In re S.G.

1

IN THE MATTER OF: S.G., K.G., S.G.

No. COA22-506

Court of Appeals of North Carolina

April 18, 2023

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Heard in the Court of Appeals 11 January 2023.

Appeal by Respondent-Mother from order entered 2 February 2022 by Judge Doretta L. Walker in Durham County District Court Durham County, No. 19 JT 4, 5, 216

Lauren Vaughan for petitioner-appellee Durham County Department of Social Services.

Peter Wood for respondent-mother.

S Wesley Tripp III for guardian ad litem.

MURPHY, Judge.

When a party moves to continue a hearing concerning the termination of parental rights, there is no obligation for the trial court to hold an evidentiary hearing on that motion. Additionally, when a party fails to assert the constitutional underpinnings of a motion to continue, we will not address a constitutional issue for the first time on appeal. Finally, a party does not receive ineffective assistance of counsel due to the denial of its motion to continue when the party's attorney had adequate time to prepare.

BACKGROUND

This appeal arises out of Mother's challenge to the trial court's termination of her parental rights to her three children. On 14 January 2019, Durham County Department of Social Services filed a Juvenile Petition for both S.G. and K.G., alleging each was neglected and dependent. After the birth of a third child-also S.G.-DSS filed another juvenile petition alleging S.G. to be neglected and dependent. The trial court found all three children to be neglected and dependent, and the children were placed in the legal custody of DSS.

DSS subsequently moved the trial court to terminate Mother's parental rights to all three children. On 19 April 2021, a guardian ad litem was appointed for Mother following a hearing on 29 May 2019, in which the trial court "determined [] Mother ha[d] a significant history of mental health issues and cognitive issues . . . render[ing] her incompetent for the purpose of effective assistance of her counsel in the matter before the Court."

On 13 December 2021, after several continuances and a pretrial conference on 9 December 2021, the trial court held a hearing on the motion to terminate Mother's parental rights to all three children. At the beginning of the hearing Mother's attorney moved to continue the hearing or bifurcate the permanent planning review hearing and the motion for the termination of Mother's parental rights stating:

I have[,] previous to Thursday afternoon of last week[, had] absolutely no contact with [Mother] whatsoever. Then there was a phone call and an attempt to call her back which was unsuccessful. I've not had an opportunity to meet with her or prepare with her or the guardian. The guardian and I unfortunately on Friday afternoon or fortunately were involved in a case in front of Your Honor and we could not attempt to meet with her on Friday.

I am asking the Court to consider because I have had no contact with her to, at the very minimum, bifurcate the matter because it is on for permanent planning review hearing and motion for termination of parental rights, if we could bifurcate it and proceed forward with the permanent planning review hearing as everything else was done prior to my tenure, and then I can at least prepare or attempt to prepare for the termination motion.

After Mother's attorney made this motion, the following exchange occurred:

THE COURT: That makes no sense.

[MOTHER'S ATTORNEY]: Well --

THE COURT: That -- that makes no sense.

[MOTHER'S ATTORNEY]: I -- she just reached out on Thursday. That is what I can tell you. And I got her her link and she's here now.

THE COURT: The whole point of pretrial is to let us know if you're ready or not.

[MOTHER'S ATTORNEY]: Well, I was going to withdraw, as you know, at pretrial because there had been no contact. Thursday afternoon, contact is made. You may want to speak with her. She is online. I was able to forward the link to her.

THE COURT: This is the third setting. When was she served?

[DSS ATTORNEY]: A while back, Your Honor, I believe.

[MOTHER'S ATTORNEY]: Yeah.

THE COURT: -- served. I mean, I'm confused. The whole purpose of pretrial is to tell me if you --

[DSS ATTORNEY]: Your Honor, I will agree that [Mother's Attorney] indicated that she had not heard from her client and she was planning on withdrawing.

[MOTHER'S ATTORNEY]: That's right.

[DSS ATTORNEY]: She specifically said that during her pretrial.

[MOTHER'S ATTORNEY]: That is correct. Thank you, [DSS Attorney]. And [DSS Attorney], I'm not sure if I've had an opportunity to make you aware. I know I did on another case of ours this week, but I don't know if I was able to because my time line was so tight from Thursday afternoon to Friday afternoon at 5:00, that I did not know if I made you aware of the fact that [Mother] did reach out to me Thursday afternoon while I was in trial. Then --

[DSS ATTORNEY]: I'll be honest. I don't recall if you did or if you didn't.

[MOTHER'S ATTORNEY]: I may not. It was happening so quickly and I was truly on the computer. But my plan was to withdraw.

THE COURT: What is y'all pleasure? I mean, I just --

[DSS ATTORNEY]: Your Honor, we would ask to proceed. We're ready to proceed. I -- it's -- Dr. April Harris-Britt is -- appears. I'll be -- she'll be my first witness. It's supposed to be --

THE COURT: I mean, I'm just so confused as to why -- I would never have made this like my first case.

[MOTHER'S ATTORNEY]: Well, it was supposed to be your first case, Judge, because I was withdrawing.

[DSS ATTORNEY]: Yes. I mean, Your Honor, you --

[MOTHER'S ATTORNEY]: Do you remember? I was withdrawing and it wasn't until Thursday afternoon after 4:00 PM, [Mother] called my office and I was in trial, in a hearing --

[DSS ATTORNEY]: You mean Friday afternoon.

[MOTHER'S ATTORNEY]: -- that I called her back.

[DSS ATTORNEY]: You mean Friday afternoon.

[MOTHER'S ATTORNEY]: I'm sorry. Friday afternoon. My days have run together, [DSS Attorney]. You can imagine.

[DSS ATTORNEY]: So I mean, I -- Your Honor, I absolutely under- -- -- I do understand [Mother's Attorney]'s position. I do, though, believe we can go forward. This thing has been noticed for a while. The fact that [Mother], herself, has chosen not to reach out to her attorney or at least the office of her attorney -- her previous attorney -- I know there's been a transition from one attorney to the next, but she's -- she knew that her -- her attorney was through the Public Defender's Office and she could have reached out to the Public Defender's Office and found [Mother's Attorney].

This matter has been continued and I believe because of Ms. Dover previously, but you know, Your Honor, we are -- we are ready to proceed and like you --

[MOTHER'S ATTORNEY]: I feel that that -- thank you, [DSS Attorney]. Just to let [DSS Attorney] know and thank you for remembering. I feel that it is in my job description since a client has reached out Friday afternoon, exchanged, I guess, messages, not really, but there was some telephonic attempts made and communication on Saturday morning with the -- I communicated with [Mother's GAL], who was gracious enough to answer the phone on Saturday morning and told her that this contact was made, and we discussed the matter.

I had planned to withdraw and I think that it is prudent in my role that I at least ask for something to be done so I can have an opportunity to communicate with this individual who did not communicate with me until the last 48, I guess, business hours. But at pretrial, I was withdrawing.

Thank you, [DSS Attorney], again, for remembering that. It's up to you, Judge.

THE COURT: I just -- I mean, I --

[MOTHER'S ATTORNEY]: You can deny it, Judge, and you can say full steam ahead.

THE COURT: I just have a serious problem with this person showing up when she wants to, and I thought you were ready. Had you not received discovery and whatnot or had an opportunity to talk with her?

[MOTHER'S ATTORNEY]: I have not had an opportunity to talk with her because of the late hour she communicated with me, or called at least. I called her back, but for whatever reason --

[MOTHER]: (INDISCERNIBLE) I called you --

[MOTHER'S ATTORNEY]: Yes.

[MOTHER]: -- on Thursday, but you (INDISCERNIBLE) --

THE COURT: I think --

[MOTHER]: -- called me back Friday.

THE COURT: Be quiet.

[MOTHER'S ATTORNEY]: I did.

THE COURT: You don't want to be interrupting and talking. Don't ever talk in my court unless somebody tells you to. Ever.

[Mother's GAL]: Your Honor, this is [Mother's GAL], if I may.

THE COURT: I -- my problem is if you and [Mother's GAL] have had an opportunity to chat in that she is the GAL for [] [M]other, it can go forward. I'm looking through the file --

[MOTHER'S ATTORNEY]: We have. [Mother's GAL] --

THE COURT: My problem is -- why I'm hesitant is that I'm looking through the file and I can't tell -- it says March of 2021. I'm not sure why it says [Mother's Previous Attorney] because he hasn't been here in a while.

[DSS ATTORNEY]: Yes, Your -- I think that was part of the reason why it got continued.

THE COURT: And then we have [Mother's Other Previous Attorney] and then we have (INDISCERNIBLE) and then the case has been continued (INDISCERNIBLE) trial.

[MOTHER'S ATTORNEY]: Well, I'll be candid. [Mother's GAL] and I have communicated about the matter and you know her reputation --

THE COURT: She is her GAL (INDISCERNIBLE). [Mother's GAL], I don't know what you were (INDISCERNIBLE).

[MOTHER'S ATTORNEY]: Say what, Judge? I'm sorry. You popped out.

THE COURT: I didn't understand what [M

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