In re A.M.C. and N.A.G.

• Court: Supreme Court of North Carolina
• Decided: July 15, 2022
• Docket: 341A21
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-82

No. 341A21

Filed 15 July 2022

IN THE MATTER OF: A.M.C. and N.A.G.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 27 May

2021 by Judge Kimberly Gasperson-Justice in District Court, Henderson County.

This matter was calendared in the Supreme Court on 1 July 2022 but determined on

the record and briefs without oral argument pursuant to Rule 30(f) of the North

Carolina Rules of Appellate Procedure.

Susan F. Davis, Assistant County Attorney, for petitioner-appellee Henderson County Department of Social Services.

Alston & Byrd LLP, by Kelsey L. Kingsbery, for appellee Guardian ad Litem.

Freedman Thompson Witt Ceberio & Byrd PLLC, by Christopher M. Watford, for respondent-appellant mother.

EARLS, Justice.

¶1 Respondent-mother appeals from the trial court’s order terminating her

parental rights in her minor children “Ava” and “Noah.”1 The sole basis for the appeal

is the trial court’s denial of her counsel’s motion for a continuance of the termination

hearing. The record demonstrates that this motion was not based on the potential

1 Pseudonyms are used to protect the identity of the minor children and for ease of reading. IN RE A.M.C. AND N.A.G.

Opinion of the Court

denial of a constitutional right; therefore, an abuse of discretion standard applies. We

conclude that the trial court did not abuse its discretion in denying the motion to

continue, and we affirm the trial court’s order terminating respondent’s parental

rights in Ava and Noah.

I. Background

¶2 On 21 June 2019, the Henderson County Department of Social Services (DSS)

filed a juvenile petition alleging that Ava and Noah were neglected and dependent

juveniles. The petition stated that law enforcement had executed a search warrant

that morning at respondent’s home, where they discovered intravenous needles, some

filled with a “brownish clear liquid,” and a pipe, all within easy reach of the children.

Law enforcement contacted DSS after discovering Ava and Noah in the home and

arrested respondent and her boyfriend on charges related to methamphetamines.

Respondent told a social worker she was using methamphetamines and had been

doing so for at least a year, but she refused to sign a safety plan or participate in

services with DSS and was unable to identify a potential placement for the children.

Based on the allegations in the petition and lack of an appropriate caretaker, DSS

sought and obtained nonsecure custody of the children the same day.

¶3 After a hearing on 10 October 2019, the trial court entered an order

adjudicating Ava and Noah to be neglected and dependent juveniles. The adjudication

was based on the allegations in the juvenile petition as well as the children’s IN RE A.M.C. AND N.A.G.

subsequent forensic medical examinations, which revealed further evidence

regarding how respondent’s drug use was affecting the children and evidence of the

children’s exposure to domestic violence. Noah’s hair follicle test returned positive for

methamphetamine, amphetamine, and cocaine. In the contemporaneous disposition

order, the court ordered respondent to satisfy several requirements to achieve

reunification with the children, including completing assessments related to

substance abuse and domestic violence and following the resulting recommendations,

submitting to random drug screens, obtaining a stable income and maintaining

appropriate housing, visiting with the children, and keeping in contact with DSS. The

children were placed in their aunt’s care.

¶4 In the order entered following the first review and permanency-planning

hearing held on 13 February 2020, the trial court found respondent had made some

progress towards completing the requirements for reunification. Respondent had

obtained a substance abuse assessment, which recommended individual and family

therapy and ninety hours in a substance abuse intensive outpatient treatment

program (SAIOP), and had begun individual therapy. The court had established a

child support requirement of $50.00 a month. Moreover, the court found that

respondent had visited with the children, maintained contact with DSS, and obtained

appropriate housing. Nonetheless, the court found respondent’s progress to be

inadequate based upon her multiple positive drug screens, as well as her failures to IN RE A.M.C. AND N.A.G.

obtain a domestic violence assessment, complete a parenting class, obtain

employment or a stable and sufficient income, or complete substance abuse

treatment.2 The court set a primary plan of reunification and a secondary plan of

guardianship with an appropriate caretaker and allowed respondent a minimum of

one hour of supervised visitation per week.

¶5 After several continuances, the matter came on for a review and permanency

planning hearing on 10 December 2020. The court again found respondent’s progress

towards completing the requirements for reunification insufficient to remedy the

conditions which led to the children’s removal. Respondent had either failed to submit

to requested drug screens or tested positive; failed to complete substance abuse

treatment; failed to complete a domestic violence assessment, despite evidence of

continued domestic violence between respondent and her boyfriend; failed to complete

parenting classes; failed to pay child support, having accrued a $250.00 arrearage;

and failed to obtain employment or a stable income. The court changed the primary

plan to adoption and maintained a secondary plan of guardianship with an

appropriate caretaker. The trial court found that the children were negatively

affected by visitation with respondent, especially Noah, who “reacted very

2 Respondent began SAIOP in August 2019, but due to “a decline in her participation and attendance and positive drug screens,” her recommended treatment was changed to inpatient treatment. She arrived at the inpatient facility on 31 December 2019, but she was asked to leave less than two weeks later on 12 January 2020 and was unable to complete the program. IN RE A.M.C. AND N.A.G.

disrespectfully towards his aunt” afterward. The court thus suspended respondent’s

visitation.

¶6 On 25 January 2021, DSS filed a motion to terminate respondent’s parental

rights in Ava and Noah based on neglect and failure to make reasonable progress.

N.C.G.S. § 7B-1111(a)(1)–(2) (2021). The termination hearing was first scheduled for

8 April 2021, but it was continued to 16 April 2021 “due to the number of cases

scheduled for hearing and the lack of available court time.” At the beginning of the

hearing, respondent’s counsel requested a continuance, but the trial court denied the

motion. In the termination order entered on 27 May 2021, the court determined that

grounds existed to terminate respondent’s parental rights pursuant to N.C.G.S. § 7B-

1111(a)(1) and (2) and concluded that termination of respondent’s parental rights was

in Ava’s and Noah’s best interests.3

II. Analysis

¶7 Respondent’s sole argument on appeal is that the trial court violated her

constitutional right to effective assistance of counsel when the court denied her

counsel’s motion for a continuance. Respondent argues that her counsel “was not

provided with an opportunity to appropriately prepare” a defense for the termination

hearing. She asserts this purported violation of her rights created a presumption of

3 The order also terminated the rights of Ava and Noah’s father, but he is not a party to this appeal. IN RE A.M.C. AND N.A.G.

prejudice because there is no evidence she was the cause of the delay in her counsel’s

preparation.

¶8 “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 (2020) (quoting State v. Walls, 342 N.C.

1, 24 (1995)). If the motion is based on a constitutional right, “the motion presents a

question of law and the order of the court is reviewable.” Id. at 517 (quoting State v.

Baldwin, 276 N.C. 690, 698 (1970)). “However, when ‘[the respondent] did not assert

in the trial court that a continuance was necessary to protect a constitutional right,’

this Court does not review the trial court’s denial of a motion to continue on

constitutional grounds.” In re D.J., 378 N.C. 565, 2021-NCSC-105, ¶11 (alteration in

original) (quoting In re A.L.S., 374 N.C. at 517). A motion to continue based upon trial

counsel’s request for more time to prepare does not equate to such an assertion. See

In re A.J.P., 375 N.C. 516, 522–24 (2020) (reviewing a denial of a motion to continue

for abuse of discretion where trial counsel asserted he needed “more time for

preparation” after allegedly receiving an underlying order only days before the

termination hearing); In re S.M., 375 N.C. 673, 678–79 (2020) (reviewing a denial of

a motion to continue for abuse of discretion when trial counsel asserted he needed

more time to prepare a defense for, or subpoena witnesses related to, a psychosexual

evaluation of his client that he received the day before the hearing). IN RE A.M.C. AND N.A.G.

¶9 Here, respondent’s counsel did not assert in the trial court that a continuance

was necessary to protect a constitutional right. Instead, he stated: “My reasoning

behind the continuance. Last week was certainly [respondent’s] more recent

incarceration. And they did not provide me an opportunity to really prepare

[respondent] for today’s defense . . . .” Counsel also discussed the imminent possibility

of respondent beginning a 120-day inpatient substance abuse treatment program.

But these reasons do not amount to the assertion of a constitutional right. Thus,

respondent has waived any argument that the denial of the motion to continue was

based on a legal issue implicating her constitutional rights, and we review the court’s

ruling on the motion to continue for abuse of discretion. In re A.J.P., 375 N.C. at 523.

¶ 10 “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. (quoting State v. Hennis, 323 N.C. 279, 285 (1988)).

In reviewing for an abuse of discretion, we are guided by the Juvenile Code, which provides that continuances that extend beyond 90 days after the initial petition shall be granted only in extraordinary circumstances when necessary for the proper administration of justice. 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, 2021-NCSC-47, ¶15 (cleaned up). In this case those factors

show that the trial court’s ruling was reasonable and not arbitrary. IN RE A.M.C. AND N.A.G.

¶ 11 The termination hearing was held on 16 April 2021, eighty-one days after DSS

filed the motion to terminate respondent’s parental rights. Based on counsel’s request

for more time to prepare, and his reference to respondent’s intention to enter a 120-

day treatment facility—the application for which was “still pending” at the time of

the termination hearing—it appears a continuance would have pushed the hearing

beyond the ninety-day period prescribed by N.C.G.S. § 7B-1109(d). Thus, respondent

was required to show “extraordinary circumstances” to justify a continuance. See

N.C.G.S. § 7B-1109(d) (2021). We conclude that she failed to make such a showing.

¶ 12 Respondent places great emphasis on a purported “third-party involvement or

interference,” which allegedly prevented her counsel from preparing for the hearing.

At the termination hearing, a DSS social worker testified that law enforcement found

drugs during a raid of respondent’s home on 12 March 2021. As a result, respondent

was arrested and jailed at the Henderson County Detention Center. In requesting a

continuance, as noted above, counsel for respondent merely stated, “Last week was

certainly [respondent’s] more recent incarceration. And they did not provide me an

opportunity to really prepare [respondent] for today’s defense . . . .” While respondent

concedes trial counsel “never identified the third party[,]” she suggests that “it seems

likely that [counsel’s] reference may indicate” it was the staff at the detention center

who impeded her counsel’s ability to prepare for the hearing.

¶ 13 We find such conjecture, without any concrete evidence of direct interference IN RE A.M.C. AND N.A.G.

from jail staff, insufficient to support a conclusion that extraordinary circumstances

are present in this case. Cf. In re J.E., ¶17 (“Respondent’s attempt on appeal to

explain his absence by asserting it was ‘likely’ he did not know the hearing date is

not convincing. Respondent never affirmatively asserts he did not have notice of the

hearing.”). The motion to terminate respondent’s parental rights was filed on 25

January 2021, respondent was incarcerated on 12 March 2021, and she remained

incarcerated when the termination hearing was held on 16 April 2021. Without more,

respondent’s incarceration for thirty-five out of eighty-one days between the filing of

the motion and the hearing does not create extraordinary circumstances mandating

additional time. We conclude that the trial court did not abuse its discretion in

denying her motion for a continuance. See id. ¶19.

¶ 14 Having concluded that the trial court did not abuse its discretion in denying

the motion for a continuance, we do not need to address whether denial of the motion

prejudiced respondent; however, respondent also argues that the denial of the

continuance motion, whether or not the motion was explicitly premised on the denial

of a constitutional right, did, in fact, deprive her of her right to effective assistance of

counsel. Respondent also characterizes her attorney’s performance as deficient

because he failed to present “her side of things” to the trial court. While she concedes

that her attorney “made a handful of objections,” she asserts that he “offered very

little defense” in that he did not present any evidence or witnesses or give a closing IN RE A.M.C. AND N.A.G.

argument. Respondent contends that because her attorney “knew that he was limited

in his ability to represent” her, he was unable to present her testimony concerning

“her ability to comply with classes and treatment programs, or her lack thereof,” her

motivations, and her intentions, as well as her “evidence to clarify the bare assertions

of the social worker gleaned from hearsay sources.”

¶ 15 We note that respondent’s counsel was appointed to represent her on 11 July

2019, nearly two years before the termination hearing. He received a copy of the

motion to terminate respondent’s parental rights on 25 January 2021 and filed an

answer to the motion on 24 February 2021. In addition to the “handful of objections”

made by her counsel that respondent acknowledged, her counsel cross-examined a

witness during adjudication, and it appears from the transcript that neither party

was offered or made closing arguments. Respondent makes no effort to indicate what

evidence could have been presented, or what facts might have been established, had

a continuance been granted and her counsel been afforded more time to prepare for

the hearing. Moreover, respondent does not challenge any evidence presented at the

hearing or the trial court’s findings or conclusions based on that evidence. Therefore,

respondent has failed to demonstrate ineffective assistance of counsel and has failed

to establish grounds to reverse the termination order or to receive a new termination

hearing. IN RE A.M.C. AND N.A.G.

III. Conclusion

¶ 16 Accordingly, we conclude that the trial court did not abuse its discretion in

denying respondent’s motion for a continuance and that there is no factual basis for

the assertion that counsel’s performance at the termination hearing was

constitutionally deficient. Because respondent in this appeal did not challenge either

the grounds for termination or the determination that termination was in Ava’s and

Noah’s best interests, we affirm the trial court’s termination order.

AFFIRMED.