In re D.J.

378 N.C. 565

862 S.E.2d 766

In the MATTER OF: D.J.

No. 528A20

Supreme Court of North Carolina.

Filed September 24, 2021

Stephenson & Fleming, LLP, by Deana K. Fleming, for petitioner-appellee Orange County Department of Social Services.

Michelle FormyDuval Lynch, for appellee Guardian ad Litem.

Wendy C. Sotolongo, Parent Defender, by J. Lee Gilliam, Assistant Parent Defender, for respondent-appellant mother.

BARRINGER, Justice.

¶ 1 Respondent appeals the trial court's order which terminated her parental rights to her minor child, D.J. (Daniel).¹ The trial court found that grounds existed to terminate respondent's parental rights pursuant to N.C.G.S. § 7B-1111(a)(1) and (2) and that termination was in Daniel's best interests. Respondent has not challenged on appeal the trial court's conclusion that the grounds for termination pursuant to N.C.G.S. § 7B-1111(a)(1) and (2) existed or that termination was in Daniel's best interests. Instead, respondent argues that the trial court erred by denying her counsel's motion to continue the termination hearing and that the trial court failed to comply with the requirements of the Indian Child Welfare Act (ICWA). Since we conclude that respondent has failed to show prejudice from the trial court's denial of the motion to continue and, further, since we conclude that the trial court has now sufficiently complied with the ICWA as it pertains to Daniel, we reject respondent's arguments and affirm the trial court's termination-of-parental-rights order.

I. Background

¶ 2 Petitioner Orange County Department of Social Services (DSS or OCDSS) first became involved with respondent and Daniel on 30 January 2019 when it received a Child Protective Services (CPS) report that respondent appeared to be impaired while visiting a children's museum with Daniel. A DSS social worker responded to the scene where respondent acted disorganized and agitated, swayed back and forth while standing, and had difficulty maintaining a linear conversation. When respondent could not identify an alternative caretaker for Daniel, the social worker attempted to locate a temporary safety provider. Respondent became agitated and uncooperative and fled from DSS and law enforcement with Daniel. DSS and law enforcement attempted unsuccessfully to locate respondent and Daniel in the vicinity of the children's museum.

¶ 3 The next day, on 31 January 2019, DSS filed a petition alleging that Daniel was a neglected and dependent juvenile. In addition to recounting the incident at the children's museum, the petition alleged that respondent had a prior CPS report involving Daniel in Randolph County and another in Forsyth County. DSS was also granted nonsecure custody of Daniel. Respondent and Daniel were eventually located at a nearby apartment complex.

¶ 4 On 7 March 2019, DSS filed an amended petition, adding allegations regarding prior CPS reports involving respondent and Daniel in Guilford County and Durham County and respondent's history of substance abuse and mental health issues. After a hearing on the amended petition on 21 March 2019, the trial court entered an order adjudicating Daniel as a neglected and dependent juvenile on 30 April 2019. The trial court's order also incorporated by reference the court report prepared by DSS in which it stated that respondent "has reported American Indian heritage and letters have been mailed to the identified tribes."

¶ 5 DSS filed a motion in the cause to terminate respondent's parental rights on 26 February 2020. In the motion, DSS alleged two grounds for termination: neglect and willful failure to make reasonable progress in correcting the conditions that led to Daniel's removal. See N.C.G.S. § 7B-1111(a)(1)–(2) (2019).

¶ 6 The termination motion was called for a hearing on 6 August 2020. Immediately before the termination hearing, the trial court heard a motion to continue that had been filed by respondent's counsel to secure the testimony of a witness who worked at Lincoln Community Health Center. Respondent's counsel recounted his attempts to secure the witness's testimony and indicated that "[his] understanding in talking with the Lincoln Community [Health] Center was that they would not let [the witness] come [testify]." The trial court denied the motion to continue but ruled that the witness could testify by phone or Webex and afforded respondent's counsel the opportunity to contact the witness during an impending thirty-minute recess to determine if she would testify via telephone or Webex. Respondent's counsel then made an offer of proof as follows:

I'd just like to make an offer of proof on this that [the witness] has had contact and ha[s] been involved with [r]espondent[-m]other since, I think, about May of last year, that [r]espondent[-m]other gets several services at Lincoln Community [Health] Center including I think there's a substance abuse treatment. There's a psychiatrist and maybe another—a therapist involved also.

[The witness] is sort of a—what she calls a bridge counselor, that she's able to connect these services, so she's aware of these services. Also she sees [respondent-mother], my understanding is, once or twice a month. I don't know exactly how it was going through COVID. I think it might have been [by] telephone[ ], but [respondent-mother] called in regularly to her and also attended the, you know, Lincoln Community [Health] Center.

So I just think in terms of the information she could offer in court, it would be extremely valuable.

Counsel for DSS in response clarified that there is no dispute that respondent gets some services at Lincoln Community Health Center and that DSS had contact with Lincoln Community Health Center and received some information from them. Counsel for DSS then had a case social worker inform the trial court of her contact with the witness and her attempts to obtain records from the witness which were ultimately unsuccessful. Finally, DSS's counsel raised that Lincoln Community Health Center was in Durham but that respondent indicated she was traveling from her home in Mount Airy. The trial court subsequently took a scheduled recess.

¶ 7 After the recess, respondent's counsel informed the trial court that he was unable to get in contact with the witness despite calling her and leaving her voicemails. The termination hearing then proceeded. Approximately twenty-five minutes later, respondent's counsel received a response from the witness indicating that her employer would not allow her to testify. After DSS concluded its presentation of evidence for the adjudicatory phase of the termination hearing, respondent's counsel renewed the motion to continue. The trial court again denied the motion.

¶ 8 After the termination hearing, the trial court entered an order terminating respondent's parental rights in Daniel. The trial court found that grounds existed to terminate respondent's parental rights pursuant to N.C.G.S. § 7B-1111(a)(1) and (2) and that termination was in Daniel's best interests. The order was amended on 18 September 2020, with the trial court reaching the same conclusions in the amended order. Respondent appealed.

II. Motion to Continue

¶ 9 Respondent contends that the trial court erred by denying her motion to continue. Respondent submits that she was prejudiced by her inability to examine the witness who worked at the Lincoln Community Health Center during the termination hearing.

¶ 10 "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) ). "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) ).

In reviewing for an abuse of discretion, we are guided by the Juvenile Code, which provides that 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. Furthermore, 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 J.E., 377 N.C. 285, 2021-NCSC-47, ¶ 15, 856 S.E.2d 818 (cleaned up).

¶ 11 "If, however, the motion [to continue] is based on a right guaranteed by the Federal and State Constitutions, the motion presents a question of law[,] and the order of the [trial] court is reviewable." In re A.L.S. , 374 N.C. at 517, 843 S.E.2d 89 (quoting State v. Baldwin , 276 N.C. 690, 698, 174 S.E.2d 526 (1970) ). However, when "[the respondent] did not assert in the trial court that a continuance was necessary to protect a constitutional right," this Court does not review the trial court's denial of a motion to continue on constitutional grounds. In re A.L.S. , 374 N.C. at 517, 843 S.E.2d 89 ; see also In re J.E. , ¶ 14. Instead, the respondent is held to "ha[ve] waived any argument that the denial of the motion to continue violated his [or her] constitutional rights." In re J.E. , ¶ 14 (citing In re S.M. , 375 N.C. 673, 679, 850 S.E.2d 292 (2020) ); see also In re A.L.S. , 374 N.C. at 517, 843 S.E.2d 89.

¶ 12 "Moreover, ‘[r]egardless of whether the motion raises a constitutional issue or not, a denial of a motion to continue is only grounds for a new trial 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. at 517, 843 S.E.2d 89 (first alteration in original) (quoting Walls , 342 N.C. at 24–25, 463 S.E.2d 738 ); see also State v. Phillip , 261 N.C. 263, 266–67, 134 S.E.2d 386 (1964...