.C.R. App. P. 12(b) (“If an appellant
is authorized to appeal
in forma pauperis as provided in G.S. 1-288
or 7A-450
et seq., . . . ”).
Secondly, the record does not indicate any reason why this
respondent would be required to execute, in addition to the
original affidavit of indigency executed 5 August 2003, another
affidavit subsequent to the conclusion of the termination of
parental rights hearing to satisfy the terms of G.S. § 7A-450,
et
seq. Under N.C.G.S. § 7A-451(a)(14) (2003), “[a]n indigent person
is entitled to services of counsel in the following actions and
proceedings . . . (14) [a] proceeding to terminate parental
rights[.]” Further, N.C.G.S. § 7A-451(b)(6)(2003) provides that (b) In each of the actions and proceedings
enumerated in subsection (a) . . . entitlement
to the services of counsel begins as soon as
feasible after . . . service is made upon [the
indigent] of the . . . petition, notice or
other initiating process.
Entitlement
continues through any critical stage of the
action or proceeding, including, if
applicable: . . .
(6) Review of any judgment or decree
pursuant to G.S. 7A-27[.]
(emphasis added). Thus, N.C.G.S. § 7A-451(6) (2003) expressly
states that entitlement to counsel
continues during appeal, and
does not require execution of a new affidavit of indigency on
appeal in every case. Of course, the “question of indigency may be
. . . redetermined by the court at any stage of the action or
proceeding at which an indigent is entitled to representation.”
N.C.G.S. § 7A-450(c) (2003). Accordingly, the court always has
authority to re-examine the issue of a respondent's entitlement to
appellate counsel if it becomes appropriate to do so. However, in
a termination of parental rights proceeding, determination of a
respondent's indigency is made before the hearing when counsel is
appointed. Absent a determination by the court that the issue of
indigency should be redetermined, the respondent's entitlement to
counsel continues on appeal, without the necessity of a new
affidavit of indigency.
We also disagree with cross-appellant's assertion that N.C.R.
App. P. 26 required respondent to serve his affidavit of indigency
on all parties. N.C.R. App. P. 26 provides in relevant part that:
[(a)] Papers
required or permitted by these
rules to be filed in the trial or appellate
divisions shall be filed with the clerk of theappropriate court. . . .
[(b)] Service of all papers required. Copies
of all papers filed by any party and not
required by these rules to be served by the
clerk shall, at or before the time of filing,
be served on all other parties to the appeal.
N.C.R. App. P. 26(a) and (b) (emphasis added). Rule 26 is clearly
intended to address papers filed during appeal _ documents
“required or permitted” by the North Carolina Rules of Appellate
Procedure to be filed. An affidavit of indigency, executed
pursuant to G.S. § 7A-450 and used by the trial court to determine
a respondent's right to appointed counsel at a termination of
parental rights hearing, is not a document filed pursuant to the
Rules of Appellate Procedure. Therefore, such an affidavit of
indigency is not within the purview of Rule 26.
In addition, the North Carolina Rules of Appellate Procedure
do not even require this respondent to include the affidavit of
indigency in his record on appeal. N.C.R. App. P. 9(a), “Function;
Composition of Record,” provides, in pertinent part, that the
record on appeal must contain:
i. a copy of the notice of appeal, of all
orders establishing time limits relative to
the perfecting of the appeal, [and] of any
order finding a party to the appeal to be a
civil pauper[.]
j. copies of all other papers filed and
statements of all other proceedings had in the
trial court which are necessary to an
understanding of all errors assigned[.]
N.C.R. App. P. 9(a)(i) and (j). Thus, where the facts in a
specific case render the affidavit of indigency “necessary to an
understanding of all errors assigned,” it should be included in the
record, pursuant to Rule 9(a)(j). However, Rule 9 does not includea general requirement that every record on appeal include the
affidavit of indigency. Indeed, N.C.R. App. P. 9(b)(2) emphasizes
that “[i]t shall be the duty of counsel for all parties to an
appeal to avoid including in the record on appeal matter not
necessary for an understanding of the errors assigned[.]”
Finally, we disagree with cross-appellant that the failure to
serve the affidavit of indigency deprives this Court of
jurisdiction. As discussed above, we conclude respondent is not
required to serve copies of an affidavit of indigency that is
executed pursuant to G.S. § 7A-450,
et seq. Moreover, even
assuming,
arguendo, that respondent were required to serve a copy
of the G.S. § 7A-450 affidavit of indigency, the failure to do so
would not be jurisdictional.
See N.C.R. App. P. 1(b) (“These rules
shall not be construed to extend or limit the jurisdiction of the
courts of the appellate division as that is established by law.”).
Nor are the cases cited by cross-appellant controlling on this
issue. In
In re Shields, 68 N.C. App. 561, 315 S.E.2d 797 (1984),
the respondent's appeal was dismissed for failure to
file, not
serve, an affidavit of indigency, which affidavit was executed
pursuant to G.S. § 1-288, not G.S. § 7A-450. The opinion in
In re
Caldwell, 75 N.C. App. 299, 330 S.E.2d 513 (1985), addresses the
effect of
late filing of an affidavit of indigency that also was
filed under G.S. § 1-288, rather than G.S. § 7A-450. Neither of
these cases involve an affidavit of indigency executed in
conjunction with the right to appointed counsel; nor do they
address the failure to serve a properly filed affidavit ofindigency on an opposing party. Moreover, in
Henlajon, Inc. v.
Branch Highways, Inc., 149 N.C. App. 329, 560 S.E.2d 598 (2002),
this Court expressly
rejected the argument that the requirements of
Rule 26 are jurisdictional:
Failure to serve the notice of appeal on or
before the date of filing pursuant to Rule
26(b) does not automatically mandate
dismissal. . . . Any suggestion [in an
earlier case] that Rule 26(b) or (c)
[requirements are] jurisdictional was
unnecessary to decide that case [and is obiter
dicta]. . . .
We hold that . . . failure to serve the notice
of appeal “at or before the time of filing” is
not a jurisdictional requirement that
automatically requires dismissal.
Id. at 333-34, 560 S.E.2d at 602.
In sum, we conclude that (1) an affidavit of indigency
submitted to determine eligibility for appointed counsel in
termination of parental rights proceedings is generally executed
pursuant to N.C.G.S. § 7A-450,
et seq., and not G.S. § 1-288; (2)
neither G.S. § 7A-450 nor our Rules of Appellate Procedure require
a respondent to serve an affidavit of indigency on opposing
counsel; (3) unless pertinent to an issue in the case, the
affidavit of indigency need not be included in the record on
appeal; and (4) failure to comply with the service requirements of
Rule 26 does not deprive this Court of jurisdiction, nor require
automatic dismissal of a respondent's appeal. This assignment of
error is overruled. For the reasons set out above, we affirm both the trial
court's order for termination of parental rights and its denial of
cross-appellant's motion for dismissal of respondent's appeal.
Affirmed.
Judges TYSON and BRYANT concur.
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