IN RE: B.L.G. (2023)

Respondent-father contends that the order terminating his parental rights to his son, “Brent,”¹ must be vacated because the district court abused its discretion when it denied respondent-father's motion to continue. We disagree and affirm the termination of parental rights order.

I. Factual Background and Procedural History

This proceeding was initiated when Brent's mother, petitioner, filed a petition to terminate respondent-father's parental rights on 2 September 2022. Brent was born on 19 September 2014 to petitioner and respondent-father, who dated for about eight months but never lived together or were married. By 15 October 2014 the relationship had ended, and petitioner filed a custody action against respondent-father. Although respondent-father was granted supervised visitation with Brent every other weekend, respondent-father's substance abuse issues and his related involvement with the criminal justice system, resulted in respondent-father not exercising a “substantial amount” of his permitted visitation with Brent and limited the creation of a bond between father and son. For example, respondent-father did not exercise his right to any visits or speak to Brent on the telephone during 2020 or 2021, did not financially support Brent, did not attend school events or medical appointments for the child, and showed up at only one or two sporting events involving Brent.

Meanwhile, petitioner married on 18 October 2017, and her husband has been involved in Brent's life since the child was two years old. Over the years, the husband came to view Brent as his son, and the husband's desire to adopt Brent was the reason for petitioner's desire to terminate respondent-father's parental rights. In her petition, petitioner alleged the existence of two grounds which would permit the termination of respondent-father's parental rights to Brent: neglect, pursuant to N.C. Gen. Stat. § 7B-1101(a)(1), and abandonment, pursuant to N.C. Gen. Stat. § 7B-1111(a)(7).

Respondent-father was served timely with the petition, and he attended a pretrial hearing on 21 September 2022, during which he indicated his desire to contest the petition. The matter was set for hearing on 30 November 2022, but respondent-father did not appear. His counsel told the district court that counsel had spoken to respondent-father the day before and that respondent-father had taken the day off from work and planned to attend. Counsel noted, however, that even before respondent-father's failure to appear, counsel had planned to ask the court for a continuance because counsel and respondent-father had not had an opportunity to meet in order to prepare for the hearing, in part due to respondent-father's new job and “transportation issues.” The district court denied the motion to continue and the termination hearing began at 9:10 a.m. The court found the existence of neglect and willful abandonment as grounds to terminate respondent-father's parental rights and further determined that termination would be in Brent's best interest. Respondent-father timely gave notice of appeal.

II. Analysis

Respondent-father's sole argument is that the district court abused its discretion in denying his motion to continue and that respondent-father was prejudiced by the denial of his motion to continue. We are not persuaded.

“ ‘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.’ ” In re A.L.S., 374 N.C. 515, 516–17, 843 S.E.2d 89, 91 (2020) (quoting State v. Walls, 342 N.C. 1, 24, 463 S.E.2d 738, 748 (1995)). “ ‘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.’ ” Id. at 517, 843 S.E.2d at 91 (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)). If a motion to continue is based upon an assertion of a constitutional right, the denial of such motion presents a question of law and is reviewed de novo. Id. Counsel for respondent-father did not raise any constitutional issue before the district court, and therefore we apply the abuse of discretion standard of review to respondent-father's appellate argument.² See id. (“ ‘Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.’ ”) (quoting State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473 (2002)). The Supreme Court has emphasized:

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.” 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.

In re J.E., 377 N.C. 285, 290, 856 S.E.2d 818, 822–83 (2021) (some internal quotation marks and citations omitted). Moreover, the denial of a motion to continue will only entitle an appellant to a new hearing if he establishes not only an abuse of discretion but also prejudice as a result of the denial. Id. at 290, 856 S.E.2d at 822.

Respondent-father's appellate arguments can be fairly summarized as follows: (1) the termination hearing took place sixty-nine days after the filing of the petition, while N.C. Gen. Stat. § 7B-1109(d) provides that a district court should only grant continuances that extend beyond ninety days after the petition is filed in extraordinary circumstances; (2) respondent-father had attended the pretrial hearing earlier and expressed a desire to contest the termination of his parental rights; (3) the district court did not take steps beyond the delay of the hearing to have a bailiff visit the only other active courtroom to check whether respondent-father was in the wrong courtroom; and (4) respondent-father had not previously requested a continuance.

Respondent-father's assertions, which appear to be correct both in law and in fact, simply do not support his contention that the district court's decision to deny his motion to continue was “manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” Hennis, 323 N.C. at 285, 372 S.E.2d at 527. When the case was called and the court learned that respondent-father was not present, a colloquy with respondent-father's counsel ensued wherein the district court discussed counsel's knowledge and understanding of respondent-father's intention to attend and then sent a bailiff to the only other courtroom with proceedings in session to call out for respondent-father, but he was not located. The court also noted that respondent-father had notice of the hearing and, whatever his reason for not appearing, he had not contacted the court or his attorney about the situation. On 4 January 2023, the district court entered a written order memorializing these facts along with the court's decision to deny the motion to continue. These actions and the eventual findings of fact reflect a thoughtful consideration by the district court in light of respondent-father not appearing at the calling of the termination hearing. In addition, we emphasize that continuances are disfavored in juvenile code proceedings like the one presented for our review here. In re J.E., 377 N.C. at 290, 856 S.E.2d at 883.

Even if respondent-father had persuaded this Court that the district court acted arbitrarily or without reason, we observe that respondent-father has failed to show that he suffered prejudice as a result. The district court found the existence of both grounds for termination asserted by petitioner: neglect and abandonment. “[A] finding of only one ground is necessary to support a termination of parental rights,” and thus where one ground is upheld, any error in the finding of the existence of another ground is unnecessary. In re A.R.A., 373 N.C. 190, 194, 835 S.E.2d 417, 421 (2019) (citation omitted).

Yet on appeal, respondent-father only presents an explicit argument regarding the ground of neglect, citing the following language from the order in which the district court terminated respondent-father's parental rights:

The [district c]ourt was ready and willing to consider any of Respondent's evidence concerning the allegations set forth in the petition concerning neglect and the likelihood of continuing neglect and the repetition of neglect on Respondent's part. However, while Respondent had notice of these proceedings, he (Respondent) did not appear for [sic] the [district c]ourt to offer his testimony and evidence as to whether the child is a neglected juvenile and whether there would be or whether there would not be a repetition of neglect on Respondent's part to the child. Due to Respondent's absence, the only evidence before the Court is Petitioner's evidence, which the Court finds by clear, cogent, and convincing evidence, that there would be a repetition of neglect by Respondent if the child was placed in his care.

Respondent-father does not argue that, had the district court allowed his motion to continue, respondent-father would have offered evidence to refute the allegation of abandonment. Thus, even assuming arguendo that we agreed with respondent-father's contention that the district court had acted without reason in denying his motion to continue and thus abused its discretion, the district court's determination that the ground of willful abandonment would remain unaltered and would support the order terminating respondent-father's parental rights.

III. Conclusion

Respondent-father, having never made himself a meaningful part of his child's life, having not had contact with his child for multiple years, and then having failed to appear at the termination of parental rights hearing now seeks forbearance from this Court. Respondent-father's sole basis for this appeal being an attempt to shift from himself to the district court the responsibility for the result of these unfortunate circumstances, we affirm the district court's order terminating respondent-father's parental rights.

AFFIRMED.

Report per Rule 30(e).

FOOTNOTES

1.   A pseudonym stipulated by the parties to protect the juvenile's privacy per Rule of Appellate Procedure 42(b).

2.   We acknowledge that respondent-father includes in his brief to this Court several quotations regarding the constitutional import of the status of a parent, to wit: respondent-father's assertions that “his fundamental liberty interest in the companionship, custody, care, and control of his son had been terminated. See Troxel v. Granville, 530 U.S. 57, 66 (2000); Price v. Howard, 346 N.C. 68, 74, 484 S.E.2d 528, 531 (1997)” and that “his constitutionally protected right to the companionship, care, custody, and control of his son ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’ ” Stanley v. Illinois, 405 U.S. 645, 651, (1972).” His counsel did not raise any constitutional concern below, however, and we further note that “[a] parent's absence from termination proceedings does not itself amount to a violation of [the constitutional right to] due process.” In re J.E., 377 N.C. 285, 290, 856 S.E.2d 818, 822 (2021) (citations omitted).

THOMPSON, Judge.

Judges COLLINS and GRIFFIN concur.