In re A.L.S. ( 2020 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 295A19
Filed 5 June 2020
IN THE MATTER OF: A.L.S.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from orders entered on 18 April
2019 by Judge William F. Fairley in District Court, Bladen County. This matter was
calendared for oral argument in the Supreme Court on 18 May 2020 but determined
on the record and brief without oral argument pursuant to Rule 30(f) of the North
Carolina Rules of Appellate Procedure.
No brief for petitioner-appellees Amber S. and Clinton S.
No brief for appellee Guardian ad Litem.
Wendy C. Sotolongo, Parent Defender, and J. Lee Gilliam, Assistant Parent
Defender, for respondent-appellant mother.
BEASLEY, Chief Justice.
Respondent-mother appeals from the trial court’s orders on adjudication and
disposition, which terminated her parental rights to her daughter, A.L.S. (Anne).1
The trial court also terminated the parental rights of Anne’s biological father, who is
not a party to this appeal. We affirm.
Anne was born on 5 November 2012. When Anne was nine weeks old,
respondent-mother took a trip to the beach, ostensibly for the weekend, and left Anne
1 A pseudonym is used to protect the juvenile’s identity and for ease of reading.
IN RE A.L.S.
Opinion of the Court
in the care of petitioner Amber S., who is respondent-mother’s third cousin.
Respondent-mother did not return for Anne until three weeks later.
Amber S. married petitioner Clinton S. in March of 2013. In June of 2013, the
Bladen County Department of Social Services (DSS) placed Anne in petitioners’ care
pursuant to a safety assessment and kinship care agreement. Anne has resided
exclusively in petitioners’ care since at least 2014.
In 2016, petitioners filed a civil complaint against respondent-mother and
Anne’s father (respondents) seeking custody of Anne. By order entered 1 December
2016, the District Court, Bladen County, found that respondents had “acted in a
manner in consistent [sic] with their protected status as parents” of Anne and
awarded petitioners “sole legal and physical care, custody and control of the minor
child.”
Petitioners filed a petition to terminate respondents’ parental rights to Anne
on 28 August 2018. Respondent-mother filed an answer denying the allegations
contained in the petition and opposing the termination of her parental rights. The
trial court held a hearing on the petition on 26 February and 27 March 2019. By
separate adjudication and disposition orders entered on 18 April 2019, the trial court
concluded that (1) grounds existed to terminate respondents’ parental rights based
on their willful abandonment of Anne, see N.C.G.S. § 7B-1111(a)(7) (2019); and (2) it
was in Anne’s best interests that respondents’ parental rights be terminated. See
N.C.G.S. §§ 7B-1109, -1110(a) (2019). Respondent-mother filed notice of appeal.
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IN RE A.L.S.
Opinion of the Court
Respondent-mother first claims the trial court erred in denying her motion to
continue the termination hearing in order to allow her sixteen-year-old son to testify
on her behalf. “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. 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.” State v. Baldwin, 276 N.C. 690, 698, 174 S.E.2d 526, 531 (1970).
Respondent-mother did not assert in the trial court that a continuance was
necessary to protect a constitutional right. We therefore review the trial court’s
denial of her motion to continue only for abuse of discretion. See generally State v.
Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473 (2002) (“Constitutional issues not raised
and passed upon at trial will not be considered for the first time on appeal.”). “Abuse
of discretion results where the court’s ruling is manifestly unsupported by reason or
is so arbitrary that it could not have been the result of a reasoned decision.” State v.
Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). Moreover, “[r]egardless of
whether the motion raises a constitutional issue or not, a denial of a motion to
continue is only grounds for a new trial when defendant shows both that the denial
was erroneous, and that he suffered prejudice as a result of the error.” Walls, 342
N.C. at 24–25, 463 S.E.2d at 748.
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IN RE A.L.S.
Opinion of the Court
The transcript shows that respondent-mother’s counsel made an oral motion
to continue at the beginning of the termination hearing on 26 February 2019. Counsel
advised the trial court that respondent-mother had brought her sixteen-year-old son
to counsel’s office the previous day at 4:30 p.m. After speaking to the son, counsel
determined his testimony was “necessary for the proper administration of justice” in
that it “would not only corroborate . . . [respondent-mother’s] testimony, it would also
provide independent testimony as to negating some of the allegations against [her].”
Counsel further advised the trial court that respondent-mother’s son was in “SAT
prep testing th[at] morning” and would not be able to appear in court until 2:00 p.m.
The trial court deferred a ruling on the motion to continue and proceeded to
receive testimony from petitioners, the guardian ad litem, and respondents. After
hearing from all of the witnesses in attendance, the trial court asked counsel when
respondent-mother’s son would be available. Respondent-mother’s counsel replied
that respondent-mother no longer had a ride to pick her son up at school and
therefore, respondent-mother was renewing her motion to continue the termination
hearing to another date. Counsel again characterized the son’s expected testimony as
“beneficial and crucial to [respondent-mother’s] defense specifically as to the
willfulness allegation.” Over petitioners’ expressed wish to “handle this today[,]” the
trial court granted respondent-mother’s motion and continued the termination
hearing until 27 March 2019.
When the termination hearing resumed on the morning of 27 March 2019,
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IN RE A.L.S.
Opinion of the Court
respondent-mother’s counsel made another motion to continue on the ground that
respondent-mother’s son was not present to testify. Counsel stated he had
“subpoenaed the residence [the son] resides at and subpoenaed the adult at that
residence to produce him to court”2 to no avail. Petitioners objected to respondent-
mother’s motion to continue, and the trial court denied it.
We conclude the trial court did not abuse its discretion in denying respondent-
mother’s second motion to continue the termination hearing in order to obtain her
son’s testimony. Respondent-mother was granted a month-long continuance for this
purpose on the initial hearing date of 26 February 2019. As counsel for respondent-
mother recognized, N.C.G.S. § 7B-1109(d) provides that “[c]ontinuances that extend
beyond 90 days after the initial petition shall be granted only in extraordinary
circumstances when necessary for the proper administration of justice.” N.C.G.S.
§ 7B-1109(d). Petitioners filed their petition to terminate respondent-mother’s
parental rights in this case on 28 August 2018. {R. at 2} Because respondent-mother
made no showing that extraordinary circumstances existed requiring a second
continuance of the termination hearing, the trial court did not act unreasonably in
denying her request. See In re C.J.H., 240 N.C. App. 489, 495, 772 S.E.2d 82, 87
(2015).
We further note that, despite two opportunities, respondent-mother’s counsel
2 The record shows respondent-mother’s son resided with his maternal grandmother.
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IN RE A.L.S.
Opinion of the Court
offered only a vague description of the son’s expected testimony and did not tender
an affidavit or other offer of proof to demonstrate its significance. See State v. Cody,
135 N.C. App. 722, 726, 522 S.E.2d 777, 780 (1999) (deeming it “the better practice to
support a motion for continuance with an affidavit”); In re D.Q.W., 167 N.C. App. 38,
41–42, 604 S.E.2d 675, 677 (2004). Respondent-mother thus fails to demonstrate any
prejudice arising from the trial court’s denial of her motion to continue.
Respondent-mother next claims the trial court erred in adjudicating grounds
for the termination of her parental rights. She contends the evidence and the trial
court’s findings of fact do not support its conclusion that she willfully abandoned
Anne for purposes of N.C.G.S. § 7B-1111(a)(7).
“We review a trial court’s adjudication under N.C.G.S. § 7B-1109 ‘to determine
whether the findings are supported by clear, cogent and convincing evidence and the
findings support the conclusions of law.’ The trial court’s conclusions of law are
reviewable de novo on appeal.” In re C.B.C., 373 N.C. 16, 19, 832 S.E.2d 692, 695
(2019) (quoting In re Montgomery, 311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984)).
Under N.C.G.S. § 7B-1111(a)(7), the trial court may terminate the parental
rights of a parent who “has willfully abandoned the juvenile for at least six
consecutive months immediately preceding the filing of the petition.” N.C.G.S. § 7B-
1111(a)(7). The “determinative” period in this case is the six months between 28
February 2018 and 28 August 2018. See, e.g., In re Young, 346 N.C. 244, 251, 485
S.E.2d 612, 617 (1997). The trial court may also “consider a parent’s conduct outside
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Opinion of the Court
the six-month window in evaluating a parent’s credibility and intentions” within the
relevant six-month period. In re C.B.C., 373 N.C. at 22, 832 S.E.2d at 697 (citation
omitted).
“Abandonment implies conduct on the part of the parent which manifests a
willful determination to forego all parental duties and relinquish all parental claims
to the child.” In re Young, 346 N.C. at 251, 485 S.E.2d at 617 (citation omitted). The
willfulness of a parent’s conduct under N.C.G.S. § 7B-1111(a)(7) “is a question of fact
to be determined from the evidence.” Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d
597, 608 (1962). We have repeatedly held that “[i]f a parent withholds [that parent’s]
presence, [ ] love, [ ] care, the opportunity to display filial affection, and willfully [sic]
neglects to lend support and maintenance, such parent relinquishes all parental
claims and abandons the child.” In re C.B.C., 373 N.C. at 19, 832 S.E.2d at 695 (second
through fifth alterations in original) (quoting Pratt, 257 N.C. at 501, 126 S.E.2d at
608).
In support of its conclusion “[t]hat grounds exist for the termination of the
respondents[’] parental rights in that the respondents have abandoned the minor
child for at least 6 months prior to the filing of this action,” the trial court made the
following findings of fact:
5. That the minor child has lived with the petitioners
since she was approximately 9 weeks old, and has
lived with the petitioners continuously subject to a
custody order dated December 1, 2016.
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....
9. That when the minor child was approximately nine
weeks old, Respondent mother left [the] child with
Petitioner for the weekend to go to the beach and did
not return for the child until three weeks later.
10. That custody of the minor child was granted to
petitioners on December 1, 2016 in Bladen County
District Court in file 16CVD364.
....
12. That respondents have never sought to modify that
custody order.
13. That the respondents have not seen the minor child in
excess of three years.
14. That there have been no phone calls or contact
between the respondents and the minor child during
that time period.
15. That petitioners have resided at the same address
since 2012.
16. That respondent mother has been to that address at
least two times.
17. That respondent mother testified that she was
unaware of where the petitioners resided, and that the
court finds this testimony lacking in credibility.
18. That even if she was unaware of the petitioners[’]
address, the court finds that petitioners had common
relatives who did know the address.
19. That respondent[-mother’]s claim that these common
relatives would not tell . . . her the respondent[s’]
address lacked credibility.
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Opinion of the Court
....
21. That the respondents made no effort to locate such an
address.
22. That respondent mother suffers from no [disability]
that made it impossible to find the petitioners[’]
address.
....
33. That respondent mother and father’s lack of contact
with [the] minor child evidences a subtle [sic] purpose
to relinquish [their] legal obligation for care and
support of the minor child.
34. That there is no evidence as to any physical or mental
disability preventing the respondents from contacting
the minor child.
35. That the court finds that the respondents willfully
abandoned the minor child for at least 6 months prior
to the filing of this action . . . .
Respondent-mother takes exception to the trial court’s ultimate determination
that her actions evince her willful abandonment of Anne as stated in finding of fact
35. See generally In re N.D.A., 373 N.C. 71, 76, 833 S.E.2d 768, 773 (2019) (“[A]n
‘ultimate finding is a conclusion of law or at least a determination of a mixed question
of law and fact’ and should ‘be distinguished from the findings of primary,
evidentiary, or circumstantial facts.’ ” (quoting Helvering v. Tex-Penn Oil Co., 300
U.S. 481, 491, 57 S. Ct. 569, 574, 81 L. Ed. 755, 762 (1937))). Because respondent-
mother does not challenge evidentiary findings of fact 5 through 34, we are bound
thereby. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
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IN RE A.L.S.
Opinion of the Court
We hold that the facts found by the trial court support its adjudication of willful
abandonment under N.C.G.S. § 7B-1111(a)(7). The findings of fact show respondent-
mother made no effort to have contact with Anne during the determinative six-month
period or in more than two years immediately preceding this period, despite knowing
petitioners and Anne’s location. See In re C.B.C., 373 N.C. at 23, 832 S.E.2d at 697
(affirming adjudication under N.C.G.S. § 7B-1111(a)(7) where, “in the six months
preceding the filing of the termination petition, respondent made no effort to pursue
a relationship with [the child]”); In re E.H.P., 372 N.C. 388, 394, 831 S.E.2d 49, 53
(2019) (same).
Respondent-mother notes she was subject to the trial court’s 2016 custody
order which granted petitioners sole custody of Anne and “which did [not] allow
[respondent-mother] any visits” with Anne. Respondent-mother further cites Amber
S.’s testimony at the termination hearing, in which Amber S. acknowledged she
would avoid taking Anne to her grandmother’s house if she knew respondent-mother
would be there. Respondent-mother contends this evidence provides an alternative
explanation for her own conduct that is “inconsistent with a willful intent to abandon
Anne.”
We find respondent-mother’s argument unpersuasive. While there was
evidence of ill will between petitioners and respondent-mother, this Court has held
that “a parent will not be excused from showing interest in [the] child’s welfare by
whatever means available.” In re C.B.C., 373 N.C. at 20, 832 S.E.2d at 695 (citation
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Opinion of the Court
omitted). Respondent-mother’s failure to even attempt any form of contact or
communication with Anne gives rise to an inference that she acted willfully in
abdicating her parental role, notwithstanding any personal animus between her and
petitioners. Although the 2016 custody order did not give respondent-mother a right
to visitation, the order in no way prohibited respondent-mother from contacting
Anne. Cf. In re E.H.P., 372 N.C. at 390, 831 S.E.2d at 51 (addressing adjudication of
abandonment where respondent was subject to a no-contact order). Moreover, as the
trial court found, respondent-mother “never sought to modify that custody order” in
order to gain visitation rights.
The cases cited by respondent-mother are distinguishable from the facts sub
judice. In In re Young, this Court reversed an adjudication of willful abandonment
where the evidence showed that respondent’s lack of contact with her child was in
part attributable to the “hostile relationship between respondent and petitioner’s
family members who cared for [the child].” 346 N.C. at 252, 485 S.E.2d at 617.
However, the evidence further showed that respondent began visiting her son as soon
as she was told of his whereabouts, that respondent underwent surgery and began
radiation and chemotherapy treatments for breast cancer during the relevant six-
month period, and that “respondent had asked to see [her son] before her surgery
[but] petitioner had denied her request.” Id. at 251–52, 485 S.E.2d at 617. The Court
concluded that “[t]his conduct does not evidence a willful abandonment of her child
on the part of respondent.” Id. at 252, 485 S.E.2d at 617.
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Respondent-mother also cites In re E.H.P., a case in which the respondent-
father was forbidden by a temporary custody judgment from having any contact with
his child until authorized by the trial court. 372 N.C. at 390, 831 S.E.2d at 51. Despite
this no-contact provision and the fact that the respondent-father was in prison “for
almost the entirety of the six-month period” at issue, this Court affirmed the trial
court’s order terminating his parental rights on the basis of willful abandonment. Id.
at 394, 831 S.E.2d at 53. “By his own admission,” we observed that “respondent[-
father] had no contact with his children during the statutorily prescribed time period.
In addition, he made no effort to have any form of involvement with the children for
several consecutive years following the entry of the [t]emporary [c]ustody
[j]udgment.” Id.
Unlike the respondent-father in In re E.H.P., respondent-mother was neither
incarcerated nor subject to a no-contact order during the six months immediately
preceding petitioners’ filing of the petition to terminate her parental rights.
Accordingly, notwithstanding her testimony that she lacked the funds to hire an
attorney and “f[i]ght for custody” of Anne, we are satisfied that respondent-mother’s
unwillingness to attempt any form of communication with Anne over a period of years
supports the trial court’s adjudication of willful abandonment.
Because respondent-mother does not contest the trial court’s determination
that terminating her parental rights was in Anne’s best interests under N.C.G.S.
§ 7B-1110(a), we do not consider that issue. Accordingly, the trial court’s orders are
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affirmed.
AFFIRMED.
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