James v. Ark. Dep't of Human Servs. , 2016 Ark. App. 276 ( 2016 )

Cite as 2016 Ark. App. 276
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-16-52
Opinion Delivered May 18, 2016
ELIZABETH JAMES APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
TENTH DIVISION
V. [NO. 60JV-14-1534]
ARKANSAS DEPARTMENT OF HONORABLE TED CAPEHEART,
HUMAN SERVICES AND MINOR SPECIAL JUDGE
CHILD
APPELLEES
AFFIRMED
WAYMOND M. BROWN, Judge
Appellant Elizabeth James appeals the Pulaski County Circuit Court’s termination of
her parental rights to her son, A.H. Her sole argument on appeal is that the trial court abused
its discretion in denying her motion for a continuance. We find no error and affirm.
A.H. was removed from appellant’s custody on November 14, 2014, after he tested
positive for methamphetamines, amphetamines, and marijuana, and appellant tested positive
for PCP and marijuana. A.H. was adjudicated dependent-neglected based upon written
stipulations of neglect and parental unfitness on January 8, 2015. Appellant’s termination
hearing was set for October 8, 2015. A pretrial conference was held on September 10, 2015.
Following the conference, the court granted a continuance to A.H.’s legal father, Gumesindo
Cite as 2016 Ark. App. 276
Hernandez, because he had not been properly served. As such, Hernandez’s termination
hearing was continued to October 28, 2015.
On October 5, 2015, appellant filed a motion for a continuance. The motion recited
that appellant needed time “in order to obtain outside counsel to protect her rights.” It also
indicated that appellant “will have the ability to retain counsel on Monday, October 5, 2015
after she is paid.” Appellant asserted that a continuance would not prejudice DHS’s case or
delay permanency for A.H., because Hernandez’s rights also had to be terminated.
Appellant’s motion for continuance was renewed at the beginning of the termination
hearing. The court denied the motion after stating that appellant’s attorney had indicated in
chambers that appellant had $750 to hire an attorney. The court asserted that it did not
believe “there’s any guarantee she’d get a lawyer if she had plenty of time to get one.” The
court then went forward with the proceedings. After hearing the evidence, the court entered
an order terminating appellant’s parental rights. The court found that A.H. was “highly”
adoptable; that there was potential harm in returning A.H. to appellant; and that two grounds
for termination existed.1 Appellant does not challenge these findings on appeal. Her
argument is limited to the trial court’s denial of a continuance.
A motion for continuance should be granted only upon a showing of good cause.2
We will not reverse a denial of a motion for continuance absent an abuse of discretion
1
Subsequent-factors ground and aggravated-circumstances ground.
2
Butler v. Ark. Dep’t of Human Servs., 2010 Ark. App. 570.
2
Cite as 2016 Ark. App. 276
amounting to denial of justice.3 Lack of diligence by the moving party is a sufficient reason
to deny a motion for continuance.4 Additionally, we will not reverse absent a showing of
prejudice from the denial of the motion for continuance.5
Here, the trial court granted Hernandez a continuance following the pretrial hearing
on September 10, 2015. Although appellant was present, she did not seek a continuance at
that time. Instead, she waited three days before the scheduled hearing to file a motion for
continuance. In the motion, she indicated that she would be able to retain counsel on
October 5, 2015; however, when she appeared for the termination hearing on October 8, she
still had not retained outside counsel and only had $750 with which to do so. Additionally,
appellant has failed to show how she was prejudiced by the court’s denial of her motion.
Therefore, we find no abuse of discretion and affirm the trial court.6
Affirmed.
HARRISON and WHITEAKER, JJ., agree.
Tabitha B. McNulty, Arkansas Public Defender Commission, for appellant.
Jerald A. Sharum, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.
3
Smith v. Ark. Dep’t of Human Servs., 93 Ark. App. 395, 219 S.W.3d 705 (2005).
4
Id.
5
Id.
6
To the extent that appellant attempts to make constitutional and balancing-test arguments,
those issues are not properly before us because appellant failed to make them to the trial court. Even
in a case involving termination of parental rights where constitutional issues are argued, we will not
consider arguments made for the first time on appeal. Myers v. Ark. Dep’t of Human Servs., 91 Ark.
App. 53, 208 S.W.3d 241 (2005).
3