APPEAL
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72JV-17-911]
HONORABLE STACEY ZIMMERMAN, JUDGE
Leah
Lanford, Arkansas Public Defender Commission, for appellant.
Callie
Corbyn, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor child.
LARRYD. VAUGHT, JUDGE
Rhiannon
Grimwood appeals the Washington County Circuit Court's
order terminating her parental rights to her son, N.H. On
appeal, she only challenges the court's denial of her
motion to continue the termination hearing. We affirm.
The
Arkansas Department of Human Services (DHS) assumed emergency
custody of N.H. when he was nine days old after he was born
prematurely with methamphetamine, amphetamine, cannabinoids,
and Nephridine in his system. Grimwood admitted that she had
used drugs while pregnant and had attempted to visit him in
the NICU while under the influence. N.H. was adjudicated
dependent-neglected and was placed in the care of his
grandmother, who also had custody of his siblings. This case
proceeded through the standard series of permanency-planning
and review hearings and related orders. Grimwood failed to
appear at multiple hearings, her whereabouts were sometimes
unknown, shew was described by witnesses as "very
unstable, " she was incarcerated for part of the case,
and she did not work the case plan.
On
January 10, 2019, the circuit court convened a hearing on
DHS's petition to terminate Grimwood's parental
rights. Grimwood requested new counsel, stating that her
counsel had failed to communicate with her during her
incarceration and that counsel's subsequent illness
further limited their communication. The court appointed a
new attorney for Grimwood and granted her a three-week
extension of the termination hearing. Grimwood's new
counsel was present in court when a new date was set for the
termination hearing, and she did not object or ask for
additional time to prepare for the hearing.
However,
thirteen days later, Grimwood's new attorney sought a
second continuance, stating that she needed additional time
to "compile records" and "prepare testimony,
" noting that Grimwood had recently moved from
Washington County to Pine Bluff. DHS opposed the continuance
and argued that it was contrary to the Juvenile Code's
goal of permanency for the child and that Grimwood had an
established pattern of not appearing for scheduled hearings
in the case and not working the case plan. DHS argued that it
was inappropriate under the Juvenile Code to grant a
parent's request for additional time solely on the basis
of eleventh-hour overtures toward participating in the case
plan. The attorney ad litem also opposed the request for
additional time. The court denied the motion to continue.
On
January 31, 2019, the court convened a second hearing on
DHS's petition to terminate Grimwood's parental
rights. At the outset of the hearing, her counsel again
requested a continuance, stating that Grimwood wished to be
present to testify in person but had entered an in-patient
drug-treatment program two days prior to the hearing and
therefore could not appear in court. Grimwood was, however,
available to testify by phone. Counsel asked that the court
allow Grimwood additional time to complete the forty-five-day
drug-treatment program before resuming the termination
hearing. DHS objected to the continuance and argued that
eleventh-hour overtures toward working the case plan would
not be enough to overcome the evidence supporting
termination. The court denied the motion, finding that N.H.
had been in foster care for fourteen months and needed
permanency, stating that "we don't count the final
months before [termination] to keep the goal
reunification."
During
the hearing, Grimwood testified via telephone. DHS also
presented evidence that N.H. was in the custody of his
grandmother, who also had custody of his siblings and who
wished to adopt him. Following the hearing, the court
terminated Grimwood's parental rights. She has appealed
that order, but she raises no challenges to the court's
findings as to statutory grounds or best interest. She argues
only that the court abused its discretion in denying her
motion to continue.
A
motion for continuance shall be granted only upon a showing
of good cause. Williams v. Ark. Dep't of Human
Servs., 2019 Ark.App. 194');">2019 Ark.App. 194, at 6, 575 S.W.3d 415, 419. We
will not reverse the denial of a motion for continuance
absent an abuse of discretion amounting to a denial of
justice. Id., 575 S.W.3d at 419. A circuit court
abuses its discretion when it acts improvidently and without
due consideration. Id., 575 S.W.3d at 419. The
appellant bears the burden of showing that the circuit
court's denial of a continuance was an abuse of
discretion, and in order to show an abuse of discretion, the
appellant must show that she was prejudiced by the denial.
Id., 575 S.W.3d at 419.
Grimwood
argues that the circuit court abused its discretion in
denying her motion to continue because she was prejudiced by
her inability to testify in person, her counsel's
inability to fully prepare for the hearing, and her inability
to complete the drug-treatment program prior to the
termination proceeding. She also argues that the court relied
on a mistake of law when it said that the last few months
prior to a termination hearing do not count. She argues that
a continuance would not have prejudiced N.H., who was living
with his grandmother and would have simply remained in her
custody during the continuance.
We
disagree. After reviewing the record below, we hold that the
court did not abuse its discretion in denying Grimwood's
motion for continuance. Moreover, Grimwood cannot demonstrate
prejudice from the circuit court's denial of her
motion.[1] Grimwood had the burden to demonstrate
good cause for the continuance she sought, and she failed to
do so. While she had recently been appointed a new attorney,
her new counsel had been given three weeks to become familiar
with the case prior to the hearing and initially had no
objection to the timing of the rescheduled termination
hearing. Grimwood has not demonstrated that there was any
additional evidence or legal argument that her counsel would
have been able to present had she had more time to prepare.
Grimwood also argues that she was prejudiced because she
wished to testify in person but could not do so while in drug
treatment. However, she was able to testify via telephone,
and she has not explained how her presence in the courtroom
would have changed the outcome of the case. Finally, to the
extent that Grimwood sought additional time to work ...