In re: Shae Denise Herndon Granville County
In re: Douglas Anthony Herndon Nos. 00 J 92, 93
Ann Marie Vosburg for petitioner-appellee.
Peter Wood for respondent-appellant.
John M. Dunlow, Guardian Ad Litem for Douglas Anthony Herndon.
Teresa Gibson, Guardian Ad Litem for Shae Denise Herndon.
BRYANT, Judge.
Respondent mother Janice Moore (respondent) appeals from the
orders terminating her parental rights to the minor children Shae
Denise Herndon and Douglas Anthony Herndon.
Roderick Antonia Herndon, Sr. (petitioner), biological father
of the minor children, filed petitions on 5 October 2000 to
terminate the respondent's parental rights on grounds of neglect,
willful failure to pay her support obligation as provided in an
October 1995 emergency custody order, and willful abandonment. A
hearing on the petitions was initially scheduled for 5 December
2000. On 5 December 2000, the district court appointed counsel to
represent respondent and set a new hearing date of 18 January 2001. Petitioner filed amended petitions on 8 December 2000. On 5
January 2001, respondent filed answers and counterclaims opposing
the termination of her parental rights and seeking weekend
visitation with the minor children.
Although the transcript reflects that the district court set
the hearing for 18 January 2001, the record on appeal contains an
undated, unsigned memorandum on the letterhead of the Granville
County Clerk of Superior Court, which announces as follows:
Please be advised that if you had a case
schedule[d] for January 9, 2001 it will be
January 2, 2001 and if you had a case
schedule[d] for January 23, it will be January
16, 2001. If you had a case schedule[d] for
January 18, 2001, it will be January 11, 2001.
(emphasis added). A copy of this document was apparently found in
the district court case file but contains no indicia of service
upon petitioner or his counsel.
Petitioner and his counsel did not appear at the hearing on 11
January 2000. Respondent moved to dismiss the case based on
petitioner's absence. The district court denied the motion,
saying, “Well, I'm not going to do that. I wouldn't do it to you.”
At the court's behest, respondent's counsel telephoned counsel for
petitioner, who indicated that she would not be able to attend the
hearing because she was in court trying an unrelated matter. She
further indicated she had been “under the assumption that the case
was [scheduled] for next week.” After consulting with respondent's
counsel, the district court rescheduled the hearing for 15 March
2001.
The hearing was subsequently postponed until 12 April 2001, atwhich time the district court ordered the appointment of guardians
ad litem for the minor children as required by N.C.G.S. § 7B-
1108(b) (2001), and reset the matter for hearing on 17 May 2001.
The court again continued the matter until 14 June 2001, to await
the resolution of a pending legitimation petition. The hearing on
the petitions was ultimately held on 14 June 2001, resulting in the
entry of orders terminating respondent's parental rights. The
court found grounds for termination as alleged in the petition and
concluded that termination was in the best interests of both minor
children. Respondent gave notice of appeal in open court.
In her sole argument on appeal, respondent challenges the
trial court's decision to deny her motion to dismiss and to
continue the hearing from 11 January 2001 until 15 March 2001.
Respondent contends that petitioner gave no reason for his absence
from the hearing, and the trial judge gave no reason for his
decision to continue the matter. Respondent further faults the
trial court for failing to make findings on the issue of whether
the continuance was in the minor children's best interests. Absent
any articulated justification, respondent avers the judge's ruling
constitutes an abuse of his discretion. She claims she was
prejudiced by the ruling because the petition against her would
have been dismissed had the continuance not been granted.
Under N.C.G.S. § 7B-803 (2001), the district court may
continue hearings for good cause “as long as is reasonably required
to receive additional evidence . . . or other information needed in
the best interests of the juvenile[.]” In “extraordinarycircumstances” the court may allow continuances “when necessary for
the proper administration of justice or in the best interests of
the juvenile.” Id. The decision to continue a proceeding is
within the discretion of the court, with the “'chief
consideration'” being the “'furtherance of substantial justice.'”
In re Mitchell, M., ___ N.C. App. ___, ___, ___ S.E.2d ___, ___
(Feb. 5, 2002) (COA01-488) (quoting Shankle v. Shankle, 289 N.C.
473, 483, 223 S.E.2d 380, 386 (1976)).
We believe the district court acted well within its discretion
in postponing the hearing from January until March of 2001 to allow
for a decision based on a full consideration of the parties'
evidence, rather than dismissing the petitions outright due to the
confusion in scheduling. The record reflects that the January
hearing was originally set by the district court for the 18th as
petitioner's counsel believed. Although the date was subsequently
changed to the 11th, there is no showing in the record on appeal
that petitioner's counsel was apprised of the change. The
continuance ordered by the district court was consistent with its
mandate to work substantial justice to the parties and to act in
the best interests of the minor children.
Respondent has not shown that her ability to defend the
petitions was prejudiced in any way from the delay. She makes no
claim that she was inhibited in presenting evidence or from
otherwise rebutting petitioner's allegations. Moreover, the
transcript reflects that the hearing would not have been held on 11
January regardless of petitioner's attendance at the hearing, dueto the need for the appointment of guardians ad litem to represent
the minor children's interests.
The record on appeal contains an additional assignment of
error not addressed in respondent's brief to this Court. By rule,
we deem it abandoned. See N.C.R. App. P. 28(b)(5).
Affirmed.
Judges MARTIN and HUNTER concur.
Report per Rule 30(e).
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