711 S.E.2d 207
No. COA10-1239North Carolina Court of Appeals
Filed 15 March 2011 This case not for publication
Iredell County Nos. 06 JT 05-06.
Appeal by respondent-mother from orders entered 29 April 2010 and 19 August 2010 by Judge Christine Underwood in Iredell County District Court. Heard in the Court of Appeals 7 March 2011.
Lauren Vaughan for Iredell County Department of Social Services petitioner appellee.
Appellate Counsel Pamela Newell for guardian ad litem appellee.
Ryan McKaig for respondent-mother appellant.
McCULLOUGH, Judge.
Respondent-mother appeals from the orders terminating her parental rights to her two youngest children Br.G. and Bl.G.[1]
Respondent-mother argues that the trial court erroneously denied her motion to continue the disposition hearing, and that the trial court abused its discretion when it determined that terminating her
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parental rights was in the two juveniles’ best interests. We affirm.
I. Background
The Iredell County Department of Social Services (“DSS”) first became involved with the respondent-parents on 26 November 2002, after receiving a report that they were engaging in acts of domestic violence in the presence of their three children (hereinafter “the juveniles”). DSS substantiated that report on 12 March 2003 and implemented case management services as a result. Shortly thereafter, on 10 April 2003, the family moved to Davie County and services were temporarily transferred to that county; however, on 27 April 2004, DSS received another report of neglect. On 11 May 2004, DSS substantiated the report, finding that respondent-mother had used crack cocaine in front of the juveniles and that the family was being evicted from their home. DSS substantiated additional reports of neglect on 15 December 2004 and 21 December 2005, again finding that domestic violence had occurred in front of the juveniles, that the parents were abusing alcohol and drugs, and that the family was without any money.
On 12 January 2006, DSS filed petitions alleging that the juveniles were neglected. DSS alleged that respondent-mother allowed known drug dealers into her home while the juveniles were present, admitted to having used drugs, failed to administer prescribed medication to one of the juveniles, and refused to take medication prescribed for her own depression. Respondent-father
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was incarcerated for probation violations at the time of the filing of the petition.
On 5 May 2006, the trial court entered an order in which it adjudicated the juveniles neglected. Respondent-mother admitted to the allegations that she allowed drug dealers into her home while the juveniles were present, used marijuana, failed to provide prescription medications for one of the juveniles, and had not addressed her own mental health problems. On 28 July 2006, the trial court entered a disposition order placing the juveniles in DSS custody and designating a permanent plan of reunification with a parent or placement with a relative.
On 11 April 2007, the trial court entered a review order in which it ordered DSS to cease reunification efforts with respondent-mother and changed the juveniles’ permanent plan to reunification with respondent-father. In its 17 August 2007 permanency planning order, the trial court prohibited any visits or phone calls between the juveniles and respondent-mother, and on 31 March 2008, the trial court entered a visitation order in which it proscribed any further contact by letters and cards between respondent-mother and the juveniles. On 14 May 2008, the trial court ordered DSS to cease reunification efforts with respondent-father and changed the permanent plan to adoption and termination of parental rights for both respondents.
On 25 August 2009, DSS filed petitions to terminate respondents’ parental rights to all three of the juveniles. As grounds for termination of respondent-mother’s parental rights, DSS
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alleged: (1) that the juveniles were neglected; (2) that respondent-mother had willfully left the juveniles in foster care for more than twelve months without making reasonable progress toward correcting the conditions that led to the juveniles’ removal from her home; (3) that the juveniles had been in DSS custody for a period of more than six months prior to the filing of the petition, during which time respondents failed to pay a reasonable cost of their care although they were able to do so; and (4) that respondent-mother willfully abandoned the juveniles for at least six consecutive months prior to the filing of the petitions.
The trial court heard adjudication phase evidence on 10 February and 4 March 2010. Respondent-mother testified that she had an aggressive form of cervical cancer and would need a hysterectomy, and that she had been sick since May of 2008. Respondent-mother testified that her pain was so severe that she had been unable to work since that time. The trial court also heard testimony from social workers, respondent-father, and respondent-father’s sister.
The trial court entered its adjudication order on 29 April 2010. The trial court made numerous findings of fact, including:
24. Respondent Mother suffers pain from a condition she describes as cervical dysplaysia. The Court finds that Respondent Mother does have a painful health condition, but has been provided no clear and convincing evidence of the exact nature of that condition.
25. Even while suffering from this medical condition, Respondent Mother has been able to work providing homemaker services to individuals with whom she lives, inPage 5
exchange for room and board. Respondent-mother’s health condition did not prevent her from cleaning house and cooking, skills which could have been engaged in for more lucrative employment that would have allowed her to pay a reasonable amount of support for the minor children.
As to respondent-mother, the trial court concluded that sufficient grounds existed to terminate her parental rights based on neglect, willful failure to make reasonable progress, willful failure to pay a reasonable portion of the cost of the juveniles’ care, and willful abandonment.
The matter came on for a disposition hearing shortly after 2:00 p.m. on 3 June 2010. Respondent-mother was not present for the hearing, and her counsel informed the trial court that respondent-mother had left him a voice mail message earlier that day in which she claimed to have suffered a medical emergency. Respondent-mother’s counsel made a motion to continue the disposition hearing so that respondent-mother could attend. The trial court requested that the guardian ad litem determine whether respondent-mother had been hospitalized. The guardian ad litem informed the trial court:
[Inaudible] David so far and we’ve called Iredell and [inaudible] and Lake Norman and Lake Norman and Iredell both [inaudible] her name, as of today, and we asked about the emergency room. They said they’re not currently a patient and I [inaudible] admitted today [inaudible] those two specific hospitals as to today [respondent-mother] was admitted at 5:15. They were not willing to give any specifics as to why she was admitted at [inaudible]. They were impressed. However — however, we — we do know that she was there at 5:15. They do know [respondent-mother] and
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they know that she had not — they didn’t say that she had not [inaudible].
Respondent-mother’s counsel then informed the court, “Your Honor, my understanding is that none of the hospitals have seen her.” In response, the trial court stated, “We’re going to proceed. I just — I just want to have something for the record that — the efforts that were made to locate her.” The trial court denied respondent-mother’s motion to continue and heard the disposition phase evidence, including testimony from social workers, the juveniles’ foster parents, and respondent-father.
On 19 August 2010, the trial court entered its disposition order. The trial court concluded that it was in the best interests of the two youngest juveniles Br.G. and Bl.G. to terminate respondents’ parental rights, but it was not in the best interest of the oldest juvenile, B.G., to do so. Accordingly, the trial court terminated respondents’ parental rights to the two youngest juveniles Br.G. and Bl.G., but dismissed the petition as to the oldest juvenile. On 13 September 2010, respondent-mother entered written notice of appeal from the orders terminating her parental rights.
II. Motion to Continue
In respondent-mother’s first argument on appeal, she contends that the trial court abused its discretion by denying her motion to continue the disposition hearing. After careful consideration, we disagree.
The juvenile code directly addresses the continuation of hearings involving juvenile matters:
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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). We review a trial court’s grant or denial of a motion to continue for an abuse of discretion:
“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.”
In re Humphrey, 156 N.C. App. 533, 538, 577 S.E.2d 421, 425 (2003) (citation omitted). In addition, “When . . . a parent is absent from a termination proceeding and the trial court preserves the adversarial nature of the proceeding by allowing the parent’s counsel to cross examine witnesses, with the questions and answers being recorded, the parent must demonstrate some actual prejudice in order to prevail upon appeal.” In re Murphy, 105 N.C. App. 651, 658, 414 S.E.2d 396, 400 aff’d per curiam, 332 N.C. 663, 422 S.E.2d 577 (1992).
In this case, we hold that respondent-mother cannot demonstrate that the trial court abused its discretion by denying her motion to continue, because she failed to meet her burden of proving that a continuance was necessary to further substantial
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justice. When respondent-mother’s trial counsel informed the trial court that respondent-mother would not be present at the hearing because of a purported medical emergency, the trial court inquired further into the matter. Respondent-mother’s counsel could not provide additional details, so the trial court instructed the guardian ad litem to determine the nature of the emergency. After making inquiries at three local hospitals, the guardian ad litem informed the trial court that respondent-mother had been admitted to one of the hospitals at 5:15 a.m. on the day of the disposition hearing, but that she was not currently a patient and that the hospital would not provide specific information about her treatment. Moreover, respondent-mother’s attorney then informed the trial court that none of the hospitals had seen respondent-mother. Thus, respondent-mother made no showing as to what medical condition prompted her to seek treatment or that she was hospitalized, or otherwise incapacitated, as of the 2:00 p.m. hearing. Based on the limited information provided by respondent-mother in support of her motion to continue and the results of the guardian ad litem’s investigation into the matter, we decline to find that the trial court abused its discretion in denying respondent-mother’s motion to continue.
In addition, respondent-mother was represented by counsel at the disposition hearing and has not identified any actual prejudice that resulted from the trial court’s denial of her motion to continue. See Murphy, 105 N.C. App. at 658, 414 S.E.2d at 400. Although respondent-mother contends that denial of the motion to
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continue prevented her from testifying during the disposition phase, we note that she was present and did testify during the adjudication phase of the termination hearing. The trial court made findings of fact in which it acknowledged and considered respondent-mother’s testimony when it adjudicated the grounds to terminate her parental rights. Respondent-mother has not challenged any of the trial court’s adjudication or disposition findings of fact, and has made no showing that her testimony would have altered the result of the disposition hearing. Thus, we conclude that “`[t]he record before us is devoid of anything which would indicate any risk of error to the respondent caused by’ the trial court’s denial of [her] motion.” In re K.D.L., 176 N.C. App. 261, 266, 627 S.E.2d 221, 224 (2006) (quoting Murphy, 105 N.C. App. at 656, 414 S.E.2d at 399).
Finally, we note that respondent-mother misplaces her reliance on our recent opinion in In re D.W., ___ N.C. App. ___, 693 S.E.2d 357
(2010), in which we reversed an order terminating parental rights for failure to allow an absent respondent’s motion to continue. In D.W., the trial court held both the adjudication and disposition hearings in the absence of the respondent-mother, and it was unclear that the respondent-mother ever received notice of the hearing. Id. at ___, 693 S.E.2d at 360. The respondent-mother also suffered from diminished mental capacity, which could have made her absence involuntary. Id.
Further, the trial transcript indicated that the trial court was hampered by external time constraints that would have been alleviated had it allowed the
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motion to continue. Id. Finally, the trial court appeared to be confused as to the nature of the proceeding, thereby affecting its evaluation of “what is necessary to ensure the proper administration of justice.” Id.
(internal quotation marks and citation omitted). The holding of D.W. is explicitly confined to the “extraordinary nature of the circumstances presented to the trial court” in that case. Id.
Similar extraordinary circumstances are not present in this case, as the trial court made a careful inquiry into respondent-mother’s medical status and there is no indication that respondent-mother demonstrated any diminished mental capacity or lacked notice of the disposition hearing. In fact, as we have previously noted, respondent-mother was present and able to testify at the adjudication hearing in this case, and her counsel was present at the disposition hearing to assert her interest. Further, the trial court did not suffer from the same confusion or time constraints as the trial court in D.W. Accordingly, we decline to fin D.W. controlling based on the particular circumstances of this case, and further decline to hold that the trial court abused its discretion by denying respondent-mother’s motion to continue the matter.
III. Best Interests of the Juveniles
Respondent-mother’s remaining argument is that the trial court abused its discretion in concluding that it was in the juveniles’ best interests to terminate her parental rights. We disagree.
Once the trial court has determined that a ground for termination exists, it moves on to the disposition stage where it
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must determine whether termination is in the best interests of the juveniles. N.C. Gen. Stat. § 7B-1110(a) (2009). The trial court’s decision at this stage is reviewed for an abuse of discretion. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002).
In determining the best interests of the juveniles, the trial court must consider:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
(6) Any relevant consideration.
N.C. Gen. Stat. § 7B-1110(a) (2009).
“`[F]indings of fact made by the trial court . . . are conclusive on appeal if there is evidence to support them.'” In re H.S.F., 182 N.C. App. 739, 742, 645 S.E.2d 383, 384 (2007) (quoting Hunt v. Hunt, 85 N.C. App. 484, 488, 355 S.E.2d 519, 521 (1987)). “Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.” Id. (quoting Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)).
Here, we hold that the trial court’s unchallenged findings of fact support its conclusion that it was in the juveniles’ best
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interests to terminate respondent-mother’s parental rights. In the adjudication order, the trial court made a finding addressing the age of each of the juveniles, and the trial court took judicial notice of the adjudication order in the disposition order. In the disposition order, the trial court further found that the juveniles’ prospective adoptive family was “willing and able to provide for all of the minor children’s educational, psychological, medical and financial needs and continue to desire to adopt [the juveniles].” The trial court also found that the juveniles “barely know” their biological parents, but that they are “very bonded” with the prospective adoptive parents. These findings are supported by the testimony provided by the social workers and foster family at the disposition hearing, and demonstrate that the trial court considered the criteria listed in the statute. Accordingly, we hold that the trial court acted within its discretion in concluding that it was in the juveniles’ best interests to terminate respondent-mother’s parental rights.
IV. Conclusion
We hold the trial court did not abuse its discretion in denying respondent-mother’s motion to continue the disposition hearing. In addition, the trial court’s uncontested findings of fact support its conclusion that it was in the best interests of the two juveniles Br.G and Bl.G to terminate respondent-mother’s parental rights. The trial court’s order is therefore affirmed.
Affirmed.
Judges BEASLEY and THIGPEN concur.
Report per Rule 30(e).
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