In re C.C.G.

• Decision Date: 11 February 2022
• Docket Number: 59A21
• Citation: 380 N.C. 23,868 S.E.2d 38
• Parties: In the MATTER OF C.C.G.
• Court: North Carolina Supreme Court

380 N.C. 23

868 S.E.2d 38

In the MATTER OF C.C.G.

No. 59A21

Supreme Court of North Carolina.

Filed February 11, 2022

Grier J. Hurley, for petitioner-appellee Ashe County Department of Social Services.

Paul W. Freeman Jr., Wilkesboro, for appellee Guardian ad Litem.

Wendy C. Sotolongo, Parent Defender, by Jacky Brammer, Assistant Parent Defender, for respondent-appellant mother.

BARRINGER, Justice.

¶ 1 Respondent appeals from the trial court's order terminating her parental rights to her daughter C.C.G. (Carrie)¹ and from the trial court's earlier permanency-planning order which eliminated reunification from Carrie's permanent plan. See N.C.G.S. § 7B-1001(a1) (2019). Respondent has not challenged on appeal the trial court's conclusions that grounds existed to terminate her parental rights or that termination was in Carrie's best interests. Instead, respondent argues the trial court erred by denying her motion to continue the termination hearing, by failing to comply with the requirements of the Indian Child Welfare Act (ICWA), and by eliminating respondent's visitation with Carrie in a permanency-planning order. After careful review, we find no reversible error.

I. Factual and Procedural Background

¶ 2 On 15 March 2019, the Ashe County Department of Social Services (DSS) filed a petition alleging that Carrie was a neglected juvenile. The petition alleged that respondent had a long history with DSS dating back to 2006 due to issues of domestic violence, substance abuse, mental health difficulties, and improper supervision and that DSS recently became involved with the family when it received a report in December 2018 alleging substance abuse, medical neglect, and improper care and supervision.

¶ 3 In an order entered 3 May 2019, the trial court adjudicated Carrie to be a neglected juvenile. The trial court agreed with DSS's recommendation that it was in Carrie's best interests to continue Carrie in respondent's custody with conditions that respondent comply with her Family Service Case Plan and that Carrie attend school regularly and without tardiness.

¶ 4 On 13 May 2019, DSS filed a motion for review due to respondent's noncompliance with both the adjudication order and her Family Service Case Plan. DSS alleged that Carrie continued to have unexcused absences and tardies from school. DSS also alleged that respondent had not complied with her Family Services Case Plan in that she did not attend the scheduled assessment for Carrie at Youth Villages; had not consistently attended her substance abuse sessions at Daymark; had a positive drug screen; and had been arrested for possession of schedule IV substances, schedule II substances, marijuana, and methamphetamine.

¶ 5 Following a review hearing on 15 May 2019, the trial court entered an order on 28 June 2019 granting DSS nonsecure custody of Carrie with placement in DSS's discretion. Respondent was granted a minimum of two hours of supervised visitation twice per month. The trial court concluded that the best primary plan of care for Carrie was reunification with a secondary plan of guardianship with an approved caregiver.

¶ 6 Pursuant to N.C.G.S. § 7B-906.1(a), the trial court conducted regular permanency-planning hearings. After the permanency hearing on 14 February 2020, the trial court concluded that supervised visitation between respondent and Carrie was not in Carrie's best interest and inconsistent with her health and safety. Therefore, the trial court suspended visitation and contact between respondent and Carrie. Further, the trial court changed the permanent plan to adoption with a secondary plan of custody or guardianship with an approved caregiver.

¶ 7 On 2 June 2020, DSS filed a petition to terminate respondent's parental rights alleging grounds for termination pursuant to N.C.G.S. § 7B-1111(a)(1)–(3), (6). When respondent did not appear at the termination hearing on 16 October 2020, respondent's counsel made an oral motion to continue. The trial court denied the motion to continue. Following the hearing and presentation of evidence, the trial court entered an order concluding that grounds existed to terminate respondent's parental rights pursuant to N.C.G.S. § 7B-1111(a)(1)–(3) and that it was in Carrie's best interests that respondent's parental rights be terminated. Accordingly, the trial court terminated respondent's parental rights. Respondent appealed.

II. Analysis

A. Motion to Continue

¶ 8 "[A] denial of a motion to continue is only grounds for a new [termination-of-parental-rights hearing] when [the respondent] shows both that the denial was erroneous, and that he [or she] suffered prejudice as a result of the error." In re A.L.S. , 374 N.C. 515, 517, 843 S.E.2d 89 (2020) (quoting State v. Walls , 342 N.C. 1, 24–25, 463 S.E.2d 738 (1995) ). Unless the motion to continue raises a constitutional issue, "a motion to continue is addressed to the discretion of the trial court." Id. at 516–17, 843 S.E.2d 89 (quoting Walls , 342 N.C. at 24, 463 S.E.2d 738 ). Therefore, to show error on a motion to continue that does not raise a constitutional issue, the respondent must show that the trial court abused its discretion. Id. at 517, 843 S.E.2d 89. "Abuse of discretion results where the [trial] court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." Id. at 517, 843 S.E.2d 89 (quoting State v. Hennis , 323 N.C. 279, 285, 372 S.E.2d 523 (1988) ).

¶ 9 In this matter, respondent has not advanced a constitutional argument before the trial court or this Court. Instead, respondent asserts that the trial court abused its discretion because there was no evidence she received notice of the hearing, a guardian ad litem had been appointed for her, the trial court was deprived of her testimony, and the trial court had previously allowed continuances.

¶ 10 Based on the record before us, respondent has failed to show an abuse of discretion by the trial court. "[C]ontinuances are not favored and the party seeking a continuance has the burden of showing sufficient grounds for it." In re J.E. , 377 N.C. 285, 2021-NCSC-47, ¶ 15, 856 S.E.2d 818 (quoting In re S.M. , 375 N.C. 673, 680, 850 S.E.2d 292 (2020) ). "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." N.C.G.S. § 7B-1109(d) (2021).

¶ 11 In this matter, the record reflects that the notice of hearing was sent to respondent's counsel and respondent's guardian ad litem. Both respondent's counsel and respondent's guardian ad litem were present at the termination-of-parental-rights hearing. Neither tendered an affidavit or evidence in support of the motion to continue. Instead, they made unsworn statements in support of the motion to continue. Neither argued that respondent intended to testify, that the preexisting appointment of a guardian ad litem entitled respondent to a continuance, or that the previously allowed continuances justified allowance of this continuance. Respondent's counsel and respondent's guardian ad litem instead represented that they believed respondent was aware of the hearing date and had made efforts to contact her but had not spoken to respondent. However, they had corresponded about the hearing date with respondent's mother, who had respondent's contact information and often provided a home for respondent.

¶ 12 After hearing from respondent's counsel and guardian ad litem, the trial court asked DSS's counsel if DSS had spoken to respondent. DSS's counsel replied that the social worker had spoken to her last week. The social worker then informed the trial court that she had spoken with respondent twice the week prior and that respondent "knows when the court date is." The social worker explained that respondent knew that the court date was today as she had spoken to respondent last week about the date and respondent was upset that the hearing was on her birthday.

¶ 13 Given the representations to the trial court and the record before us, we cannot conclude that the trial court's denial of the motion to continue was manifestly unsupported by reason or arbitrary. The burden falls to the party seeking the continuance to show sufficient grounds for granting the motion. In re J.E. , ¶ 15. It does not shift to another party or the trial court. See id. Thus, in the context of this case, where among other things the moving party has only offered unsworn statements and argument, we find no error by the trial court. See State v. Beck , 346 N.C. 750, 756–57, 487 S.E.2d 751 (1997) (finding trial court did not err by denying motion to continue where unsworn statements of defendant's trial counsel were not sufficient to justify delaying the trial).

¶ 14 Respondent has also failed to show any prejudice arising from the trial court's denial of her motion to continue. Respondent argues she was materially prejudiced because her testimony was a vital source of information regarding the nature of the parent/child relationship and integral to any consideration of her parental rights. However, when making the oral motion, respondent's counsel neither indicated respondent intended to testify nor provided an affidavit or offer of proof of respondent's potential testimony. Thus, as in other cases the Court has decided recently, there is nothing before this Court to show that respondent would have testified and that such testimony would have impacted the outcome of the proceeding. See, e.g. , In re D.J. , 378 N.C. 565, 2021-NCSC-105, ¶ 14, 862 S.E.2d 766 ; In re H.A.J. , 377 N.C. 43, 2021-NCSC-26, ¶ 13, 855 S.E.2d 464 ; In re A.L.S. , 374 N.C. at 518, 843 S.E.2d 89. Therefore, we hold that the trial court did not err by denying the request for a continuance.

B. Indian Child Welfare Act

¶ 15 Respondent argues the trial court failed to comply with its duties under the ICWA because the trial court had reason to know that Carrie...