Facts: At birth, Child tested positive for drugs and required treatment for symptoms associated with drug withdrawal.
Mother admitted she used methamphetamine intravenously one to two times per week throughout her pregnancy. Father refused to submit to a drug screen and denied having any criminal history despite having an extensive criminal history.
Less than two weeks before Child’s birth, Mother was treated for abdominal trauma caused by Father kicking her in the stomach.
The Department of Children’s Services (“DCS”) took emergency custody of Child, who was later adjudicated dependent and neglected at a hearing where neither parent showed up. The trial court also found both parents had committed severe abuse against Child. Neither parent appealed this order.
Four months later, DCS petitioned to terminate the parental rights of Mother and Father.
The termination trial was scheduled for January 17 and February 17. The second day was originally scheduled for February 3, but it was rescheduled for February 17.
Neither parent showed up for the February 17 hearing. Father’s counsel objected to the hearing going forward, saying she was unsure if Father knew to be there that day. The trial court overruled this objection, stating that Father came to the courthouse around the original date for the second day of trial and was told to contact his attorney.
The trial court terminated the parental rights of Mother and Father.
Only Father appealed, arguing the trial court erred in not continuing the second day of trial in Father’s absence.
On Appeal: The Court of Appeals affirmed the trial court.
Due process requires that all parties to litigation receive notice of important hearings and other proceedings. The notice must be reasonably calculated to apprise interested parties of the pendency of the action and allow them to present their objections.
The Court first found that Father received notice of the hearing through his attorney:
There is no question here that Father was represented by an attorney during the termination proceedings, and the original date for the second day of the hearing was continued on a conference call Father’s attorney participated in after Mother’s attorney could not attend. Father’s attorney was also present at the second day of the hearing. The question of when notice to the litigant’s or former litigant’s attorney constitutes reasonable notice to the client [] turns upon the nature of the relationship at that time. If the attorney still represents the client, then notice is sufficient. Therefore, we cannot say that Father lacked notice of the second hearing date.
The next question was whether the trial court erred by not continuing the hearing.
The party seeking a continuance bears the burden of establishing that circumstances exist justifying the granting of a continuance. When considering a motion for a continuance, courts consider these factors, among others:
- the length of time the proceeding has been pending,
- the reason for the continuance,
- the diligence of the party seeking the continuance, and
- the prejudice to the requesting party if the continuance is not granted.
The Court found no abuse of discretion by the trial court:
[W]e cannot say that the trial court abused its discretion in overruling Father’s attorney’s objection to the second day of proceedings continuing without Father. The proceeding had been pending for several months at this point. Counsel provided no reason for Father’s absence apart from him not knowing about the second day of the hearing being rescheduled. However, as stated above, Father had notice of the new hearing date through his attorney participating in the conference call continuing the second hearing date and as evidenced by Father’s attorney’s presence at the second hearing. Furthermore, the record indicates that Father went to the courthouse on or about February 5 and was told to contact his attorney. The record contains no evidence of diligence on Father’s part, either to contact his attorney or to request the continuance if he was unable to attend the hearing. Father does not assert any prejudice in his brief and we discern none from the record. We find no abuse of discretion in the trial court’s decision here.
The Court affirmed the trial court’s termination of Father’s parental rights.
Source: In re William C. (Tennessee Court of Appeals, Middle Section, April 18, 2024).
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