COURT OF APPEALS OF VIRGINIA

Present: Judges Alston, Ch afin and Senior Judge Haley

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. Mar tin, Jr., Judge (Daymen Robinson, on brief), for appellant. (Tamele Y. Hobson, Assistant C ity Attorney; Robe rt McL. Smith, III, Guardian ad litem for the infant child; Office of the City Attorney, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication. Trevon Blake, appellant, app eals the trial court’s order terminating his residual parental rights to his daughter. Appellant contends the tria l court erred by failing to grant his request for a continuance and dismissing his appeal of the juven ile and domestic relations district court’s order terminating his parental rights. Upon review of th e record and briefs of th e parties, we conclude that this appeal is without merit. Accordingly, we summarily affi rm the decision of the trial court.

Rule 5A:27. In November of 2011, appellant’s daughter wa s 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 appe al that same day. The circuit court set trial for October 30, 2014. Appellant had personal notice of the court date.UNPUBLISHED- 2 - Despite having notice, appellant did not appear for trial. Counsel recounted appellant had previously expressed his desire to leave Virginia on ce 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 con tinuance, which motion the trial court denied. The Department moved to dismiss the appeal pur suant 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 judg ment 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trial or on the trial date, the circuit court may, upon the motion of any party, enter an order treating the appeal as withdrawn and disposing of the case in accordance with this section.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 acco rdance with this section. In proceedings for the termination of residual pare ntal 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 cour t 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 di scretion 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 fo ster care for almost three years by the time the case reached

the circuit court for trial. De spite this prolonged period, and the importance of the proceedings,- 3 - appellant voluntarily removed himself from the stat e of Virginia two to th ree 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 alread y been pending and appe llant’s decision to move just days prior to the court hearing, the record supports the tr ial court’s findin g that appellant was voluntarily waiving his right to appeal. Unlike the party in Ha ugen, appellant voluntarily made himself unavailable to appear. Further, “[i]t is clea rly not in the best interests of a child to spend a lengthy period of ti me waiting to find out when, or even if, a parent will be capable of resuming his or [or her] responsibilities.” Kayw ood v. Halifax Cnty. Dep’t of So c. 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 ap pellant’s failure to app ear. For the foregoing r easons, the trial court’s ruling is summar ily affirmed.

Affirmed.