In re C.A.B.

• Court: Supreme Court of North Carolina
• Decided: May 6, 2022
• Docket: 138A21
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-51

No. 138A21

Filed 6 May 2022

IN THE MATTER OF: C.A.B.

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

respondent-father’s parental rights entered on 2 February 2021 by Judge Kathryn

Whitaker Overby in District Court, Alamance County. Heard in the Supreme Court

on 22 March 2022.

Jamie L. Hamlett for petitioner-appellee Alamance County Department of Social Services.

Christina Freeman Pearsall for appellee Guardian ad Litem.

Mercedes O. Chut for respondent-appellant father.

EARLS, Justice.

¶1 In this case we consider whether a parent who was incarcerated at the time of

an adjudicatory hearing on a motion to terminate his parental rights was entitled to

a continuance in order to have the opportunity to be present at the hearing.

Respondent-father was incarcerated when he first learned that he was the father of

a newborn, Caleb,1 and he remained in detention throughout the duration of Caleb’s

juvenile proceedings. He expressed a desire to parent Caleb upon his release and

1 We use a pseudonym to protect the identity of the juvenile and for ease of reading. See N.C. R. App. P. 42(b). The juvenile’s mother is not a party to this appeal. IN RE C.A.B.

Opinion of the Court

opposed the effort to terminate his parental rights. On the day of the adjudicatory

hearing, respondent-father was unable to appear due to a lockdown at his prison

necessitated by the COVID-19 pandemic. According to respondent-father’s counsel,

the lockdown was set to expire in five days. Nonetheless, the trial court denied

respondent-father’s motion to continue the hearing and ultimately entered an order

terminating his parental rights.

¶2 Parents, including incarcerated parents, possess a “fundamental liberty

interest[ ]” which “includes the right of parents to establish a home and to direct the

upbringing and education of their children.” Owenby v. Young, 357 N.C. 142, 144

(2003) (cleaned up). Thus, “[w]hen the State moves to destroy weakened familial

bonds, it must provide the parents with fundamentally fair procedures.” In re

Murphy, 105 N.C. App. 651, 653 (quoting Santosky v. Kramer, 455 U.S. 745, 753–54

(1982)), aff’d per curiam, 332 N.C. 663 (1992). In this case, respondent-father was

denied the opportunity to present testimony at the termination hearing and to work

with his counsel to develop and execute a strategy to oppose termination of his

parental rights. Furthermore, the substantive findings in support of the trial court’s

decision to terminate respondent-father’s parental rights all directly related to his

conduct in prison, a subject respondent-father’s testimony would have aided the court

in assessing. Accordingly, the trial court’s denial of respondent-father’s motion to

continue the adjudicatory hearing undermined the fairness of that hearing. We IN RE C.A.B.

conclude that the trial court prejudicially erred and we vacate the order terminating

respondent-father’s parental rights.

I. Background.

¶3 On 28 January 2019, the Alamance County Department of Social Services

(DSS) assumed custody of Caleb, who was four days old, after his mother tested

positive for cocaine at Caleb’s birth. No father was listed on Caleb’s birth certificate,

but Caleb’s mother identified respondent-father as a possible biological father. At the

time of Caleb’s birth, respondent-father was detained on federal charges including

obtaining property by false pretenses, possession of stolen goods, and possession of a

firearm by a felon. Eleven days after DSS took custody of Caleb, respondent-father

took a paternity test which established to a near certainty that he was Caleb’s

biological father.

¶4 On 14 March 2019, a DSS social worker visited respondent-father at the

Alamance County Detention Center, where he was being held pending the resolution

of the federal charges against him. At the time, respondent-father told the social

worker that he thought he was “looking at three years in prison,” but that he “would

like for his son to be with family” and “would like to work to regain custody of his son

when he is released from prison.” He identified three relatives as potential alternative

caregivers. None of the three relatives agreed to take custody of Caleb; however, the

social worker subsequently learned that respondent-father’s sister, Larissa, was IN RE C.A.B.

willing to care for Caleb if she could also adopt him. DSS ordered a home study to

determine if Larissa would be a suitable placement.

¶5 Before the home study was completed, Caleb was adjudicated to be a neglected

and dependent juvenile. DSS retained nonsecure custody. The court approved a case

plan proposed by DSS requiring respondent-father to:

 Develop a sufficient source of income to support himself and the child and use funds to meet basic needs. He can work to achieve this goal by applying for a minimum of five jobs a week, submitting monthly job search log[s] and taking part in job- readiness programs.

 Provide a safe, stable and appropriate home environment. He can work to achieve this goal by applying for housing at five locations a week and providing a monthly log to the social worker, saving sufficient funds for deposits, complying with the terms of his lease, maintaining the home in a fit and habitable condition and keeping working utilities.

 Refrain from allowing his substance abuse to affect his parenting of his child and provide a safe, appropriate home by not exposing his child to an injurious environment.

 Obtain and follow the recommendations of a substance abuse assessment, refrain from using illegal or illicit substances or abusing prescription medication[s], provide a home environment free of illegal or illicit substances and/or persons who are using or under the influence of such.

 Demonstrate the ability to implement age- appropriate disciplinary practices and parenting skills. IN RE C.A.B.

 Attend a parenting curriculum and demonstrate appropriate skills during visitation.

Although the trial court noted that respondent-father’s “visitation is suspended due

to the limits of visits in the Alamance County [detention center],” the court did not

otherwise adapt respondent-father’s case plan to reflect the circumstances of his

incarceration.2

¶6 Subsequently, DSS received a favorable home study for Larissa and her

husband, and Caleb was placed in their home on 3 May 2019. To facilitate Caleb’s

adoption by Larissa, respondent-father executed a relinquishment of his parental

rights specifically to his sister and brother-in-law. Caleb’s mother also relinquished

her parental rights. Both parents were released as parties to Caleb’s juvenile

proceedings. In April 2020, DSS received final approval for Larissa and her husband

to adopt Caleb.

¶7 But, later that same month, Larissa informed DSS that she “feels overwhelmed

with everything that is going on in her life right now.” She also expressed concern

that, notwithstanding their relinquishments, respondent-father and Caleb’s mother

“are going to want to be in and out of his life because [they are] family once [Caleb’s]

adopted.” Larissa explained that she had arrived at the conclusion “that she just

couldn’t keep [Caleb]” and that it was “in his best interest . . . to go to a deserving

2 The trial court also developed a separate case plan for Caleb’s mother but that plan is not at issue in this appeal. IN RE C.A.B.

family . . . where his birth parents couldn’t mess up his life.” On 4 May 2020, DSS

notified respondent-father and Caleb’s mother that Larissa’s adoption of Caleb would

not go forward. Respondent-father subsequently revoked his specific relinquishment

of his parental rights. Caleb was removed from Larissa’s home and placed with foster

parents.

¶8 On 15 July 2020, the trial court restored respondent-father as a party to

Caleb’s juvenile proceedings and appointed him an attorney. DSS had difficulty

establishing contact with respondent-father, who by this time was being held at the

Beckley Federal Correctional Institution in West Virginia. Eventually, respondent-

father notified DSS and the court that he “no longer wanted [Caleb] to be adopted by

someone new because he had already gotten a full year closer to being released since

he initially executed his specific relinquishment.” Respondent-father asserted that he

“has not had any write-ups or engaged in any trouble since his incarceration in May

of 2018,” “has taken courses at the prison in order to be a better father for [Caleb],”

and “has a job in the penitentiary kitchen”; in addition, he stated that he “started a

rehabilitation program for drug abuse” and signed up to “take a parenting class” but

that both had been suspended due to COVID-19. Respondent-father also provided the

names of additional relatives to be considered as potential placements for Caleb,

including respondent-father’s own parents.

¶9 On 12 August 2020, the trial court approved an updated case plan requiring IN RE C.A.B.

respondent-father to

participate in Parenting classes through the prison . . . demonstrate appropriate and safe parenting choices . . . maintain communication with [DSS] . . . engage in Mental Health services provided through the prison . . . demonstrate good coping skills . . . participate in his 100- hour rehab program through the prison . . . help provide for the needs of [Caleb] . . . give consent for his case manager to provide [DSS with] information regarding his stay in prison . . . [and] upon [his] release from prison . . . engage in activities to obtain and maintain an appropriate home for he and [Caleb]; . . . maintain a way to meet the[ir] daily needs . . . [and] refrain from illegal activities that could cause him to be arrested and incur more prison time . . . .

The court maintained a primary plan of adoption with a secondary plan of

guardianship and ordered DSS to perform a home study of Caleb’s paternal

grandparents. The trial court later determined that “though the paternal

grandparents have a suitable home and the financial ability to provide for the

Juvenile . . . [Caleb] should remain in the current foster placement progressing to

adoption by the [f]oster [f]amily.”

¶ 10 On 28 August 2020, DSS filed a motion in the cause seeking termination of

respondent-father’s parental rights. DSS asserted that termination was warranted

on four grounds: neglect pursuant to N.C.G.S. § 7B-1111(a)(1); willful failure to make

reasonable progress to correct the conditions that led to Caleb’s removal pursuant to

N.C.G.S. § 7B-1111(a)(2); willful failure to pay a reasonable portion of Caleb’s cost of

care pursuant to N.C.G.S. § 7B-1111(a)(3); and incapability to provide for Caleb’s IN RE C.A.B.

proper care and supervision pursuant to N.C.G.S. § 7B-1111(a)(6). A hearing on the

motion to terminate parental rights was initially set for 21 October 2020; however,

this hearing was continued at respondent-father’s counsel’s request because counsel

was “not available for [the] hearing.” A subsequent hearing scheduled for 16

December 2020 was continued until 20 January 2021 due to the renewal of an

Emergency Directive issued by then-Chief Justice Beasley in response to the ongoing

COVID-19 pandemic.

¶ 11 On 12 January 2021, respondent-father’s counsel filed a motion to continue the

upcoming adjudicatory hearing on DSS’s motion to terminate. In the motion,

respondent-father’s counsel explained that respondent-father’s case manager had

informed him

that the federal penitentiary [where respondent-father was being held] was under lockdown due to COVID-19 until January 25, 2021 and no movement is permitted until that date. As such, [respondent-father] will not be available to call-in nor in any other way participate in the hearing scheduled for January 20, 2021.

At the adjudicatory hearing, the trial court heard from respondent-father’s counsel

in support of the motion, and from DSS and the guardian ad litem (GAL) in

opposition. The trial court denied respondent-father’s motion to continue the hearing.

In a subsequent written order, the trial court explained:

3. That this motion to terminate parental rights was filed August 28, 2020 and initially scheduled for hearing on October 12, 2020. That hearing was continued at the IN RE C.A.B.

request of the father’s attorney and scheduled for December 16, 2020. That hearing was continued at no fault of anyone involved in this matter.

4. [Respondent-father’s counsel] reports the lock down is scheduled to be lifted January 25, 2021. However, no one knows for sure how COVID-19 will continue to impact the prison system.

5. That hearings on motions to terminate parental rights are required to be heard within 90 days of filing. This case is already outside the required timeframe. The father and his attorney have had an extended period of time to prepare for this matter.

6. That the Respondent Father’s attorney will be present at the hearing and permitted to cross exam witnesses and present evidence. That the father’s report is admitted into evidence as well as his exhibits by the consent of the parties. These processes assure the due process rights of the father are being honored and the adversar[ial] nature of the proceeding is preserved.

7. The Respondent Father and the Alamance County Department of Social Services both have a commanding interest in this proceeding.

8. That due to the fundamental fairness of the process, representation of counsel for the father and other processes, the risk of error by not having the father present is low.

Based on these findings, the trial court concluded that the motion to continue should

be denied because respondent-father’s “due process and constitutional safeguards are

being adequately observed and protected through the nature of these proceedings.”

¶ 12 After denying respondent-father’s motion to continue, the trial court conducted

an adjudicatory hearing on DSS’s motion to terminate respondent-father’s parental IN RE C.A.B.

rights. During the hearing, DSS presented testimony from a DSS social worker.

Respondent-father’s counsel presented testimony from Caleb’s paternal grandfather,

Larry, who stated that respondent-father had called him on the morning of the

hearing because respondent-father had been “let . . . out” of lockdown for about thirty

minutes. At the dispositional stage, the court heard testimony from Caleb’s GAL. The

trial court also considered a three-page report prepared by counsel which asserted

that respondent-father had attained an “unblemished discipline history while

incarcerated;” was “actively engaging in classes to better himself so that he can be a

better parent to [Caleb];” and had “sent [Caleb] thirty-five dollars” and “two hand-

made cards.” In addition, the report further argued it was “not in [Caleb’s] best

interests for [respondent-father’s] parental rights to be terminated.” On the basis of

this evidence, the trial court concluded that DSS had proven the existence of all four

grounds for termination and that terminating respondent-father’s parental rights

was in Caleb’s best interests.

¶ 13 On 11 February 2021, respondent-father timely filed a notice of appeal

pursuant to N.C.G.S. § 7B-1001(a1)(1).

II. Standard of review.

¶ 14 The standard of review utilized by an appellate court in reviewing a trial

court’s denial of a party’s motion to continue varies depending on the reason the party

sought the continuance. “Ordinarily, a motion to continue is addressed to the IN RE C.A.B.

discretion of the trial court, and absent a gross abuse of that discretion, the trial

court’s ruling is not subject to review.” State v. Walls, 342 N.C. 1, 24 (1995). “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” de novo. State v. Baldwin, 276 N.C. 690, 698 (1970); see also State v.

Johnson, 379 N.C. 629, 2021-NCSC-165, ¶ 16 (“Defendant’s motion to continue raised

a constitutional issue, requiring de novo review by this Court.”).

¶ 15 “[A] parent enjoys a fundamental right ‘to make decisions concerning the care,

custody, and control’ of his or her children under the Due Process Clause of the

Fourteenth Amendment to the United States Constitution.” Adams v. Tessener, 354

N.C. 57, 60 (2001) (quoting Troxel v. Granville, 530 U.S. 57, 66 (2000)). Accordingly,

as noted above, “[w]hen the State moves to destroy weakened familial bonds, it must

provide the parents with fundamentally fair procedures.” In re Murphy, 105 N.C.

App. at 653 (quoting Santosky, 455 U.S. at 753–54). At an adjudicatory hearing, a

respondent-parent must be afforded an adequate opportunity to present evidence

“enabl[ing] the trial court to make an independent determination” regarding the facts

pertinent to the termination motion. In re T.N.H., 372 N.C. 403, 409 (2019). Thus,

when a parent is unable to attend a termination hearing as a result of the trial court’s

refusal to grant a continuance, that parent’s constitutional due process rights may be

implicated. IN RE C.A.B.

¶ 16 Nonetheless, even if a motion to continue implicates a parent’s constitutional

parental rights, a reviewing court will only review a denial of the motion de novo if

the respondent-parent “assert[ed] before the trial court that a continuance was

necessary to protect a constitutional right.” In re S.M., 375 N.C. 673, 679 (2020). If

the respondent-parent fails to assert a constitutional basis in support of his or her

motion to continue, “that position is waived and we are constrained to review the trial

court’s denial of [a] motion to continue for abuse of discretion.” Id. In this case, the

constitutional basis for respondent-father’s motion to continue was apparent from the

motion itself, in which respondent-father’s counsel expressly argued that

the proper administration of justice and any reasonable understanding of due process demands [respondent- father’s] presence at this hearing to determine if the state will strip him of his constitutionally protected parental rights. [Respondent-father] has a fundamental right to participate in the state’s efforts to deny him his constitutional rights to care for his child. [Respondent- father] strenuously objects to the state’s efforts to terminate his parental rights over his minor child. In order to defend his rights [respondent-father] will testify at this hearing. This will be an impossibility if a continuance is not granted.

Accordingly, we review the trial court’s denial of respondent-father’s motion to

continue the termination hearing de novo.

III. Analysis.

¶ 17 To establish that a termination order entered after a trial court has denied a IN RE C.A.B.

motion to continue should be overturned, a respondent-parent must “show[ ] both

that the denial was erroneous, and that [the respondent-parent] suffered prejudice

as a result of the error.” In re A.L.S., 374 N.C. 515, 517 (2020) (quoting Walls, 342

N.C. at 24–25). In support of their assertion that the trial court did not err, DSS and

the GAL echo two justifications the trial court relied upon in support of its denial of

respondent-father’s request for a continuance. First, they argue that the trial court

did not err in denying the motion because “the matter was outside of the [ninety]-day

statutory period, with two continuances having already been granted, one of which

was requested by respondent[-]father’s attorney.” Second, they argue that the trial

court did not err in denying the motion because the court appropriately “weighed and

balanced the rights and interest[s] of all involved, assuring the father’s due process

rights were secured” by conducting the hearing in a manner that “preserved the

adversarial nature of the proceedings and assured the father had more than adequate

representation.” With respect to prejudice, they argue that respondent-father has

failed to demonstrate that his testimony “would have presented any evidence not

already provided to the court,” especially given that respondent-father’s rights “were

protected by counsel.” We address each argument in turn.

A. The trial court erred to the extent it determined that the lockdown at respondent-father’s detention facility was not an “extraordinary circumstance[ ]” within the meaning of the Juvenile Code.

¶ 18 Under North Carolina’s Juvenile Code, a trial court may continue an IN RE C.A.B.

adjudicatory hearing on a motion or petition to terminate a parent’s parental rights

for up to ninety days “for good cause shown.” N.C.G.S. § 7B-1109(d) (2021). A trial

court may also continue an adjudicatory hearing to a date more than ninety days past

the date the motion or petition was filed, but “[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.” Id. (emphasis added). In

this case, when respondent-father filed the motion to continue at issue on appeal,

more than ninety days had already passed since DSS initially filed its termination

motion. Indeed, the trial court had already determined that “extraordinary

circumstances” justified continuing two previously scheduled adjudicatory hearings

beyond the statutory ninety-day period: first, when respondent-father’s counsel noted

a scheduling conflict, and second, when then-Chief Justice Beasley renewed a

COVID-19 Emergency Directive.

¶ 19 The trial court did not expressly state that respondent-father’s motion failed

to present an “extraordinary circumstance[ ]” within the meaning of N.C.G.S. § 7B-

1109(d). But the trial court did refer to this statutory requirement in noting that

“[t]his case is already outside the required timeframe.” Still, even if it is correct that

a trial court should consider the overall amount of time that has elapsed when ruling

on a motion to continue filed more than ninety days after the filing of a termination

motion, a trial court is not entitled to ignore the nature of the circumstances IN RE C.A.B.

presented in support of the continuance motion. “Extraordinary circumstances” may

occur both within and beyond ninety days after the filing of a termination motion or

petition.

¶ 20 Here, the trial court had previously concluded that a disruption caused by the

COVID-19 pandemic was an “extraordinary circumstance[ ]” permitting it to exercise

its authority to grant a continuance pursuant to N.C.G.S. § 7B-1109(d). Logically,

another disruption caused by the COVID-19 pandemic, one which precluded

respondent-father from attending the adjudicatory hearing, was also an

“extraordinary circumstance[ ]” permitting the trial court to exercise its authority to

grant a continuance pursuant to N.C.G.S. § 7B-1109(d). While the trial court was

certainly correct in noting that “no one knows for sure how COVID-19 will continue

to impact the prison system,” the fact that the court was confronted with an

unprecedented and rapidly evolving situation supports rather than detracts from the

conclusion that respondent-father’s motion presented an “extraordinary

circumstance[ ]” within the meaning of N.C.G.S. § 7B-1109(d).

¶ 21 This conclusion does not necessarily mean that the trial court reversibly erred

in denying respondent-father’s motion to continue. As previously noted, determining

that a motion to continue presents an “extraordinary circumstance[ ]” does not require

a trial court to continue the hearing under N.C.G.S. § 7B-1109(d). But our conclusion

that respondent-father’s motion to continue did present an “extraordinary IN RE C.A.B.

circumstance[ ]” does foreclose upon the argument that the trial court necessarily

could not have erred because it lacked the authority to continue an adjudicatory

hearing beyond ninety days under our Juvenile Code. Accordingly, we reject the

contention that the trial court properly denied respondent-father’s motion because

the lockdown at his prison occasioned by the COVID-19 pandemic was not an

“extraordinary circumstance[ ]” within the meaning of N.C.G.S. § 7B-1109(d).

B. The adjudicatory hearing held in respondent-father’s absence did not meet the requirements of due process.

¶ 22 We next consider whether the trial court’s decision to deny respondent-father’s

motion to continue the adjudicatory hearing violated respondent-father’s due process

rights. As explained above, the Due Process Clause of the United States Constitution

requires the State to “provide [ ] parents with fundamentally fair procedures” when

seeking to terminate their parental rights. In re Murphy, 105 N.C. App. at 653

(quoting Santosky, 455 U.S. at 754). The requirements of due process are “flexible

and call[ ] for such procedural protections as the particular situation demands.” Jones

v. Keller, 364 N.C. 249, 256 (2010) (quoting Morrissey v. Brewer, 408 U.S. 471, 481

(1972)). When assessing whether the requirements of due process have been met,

courts consider “the private interests affected by the proceeding; the risk of error

created by the State’s chosen procedure; and the countervailing governmental

interest supporting use of the challenged procedure.” Santosky, 455 U.S. at 754 (citing

Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). IN RE C.A.B.

¶ 23 It is indisputable that respondent-father has a “commanding” interest “in the

accuracy and justice of the decision to terminate his [ ] parental status.” Lassiter v.

Dep’t of Soc. Servs. of Durham Cty., N.C., 452 U.S. 18, 27 (1981); see also Price v.

Howard, 346 N.C. 68, 79 (1997) (recognizing “[a] natural parent’s constitutionally

protected paramount interest in the companionship, custody, care, and control of his

or her child”). This interest “weighs against the respondent’s absence from the

adjudicatory hearing.” In re Murphy, 105 N.C. App. at 654. At the same time, it is

indisputable that DSS possessed an “equally commanding” interest in the outcome of

the proceeding. Id. at 655.

¶ 24 To be clear, the “countervailing government interest” at stake here was not an

interest in rapidly terminating respondent-father’s parental rights to facilitate

Caleb’s adoption. Id. Rather, DSS’s interest was in protecting Caleb’s welfare through

a proceeding that reaches “a correct decision” regarding whether respondent-father’s

parental rights could and should be terminated. Id. While it may be the case that

terminating respondent-father’s parental rights was both legally permissible and in

Caleb’s best interest, neither proposition could be assumed; the reason a trial court

conducts an adjudicatory hearing is to determine if grounds exist to lawfully

terminate a parent’s parental rights, and one of the purposes of the procedures

created by our Juvenile Code is to “prevent[ ] the unnecessary or inappropriate

separation of juveniles from their parents.” N.C.G.S. § 7B-100(4) (2021); cf. In re IN RE C.A.B.

A.C.F., 176 N.C. App. 520, 527 (2006) (recognizing “the State’s interests in preserving

the family” of a child whose parents are subject to termination proceedings). The

State’s interest in this proceeding necessarily partially overlapped with respondent-

father’s interest, in that both had a commanding interest in ensuring that the

adjudicatory hearing helped the trial court reach the correct disposition of DSS’s

motion to terminate respondent-father’s parental rights. See In re K.M.W., 376 N.C.

195, 208 (2020) (recognizing that “fundamentally fair procedures” are “an inherent

part of the State’s efforts to protect the best interests of the affected children by

preventing unnecessary interference with the parent-child relationship”).

¶ 25 Because the parties largely agree that all parties to the adjudicatory hearing

possessed a substantial interest in its outcome, “determination of whether

respondent’s federal due process rights have been violated turns upon the second

Eldridge factor, risk of error created by the State’s procedure.” In re Murphy, 105

N.C. App. at 655. Respondent-father argues that his absence significantly increased

the risk of an erroneous termination of his parental rights because (1) he was

deprived of the opportunity to testify regarding topics central to the resolution of

DSS’s termination motion, and (2) his counsel did not have the opportunity to obtain

the information about which respondent-father would have testified to at the hearing

given that respondent-father was in lockdown for weeks preceding the hearing. In

response, DSS and the GAL contend that the risk of error was minimal because IN RE C.A.B.

respondent-father was represented by counsel and the trial court admitted into

evidence a report summarizing respondent-father’s conduct while in prison. Although

it is well established that “an incarcerated parent does not have an absolute right to

be transported to a termination of parental rights hearing in order that he [or she]

may be present under either statutory or constitutional law,” id. at 652–53, we

conclude that respondent-father’s absence created a meaningful risk of error that

undermined the fundamental fairness of this adjudicatory hearing.

¶ 26 The crux of DSS’s termination motion—and the central factual basis for the

trial court’s termination order—was respondent-father’s conduct while in prison.

Each of the grounds asserted by DSS required an assessment of his conduct in light

of the constraints imposed by his incarceration. Naturally, respondent-father

possessed firsthand information regarding his conduct in prison that would have been

relevant to the trial court’s adjudication of these asserted grounds. This information

included the availability of programs and services in his detention facility addressing

the various components of his case plan, the effects of the COVID-19 pandemic on the

availability of those programs, his efforts to avail himself of any existing programs

and services during the time he was not a party to Caleb’s juvenile proceeding, the

progress he has made while enrolled in any programs or services, and his personal

financial situation. The trial court needed this information to ensure that its

adjudication was based on the specific facts of respondent-father’s conduct in prison, IN RE C.A.B.

as opposed to facts necessarily attendant to the fact of respondent-father’s

incarceration in general. Cf. In re A.G.D., 374 N.C. 317, 327 (2020) (“[T]he fact of

incarceration is neither a sword nor a shield for purposes of a termination of parental

rights proceeding.”). Denying respondent-father’s motion to continue deprived the

court of a crucial source of information about a topic central to the court’s resolution

of the termination motion.

¶ 27 The presence of counsel representing respondent-father may have partially

mitigated the unfairness of proceeding without respondent-father’s participation.

Counsel’s representation ensured that someone would be at the adjudicatory hearing

to advocate on respondent-father’s behalf. Yet under the circumstances of this case,

counsel’s presence did not obviate the risk of error created by respondent-father’s

absence. Counsel was severely limited in his ability to elicit up-to-date information

from respondent-father at or near the time of the hearing because respondent-father

was incarcerated in West Virginia in a facility under COVID-19 lockdown. Indeed,

when respondent-father’s counsel e-mailed a prison official to schedule a meeting

with respondent-father to prepare for the adjudicatory hearing, the official responded

that respondent-father could not be made available for a meeting because the facility

was under “lock down until Jan 25. No movement is available until then[.]”

¶ 28 Furthermore, while respondent-father’s counsel did submit a report to the trial

court containing a summary of respondent-father’s conduct while in prison, the report IN RE C.A.B.

was admitted “so [respondent-father’s] wishes will be known today,” not to provide

factual information rebutting the allegations DSS made in support of its termination

motion. In addition, because respondent-father’s counsel was unable to meet with

respondent-father before the hearing, it is unclear whether the report provided up-

to-date information regarding respondent-father’s conduct in prison. Accordingly,

even with the report, counsel could not adequately bridge the informational gaps

created when respondent-father was unable to testify at the adjudicatory hearing.

¶ 29 The facts of this case stand in stark contrast to the facts of In re Murphy, upon

which both DSS and the GAL rely. In In re Murphy, “respondent’s attorney did not

argue that his client would be able to testify concerning any defense to termination,”

and counsel “could point to no reason that the respondent should be transported to

the hearing other than for respondent to contest his sexual assault convictions, an

impermissible reason.” 105 N.C. App. at 655. Denying the respondent-parent the

opportunity to testify in that case did not deprive the court of any information

relevant to the disposition of any legal claims. In addition, because the respondent-

father in In re Murphy was incarcerated “[a]s the result of his being convicted of

sexual offenses he committed against his own children,” the Court of Appeals

reasoned that “[r]espondent’s presence at the hearing combined with his parental

position of authority over his children may well have intimidated his children and

influenced their answers if they had been called to testify.” Id. Allowing the IN RE C.A.B.

respondent-parent to be present would have exacerbated the risk of error. By contrast,

in this case respondent-father possessed information relevant to the legal question

before the trial court, and there is no reason to believe that respondent-father’s

presence at the adjudicatory hearing would have interfered with the trial court’s

efforts to elicit truthful and candid testimony from other witnesses.

¶ 30 Under a different set of circumstances, the risk of error created by a

respondent-parent’s absence from an adjudicatory hearing might be outweighed by

the State’s interest in ensuring the efficient and orderly attainment of permanency

for a juvenile. The State has a compelling interest in protecting a juvenile’s welfare,

and this interest both demands and justifies adherence to an expeditious process for

determining when a natural parent’s rights should be terminated. Cf. In re D.L.H.,

364 N.C. 214, 219 n.2 (2010) (noting in a juvenile delinquency matter that “the

mandates of [a provision of the Juvenile Code] . . . encourage expeditious handling of

juvenile matters”). But, under these circumstances, this interest was not

meaningfully implicated by respondent-father’s motion to continue the adjudicatory

hearing. Respondent-father did not ask for an indefinite continuance, nor did he ask

for a continuance until the end of the COVID-19 pandemic, whenever that may be.

He asked to continue a hearing calendared for 20 January 2021 until some date after

25 January 2021 because the lockdown at his prison was scheduled to be lifted at that

time. Under these circumstances, “[t]he State’s interest in prompt resolution of IN RE C.A.B.

[termination] proceedings would not have been significantly affected by a brief

continuance.” In re K.D.L., 176 N.C. App. 261, 265 (2006).

¶ 31 Similarly, under a different set of circumstances, the risk of error created by a

respondent-parent’s absence from an adjudicatory hearing might be negated by the

presence of other witnesses who could provide the court with the same information

the parent possesses. A trial court is required to “receive some oral testimony at the

[adjudicatory] hearing,” In re T.N.H., 372 N.C. at 410 (emphasis added), but there is

no requirement that the respondent-parent himself or herself be its source. Thus, in

this case, had the trial court received testimony from a prison official or some other

individual who could speak directly to respondent-father’s conduct in prison, the

presence of counsel might have adequately protected respondent-father’s interest in

avoiding an erroneous termination of his parental rights. Cf. In re Barkley, 61 N.C.

App. 267, 270 (1983) (concluding that the trial court did not err by excluding a

respondent-mother from the courtroom because her counsel was allowed to cross-

examine a different witness possessing the same relevant substantive information).

But no witness who could compensate for the informational deficiency created by

respondent-father’s absence was available at this adjudicatory hearing.

¶ 32 Procedural due process “is a flexible, not fixed, concept governed by the unique

circumstances and characteristics of the interest sought to be protected.” Peace v.

Emp. Sec. Comm'n of N. Carolina, 349 N.C. 315, 323 (1998). The procedure necessary IN RE C.A.B.

“to [e]nsure fundamental fairness” will vary given the particular context of each case.

State v. Tolley, 290 N.C. 349, 364 (1976) (cleaned up); cf. In re D.W., 202 N.C. App.

624, 628 (2010) (“[A] case-by-case analysis is more appropriate than the application

of rigid rules.”). In this case the trial court’s denial of respondent-father’s motion for

a brief continuance, which prevented respondent-father from testifying at a hearing

where his parental rights were adjudicated, undermined the fairness of that hearing.

Given respondent-father’s inability to meet with counsel before the hearing because

of the lockdown at his prison, the lack of any other testimony regarding respondent-

father’s conduct in prison, the centrality of factual questions regarding respondent-

father’s activities in prison to the court’s examination of the asserted grounds for

termination, and the magnitude of respondent-father’s interest in avoiding an

erroneous termination of his parental rights (which DSS shared), the trial court’s

denial of respondent-father’s motion to continue was legal error.

C. Respondent-father was prejudiced by the trial court’s erroneous denial of his motion to continue the adjudicatory hearing.

¶ 33 Furthermore, we agree with respondent-father that he was prejudiced by the

trial court’s denial of his motion to continue the adjudicatory hearing. Although it is

correct that reversal is warranted only upon a showing of prejudice “whether the

motion raises a constitutional issue or not,” Walls, 342 N.C. at 24, our prejudice

analysis is different when the trial court commits a constitutional error. When the

trial court’s denial of a respondent-parent’s motion to continue violates that parent’s IN RE C.A.B.

due process rights, the “harmless error” standard applies: specifically, the challenged

order must be overturned unless “the error was harmless beyond a reasonable doubt,”

and DSS bears the “burden” of proving that the error was harmless. State v. Scott,

377 N.C. 199, 2021-NCSC-41, ¶ 10; cf. In re T.D.W., 203 N.C. App. 539, 545 (2010)

(applying harmless error analysis to a due process violation in termination of

parental rights context). Under these circumstances, we are unpersuaded that the

trial court’s denial of respondent-father’s motion to continue the adjudicatory hearing

was harmless beyond a reasonable doubt.

¶ 34 In general, to demonstrate prejudice resulting from the denial of a motion to

continue an adjudicatory hearing, a respondent-parent should indicate what the

parent’s “expected testimony” will address and “demonstrate its significance” to the

trial court’s adjudication of the grounds for termination. In re A.L.S., 374 N.C. at 518.

The “better practice [is] to support a motion for continuance with” an “affidavit or

other offer of proof.” Id. (citing and quoting State v. Cody, 135 N.C. App. 722, 726

(1999)). Respondent-father’s counsel did not submit an affidavit or other offer of proof

in support of the continuance motion here. Yet respondent-father’s counsel had no

means of eliciting the information necessary to support such an affidavit or other offer

of proof—counsel’s inability to contact respondent-father and arrange for his

testimony at the hearing because of circumstances beyond the control of either of IN RE C.A.B.

them was a principal justification for seeking the continuance.3 Trial counsel did state

that respondent-father “is standing behind testifying before the [c]ourt” and that he

would “vociferously refute the . . . position to terminate [his] parental rights.” In

addition, in a brief to this Court, appellate counsel described the information

respondent-father would have provided had he been permitted to testify. Accordingly,

in assessing prejudice, we consider these arguments regarding the consequences of

the trial court’s refusal to grant a continuance.

¶ 35 As the Court of Appeals has correctly observed, although parents do not have

an absolute right to be present and testify at a hearing where their parental rights

are being adjudicated, “[g]enerally, we consider the testimony of a parent to be a vital

source of information regarding the nature of the parent/child relationship and the

necessity of terminating parental rights.” In re D.W., 202 N.C. App. at 629. Parental

testimony is especially vital when it addresses facts that are central to the trial

court’s adjudication of asserted grounds for termination and when no other witness

3DSS argues that it is “disconcerting” that respondent-father called his own father on “the morning of the termination hearing . . . but did not take the initiative to call his attorney.” Although the transcript of the adjudicatory hearing does indicate that respondent- father spoke with his own father on the morning of the hearing, there is no evidence in the record suggesting respondent-father had the means or opportunity to appear at the adjudicatory hearing or otherwise meaningfully participate in preparing for the hearing with his attorney. As noted above, when respondent-father’s counsel attempted to contact respondent-father at his detention facility, a prison official told counsel that any such contact would be impossible due to the lockdown. Even respondent-father’s father’s testimony supports the conclusion that the lockdown significantly inhibited efforts to communicate with respondent-father—according to the testimony, respondent-father was only able to call his father during a brief window when he was released from lockdown earlier that morning. IN RE C.A.B.

is available who can accurately convey to the court the information the parent

possesses.

¶ 36 Here, the trial court’s decision to terminate respondent-father’s parental rights

necessarily depended upon its assessment of respondent-father’s conduct within the

context of his case plan and the constraints of his incarceration. Every ground

asserted by DSS and found by the trial court required careful parsing of these facts

to ensure that respondent-father’s parental rights were being terminated because of

his conduct, not because of his incarceration. Cf. In re K.N., 373 N.C. 274, 283 (2020)

(“[R]espondent’s incarceration, by itself, cannot serve as clear, cogent, and convincing

evidence of neglect. Instead, the extent to which a parent’s incarceration or violation

of the terms and conditions of probation support a finding of neglect depends upon an

analysis of the relevant facts and circumstances, including the length of the parent’s

incarceration.”). Respondent-father asserts that he would have testified to “the

fitness of all appropriate caregivers” he identified as alternative placements for

Caleb, “[e]vidence of [his] ability and efforts to work toward reunification with Caleb

when he was not a party to the case,” “[e]vidence of [his] ability to pay a reasonable

portion toward Caleb’s cost of care in the six months preceding the filing of the

termination motion,” “[e]vidence of [his] progress in the rehabilitative programs he

was taking in prison to the date of the termination hearing,” and “updated evidence

about his release date.” No other witness was present who could supply the court with IN RE C.A.B.

this factual information.

¶ 37 The absence of information regarding respondent-father’s conduct while in

prison plainly had a “possible impact upon the actual hearing or the ensuing order by

the trial court.” In re T.H.T., 362 N.C. 446, 453 (2008). DSS and the GAL have not

met their burden of proving beyond a reasonable doubt that the trial court’s violation

of respondent-father’s due process rights was harmless. Accordingly, respondent-

father was prejudiced when he was denied the opportunity to be heard at the

adjudicatory hearing “in a meaningful manner.” Goldberg v. Kelly, 397 U.S. 254, 267

(1970) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

IV. Conclusion.

¶ 38 In this case, respondent-father was unable to attend the hearing during which

his parental rights were adjudicated because the prison in which he was living was

under lockdown due to the COVID-19 pandemic. He requested a brief continuance

until the lockdown was lifted to enable him to prepare for the hearing with his

attorney and to testify on his own behalf. The grounds for terminating respondent-

father’s parental rights all required the trial court to carefully assess his conduct

while in prison. No other witness with direct knowledge of that information was

available to testify at the hearing. Ultimately, the trial court terminated respondent-

father’s parental rights.

¶ 39 The purpose of an adjudicatory hearing is to determine whether the State’s IN RE C.A.B.

interest in protecting the welfare of a child requires displacing a parent’s

“constitutionally[ ] protected paramount right . . . to custody, care, and control of [his

or her] children.” Owenby, 357 N.C. at 145 (quoting Petersen v. Rogers, 337 N.C. 397,

403–04 (1994). That right “is a ‘fundamental liberty interest’ which warrants due

process protection.” In re Montgomery, 311 N.C. 101, 106 (1984) (quoting Santosky,

455 U.S. at 759). By denying respondent-father’s motion to continue the adjudicatory

hearing, the trial court violated respondent-father’s due process rights and

undermined the fundamental fairness of the hearing. Accordingly, we vacate the

order terminating respondent-father’s parental rights and remand this case to the

trial court for further proceedings not inconsistent with this opinion.

VACATED AND REMANDED. Chief Justice NEWBY dissenting.

¶ 40 The task here is to determine whether the trial court erred in terminating

respondent-father’s parental rights. Respondent presents two bases for why the trial

court’s order should be vacated. He first argues that the trial court’s denial of his

motion to continue the termination of parental rights (TPR) hearing violated his right

to due process because he was unable to attend the hearing virtually. Additionally,

respondent contends that sufficient grounds did not exist for the trial court to

terminate his parental rights under N.C.G.S. § 7B-1111(a)(1), (2), (3), or (6). In order

for respondent to prevail on appeal, however, he must establish that if he were

virtually present at the hearing, the trial court would not have terminated his

parental rights under any of the alleged grounds. Here respondent is unable to show

that but for his absence, the trial court would not have terminated his parental rights

for willful failure to pay a reasonable portion of Caleb’s cost of care for the six-month

period immediately preceding the filing of the TPR motion. See N.C.G.S.

§ 7B-1111(a)(3) (2021). Thus, he cannot prevail on appeal. The trial court’s order

terminating respondent’s parental rights should be affirmed. I respectfully dissent.

¶ 41 On 28 August 2020, the Alamance County Department of Social Services (DSS)

filed a motion to terminate respondent’s parental rights to Caleb based, inter alia,

upon respondent’s willful failure to pay a reasonable portion of Caleb’s cost of care

pursuant to N.C.G.S. § 7B-1111(a)(3). Notably, during the relevant six-month period

preceding the filing of the TPR motion, respondent contributed zero dollars toward IN RE C.A.B.

Newby, C.J., dissenting

Caleb’s cost of care despite being employed in the dining room of the prison facility

where he was incarcerated and receiving funds from his family. A hearing on the TPR

motion was originally scheduled for 21 October 2020 but continued to 16 December

2020 and again continued to 20 January 2021.

¶ 42 On 12 January 2021, respondent moved to continue the TPR hearing for a third

time, arguing he would otherwise be unable to attend the hearing virtually due to a

COVID-19 lockdown at the prison. In respondent’s motion to continue, he argued that

“due process demands [his] presence at th[e] hearing to determine if the state will

strip him of his constitutionally protected parental rights.” Respondent further

contended that denying the requested continuance would render him unable to testify

and thus unable to defend his constitutional right to care for his child. The trial court

made the following findings with respect to respondent’s motion:

2. That at the call of the hearing, [respondent’s counsel] was heard on his written motion to continue the hearing on termination of parental rights. He indicated to the court that [respondent] could not attend the hearing due to the prison being on lock down due to the COVID-19 pandemic.

3. That this motion to terminate parental rights was filed August 28, 2020 and initially scheduled for hearing on October [21], 2020. That hearing was continued at the request of [respondent’s] attorney and scheduled for December 16, 2020. That hearing was continued at no fault of anyone involved in this matter.

4. [Respondent’s counsel] reports the lock down is IN RE C.A.B.

scheduled to be lifted January 25, 2021. However, no one knows for sure how COVID-19 will continue to impact the prison system.

5. That hearings on motions to terminate parental rights are required to be heard within 90 days of filing. This case is already outside the required timeframe. [Respondent] and his attorney have had an extended period of time to prepare for this matter.

6. That [respondent’s] attorney will be present at the hearing and permitted to cross exam[ine] witnesses and present evidence. That [respondent’s] report is admitted into evidence as well as his exhibits by the consent of the parties. These processes assure the due process rights of [respondent] are being honored and the adversary nature of the proceeding is preserved.

7. [Respondent] and [DSS] both have a commanding interest in this proceeding.

8. That due to the fundamental fairness of the process, representation of counsel for [respondent] and other processes, the risk of error by not having [respondent] present is low.

The trial court denied respondent’s motion. After the hearing on 20 January 2021,

the trial court determined that grounds existed to terminate respondent’s parental

rights based upon neglect, willfully leaving Caleb in foster care or placement outside

the home without correcting the conditions which led to his removal, willfully failing

to pay a reasonable portion of the cost of Caleb’s care, and dependency. See N.C.G.S.

§ 7B-1111(a)(1), (2), (3), (6).

¶ 43 On direct appeal before this Court, respondent now argues the trial court

violated his right to due process when it denied his motion to continue the TPR IN RE C.A.B.

hearing because it rendered him unable to testify at the hearing. Even assuming,

without deciding, that the trial court erred in denying respondent’s motion,

respondent cannot prevail on appeal because he cannot show that he was prejudiced

by such an error.1

¶ 44 “ ‘When the State moves to destroy weakened familial bonds, it must provide

the parents with fundamentally fair procedures,’ which meet the rigors of the due

process clause.” In re Murphy, 105 N.C. App. 651, 653, 414 S.E.2d 396, 397 (quoting

Santosky v. Kramer, 455 U.S. 745, 753–54, 102 S. Ct. 1388, 1394 (1982)), aff’d per

curiam, 332 N.C. 663, 422 S.E.2d 577 (1992). Nonetheless, an incarcerated parent

does not have an absolute right to be present at a TPR hearing. In re Murphy, 105

N.C. App. at 652–53, 414 S.E.2d at 397. As such, “[w]hen . . . 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.” Id. at 658, 414 S.E.2d at 400. In other

words, a respondent must show that “there is a reasonable probability that, but for

[his absence], there would have been a different result in the proceedings.” In re

1The analysis required to determine prejudice is comparable to that required by the second Eldridge factor—i.e., the risk of error caused by respondent’s absence. Because this Court should decide this case under the prejudice analysis, an analysis of the Eldridge factors is unnecessary. IN RE C.A.B.

T.N.C., 375 N.C. 849, 854, 851 S.E.2d 29, 33 (2020) (quoting State v. Braswell, 312

N.C. 553, 563, 324 S.E.2d 241, 248 (1985)).

¶ 45 Here the trial court preserved the adversarial nature of the proceedings

because respondent was represented by counsel, who presented evidence, called a

witness, and cross-examined witnesses at the TPR hearing. Though “a finding of only

one ground is necessary to support a termination of parental rights,” In re A.R.A., 373

N.C. 190, 194, 835 S.E.2d 417, 421 (2019), the trial court found that grounds existed

to terminate respondent’s parental rights under N.C.G.S. § 7B-1111(a)(1), (2), (3), and

(6). Therefore, to prevail on appeal, respondent must show that if he were permitted

to testify at the hearing, the trial court would not have terminated his parental rights

based upon any of the above grounds.

¶ 46 Respondent’s presence at the hearing would not have changed the trial court’s

adjudication under N.C.G.S. § 7B-1111(a)(3). A trial court may terminate a parent’s

parental rights under this ground when

[t]he juvenile has been placed in the custody of a county department of social services, a licensed child-placing agency, a child-caring institution, or a foster home, and the parent has for a continuous period of six months immediately preceding the filing of the petition or motion willfully failed to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so. N.C.G.S. § 7B-1111(a)(3). We have recently explained that termination under

N.C.G.S. § 7B-1111(a)(3) is proper “where the trial court finds that the respondent IN RE C.A.B.

has made no contributions to the juvenile’s care for the period of six months

immediately preceding the filing of the petition and that the respondent had income

during this period.” In re J.E.E.R., 378 N.C. 23, 2021-NCSC-74, ¶ 18.

¶ 47 Here the trial court found that

13. [Respondent] entered into the Alamance County Jail on May 21, 2018 and has not left incarceration since that date.

....

16. The juvenile has been alive 726 days. Out of these 726 days, he has been in DSS custody 725 days. He has never lived with [respondent].

46. [Respondent] receives financial assistance while incarcerated from his mother and other family members/friends. He also works within the prison and receives a small amount of pay.

47. [DSS] has expended over $10,000.00 for the cost of care of the juvenile.

48. The petition to terminate parental rights was filed August 28, 2020. The relevant six month period for determination if [respondent] has paid his reasonable portion of the cost of care is from February 28, 2020 until August 28, 2020. During that period of time, [respondent] paid zero dollars towards the cost of care for the juvenile.

49. [Respondent] has the ability to pay more than zero towards the cost of care for the juvenile, as demonstrated by the money he provided in September of 2020, and has willfully failed to pay such. IN RE C.A.B.

¶ 48 Respondent challenges finding of fact 49, arguing the record does not support

any finding that he had the ability to pay an amount greater than zero dollars toward

Caleb’s cost of care during the relevant period. The record, however, includes two

individualized needs plans for respondent, which indicate that respondent was

employed in the dining room of the prison facility at least from 12 November 2019 to

22 July 2020, almost the entirety of the relevant six-month period. Moreover, Christy

Roessler, a DSS social worker, testified that respondent had access to money to help

with Caleb’s cost of care because respondent was being paid for his work at the prison

and was receiving funds from his family. Though respondent sent thirty-five dollars

to Caleb on 9 September 2020, demonstrating his ability to pay some amount, he paid

nothing during the relevant six-month period. Therefore, the trial court’s finding that

respondent had the ability to pay more than zero dollars during the relevant period

is supported by the record evidence. Since respondent made no contributions to the

cost of Caleb’s care during the relevant period despite having some income, the trial

court properly terminated his parental rights pursuant to N.C.G.S. § 7B-1111(a)(3).

¶ 49 The majority states that the trial court was required to consider “up-to-date”

testimony from respondent regarding his good behavior in prison. According to the

majority,

the trial court’s decision to terminate respondent-father’s parental rights necessarily depended upon its assessment of respondent-father’s conduct within the context of his case plan and the constraints of his incarceration. Every IN RE C.A.B.

ground asserted by DSS and found by the trial court required careful parsing of these facts to ensure that respondent-father’s parental rights were being terminated because of his conduct, not because of his incarceration.

As such, the majority erroneously concludes that respondent’s absence “created a

meaningful risk of error that undermined the fundamental fairness of this

adjudicatory hearing” because the trial court was unable to consider relevant, up-to-

date information regarding respondent’s conduct in prison.

¶ 50 As explained above, however, the trial court’s adjudication under N.C.G.S.

§ 7B-1111(a)(3) did not require an understanding of respondent’s current conduct. 2

Rather, it merely required the trial court to find two facts: (1) that respondent had

some income during the relevant period and thus the ability to pay something; and

(2) that respondent contributed zero dollars toward Caleb’s cost of care. Since the

relevant period for adjudication under N.C.G.S. § 7B-1111(a)(3) consisted of the six

months immediately preceding the filing of the TPR motion, the facts necessary to

support termination under this ground were finalized on the date the TPR motion

was filed. As such, the trial court did not need to hear “up-to-date” testimony from

respondent about his subsequent good behavior in prison.

¶ 51 The majority is thus unable to articulate what evidence respondent’s testimony

2 Though respondent’s conduct at the time of the hearing may have been relevant to adjudication of some of the other grounds alleged, his conduct after 28 August 2020 had no bearing on the trial court’s N.C.G.S. § 7B 1111(a)(3) determination. IN RE C.A.B.

would have offered that could have altered the trial court’s adjudication under

N.C.G.S. § 7B-1111(a)(3). Respondent presented no offer of proof before the trial

court. On appeal, respondent also failed to specify any facts showing that he did not

have income during the relevant period. Rather, respondent, and now the majority,

merely asserts that respondent would have presented “[e]vidence of [his] ability to

pay a reasonable portion toward Caleb’s cost of care in the six months preceding the

filing of the termination motion.” What exactly such evidence is remains unknown.

This conclusory assertion is not sufficient to show that respondent’s testimony would

have rendered a different result under N.C.G.S. § 7B-1111(a)(3). It is clear that

respondent had income but paid nothing. Notably, if contrary evidence existed, then

respondent could have included it in his report, which was admitted into evidence.

¶ 52 The majority excuses respondent’s counsel’s failure to present an offer of proof

by claiming that “[c]ounsel was severely limited in his ability to elicit up-to-date

information from respondent-father at or near the time of the hearing because

respondent-father was incarcerated in West Virginia in a facility under COVID-19

lockdown.” However, all of the information needed to defend against the termination

of respondent’s parental rights under N.C.G.S. § 7B-1111(a)(3) had been available

since the TPR motion was filed on 28 August 2020. Certainly, in preparing for the

two previously scheduled TPR hearings in October and December of 2020, any

relevant information would have been available to respondent’s counsel. Therefore, IN RE C.A.B.

the 145-day period between the filing of the TPR motion and the hearing, including

the two scheduled hearings, provided respondent and his counsel sufficient time and

incentive to prepare a defense to termination under N.C.G.S. § 7B-1111(a)(3).

¶ 53 Furthermore, the trial court found that

[respondent] called [the paternal grandfather] before this hearing and they spoke for approximately thirty minutes. Although the federal penitentiary is on a COVID shutdown right now and would not allow [respondent] to participate in this hearing via WebEx, they do allow some telephone communication with the outside world. [Respondent] did not call his attorney during this time.

This finding is supported by the paternal grandfather’s testimony that he spoke to

respondent the morning of the TPR hearing for about thirty minutes. As such, it is

binding on appeal. See In re C.H.M., 371 N.C. 22, 28, 812 S.E.2d 804, 809 (2018) (“[A]

trial court’s findings of fact ‘are conclusive on appeal if there is competent evidence

to support them.’ ” (quoting In re Skinner, 370 N.C. 126, 139, 804 S.E.2d 449, 457

(2017))). Instead of calling the paternal grandfather on the morning of the TPR

hearing, respondent could have called his counsel to prepare for the hearing.

Therefore, the majority’s contention that respondent’s counsel was unable to

sufficiently prepare for the hearing is without merit.

¶ 54 Moreover, the majority concludes that the COVID-19 lockdown constituted an

“extraordinary circumstance” under N.C.G.S. § 7B-1109(d), which required the trial

court to continue the hearing. See N.C.G.S. § 7B-1109(d) (2021). N.C.G.S. IN RE C.A.B.

§ 7B-1109(d), however, does not require that a trial court grant a continuance but

merely gives a trial court the authority to do so if it finds that extraordinary

circumstances exist. See State v. Phillip, 261 N.C. 263, 266, 134 S.E.2d 386, 389

(1964) (“Ordinarily a motion for continuance is addressed to the sound discretion of

the trial judge and his ruling thereon is not subject to review on appeal except in a

case of manifest abuse.”). Here the trial court acted within its discretion when it

considered the circumstances surrounding the COVID-19 lockdown and determined

that a continuance was not necessary.3

¶ 55 The trial court in the present case appropriately found that grounds existed to

terminate respondent’s parental rights under N.C.G.S. § 7B-1111(a)(3). Even if

respondent testified regarding his “up-to-date” conduct while incarcerated, the trial

court’s adjudication under N.C.G.S. § 7B-1111(a)(3) would have remained the same.

Respondent cannot show prejudice and thus cannot prevail on appeal. Since a finding

of only one ground was necessary to support the trial court’s TPR order, there is no

need to address the remaining grounds. The trial court’s order terminating

respondent’s parental rights should be affirmed. I respectfully dissent.

Justices BERGER and BARRINGER join in this dissenting opinion.

3 In reaching a contrary conclusion, the majority gives weight to the fact that respondent only requested a five-day continuance. Unlike the trial court, however, the majority has no familiarity with the court calendar in Alamance County and thus cannot know when this case could have been rescheduled. Thus, such a consideration is better left to the sound discretion of the trial court.