Record No. 1102-10-3.Court of Appeals of Virginia.
December 21, 2010.
Appeal from the Circuit Court of the City of Danville, David A. Melesco, Judge.
(James C. Martin; Martin Martin Law Firm, on brief), for appellant. Appellant submitting on brief.
(Alan B. Spencer, Assistant City Attorney; Brian H. Turpin, Guardian ad litem for the minor child, on brief), for appellee. Appellee and Guardian ad litem submitting on brief.
Present: Judges Frank, Alston and Senior Judge Coleman.
MEMORANDUM OPINION[*]
PER CURIAM.
Tabitha Ann Harris (mother) appeals the decision of the circuit court denying her motion for a continuance and approving the permanency planning goal of adoption for her son at a hearing at which mother was not present. Mother contends the trial court abused its discretion in refusing to grant a continuance so she could attend the hearing. For the reasons stated, we find the trial court abused its discretion in not granting the continuance, and we reverse and remand.
BACKGROUND
On February 26, 2010, pursuant to Code § 16.1-272.1, the Juvenile and Domestic Relations District Court of the City of Danville (juvenile court) conducted a permanency planning hearing regarding appellant’s son, C.H., who was placed in foster care on March 4, 2009. The juvenile court approved a new goal of adoption under the foster care plan submitted
Page 2
by the Danville Division of Social Services (DSS) and found that termination of mother’s parental rights was in the best interests of the child.
Mother appealed to the circuit court, which scheduled a de novo hearing for April 19, 2010. On that date, mother’s attorney advised the trial court that mother told him by telephone “that she had just gotten out of the hospital with a miscarriage and one-day surgery,” and requested a continuance. The trial court stated that it did not believe mother, and it denied a continuance and proceeded in mother’s absence. After hearing the evidence, the trial court approved the permanency planning goal of adoption.
DISCUSSION
The decision to grant a motion for a continuance is within the sound discretion of the circuit court and must be considered in view of the circumstances unique to each case. The circuit court’s ruling on a motion for a continuance will be rejected on appeal only upon a showing of abuse of discretion and resulting prejudice to the movant. Additionally, in the application of these principles, we will be guided by our holding over a century ago in Myers v. Trice, 86 Va. 835, 842, 11 S.E. 428, 430 (1890), that when a circuit court’s refusal to grant a continuance “seriously imperil[s] the just determination of the cause,” the judgment must be reversed.
Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007).
In Haugen, the mother was incarcerated in a federal facility during a termination hearing.Id. at 29, 645 S.E.2d at 262. Haugen participated by telephone during the majority of the hearing; however, federal authorities moved Haugen away from the telephone near the end of the hearing, thus precluding her from hearing and participating in the final ninety-one minutes of the hearing.Id. at 30, 645 S.E.2d at 262-63. The trial court denied Haugen’s motion for a continuance, granted sole custody of the child to the Department of Social Services, and authorized the agency to place the child for adoption.Id. at 30, 645 S.E.2d at 263.
Page 3
Explaining that “`[t]he termination of parental rights is a grave, drastic, and irreversible action,'”id. at 34-35, 645 S.E.2d at 265 (quoting Lowe v. Departmentof Pub. Welfare of the City of Richmond, 231 Va. 277, 280, 343 S.E.2d 70, 72 (1986)), the Court held “as a matter of common law, the circuit court should have granted the continuance,” id. at 35, 645 S.E.2d at 265. In finding that the trial court abused its discretion, the Court ruled that “Haugen was prejudiced because she was unable to participate in an important portion of a proceeding in which she was rendered a legal stranger to her biological child.”Id. at 34, 645 S.E.2d at 265; see also Mabe v. WytheCounty, 53 Va. App. 325, 330-34, 671 S.E.2d 425, 427-28 (2009) (holding that trial court abused its discretion in refusing to grant continuance of sufficient duration to allow mother to participate).
At the hearing at which mother was not present, DSS social worker Tia Venable testified in favor of approving the new goal of adoption. She stated that mother “had not attended certain classes” which were necessary to properly take care of C.H.
Here, mother’s attorney provided an explanation for her absence and requested a brief continuance. The trial court found mother was not credible, although it did not have an opportunity to hear or see her. As a result, mother had no opportunity to provide an explanation for missing the classes and/or comment on her present ability to care for C.H.
The hearing involved “a new goal of adoption” and termination of mother’s parental rights. Under the circumstances, the trial court abused its discretion in refusing a continuance so mother could participate in the hearing at which the trial court took the “`grave, drastic, and irreversible action'” of approving a goal of adoption. Haugen, 274 Va. at 34-35, 645 S.E.2d at 265 (quotingLowe, 231 Va. at 280, 343 S.E.2d at 72).
Page 4
Accordingly, we will reverse the judgment of the trial court and remand the case to the trial court for a new hearing on the merits.
Reversed and remanded.
Page 1