In re L.A.J.

IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-54
No. 217A21
Filed 6 May 2022
IN THE MATTER OF: L.A.J. and J.T.J.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 2
March 2021 by Judge John K. Greenlee in District Court, Gaston County. This
matter was calendared for argument in the Supreme Court on 18 February 2022 but
determined on the record and briefs without oral argument pursuant to Rule 30(f) of
the North Carolina Rules of Appellate Procedure.
No brief for petitioner-appellees.
No brief for Guardian ad Litem.
Leslie Rawls for respondent-appellant mother.
BERGER, Justice.
¶1 Respondent-mother1 appeals from the trial court’s order terminating her
parental rights to her children, L.A.J. (Lucy) and J.T.J. (Joseph). 2 Upon review of
this private termination action, we affirm the trial court.
I. Background
¶2 Lucy and Joseph were born in Gaston County, North Carolina in 2015 and
1 The trial court’s order also terminated the parental rights of the children’s father
who is not a party to this appeal.
2 Pseudonyms are used to protect the identity of the juveniles and for ease of reading.
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2016, respectively. Both children currently reside in Gaston County. Petitioners are
also residents of Gaston County and have been court-appointed custodians of the two
juveniles since April 2018.
¶3 On May 14, 2020, petitioners filed a verified petition in District Court, Gaston
County to terminate the parents’ parental rights on the grounds of willful
abandonment pursuant to N.C.G.S. § 7B-1111(a)(7) (2019). The petition alleged that
the parents, whose last known addresses were in Ohio, had not visited with the
children since 2017; had not had contact with the children since March 2019; had not
sent any gifts, cards, or written correspondence to the children; had failed to provide
financial support to the children; and had failed to provide love, affection, or support
to the children or make any effort to foster a relationship with them.
¶4 Respondent-mother was assigned counsel and served with the petition and
summons in Ohio on June 9, 2020. She did not file an answer. The termination
petition was calendared for hearing but continued three times at calendar call in
2020—the first time in July 2020 based on the needs of all parties; the second time
in October 2020 upon a request by respondent-mother’s newly appointed counsel; and
the third time in December 2020 due to purported coronavirus issues.
¶5 On January 29, 2021, petitioners served a notice of hearing for February 10,
2021. When the case came on for hearing, respondent-mother was not present, and
counsel for respondent-mother moved for a continuance. The trial court denied the
IN RE L.A.J. AND J.T.J.
2022-NCSC-54
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motion to continue and proceeded with the hearing.
¶6 On March 2, 2021, the trial court entered an order terminating respondent-
mother’s parental rights to Lucy and Joseph. The court concluded that respondent-
mother had willfully abandoned the children and termination of parental rights was
in the children’s best interests. Respondent-mother appeals, arguing that the trial
court erred in denying counsel’s motion to continue. Specifically, respondent-mother
asserts that the trial court abused its discretion in denying the motion to continue
because she had difficulty attending the hearing on short notice, traveling from her
residence in Ohio to North Carolina was burdensome, and extraordinary
circumstances existed due to coronavirus restrictions.3 We disagree.
II. Analysis
¶7 This court has previously held:
[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. 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. Moreover,
regardless 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.
3Respondent-mother acknowledges in her brief that counsel did not cite coronavirus
concerns as grounds for the motion to continue. Respondent-mother has thus waived that
argument, and we do not consider it on appeal. See N.C. R. App. P. 10(a)(1); In re J.E., 377
N.C. 285, 2021-NCSC-47, ¶ 14.
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In re M.J.R.B., 377 N.C. 453, 2021-NCSC-62, ¶ 11 (cleaned up).
¶8 Because counsel did not assert a constitutional basis for the requested
continuance, we review denial of the motion to continue for abuse of discretion. Id.;
see also In re A.L.S., 374 N.C. 515, 517 (2020) (“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.”).
¶9 “An 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.” In re T.L.H., 368 N.C. 101, 107 (2015) (cleaned up). “In reviewing
for an abuse of discretion, we are guided by the Juvenile Code, which 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.’ ” In re J.E., 377 N.C. 285, 2021-NCSC-47, ¶ 15 (alteration in original)
(quoting N.C.G.S. § 7B-1109(d) (2019)). “Furthermore, 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.” Id. (cleaned up).
¶ 10 Petitioners filed their termination petition on May 14, 2020. Almost nine
months passed before the case was finally called for hearing on February 10, 2021,
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due in part to the continuances discussed above. Respondent-mother was not present
when the matter was called for hearing and counsel moved to continue the matter for
a fourth time.
¶ 11 Although respondent-mother had not filed an answer to the petition, see
N.C.G.S. § 7B-1107 (2019), counsel informed the trial court that she denied the
allegations set forth in the petition and wished to be present to contest the proceeding.
Counsel further asserted that: respondent-mother lives in Ohio; counsel sent her
notice of the hearing on January 29, 2021, just as he had done on prior occasions to
notify her of court dates and calendar calls; after “basically play[ing] phone tag” with
respondent-mother all week, he was able to speak with her the morning of the
hearing; and respondent-mother told counsel that she had only recently received the
notice of hearing on February 5, 2021, and it was “difficult for her to get down here
on short notice.”
¶ 12 The record shows counsel was served with a notice of the February 10 hearing
date on January 29, 2021. Counsel forwarded the notice of hearing by mail to
respondent-mother that same day.
¶ 13 Respondent-mother claimed she did not receive the notice until February 5,
2021, five days before the hearing; however, even if respondent-mother was not aware
of the specific date of the hearing until February 5, 2021, she was notified in
December 2020 that the matter was rescheduled for the week of February 8, 2021.
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Counsel advised the trial court that he mailed a letter to respondent-mother on
December 3, 2020, and respondent-mother concedes in her brief that counsel
“apparently had notified her of the trial week after the case was continued at the 2
December 2020 calendar call.” Thus, respondent-mother was notified as early as
December 2020 that her case would be heard during the week of February 8, 2021.
Consistent with this prior notification from counsel, respondent-mother thereafter
received notice stating the specific date and time the termination hearing would be
held.
¶ 14 Counsel further failed to provide any specific reasons why respondent-mother
was unable to attend the hearing. Counsel merely asserted that it was “difficult for
her to get down here on short notice.” Even on appeal, when respondent-mother notes
that the drive from Ohio takes eight hours and would have required a three-day trip
to attend the hearing, she does not provide specific reasons for her absence. She
instead suggests that “[m]ost people would require some advance notice to make a
three-day trip[.]” Nonetheless, as noted above, respondent-mother received more
than sixty-days’ notice that the hearing would occur during the week of February 8,
2021.
¶ 15 “[C]ontinuances are not favored, [and] motions to continue ought not to be
granted unless the reasons therefor are fully established.” In re D.J., 378 N.C. 565,
2021-NCSC-105, ¶ 14 (cleaned up). Respondent-mother received notice months in
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advance of the week the termination petition would be heard. She failed to provide
any reason to justify the requested continuance. Having offered no legitimate reason
for being unable to attend the hearing, respondent-mother failed to establish
extraordinary circumstances requiring another continuance far beyond the ninety-
day deadline. See N.C.G.S. § 7B-1109(d). Respondent-mother has failed to
demonstrate that the trial court’s denial of her motion to continue “is manifestly
unsupported by reason or is so arbitrary that it could not have been the result of a
reasoned decision.” In re T.L.H., 368 N.C. at 107 (cleaned up). As such, the trial
court did not abuse its discretion in denying counsel’s motion to continue.
III. Conclusion
¶ 16 The trial court’s denial of respondent-mother’s motion to continue is affirmed.
AFFIRMED.