In re J.E.

• Citation: 856 S.E.2d 818,377 N.C. 285
• Decision Date: 23 April 2021
• Docket Number: No. 262A20,262A20
• Parties: In the MATTER OF: J.E., F.E., D.E.
• Court: United States State Supreme Court of North Carolina

377 N.C. 285

856 S.E.2d 818

In the MATTER OF: J.E., F.E., D.E.

No. 262A20

Supreme Court of North Carolina.

Filed April 23, 2021

Jane R. Thompson, for petitioner-appellee Rowan County Department of Social Services.

Alston & Bird, LLP, by Caitlin C. Van Hoy, for appellee Guardian ad Litem.

Anné C. Wright, Boone, for respondent-appellant father.

HUDSON, Justice.

¶ 1 Respondent, the father of the minor juveniles J.E. (Jeff)¹ , F.E. (Fred), and D.E. (Dan), appeals from the trial court's order terminating his parental rights.² Upon careful review of the record and arguments, we affirm.

I. Factual and Procedural Background

¶ 2 On 8 December 2017, the Rowan County Department of Social Services (DSS) filed a juvenile petition alleging that Jeff, Fred, and Dan were neglected and dependent juveniles and obtained nonsecure custody of the children. The juvenile petition also contained allegations concerning the children's mother's oldest child, D.P. (Doug).³ The petition alleged that DSS received a report on 6 December 2017 with concerns regarding the welfare and safety of Doug and Fred after the parents left them in the care of a neighbor in Rowan County on 5 December 2017 to attend a court date in Wilmington. The parents later called the neighbor asking the neighbor to care for the children overnight, and the neighbor called law enforcement on 6 December 2017 reporting that he could not reach the parents and could no longer care for the children. It was reported that law enforcement responded and found Doug and Fred present at the home where the family had been squatting, which was "in very poor condition." Specifically, the home smelled strongly of feces and rotten food; there were dirty diapers, coke bottles containing a yellow bubbly substance, sticky carpet, and visible mold throughout the home; drug paraphernalia was in plain sight; and a 55-gallon drum with fermenting mash was located in the kitchen. It was also reported that Doug and Fred smelled strongly of urine, body odor, and filth; Doug's hair was "severely cut short in the front"; and Fred suffered from severe diaper rash requiring an antibiotic and had numerous scratches on his neck and torso.

¶ 3 The petition further alleged that the parents returned from Wilmington on 7 December 2017, dropped Jeff and Dan off with their aunt, and told the aunt that they were concerned they would be arrested for child abuse and did not have money to make bond; the parents told a social worker that they were both suffering from mental health issues, the mother was severely depressed, respondent's health was declining, and they were struggling to care for the four children; the parents had acknowledged their house was a "wreck"; the parents indicated they did not plan to return to Rowan County until they could afford to make bond; the mother had previously been hospitalized for mental health issues and had been diagnosed with bipolar disorder and post-traumatic stress disorder ; respondent is hostile and aggressive with authority figures and bullies and threatens people to get what he wants; and both parents have drug issues.

¶ 4 The petition also indicated the parents had a significant history with child protective services in Rowan County, Anson County, and Union County and had previously faced criminal charges. The petition provided that DSS had received nine reports since the family moved to Rowan County in June 2016 with concerns including: lack of supervision; failure to take Doug to counseling and to provide him with proper schooling; domestic violence between the parents in front of the children; safety hazards for the children at the home; the parents driving without licenses; and failure to follow up with critical medical appointments for the children. The petition also alleged the parents were charged with misdemeanor child abuse, possession of marijuana, and possession of drug paraphernalia in May 2016; respondent was additionally charged with traffic offenses; and respondent was on probation after pleading guilty to "several offenses" in July 2017. Lastly, the petition alleged the children have been negatively impacted by their unsafe, unhealthy, and unstable home environment.

¶ 5 An Out of Home Family Services Agreement (case plan) was developed for and signed by respondent at a Child and Family Team Meeting on 23 February 2018. The case plan included requirements for respondent to address his substance abuse and mental health issues, complete parenting education, obtain and maintain appropriate housing, and demonstrate the ability to care for the children and meet their needs.

¶ 6 After the hearing on the juvenile petition was continued on 1 March 2018 and 12 April 2018, the juvenile petition came on for hearing on 17 May 2018. On that date, the parents stipulated that the children were neglected and dependent juveniles based on the allegations in the juvenile petition. As part of the stipulations, respondent again agreed to terms and conditions consistent with his case plan.

¶ 7 On 3 July 2018, an adjudication and disposition order was entered adjudicating the children to be neglected and dependent juveniles based upon the parents’ stipulations. In addition to the stipulations, the trial court found that the parents were on probation after pleading guilty to child abuse charges in January 2018, and respondent was charged with driving while license revoked on 22 February 2018. The trial court's findings also acknowledged respondent's entry into the case plan and detailed his participation in initial assessments which resulted in recommendations for services, but the trial court found that respondent had either refused or had yet to follow through with recommended services and DSS could not confirm respondent's participation in services for which respondent reported participation. The trial court continued custody of the children with DSS, ordered that the initial permanent plan be set at the first permanency planning review hearing, and allowed the parents supervised visitation "at a minimum of twice per month for two hours." Furthermore, in accordance with respondent's case plan, the trial court ordered respondent to abide by the conditions of his probation/parole; follow all recommendations from his substance abuse, mental health, and any psychiatric or psychological assessments; obtain and maintain safe, sanitary, and stable housing and provide proof of such to DSS and the guardian ad litem (GAL); make diligent efforts to obtain and/or maintain stable employment and provide proof of such to DSS and the GAL; participate in medication management services and take medication as prescribed; submit to random drug screens; participate in recommended services for the children; enroll in and complete a parenting education program approved by DSS; and sign releases of information to DSS, the GAL, and the trial court.

¶ 8 The matter came on for the first permanency planning review hearing on 13 September 2018. In an order entered on 31 October 2018, the trial court found respondent had been arrested on 18 June 2018 for three counts of misdemeanor probation violation and was presently incarcerated. DSS retained custody of the children, and the trial court set the primary permanent plan for the children as reunification with a secondary plan of adoption. Respondent's visitation was not changed.

¶ 9 After the matter came back on for another permanency planning review hearing on 24 January 2019, the trial court entered an order on 21 March 2019 that changed the primary permanent plan for the children to adoption with a secondary plan of reunification. The trial court found respondent had not made any further progress on his case plan and had been absconding or incarcerated for much of the case.

¶ 10 On 2 July 2019, DSS filed a petition to terminate the parents’ parental rights to Jeff, Fred, and Dan. DSS alleged that grounds existed to terminate respondent's parental rights for neglect pursuant to N.C.G.S. § 7B-1111(a)(1) and for failure to make reasonable progress pursuant to N.C.G.S. § 7B-1111(a)(2). On 15 August 2019, respondent filed a response to the petition opposing the termination of his parental rights.

¶ 11 After continuances on 26 September 2019 and 7 November 2019, the termination petition was heard on 2 December 2019 after the trial court denied the parents’ motions to further continue the matter. On 4 March 2020, the trial court entered an order terminating respondent's and the mother's parental rights. The trial court concluded that both grounds alleged in the petition existed to terminate respondent's parental rights, see N.C.G.S. § 7B-1111(a)(1)–(2) (2019), and that it was in the best interests of the children to terminate respondent's parental rights. Respondent appeals.

II. Analysis

A. Motion to Continue

¶ 12 Respondent first argues the trial court erred in denying his motion to continue the termination hearing on 2 December 2019 and proceeding in his absence. "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, 843 S.E.2d 89 (2020) (quoting State v. Walls , 342 N.C. 1, 24, 463 S.E.2d 738 (1995) ). "However, if ‘a motion to continue is based on a constitutional right, then the motion presents a question of law which is fully reviewable on appeal.’ " In re S.M. , 375 N.C. 673, 679, 850 S.E.2d 292 (2020) (quoting State v. Jones , 342 N.C. 523, 530–31, 467 S.E.2d 12 (1996) ).

¶ 13 On appeal, respondent contends the denial of his motion to continue deprived him of a fair hearing under the circumstances. Respondent seeks de novo review arguing that he was deprived of a fundamentally fair hearing in violation of his right to due process. He emphasizes his participation in the juvenile proceedings up to the termination hearing and argues, "[c]onsidering the fact that [he] had consistently participated in the...