Opinion
No. COA16-66
07-19-2016
IN THE MATTER OF: K.B.
Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for respondent-appellant father. Senior Assistant County Attorney Robin K. Martinek for petitioner-appellee Durham County Department of Social Services. Administrative Office of the Courts, by Appellate Counsel Matthew D. Wunsche, for guardian ad litem.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Durham County, No. 13 JT 199 Appeal by respondent-father from order entered 15 July 2015 by Judge William A. Marsh III in Durham County District Court. Heard in the Court of Appeals 27 June 2016. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for respondent-appellant father. Senior Assistant County Attorney Robin K. Martinek for petitioner-appellee Durham County Department of Social Services. Administrative Office of the Courts, by Appellate Counsel Matthew D. Wunsche, for guardian ad litem. ELMORE, Judge.
By petition for writ of certiorari, respondent-father appeals from an order terminating his parental rights to his minor child K.B. (Keith). We affirm the trial court's order.
We use this pseudonym to protect the identity of the juvenile and to promote ease of reading.
I. Background
Keith was born in March 2012. On 11 December 2013, Durham County Department of Social Services (DSS) received a call from a woman who indicated that Keith had been left to her care, she was no longer willing to care for him, and she could not locate Keith's mother. After an unsuccessful search for the mother, DSS took Keith into its custody. On 2 April 2014, Keith was adjudicated an abused, neglected, and dependent juvenile.
Respondent has been incarcerated in North Carolina since August 2013, and is set to be released in January 2017. In February 2015, DSS sent respondent two letters informing him that Keith's mother identified respondent as the child's potential father. On 20 February 2015, DSS filed a motion to terminate respondent's parental rights, alleging grounds of neglect, failure to legitimate, and dependency. See N.C. Gen. Stat. § 7B-1111(a)(1), (5), (6) (2015). On 26 February 2015, respondent wrote a letter to DSS responding to the motion to terminate parental rights and requesting a paternity test. Respondent indicated his desire for Keith to stay with respondent's parents or to continue with his placement with the maternal grandfather.
On 9 March 2015, the trial court ordered a genetic paternity test, which indicated that respondent is Keith's father. The results were distributed to the parties on 16 June 2015, and on 18 June 2015, the trial court held a hearing on the motion to terminate parental rights. Respondent was not present for the termination hearing, as he was still in confinement. At the outset of the hearing, respondent's trial counsel moved to continue, though the recording equipment did not capture for the transcript counsel's motion. According to the trial court's 15 July 2015 termination order, respondent's counsel made the motion so that respondent could be temporarily released from prison through the writ of habeas corpus in order to be present at a future hearing. The motion was denied. The court terminated respondent's parental rights on the grounds of dependency and failure to legitimate. Respondent petitioned for writ of certiorari to this Court on 23 November 2015, which was granted on 2 December 2015.
In the same order, the trial court terminated the mother's parental rights to Keith. The mother did not appeal from the trial court's order.
II. Discussion
Respondent contends that the trial court abused its discretion by denying his motion to continue the termination hearing because the circumstances of this case were extraordinary and justified a continuance to "further substantial justice." More precisely, respondent claims that the trial court denied him a meaningful opportunity to respond to the paternity test because he was incarcerated and the test results were provided to the parties only two days before the hearing. We disagree.
"A motion to continue is addressed to the court's sound discretion and will not be disturbed on appeal in the absence of abuse of discretion." In re Humphrey, 156 N.C. App. 533, 538, 577 S.E.2d 421, 425 (2003) (quoting Doby v. Lowder, 72 N.C. App. 22, 24, 324 S.E.2d 26, 28 (1984)). "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). "Continuances are not favored and the party seeking a continuance has the burden of showing sufficient grounds for it. The chief consideration is whether granting or denying a continuance will further substantial justice." In re Humphrey, 156 N.C. App. at 538, 577 S.E.2d at 425 (quoting Doby, 72 N.C. App. at 24, 324 S.E.2d at 28).
In a juvenile case, the trial court may allow a motion to continue "for good cause" in order "to receive additional evidence, reports, or assessments" requested by the court, "other information needed in the best interests of the juvenile," or for the parties to conduct discovery. N.C. Gen. Stat. § 7B-803 (2015). "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." Id. "Generally, the denial of a motion to continue . . . is sufficient grounds for the granting of a new trial only when the [complaining party] is able to show that the denial was erroneous and that he suffered prejudice as a result of the error." State v. Rogers, 352 N.C. 119, 124, 529 S.E.2d 671, 675 (2000) (citation omitted).
Despite his incarceration and the short period of time between the delivery of the test results and the termination hearing, we believe respondent had a reasonable opportunity to prepare a response. Respondent was put on notice in February that he might be Keith's biological father. At the beginning of March, the court ordered paternity testing and appointed counsel to respondent. Prior to the hearing, therefore, respondent had more than three months to meet with counsel and develop a course of legal action in the event the test identified him as Keith's father.
Assuming arguendo that the circumstances in this case were extraordinary, respondent has failed to show prejudice from the denial of his motion to continue. Respondent first contends that he was prejudiced by his inability to testify. A parent's inability to testify at a termination hearing is not per se prejudicial, and the parent bears the burden of demonstrating prejudice. In re Murphy, 105 N.C. App. 651, 658, 414 S.E.2d 396, 400, aff'd per curiam, 332 N.C. 663, 422 S.E.2d 577 (1992). Respondent attempts to shift this burden, arguing in his brief that "[t]he State did not . . . identify any 'powerful countervailing interest' that warranted the motion's denial." He offers no argument as to how his testimony would have affected the outcome of the hearing and has failed to demonstrate actual prejudice from his inability to testify.
Next, respondent contends that he was prejudiced by his inability to respond to the results of the paternity test. Respondent relies on N.C. Gen. Stat. § 8-50.1(b1) (2015), which provides that a positive genetic paternity test creates a rebuttable presumption that the individual is the child's parent, and that an individual who wishes to contest the procedures or results of the test must do so not less than ten days prior to the hearing, at which the results may be introduced into evidence. Because he received the test results only two days before the hearing, respondent claims that he had no meaningful opportunity to rebut the presumption of paternity through written objections or a subpoena of the testing expert. There is no indication that his trial counsel raised N.C. Gen. Stat. § 8-50.1(b1) as a basis for the motion to continue. Moreover, respondent does not argue—nor does the record show—that he intended to challenge the results of the test. In his pro se response to the termination petition, respondent "assert[ed] his right to have paternity determined prior to the court taking action to terminate any putative paternal rights." He further stated that if paternity is established, he "vigorously oppos[ed]" the termination of his parental rights, he desired for Keith to take his surname, he was prepared to be actively involved in Keith's life once he was released from incarceration, and he desired Keith to be placed in respondent's parents' care in the interim. Accordingly, respondent has failed to demonstrate prejudice as a result of his alleged inability to challenge the results of the paternity test.
Finally, respondent contends that the denial of his motion to continue deprived him of the opportunity to decide whether to relinquish his parental rights to Keith so as to avoid collateral consequences. Respondent points to N.C. Gen. Stat. § 7B-1111(a)(9) (2015), which provides a basis for terminating parental rights where the parent had his parental rights involuntarily terminated as to another child "and the parent lacks the ability or willingness to establish a safe home." Respondent argues that the motion to continue should have been allowed to give him time to consider whether to relinquish his parental rights voluntarily so as to avoid the potential collateral consequences associated with an involuntary termination of parental rights. Again, respondent does not argue that his trial counsel raised this issue as a ground for seeking a continuance, nor does he address the fact that he and his trial counsel did not need the results of the paternity test in order to decide what course of action to take at the hearing in the event that the test results identified him as Keith's father.
III. Conclusion
Respondent has failed to show that the trial court abused its discretion in denying his motion to continue, and has otherwise failed to show prejudice as a result thereof. The trial court's termination order is affirmed.
AFFIRMED.
Judges HUNTER, JR. and McCULLOUGH concur.
Report per Rule 30(e).