In re C.J.H., COA14–1176.

• Citation: 772 S.E.2d 82,240 N.C.App. 489
• Decision Date: 21 April 2015
• Docket Number: No. COA14–1176.,COA14–1176.
• Court: Court of Appeal of North Carolina (US)
• Parties: In the Matter of C.J.H.

240 N.C.App. 489

772 S.E.2d 82

In the Matter of C.J.H.

No. COA14–1176.

Court of Appeals of North Carolina.

April 21, 2015.

Mary McCullers Reece, Smithfield, for petitioner-appellee.

Jeffrey William Gillette, for respondent-appellant.

STROUD, Judge.

Respondent-father appeals from an order terminating his parental rights to his daughter, C.J.H. ("Shelly").¹ Respondent contends that the trial court erred in denying his motion to continue and challenges all three of the trial court's grounds for termination of his parental rights. Because the trial court did not err in denying respondent's motion to continue and the trial court's findings of fact are sufficient to support at least one ground for termination, abandonment, we affirm the trial court's order.

I. Background

While respondent and petitioner were dating, petitioner became pregnant with Shelly. In December 2008, Shelly was born. The three lived together in a mobile home in Tennessee for approximately eighteen months. On 31 May 2010, respondent left Shelly and petitioner without notifying petitioner that he intended to leave. A few months later, respondent resumed a previous relationship with another woman ("Ms. Smith") with whom he had previously fathered a child. At the time of the hearing, respondent, Ms. Smith, and their two children lived in Mountain City, Tennessee.

In July 2010, petitioner began to date another man ("Mr. Jones"). Mr. Jones assumed the position of Shelly's father as soon as petitioner and he began dating. In February 2012, petitioner and Shelly moved to Goldsboro, North Carolina to live with Mr. Jones, who is employed as a maintenance instructor crew chief at Seymour Johnson Air Force Base. In June 2012, petitioner and Mr. Jones married.

In June 2013, respondent emailed petitioner to inquire about the possibility of Mr. Jones adopting Shelly. But in January 2014, after receiving Consent to Adoption documents, respondent refused to consent to the adoption and requested visitation with Shelly.

On 4 March 2014, petitioner filed a petition to terminate respondent's parental rights to Shelly and alleged that Mr. Jones would like to adopt Shelly, which was served upon respondent on 14 April 2014. The trial court appointed Kevin MacQueen as respondent's counsel upon the petition's filing. Respondent did not file an answer or any other responsive pleadings to the petition. MacQueen represented respondent at the pre-trial conference held on 8 May 2014. In the pre-trial conference order, which was entered with the consent of petitioner, respondent, and the guardian ad litem, the trial court set a hearing for 9 July 2014.

At the beginning of the hearing, respondent's counsel moved to continue the hearing due to respondent's absence. After hearing argument from both respondent and petitioner, the trial court denied the motion. During a break in the hearing, a juvenile court administrator informed the trial court that respondent had called to inquire what time the hearing began the following day. The trial court allowed petitioner to finish the direct examination of her witnesses that day. But in an effort to accommodate respondent who indicated he would arrive in Wayne County the next day, the trial court postponed the cross-examination of petitioner's witnesses to the afternoon of the next day. On 10 July 2014, respondent was present for the remainder of the hearing. He declined to cross-examine petitioner's witnesses but did present his own evidence.

On 21 July 2014, the trial court entered an order in which it found the following grounds for termination: (1) abandonment; (2) neglect; and (3) failure to establish paternity. See N.C. Gen.Stat. § 7B–1111(a)(1), (5), (7) (2013). The trial court terminated respondent's parental rights to Shelly. On 20 August 2014, respondent gave timely notice of appeal.

II. Motion to Continue

Respondent contends that the trial court erred in (1) denying his motion to continue at the beginning of the hearing; and (2) allowing petitioner to finish the direct examination of her witnesses after it learned of respondent's intention to arrive the next day.

A. Standard of Review

A trial court's decision regarding a motion to continue is discretionary and will not be disturbed on appeal absent a showing of abuse of discretion. Continuances are generally disfavored, and the burden of demonstrating sufficient grounds for continuation is placed upon the party seeking the continuation. Where the lack of preparation for trial is due to a party's own actions, the trial court does not err in denying a motion to continue.

In re J.B., 172 N.C.App. 1, 10, 616 S.E.2d 264, 270 (2005) (citations and quotation marks omitted). "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." State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). "It is the duty of the trial judge to consider and weigh all of the competent evidence, and to determine the credibility of the witnesses and the weight to be given their testimony." In re S.C.R., 198 N.C.App. 525, 531–32, 679 S.E.2d 905, 909 (brackets omitted), appeal dismissed, 363 N.C. 654, 686 S.E.2d 676 (2009). "If the trial court's findings of fact are supported by ample, competent evidence, they are binding on appeal, even though there may be evidence to the contrary." Id. at 531, 679 S.E.2d at 909 (quotation marks omitted).

B. Analysis

Respondent contends that the trial court abused its discretion in initially denying his motion to continue. N.C. Gen.Stat. § 7B–803 describes when a trial court may continue a hearing in an abuse, neglect, and dependency proceeding:

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. Resolution of a pending criminal charge against a respondent arising out of the same transaction or occurrence as the juvenile petition shall not be the sole extraordinary circumstance for granting a continuance.

N.C. Gen.Stat. § 7B–803 (2013). Additionally, N.C. Gen.Stat. § 7B–1109(d) provides: "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, and the court shall issue a written order stating the grounds for granting the continuance." Id. § 7B–1109(d) (2013).

At the beginning of the 9 July 2014 hearing, more than 90 days after the petition was filed, respondent's counsel moved to continue the hearing due to respondent's absence. The trial court denied the motion and allowed petitioner to present evidence. During a break in the hearing, a juvenile court administrator informed the trial court that respondent had called to inquire what time the hearing began the following day. The trial court allowed petitioner to finish the direct examination of her witnesses that day. But in an effort to accommodate respondent who indicated he would arrive in Wayne County the next day, the trial court postponed the cross-examination of petitioner's witnesses to the afternoon of the next day.

The trial court made the following findings of fact that support its initial decision to deny respondent's motion to continue:

8. Pursuant to the Pre–Trial Order entered on May 8, 2014, this case was set for a special session of Wayne County Juvenile Court on Wednesday, July 9, 2014. The Order was delivered to all of the parties involved in this matter.

9. During the week prior to the trial of this matter, the Respondent Father contacted the Juvenile Court administrator, Allyson Smith, directly to request a continuance of this hearing and she advised him to contact his attorney, Kevin MacQueen.

10. Upon calling the case for hearing on July 9, 2014, Kevin MacQueen, counsel for the Respondent father[,] made a Motion to continue the hearing.... Mr. MacQueen advised the Court that he had written the Respondent Father on two occasions including sending the Respondent Father a copy of the Pre–Trial Order entered on May 8, 2014. Mr. MacQueen advised the Court that he had spoken to the Respondent Father on the Wednesday or Thursday of the week prior to the hearing. The Respondent Father had advised Mr. MacQueen that he had accepted a job in Nashville, Tennessee for three weeks to begin the week before the trial of this matter. Mr. MacQueen advised that the Respondent Father was the sole provider for his fiancee and his other two children and that the Respondent Father advised Mr. MacQueen that he would lose his job if he left the job to come to Court. Kim Benton, Guardian ad litem, advised the Court that she had spoken to the Respondent Father a couple of weeks prior to the trial and that the Respondent Father was aware of the Court date and time of the hearing prior to him leaving for the job in Nashville, Tennessee because ... she had specifically advised him of the date and time in at least three previous conversations.

11. The Petitioner objected to the Motion to continue and advised the Court that the Petition alleged a lack of involvement and unwillingness to travel to North Carolina to maintain a relationship with the minor child. Although the Court did not know if the above allegations of the Petitioner were true or not at the time of the Motion to Continue and the objection, the Court did consider these facts in making its ruling.

Respondent argues that the trial court erred in initially denying his motion to continue, because "the case had not been previously continued" and "there is no indication that an additional week or two would...