                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, Chafin and Senior Judge Haley
UNPUBLISHED



              TREVON BLAKE
                                                                                MEMORANDUM OPINION*
              v.      Record No. 2027-14-1                                          PER CURIAM
                                                                                    MAY 19, 2015
              NORFOLK DEPARTMENT OF HUMAN SERVICES


                                  FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                              Everett A. Martin, Jr., Judge

                                (Daymen Robinson, on brief), for appellant.

                                (Tamele Y. Hobson, Assistant City Attorney; Robert McL. Smith,
                                III, Guardian ad litem for the infant child; Office of the City
                                Attorney, on brief), for appellee.


                      Trevon Blake, appellant, appeals the trial court’s order terminating his residual parental

              rights to his daughter. Appellant contends the trial court erred by failing to grant his request for a

              continuance and dismissing his appeal of the juvenile and domestic relations district court’s order

              terminating his parental rights. Upon review of the record and briefs of the parties, we conclude

              that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court.

              Rule 5A:27.

                      In November of 2011, appellant’s daughter was in the custody of the Norfolk Department of

              Human Services, the Department. On June 18, 2014, the JDR court terminated appellant’s residual

              parental rights. Appellant personally noted his appeal that same day. The circuit court set trial for

              October 30, 2014. Appellant had personal notice of the court date.




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        Despite having notice, appellant did not appear for trial. Counsel recounted appellant had

previously expressed his desire to leave Virginia once he regained custody of his daughter. Counsel

represented that appellant notified her fourteen to seventeen days before trial that he moved to

Texas, but he intended to appear for the court date. Two days before trial, appellant called counsel

and stated he would not be able to appear because he did not have enough money for the return

ticket. Counsel moved for a continuance, which motion the trial court denied. The Department

moved to dismiss the appeal pursuant to Code § 16.1-106.1(D), which motion the trial court

granted.

        Code § 16.1-106.1(D) states that

               [i]f a party who has appealed a judgment or order of a district court
               fails to appear in circuit court either at the time for setting the
               appeal for trial or on the trial date, the circuit court may, upon the
               motion of any party, enter an order treating the appeal as
               withdrawn and disposing of the case in accordance with this
               section. If no party appears for trial, the court may deem the
               appeal to be withdrawn without a motion and enter an order
               disposing of the case in accordance with this section.

In proceedings for the termination of residual parental rights, the Supreme Court of Virginia has

held:

               [t]he decision to grant a motion for a continuance is within the
               sound discretion of the circuit court and must be considered in
               view of the circumstances unique to each case. The circuit 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. Additionally, in the application of these principles,
               we will be guided by our holding over a century ago in Myers v.
               Trice, 86 Va. 835, 842, 11 S.E. 428, 430 (1890), that when a
               circuit court’s refusal to grant a continuance “seriously imperil[s]
               the just determination of the cause,” the judgment must be
               reversed.

Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007).

        Appellant’s daughter was in foster care for almost three years by the time the case reached

the circuit court for trial. Despite this prolonged period, and the importance of the proceedings,
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appellant voluntarily removed himself from the state of Virginia two to three weeks prior to the

trial. Counsel and the guardian ad litem described appellant as having been rude, difficult, and an

“obstructionist” throughout the prior proceedings. Although counsel did state appellant appeared to

have been more polite in the prior few weeks, she was surprised that he did not return to Virginia for

the hearing.

        Given the lengthy time the matter had already been pending and appellant’s decision to

move just days prior to the court hearing, the record supports the trial court’s finding that appellant

was voluntarily waiving his right to appeal. Unlike the party in Haugen, appellant voluntarily made

himself unavailable to appear. Further, “[i]t is clearly not in the best interests of a child to spend a

lengthy period of time waiting to find out when, or even if, a parent will be capable of resuming his

or [or her] responsibilities.” Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540,

394 S.E.2d 492, 495 (1990). Therefore, it was not an abuse of discretion to deny the motion for a

continuance.

        Accordingly, the trial court did not err by dismissing the appeal pursuant to Code

§ 16.1-106.1(D), based on appellant’s failure to appear. For the foregoing reasons, the trial court’s

ruling is summarily affirmed.


                                                                                               Affirmed.




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