Refusing continuance for jailed dad deemed error

A circuit court abused its discretion by refusing to grant a continuance to a father who was unable to participate in a hearing which resulted in the termination of his parental rights due to circumstances outside of his control, the Court of Appeals of Virginia has held.

The father’s counsel moved to continue after being notified that the father was required to attend drug court 40 miles away at the same time as the adoption hearing. Opining that the father could have made arrangements to appear, the court denied the motion and granted the adoption.

In an unpublished opinion, Judge Lisa M. Lorish said that “[b]ecause heightened liberty interests are at stake, due process guarantees a parent a meaningful opportunity to participate in a hearing that could result in the termination of that parent’s parental rights.”

“It is possible that father could have rescheduled, or been excused from, his drug court appearance, but there is no evidence to support this assumption in the record,” the judge held.

Judges Clifford L. Athey Jr. and Junius P. Fulton III joined Lorish to reverse and remand Myers v. Dellinger (VLW 025-7-345).

Complicated issue

Woodstock attorney Rachel Logan represented the father and felt that the appeals court “reaffirmed the importance of the parental bond and articulated another set of circumstances in which it would be mandatory for a biological parent to be present for a hearing on that issue.”

“It’s a complicated issue for a court to handle because the judge has a job to do and you have a child that is in limbo during this process which had already been continued,” Logan said. “Understanding the court’s competing interests, I wasn’t wholly surprised by the decision.”

According to Logan, the appellate panel was interested in whether the circuit court’s error was harmless.

“It was a question [of] whether if the case was remanded, would we have the same result and therefore would it have been the inevitable outcome whether dad had been present or not,” Logan told Virginia Lawyers Weekly.

Another issue was where to draw the line when balancing other legal commitments, such as a probationer’s requirement to maintain employment, to determine whether a continuance was warranted.

“One judge asked how far out do we take these requirements that could open up a Pandora’s box for people to say that anything that they have that could be a competing scheduling event is a reason not to come to court,” Logan said.

Representing the appellee, Front Royal attorney Bridget Madden believes this opinion “dances on the head of a pin to find an abuse of discretion” and that the outcome will be the same on remand.

“All of Mr. Myers’ decisions were made in his interest and not of his child,” Madden said. “This further delay of dealing with a remand now leaves the child without permanency for what is now going on two years.”

“Certainly, parents have a constitutional right to be a parent and to protect that right, but when, as in this case, such parent makes no effort to exercise that right in a timely manner, then they should suffer the consequences of their lack of care and diligence in defending those rights,” she added.

Continuance denied

After his wife passed away, David Dellinger received sole legal and physical custody of his wife’s niece, who had been in their care since the child was two months old. Dellinger petitioned in the Shenandoah County Circuit Court to adopt the child in August 2022.

The child’s biological parents, Dwayne and Ashley Myers, opposed the adoption. Both were appointed counsel and the matter was set for a hearing on Feb. 13, 2024. Meanwhile, the father was released from incarceration and scheduled to begin a drug court program in January 2024.

Whereas the father was scheduled to appear in drug court in Winchester on the same day, his counsel moved for a continuance one day before the February hearing. A letter from the father’s probation officer confirming the drug court appearance was attached to the motion.

When the father did not appear for the February hearing, the mother joined his motion to continue. The court considered the motion for an hour to allow the father time to appear after finishing in drug court. Father’s counsel then moved to allow him to appear telephonically.

Based on its opinion that the father could have arranged with the drug court to accommodate the hearing, the court refused to allow the father to appear telephonically and denied the renewed motion to continue. Ultimately, the court granted Dellinger’s petition for adoption.

This appeal followed.

‘Seriously imperils’

The Supreme Court of Virginia ruled in Haugen v. Shenandoah Valley Dep’t of Soc. Servs. that a lower 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.”

Lorish explained that abuse of discretion is only found “when reasonable jurists could not differ,” rather than when a reviewing court merely would have come to a different result.

“But ‘when a circuit court’s refusal to grant a continuance “seriously imperil[s] the just determination of the cause,”’ it has abused its discretion and we must reverse the judgment,” the judge pointed out.

Looking to Geouge v. Traylor, Lorish noted that parental interest in the care, custody, and control of their children was “‘“perhaps the oldest of the fundamental liberty interests recognized by” the United States Supreme Court.’”

Thus, the panel acknowledged that “‘[d]ue process requires that “fundamentally fair procedures” be employed in parental termination cases,’” citing the court’s opinion from Toms v. Hanover Dep’t of Soc. Servs.

Unsupported assumption

The father relied primarily on Haugen, as well as Mabe v. Wythe County Department of Social Services, to argue that the trial court abused its discretion by denying his motion for a continuance.

The judge in Haugen erroneously refused to grant a continuance to a pair of incarcerated parents after a federal prison terminated their call during a termination of parental rights hearing.

“Given ‘the “grave, drastic, and irreversible” effects of a judgment terminating a parent’s parental rights, as a matter of common law, the circuit court should have granted the continuance,’” Lorish wrote.

“The court also noted that the parent ‘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,’” the judge added.

Similarly, the Mabe court erroneously terminated parental rights after federal authorities did not deliver the incarcerated parent for a hearing.

“We explained that appellant ‘was powerless to choose whether or not she would attend the hearing,’ and ‘[g]iven the irreversible action of a termination hearing, appellant was prejudiced because she was unable to participate in the proceeding that rendered her a legal stranger to her biological children,’” Lorish said.

Here, the panel found that the father was also unable to attend the adoption hearing due to circumstances outside of his control.

“While there was no way father could have attended the hearing when it was set to begin at 3:30 p.m. on February 13, the circuit court stated its belief that father could have arranged to reschedule his drug court appearance,” the judge pointed out.

Lorish observed that the father’s counsel moved for a continuance on the same day they received a letter from probation confirming that the father was required to attend drug court.

“Nothing in the record supports the assumption that he could have rescheduled that court appearance,” the judge opined. “As in Haugen and Mabe, father was prevented from attending the hearing by circumstances outside of his will.”

“Given the ‘grave, drastic, and irreversible’ effects of a judgment terminating a parent’s parental rights, the ‘circuit court’s refusal to grant a continuance “seriously imperil[ed] the just determination of the cause,”’” Lorish wrote.

Having determined that the circuit court abused its discretion in denying the motion to continue, the panel then found resulting prejudice to the father.

“Because heightened liberty interests are at stake, due process guarantees a parent a meaningful opportunity to participate in a hearing that could result in the termination of that parent’s parental rights,” the judge concluded.

“It’s a complicated issue for a court to handle because the judge has a job to do and you have a child that is in limbo during this process which had already been continued. Understanding the court’s competing interests, I wasn’t wholly surprised by the decision.”

— Rachel Logan, Woodstock