DocketNumber: No. COA09-1349
Citation Numbers: 202 N.C. App. 624
Judges: Beasley, Hunter, Robert, Wynn
Filed Date: 3/2/2010
Status: Precedential
Modified Date: 11/27/2022
When a trial court rales on a motion to continue, “[t]he chief consideration is whether granting or denying a continuance will further substantial justice.”
On 9 March 2009, the Orange County Department of Social Services (“DSS”) filed a motion to terminate Respondent mother’s parental rights to D.W., Jr. (“the juvenile”). The case came on for a termination of parental rights hearing on 16 June 2009. Initially, however, the trial judge believed that there was “just information to be read into the record” and that she would not be kept long from presiding over matters in another courtroom. Respondent’s attorney requested that the trial court continue the hearing because Respondent was not present. Counsel indicated that she could not communicate with her client outside of court other than by letter. Counsel told the trial court that Respondent had been informed of the date of the hearing in writing, but there was no evidence offered to prove Respondent’s receipt of that correspondence. Counsel also noted that Respondent had been present at each of the earlier stages of the proceeding. Attorneys for both parents expressed concern that their clients thought the hearing was to be held at another location.
The trial judge reiterated her assumption that the matter would be resolved quickly, stating “I was told that it was just information to be read in the record, and so, that’s what I came to do ... and if we’re talking about something longer than that, then I need to run . . . .” It was suggested that the hearing be suspended until 1 p.m. to allow time for Respondents to appear. In response, Petitioner’s attorney indicated that such a delay was incompatible with the schedules of certain expert witnesses prepared, at the insistence of Respondent’s counsel, to testify in the matter. After considering the arguments of counsel, the trial court decided to hold the hearing.
The termination hearing proceeded hastily, and the court consented to preside only on the understanding that there would be limited questions asked of the experts. The trial judge stated “[w]hen I hear limited questions, I’m thinking three or four, so that’s what I have time to do, then, I have to go back downstairs.” In fact, as
The hearing resumed after the return of the trial judge and, in response to an objection raised by counsel for Respondent father, the trial court again expressed confusion as to the nature of the hearing, stating, “So, I don’t know what stage we’re at, what rules apply. I’m just trying to facilitate getting this done, so somebody needs to help me . . . .” Respondent father’s attorney informed the trial court that the hearing was an adjudication hearing in a termination of parental rights case. Later, the trial judge stated that she did not realize that the subject of the hearing “would be anything as serious as this.”
After a recess, Respondent renewed her motion to continue the matter, because the trial court did not initially realize it was conducting a termination hearing. In response to Respondent’s request, the trial court stated:
I want to move forward .... Uh, I know what I heard, and I did hear some really good things. It’s just that I wasn’t aware of the context in which they should have been heard and applied. That was a deficit that I had, so, I would like to go ahead and move forward and do as much as we can do today.
After hearing the evidence, the trial court found, as grounds for termination of parental rights, that the juvenile had been willfully left in foster care for more than twelve months without Respondent making reasonable progress toward correcting the conditions that led to the juvenile being removed from her care, and that the juvenile was a neglected and dependent juvenile. The trial court took additional evidence at the disposition phase of the hearing and concluded, both in court and in its written order, that it was “in the best interests of the juvenile” that Respondents’ parental rights be terminated.
A motion to continue is addressed to the court’s sound discretion and will not be disturbed on appeal in the absence of abuse of discretion. 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.
Humphrey, 156 N.C. App. at 538, 577 S.E.2d at 425 (quoting Doby v. Lowder, 72 N.C. App. 22, 24, 324 S.E.2d 26, 28 (1984)). Furthermore, “the denial of a motion to continue ... is sufficient grounds for the granting of a new trial only when the defendant is able to show that the denial was erroneous and that he suffered prejudice as a result of the error.” State v. Rogers, 352 N.C. 119, 124, 529 S.E.2d 671, 675 (2000).
The Juvenile Code directly addresses the continuation of hearings involving juvenile matters and states in pertinent part:
The court may, for good cause, continue the hearing for as long as is reasonably required to receive additional evidence, reports, or assessments that the court has requested, or other information needed in the best interests of the juvenile and to allow for a reasonable time for the parties to conduct expeditious discovery. Otherwise, continuances shall be granted only in extraordinary circumstances when necessary for the proper administration of justice or in the best interests of the juvenile.
N.C. Gen. Stat. § 7B-803 (2009).
Respondent argues that “[t]he trial court erred in denying the motion... to continue on the ground that the Respondent Mother had a right to be present for the hearing.” While we decline to find that parental absence, without more, constitutes extraordinary circumstances necessitating a continuance, the facts of this case indicate that the trial court abused its discretion when denying the motion for a continuance.
We are aware that this Court has previously held that a parent’s due process rights are not violated when parental rights are terminated at a hearing at which the parent is not present. In re Murphy,
In this case, the record is replete with indicia of the extraordinary nature of the circumstances presented to the trial court. First, Respondent notes that it was unclear whether she received notice of the hearing. While trial counsel told the trial court that she had informed Respondent of the hearing date, there was no evidence offered to show that Respondent received this correspondence. Furthermore, the record indicates that the trial court was on notice that Respondent suffered from diminished capacity, possibly making her absence involuntary. Trial counsel argued that Respondent’s attendance at each of the previous hearings indicated her willingness to participate in the proceedings. Also, it was apparent from the transcript that external time constraints negatively affected the nature of the proceeding in such a manner as might have been avoided through the issuance of a continuance. Lastly, we are troubled by the trial court’s failure to ascertain the nature of the proceeding prior to issuing a ruling on a motion to continue, particularly because the nature of the proceeding informs what is necessary to ensure “the proper administration of justice.” N.C. Gen. Stat. § 7B-803 (2009).
Respondent has indicated that she was materially prejudiced by denial of her motion because she was unable to testify in the matter. But see In re D.Q.W., T.A.W., Q.K.T., Q.M.T., & J.K.M.T., 167 N.C. App. 38, 41-42, 604 S.E.2d 675, 677 (2004) (holding that the respondent was not prejudiced where the respondent did not explain why
Because our holding as to Respondent’s first argument is dispositive, we need not address Respondent’s argument that the trial court erred by failing to bifurcate the adjudication and disposition portions of the termination hearing.
Reversed.
. 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)).
. The trial court’s order also terminated Respondent father’s parental rights, but he is not a party to this appeal. Thus, we focus on the facts relevant to the issues raised by Respondent mother.