Domestic Relations – Parent & Child – Termination of Parental Rights – Continuance Denial – IAC Claim

Even though the respondent-Mother’s newly appointed counsel was unable to communicate directly with Mother prior to the morning of the hearing to terminate Mother’s parental rights, since counsel’s office had been representing Mother in this case for two years, and especially since counsel was able to communicate with Mother’s guardian ad litem – who had been appointed nine months earlier – the trial court could conclude that counsel had adequate time to prepare for the hearing.

We affirm the termination of Mother’s parental rights.

The appointment of a guardian ad litem divests the parent of their fundamental right to conduct their litigation according to their own judgment and inclination. Mother’s GAL had prolonged and comprehensive interactions with Mother and her case. As Mother had adequate time to prepare, the motion to continue was not essential for Mother to receive effective assistance of counsel. The trial court did not err in failing to grant a continuance.

Although G.S. § 7B-1109(d) mentions the evidence needed to grant a continuance, the statute certainly does not require a trial court to hold an evidentiary hearing before denying a continuance.

In Shankle v. Shankle, 289 N.C. 473 (1976), the court said, “[B]efore ruling on a motion to continue the judge should hear the evidence pro and con, consider it judicially and then rule with a view to promoting substantial justice.” Shankle does not suggest an evidentiary hearing is mandatory; rather, it indicates that the reasons for a continuance should be considered, along with reasons against, and weighed in light of all the facts in evidence. Indeed, citing this caselaw, our Supreme Court has approved of the denial of a motion to continue where “the District Court allowed both [the] defendant and the State to be heard on the motion to continue before ruling. No evidence was offered with regard to the motion.” State v. T.D.R., 347 N.C. 489, 504 (1998).

Here, similarly, the parties presented arguments for and against, and neither party offered evidence. The trial court did not err in failing to hold an evidentiary hearing on the motion to continue.

Affirmed.

In re S.G., K.G., S.G. (Lawyers Weekly No. 012-120-23, 18 pp.) (Hunter Murphy, J.) Appealed from Durham County District Court (Doretta Walker, J.) Lauren Vaughan for petitioner; Peter Wood for respondent; Wesley Tripp for guardian ad litem. North Carolina Court of Appeals (unpublished)