Haugen v. SHENANDOAH VALLEY SOCIAL SERVICES

Present: All the Justices

TRACY HAUGEN
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
v. Record No. 060869 June 8, 2007

SHENANDOAH VALLEY DEPARTMENT
OF SOCIAL SERVICES

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal of a judgment entered by the Court of

Appeals, we consider whether a transcript or statement of

facts was necessary for the court to determine: whether the

circuit court erred by refusing to require an incarcerated

parent's presence during a hearing to terminate her parental

rights; and whether as a matter of common law the circuit

court abused its discretion by failing to grant a continuance

to that parent, who participated by telephone, when federal

prison officials directed her to terminate her participation.

The Shenandoah Valley Department of Social Services filed

petitions for termination of residual parental rights of Tracy

L. Haugen and Anthony J. Pacheco in the Juvenile and Domestic

Relations District Court of the City of Staunton. Haugen and

Pacheco, the unmarried parents of a child, had been convicted

of numerous federal crimes related to the distribution of

illegal drugs, and they were incarcerated in federal

penitentiaries outside of Virginia. Separate guardians ad

litem were appointed for Haugen, Pacheco, and the child.
 The juvenile and domestic relations district court

entered orders terminating the parental rights of Haugen and

Pacheco. They appealed the orders to the Circuit Court of the

City of Staunton and, as permitted by Code § 16.1-296(D), they

received a hearing de novo.

Haugen, who remained incarcerated in a federal

penitentiary in West Virginia, filed a petition for a writ of

habeas corpus requesting that she be released to the Sheriff's

Office of the City of Staunton so that she could attend the

circuit court's hearing on the termination of her parental

rights. The circuit court did not grant the writ.

Subsequently, the circuit court directed Haugen and Pacheco,

who were represented in person at the hearing by separate

guardians ad litem, to participate by telephone in the hearing

to terminate their parental rights.

According to entries in a "Log of Proceedings

Electronically Recorded," which is a part of the record, the

termination of parental rights hearing commenced at 9:02 a.m.

on March 7, 2005. Haugen began her participation in the

hearing by telephone at 9:26 a.m. Pacheco began his

participation in the hearing by telephone at 9:27 a.m. After

several witnesses had testified and numerous exhibits had been

admitted in evidence, at 2:16 p.m., Pacheco informed the

circuit court that the penitentiary where he was incarcerated

2
was "under lockdown right now [and he] will not be available

until tomorrow morning." Pacheco's guardian ad litem, who was

also his counsel, requested a continuance or a mistrial in the

event that the hearing proceeded without Pacheco's

participation by telephone. The circuit court denied the

motion, and the hearing proceeded in Pacheco's absence.

Haugen remained on the telephone, and she continued to

participate in the proceeding.

At 3:49 p.m., Haugen was required to terminate her

participation in the hearing. Federal prison officials

ordered Haugen to leave the room in the penitentiary where she

was using the telephone and they took her to another location

in the penitentiary where she was not permitted to use a

telephone. The circuit court denied Haugen's motion to

continue the hearing until she could participate. The hearing

proceeded until 5:20 p.m., and during that 91-minute period

when Haugen was absent, two additional witnesses testified.

Subsequently, the circuit court issued a letter opinion

and summarized portions, but not all, of the evidence. The

circuit court found by clear and convincing evidence that "the

best interest and welfare of the child would be served by the

termination of both parents' parental rights," and the court

entered an order that reflected its rulings in the opinion

letter. Among other things, the order granted sole custody of

3
the child to the Shenandoah Valley Department of Social

Services and authorized that agency to place the child for

adoption and consent to such adoption.

The guardian ad litem for Haugen, who was also her trial

counsel, appealed the judgment of the circuit court to the

Court of Appeals. The Court of Appeals dismissed Haugen's

appeal because her counsel failed to file timely a transcript

or statement of facts as required by Rule 5A:8.

Haugen appealed to this Court asserting that the Court of

Appeals erred by dismissing her appeal because a transcript or

statement of facts was not necessary for the resolution of her

appeal; that the circuit court erred by failing to require or

permit Haugen to appear physically; and that the circuit court

erred in denying Haugen's motion for a continuance when her

participation in the circuit court hearing by telephone

abated. We awarded Haugen an appeal and appointed new counsel

for her.

Haugen asserts that the Court of Appeals erred by

dismissing her appeal because a transcript or statement of

facts was not necessary to determine the issue whether the

circuit court deprived her of her due process rights by

failing to ensure that she was physically present at the

hearing. Responding, Shenandoah Valley Department of Social

Services and the guardian ad litem for the child contend that

4
a review of the transcript or statement of facts is

indispensable to a determination whether Haugen's due process

rights were violated by the circuit court. Additionally, the

Department of Social Services and the child's guardian argue

that Haugen did not object to the circuit court's ruling that

she participate by telephone and that this Court cannot

ascertain without a transcript or statement of facts whether

Haugen made such objection.

We agree with Shenandoah Valley Department of Social

Services and the child's guardian ad litem. Without a

transcript of the proceedings or a statement of facts, this

Court cannot ascertain whether Haugen acquiesced in or agreed

with the circuit court's ruling that she participate by

telephone in the hearing.

Haugen argues that the circuit court erred in denying her

motion for a continuance once the federal prison authorities

required that she end her participation by telephone in the

hearing.1 Continuing, Haugen asserts that once she was

1
Rule 5:17(c) does not bar consideration of this issue.
Rule 5:17(c) states: "Where appeal is taken from a judgment
of the Court of Appeals, only assignments of error relating to
questions presented in, or to actions taken by, the Court of
Appeals may be included in the petition for appeal to this
Court." Haugen's question presented, in her petition to the
Court of Appeals, is sufficiently broad to encompass the issue
whether the circuit court erred by failing to grant her
request for a continuance because she was entitled to
participate by telephone in the hearing. Shenandoah Valley

5
disconnected by telephone, she had no presence whatsoever in

the hearing and that she was excluded from approximately 90

minutes of the proceeding.

Responding, Shenandoah Valley Department of Social

Services states that the record "does not appear to indicate

that Ms. Haugen's telephone connection was faulty or flawed,

rather it indicates that she had the opportunity to cross

examine witnesses, to testify and to present exhibits."

Additionally, the Department of Social Services says: "The

record as it stands before the Court of Appeals as well as

before [the Supreme] Court has only the vaguest indication

included in the Log of Proceedings Electronically Recorded

. . . that 'Ms. Haugen hangs up the phone.' There is no other

explanation for the end of the telephone conference offered or

available."

The guardian ad litem for the child argues that Haugen

was able to participate by telephone for most of the hearing

Department of Social Services specifically argued in the Court
of Appeals and this Court that Haugen was not deprived of her
rights to due process during the circuit court hearing because
she participated in most of the hearing by telephone.
Shenandoah Valley Department of Social Services and the
child's guardian ad litem cite numerous cases in their briefs
in support of their contention that participation by telephone
in a hearing is sufficient "presence" to satisfy the due
process requirement of the Federal Constitution. Shenandoah
Valley Department of Social Services and the child's guardian
ad litem do not argue that consideration of this issue is
barred by Rule 5:17(c).

6
and that once her participation terminated, only two other

witnesses testified. The guardian ad litem for the child also

argues that "[i]t is highly unlikely that Ms. Haugen's

physical presence or her participation by telephone during the

portion of the hearing she missed would have resulted in a

different outcome." We disagree with the arguments of

Shenandoah Valley Department of Social Services and the

child's guardian ad litem.

The record before this Court, even without the

transcript, is sufficient to enable this Court to adjudicate

the issue whether the circuit court erred by failing to grant

Haugen's request to continue the hearing on the termination of

her residual parental rights until she could participate.2 The

"Log of Proceedings Electronically Recorded," which is a part

of the record before this Court, indicates that the hearing

commenced at 9:02 a.m. and that Haugen's participation ceased

at 3:49 p.m. Counsel for Shenandoah Valley Department of

Social Services admitted, during oral argument before this

Court, that federal prison authorities directed Haugen to

leave the room in the penitentiary where she was using the

telephone and to go to another area of the prison where she

would not be permitted to participate in the hearing by

7
telephone. Clearly, she was deprived of an opportunity to

participate in the hearing by telephone.

The "Log of Proceedings Electronically Recorded" contains

notations and is not a comprehensive recitation of the

hearing. An entry in the log manifests Haugen's counsel's

attempt to postpone or terminate the proceeding because of her

inability to continue to participate. Although referred to in

the log as a "motion for mistrial," it is beyond question that

the motion for a mistrial was actually a request to terminate

or continue the hearing due to Haugen's inability to

participate further. The complete entry in the log provides:

"motion for mistrial (my client not available)."

This Court has applied different common law legal

standards when reviewing a circuit court's decision to grant

or deny a motion for a continuance. For example, we have held

that the issue whether "a continuance should be granted or

denied is a matter within the sound discretion of the trial

court, and a decision one way or the other will not be

disturbed on appeal in the absence of a showing that the

discretion has been abused." Thomas v. Commonwealth, 244 Va.

1, 13, 419 S.E.2d 606, 613 (1992); accord Shifflett v.

Commonwealth, 218 Va. 25, 30, 235 S.E.2d 316, 319 (1977);

2
Contrary to the dissenting opinion, Haugen does indeed
contend in her brief that the circuit court erred by failing

8
Miller v. Grier S. Johnson, Inc., 191 Va. 768, 773, 62 S.E.2d

870, 873 (1951); Lacks v. Commonwealth, 182 Va. 318, 323, 28

S.E.2d 713, 715 (1944).

This Court has also held that a circuit court's ruling on

a motion for a continuance will be disturbed only if that

ruling was plainly erroneous and the circuit court abused its

discretion. Bryant v. Commonwealth, 248 Va. 179, 182, 445

S.E.2d 667, 669 (1994); Willis v. Commonwealth, 183 Va. 125,

127, 31 S.E.2d 306, 306 (1944); Wallen v. Commonwealth, 134

Va. 773, 777, 114 S.E. 786, 788 (1922); Hewitt v.

Commonwealth, 58 Va. (17 Gratt.) 627, 629 (1867).

On other occasions, this Court has applied the following

legal standard when reviewing a circuit court's decision to

grant or deny a continuance: " 'A trial court's ruling on a

motion for a continuance will be reversed on appeal only if it

is plainly erroneous and upon a showing of abuse of discretion

and resulting prejudice to the movant.' " Butler v.

Commonwealth, 264 Va. 614, 621, 570 S.E.2d 813, 817 (2002)

(quoting Mills v. Mills, 232 Va. 94, 96, 348 S.E.2d 250, 252

(1986)); accord Cardwell v. Commonwealth, 248 Va. 501, 508-09,

450 S.E.2d 146, 151 (1994).

to grant her request for a continuance.

9
 Additionally, this Court has also applied yet another

legal standard governing appellate review of a circuit court's

decision to grant or deny a continuance:

"The rule in Virginia governing continuances is
well settled.
" 'It has been often repeated by this [C]ourt,
and it is the established rule everywhere, that the
granting or refusal of a continuance is always
addressed to the sound discretion of the trial
court, and to entitle a party to a reversal on that
ground it must be clearly shown that the court
abused its discretion and that injury resulted to
the party complaining from the abuse.' "

Rosenberger v. Commonwealth, 159 Va. 953, 957, 166 S.E. 464,

465 (1932) (quoting Virginia Iron, Coal & Coke Co. v. Kiser,

105 Va. 695, 697, 54 S.E. 889, 889 (1906))). Applying this

standard, we have held that a circuit court's ruling on a

motion for a continuance will be disturbed only upon a showing

of abuse of discretion resulting in prejudice to the movant.

Quintana v. Commonwealth, 224 Va. 127, 135, 295 S.E.2d 643,

646 (1982); Big Sandy and Cumberland R.R. Co. v. Ball, 133 Va.

431, 436, 113 S.E. 722, 724 (1922); Matthews v. Warner, 70 Va.

(29 Gratt.) 570, 580 (1877).

Today and in the future, when reviewing a circuit court's

ruling to grant or deny a continuance, this Court will apply

the following common law principles that we applied in

Rosenberger, 159 Va. at 957, 166 S.E. at 465, and Quintana,

224 Va. at 135, 295 S.E.2d at 646. The decision to grant a

10
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.

Applying these common law principles, we are compelled to

hold that the circuit court abused its discretion by ruling

that Haugen was not entitled to a continuance when the federal

prison authorities directed her to terminate her telephone

participation in the hearing to terminate her parental rights.

When a court terminates a parent's parental rights, the parent

is divested of all legal relations to the child, and the

parent has no legal right to even communicate or visit that

child. "The termination of parental rights is a grave,

drastic, and irreversible action. When a court orders

termination of parental rights, the ties between the parent

and child are severed forever, and the parent becomes 'a legal

stranger to the child.' Shank v. Dept. Social Services, 217

11
Va. 506, 509, 230 S.E.2d 454, 457 (1976)." Lowe v. Department

of Pub. Welfare of the City of Richmond, 231 Va. 277, 280, 343

S.E.2d 70, 72 (1986).

In view of the "grave, drastic, and irreversible" effects

of a judgment terminating a parent's parental rights, as a

matter of common law, the circuit court should have granted

the continuance. Haugen was prejudiced because she was unable

to participate in an important portion of a proceeding in

which she was rendered a legal stranger to her biological

child.

Accordingly, we will reverse the judgments of the Court

of Appeals and the circuit court, and we will remand the case

to the circuit court for a new hearing if the Shenandoah

Department of Social Services be so advised.

Reversed and remanded.

JUSTICE AGEE, with whom JUSTICE LACY and JUSTICE KINSER join,
concurring in part and dissenting in part.

I concur with the conclusion in the majority opinion that

Tracy L. Haugen’s assignments of error raising arguments of

due process cannot be addressed on appeal because a transcript

or statement of facts is necessary to determine whether she

acquiesced to participation by telephone in the termination of

parental rights proceeding. That determination should end

12
this appeal, as the only arguments ever made by Haugen or

discussed in any court relate solely to a deprivation of her

constitutionally protected rights to due process. However,

the majority creates an argument sua sponte based on

considerations outside the record and fails to adhere to the

very precedent the majority cites in order to create a remedy

for Haugen. Accordingly, I respectfully dissent from the

remainder of the majority opinion.

The majority opinion decides a case that is simply not

before the Court. First, the majority decides the issue of

whether the circuit court abused its discretion in failing to

grant Haugen a continuance, yet no request for a continuance

or objection to a failure to grant a continuance exists in the

record. Second, the record does not support the majority

opinion’s recitation that Haugen was compelled by federal

prison authorities to cease her telephone participation in the

termination of parental rights hearing. Third, the issue of

abuse of discretion was not the subject of a Question

Presented in the Court of Appeals. Fourth, the issue of abuse

of discretion decided by the majority was never raised,

briefed, or argued by any party in any court, and represents a

creation sua sponte for the first time in the majority

opinion. And finally, even if an abuse of discretion issue

could be raised, it cannot be considered on appeal because

13
there is no record from which an appellate court could review

the action of the circuit court to determine whether an abuse

of discretion occurred.

I. MOTION FOR CONTINUANCE

The majority opinion decides the case at bar on the basis

that the circuit court abused its discretion by denying a

motion for a continuance when Haugen’s telephone participation

in the termination of parental rights hearing ended. However,

the record is absolutely devoid of any evidence that Haugen

requested a continuance or made an objection on that basis

known to the circuit court. Although the majority opinion is

based on the denial of a motion for a continuance, it does not

and cannot cite in the record where Haugen made a motion for a

continuance or objected to the failure to grant such a motion.1

The majority apparently concludes that a motion for

mistrial, which was made when Haugen’s telephone participation

in the hearing ended, should also be considered as a motion

for a continuance. However, Haugen never raised that argument

in the circuit court or the Court of Appeals. Indeed, not

even Haugen’s briefs in this Court make that argument, but

simply assert that a motion for a continuance was made.

1
By contrast, the court reporter’s log, which is part of
the record, does reflect that Pacheco separately asked for a
continuance and then a mistrial when his telephone
participation in the hearing ended.

14
 The only evidence in the record as to the motion for

mistrial is the court reporter’s log, which notes after “Ms.

Haugen hangs up the phone” that “motion for mistrial (my

client not available)” and “motion overruled.” Such is the

sum and substance of the record upon which the majority

opinion decides this case upon a motion for a continuance.

This Court has never deemed a motion for mistrial to be a

motion for a continuance in the absence of a request by the

movant at trial to do so. A motion for a mistrial and a

motion for a continuance are separate motions with separate

legal bases and ramifications. A motion for a continuance

asks the court to “adjourn[] or postpone[] a trial or other

proceeding to a future date.” Black’s Law Dictionary, 339

(8th ed. 2004); Bryant v. Commonwealth, 248 Va. 179, 182, 445

S.E.2d 667, 669 (1994) (explaining standard for a

continuance); see also Lacks v. Commonwealth, 182 Va. 318,

323-24, 28 S.E.2d 713, 715 (1944) (describing situations in

which continuance may be granted). The result of a

continuance is the brief delay or rescheduling of a proceeding

until a future date, at which time the same issues and parties

return to take up where the previous proceeding had stopped.2

2
See, e.g., Code § 8.01-6.1 (trial court may grant
continuance to permit parties to amend pleadings or add claims
or defenses); Code § 16.1-274 (juvenile and domestic relations
courts may grant continuance for the filing of certain

15
 By contrast, a motion for a mistrial “brings [the trial]

to an end, without a determination on the merits, because of a

procedural error or serious misconduct occurring during the

proceedings.” Black’s Law Dictionary, 1023 (8th ed. 2004).

“A mistrial should not be granted for minor irregularities and

mistakes in a trial which can be cured by a direction from the

trial court to disregard the irregularity or mistake.” Clark

v. Chapman, 238 Va. 655, 661, 385 S.E.2d 885, 888 (1989)

(citations omitted). Rather, its purpose is to end the

proceedings and begin anew when “there is a manifest

probability that objectionable evidence or statements before

the jury are prejudicial to the adverse party.” Id. The

result of a mistrial is the termination of the current

reports); Code § 19.2-159.1 (continuances shall be granted to
allow criminal defendant to obtain counsel and prepare for
trial); Code § 19.2-265.4 (continuance is a remedy for
Commonwealth’s failure to provide discovery in criminal case);
Code § 19.2-266.2 (continuance permitted for good cause shown
in criminal case); Code § 30-5 (a party or party’s attorney
who is a member of the General Assembly may receive
continuance as a matter of right during time the legislature
is in session); Code § 53.1-210 (continuance available for
prisoners); Code § 55-248.25 (continuance available in
landlord tenant disputes); Code § 55-248.25:1 (same); Rule
3A:2(b)(3) (continuance “includes adjournment or recess”);
Rule 7A:14(a) (district court judge may, by order, delegate to
the clerk the power to grant continuances consented to by all
parties); Rule 7C:5(f) (continuance permitted for criminally
accused in general district court); Rule 8:8 (court may grant
continuance to allow time for amendments that act as
surprise); Rule 8:14(a) (juvenile and domestic relations court
judge may, by order, delegate to the clerk the power to grant
continuances consented to by all parties).

16
proceedings with the possibility of the initiation of entirely

new proceedings. See, e.g., Lewis v. Commonwealth, 269 Va.

209, 214, 608 S.E.2d 907, 910 (2005) (when right to a fair

trial has been prejudiced, a new trial is required); Riner v.

Commonwealth, 268 Va. 296, 316, 601 S.E.2d 555, 566 (2004)

(standard for considering if a mistrial or a new trial should

be ordered is whether, under the circumstances, there has been

interference with a fair trial).

No motion for a continuance was made in this case, and

Haugen did not assign error to the circuit court’s denial of

the actual motion made, a motion for a mistrial. The premise

of the majority opinion is thus based upon a motion never

made, much less ruled upon, and the appeal should end on that

basis. Rule 5:25.

II. STATEMENTS OUTSIDE THE RECORD

The majority opinion accurately recites that the record

reflects that Haugen participated in the termination of

parental rights hearing by telephone while incarcerated in a

federal prison. Haugen was able to talk with her attorney

during the hearing and also gave testimony via telephone.

After nearly seven hours of proceedings, Haugen’s

participation by telephone ended. As previously noted, the

only explanation of this event in the record is in the court

reporter’s log, which reflects that at 3:49 p.m., “Ms. Haugen

17
hangs up the phone.” The record is devoid of any other

evidence as to why Haugen’s telephone participation in the

hearing ended.

The majority opinion’s recitation that “federal prison

authorities directed Haugen to leave the room in the

penitentiary where she was using the telephone and [they took

her] to another area [in the penitentiary] where she would not

be permitted to participate in the hearing by telephone” is

without support in the record. This is an important

distinction because, since the record gives no basis to

determine whether Haugen voluntarily or involuntarily ended

her participation in the hearing, we cannot reach on appeal

any issue regarding the consequences of that termination.

Rule 5:11 requires this result for the same reason that we

could not reach the issue of whether Haugen acquiesced to the

circuit court’s initial ruling that she participate in the

hearing by telephone.

The representations in the majority opinion that “federal

prison authorities directed [Haugen] to terminate her . . .

participation” as the basis to avoid the lack of a record to

show Haugen’s lack of acquiescence or consent to terminating

participation in the hearing is puzzling. To reach its

conclusion the majority departs from the record and relies on

18
a statement by counsel in response to a question from this

Court during oral argument. The majority opinion states:

Counsel for the Shenandoah Valley Department of
Social Services admitted, during oral argument
before this Court, that federal prison authorities
directed Haugen to leave the room in the
penitentiary where she was using the telephone and
to go to another area of the prison where she would
not be permitted to participate in the hearing by
telephone.

There was no such admission.

Even if our caselaw permitted us to use a colloquy at

oral argument as a substitute for evidence not in the record,3

which it does not, the majority’s statement is inaccurate.

3
On appeal, this Court is “limited to the record of the
proceedings which have taken place in the lower court and have
been there settled and certified to us.” Ward v. Charlton,
177 Va. 101, 107, 12 S.E.2d 791, 792 (1941); see also Woodfin
v. Commonwealth, 236 Va. 89, 97-98, 372 S.E.2d 377, 382 (1988)
(“[W]e are limited to the appellate record in this case in
consideration of issues presented here. We are not permitted
to supplement the record by referring to [other evidence] not
made a part of this record.”); Dere v. Montgomery Ward & Co.,
224 Va. 277, 281 n.2, 295 S.E.2d 794, 796 n.2 (1982) (holding
the Court was bound by the record and the circuit court’s
certified written statement of fact, and “not upon counsel’s
recollection of what occurred” during proceedings in the
circuit court); Rountree v. Rountree, 200 Va. 57, 62-63, 104
S.E.2d 42, 47 (1958) (holding the Court would not consider
facts in affidavits attached to the appellate briefs that were
not part of the record from the circuit court); Bryant v.
Commonwealth, 189 Va. 310, 320, 53 S.E.2d 54, 59 (1949)
(Appellants “admit that the specific rulings and the grounds
of objection thereto were not made a part of the record.
Under these circumstances, we cannot consider them, as we must
pass upon the record duly authenticated by the trial judge,
and not upon counsel’s recollection of what occurred.”)

19
The entire content of counsel’s statement at oral argument is

as follows:

Ms. Haugen had the opportunity, because of the
scheduling of her prison, to determine whether or
not she would continue or she would comply with what
her holding facility was asking her to do, which was
return to another area of the prison and not in the
room where the phone was located. And she, at that
point, I don’t think she had a completely voluntary
termination of her telephone call, but it was not a
technical malfunction nor was it the court
terminating her telephone call.

(Emphasis added.) A plain reading of counsel’s statement is

that Haugen had a choice in terminating her participation in

the hearing and, for whatever reason, she chose to end the

telephone call.

There simply is not a basis in the record for the

majority’s conclusion that Haugen was compelled to quit the

hearing by federal prison authorities. Consequently, as there

is no ground in the record by which an appellate court could

determine whether Haugen acquiesced to the termination of her

telephone participation, the appeal should be dismissed.

III. QUESTION PRESENTED IN THE COURT OF APPEALS

The majority correctly recites from Rule 5:17(c) that

“[w]here an appeal is taken from a judgment of the Court of

Appeals, only assignments of error relating to questions

presented in, or to actions taken by, the Court of Appeals may

be included in the petition for appeal to this Court.”

20
However, while referencing the Question Presented in the Court

of Appeals, the majority opinion omits its actual language,

which was: “Whether the trial [court] erred by failing to

require the presence of the parents for the hearing on

termination of their parental rights.” The issue addressed in

the majority opinion, that the circuit court abused its

discretion when it denied the non-existent motion for a

continuance, is not an issue encompassed within the Question

Presented, nor was it addressed by the Court of Appeals.

The Question Presented contains no reference to a failure

to grant a continuance, that the circuit court abused its

discretion in that regard, or that there was resulting

prejudice to Haugen. The primary reason for that deficiency

is that the abuse of discretion argument upon which the

majority opinion rests, was never made by Haugen or by any

other party in any court at any time. Haugen’s sole argument

in the circuit court, the Court of Appeals, and this Court was

that her due process rights were infringed because she was not

present in person at the hearing.

The Question Presented to the Court of Appeals cannot be

retrofitted to cover an issue never raised and not within the

plain terms of the actual text of the Question Presented. The

Department of Social Services and the child’s guardian ad

litem never addressed Rule 5:17(c) in the context of the

21
Question Presented in the Court of Appeals because that issue

never appeared in this case until raised sua sponte in the

majority opinion.

A plain reading of the Question Presented reflects that

the issue addressed by the majority – the abuse of discretion

to the prejudice of Haugen by denial of a continuance – was

not stated in the Question Presented to the Court of Appeals

and not decided by that court. Haugen’s appeal is thus barred

by Rule 5:17(c). See, e.g., Townsend v. Commonwealth, 270 Va.

325, 330 n.2, 619 S.E.2d 71, 74 n.2 (2005) (An argument not

made in the Court of Appeals or before this Court will not be

considered by the Court on appeal under Rule 5:17(c)).

IV. ABUSE OF DISCRETION

The issue upon which the majority opinion decides this

case, that the circuit court abused its discretion in failing

to grant a motion for a continuance, was never raised. The

issue was never mentioned on brief, in oral argument, or by

way of assignment of error in the circuit court, the Court of

Appeals, or this Court, until it appeared sua sponte in the

majority opinion.

Rules 5:17 and 5:25 thus apply and end this appeal.

Neither the circuit court, the Court of Appeals, nor this

Court ever heard an abuse of discretion argument. Haugen made

no assignment of error asserting an abuse of discretion.

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 The majority opinion gives no basis upon which an abuse

of discretion issue can now be present in this case. No

interpretation of a statute or rule is involved, so no

contention can be made that the Court is applying the plain

language of such to the facts of the instant case.

Furthermore, no request for application of the ends of justice

exception is present in this record, and no claim of other

good cause shown has been made. There is simply no basis in

our jurisprudence by which the majority can raise the

decisional issue of an abuse of discretion in this case.

V. STANDARD OF REVIEW

Even if all the foregoing issues are ignored, there

remains a fundamental flaw in the majority opinion, even

applying an abuse of discretion standard. Haugen has not

produced a record on appeal by which an abuse of discretion

claim could be reviewed. Rule 5:11. Our jurisprudence is

clear that such a deficiency ends the appeal. White v.

Morano, 249 Va. 27, 30, 452 S.E.2d 856, 858 (1995) (“[T]he

onus is upon the appellant to provide the reviewing court with

a sufficient record from which it can be determined whether

the trial court erred as the appellant alleges. If an

insufficient record is furnished, the judgment appealed from

will be affirmed.”).

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 The majority opinion recites a number of cases where we

have stated the standard of review for an abuse of discretion

in the denial of a motion for a continuance. The majority

appears to say it is enunciating a new standard of review in

such cases, which is: “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.” However, I do not view our prior decisions as

establishing different standards but using similar expressions

to denote the same standard. Under that standard, appellate

review must be possible both for the act of abusing discretion

and the resulting prejudice to the movant. Although the

majority opinion recognizes the proper appellate standard of

review – “a showing of abuse of discretion and resulting

prejudice to the movant” – the majority then ignores the

enunciated standard because there is no showing of prejudice

by Haugen.

By necessity, a court cannot abuse its discretion in

denying a motion for a continuance unless the denied movant

suffers some harm as a result. Quintana v. Commonwealth, 224

Va. 127, 135, 295 S.E.2d 643, 646 (1982); Rosenberger v.

Commonwealth, 159 Va. 953, 957, 166 S.E. 464, 465 (1932).

However, a showing of prejudice does not axiomatically become

an abuse of discretion, as there are a multitude of reasons

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for which a trial court may appropriately deny a continuance

even though the movant suffers harm. For example, a party may

move for a continuance during trial because it failed to

subpoena a necessary witness. While the court’s denial of a

continuance will likely, in fact, prejudice the movant, it

would be a rare occasion where the court’s action under those

circumstances would be deemed an abuse of discretion.

In any event, the movant must show prejudice in order to

establish the court’s exercise of discretion was abused in

denying a continuance. In other words, a movant cannot show

an abuse of discretion if he suffered no harm from the denial

of the continuance motion.

That brings us to a fundamental flaw that requires

dismissal of this appeal. As the majority noted with regard

to Haugen’s due process claim, it is a basic axiom of

appellate procedure that the appellant bears the burden of

presenting the necessary record on appeal to enable review by

the appellate court. White, 249 Va. at 30, 452 S.E.2d at 858;

see, e.g., Pettus v. Gottfried, 269 Va. 69, 81, 606 S.E.2d

819, 827 (2005) (holding the same); McDonald v. National

Enterprises, Inc., 262 Va. 184, 195, 547 S.E.2d 204, 211

(2001) (same); Justis v. Young, 202 Va. 631, 632, 119 S.E.2d

255, 256-57 (1961) (same). In the specific context of the

appellate review of a claim of abuse of discretion, the

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appellant must provide a record that shows the prejudice

suffered because the continuance motion was not granted.

Without that record, an appellate court can make no

determination on the circuit court’s exercise of discretion,

and the appeal cannot proceed. See, e.g., Rose v. Jaques, 268

Va. 137, 155-56, 597 S.E.2d 64, 75 (2004) (when the record is

insufficient to show whether circuit court abused its

discretion in refusing to admit evidence, the Court cannot

consider the issue on appeal); see also City of Manassas v.

Board of County Supervisors, 250 Va. 126, 136-37, 458 S.E.2d

568, 573 (1995) (same); Dade v. Anderson, 247 Va. 3, 8, 439

S.E.2d 353, 356 (1994) (when the record is insufficient to

show whether circuit court abused its discretion in denying a

motion to amend pleadings, the Court cannot consider the issue

on appeal); Niese v. Klos, 216 Va. 701, 705, 222 S.E.2d 798, 801

(1976) (same).

The record is devoid of any proof of prejudice to Haugen

resulting from her failure to participate by telephone in the

final part of the parental termination hearing. Moreover,

Haugen has never argued in any court that anything did occur

after her telephone participation ended which prejudiced her

in any way.

What the record does show is seven hours after the

hearing started Haugen’s telephone participation ended and the

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hearing continued for another 1 hour and 30 minutes, 47

minutes of which was devoted to closing argument. Our

jurisprudence requires that in order for this Court to review

whether a circuit court abused its discretion, the appellant

must produce an accurate record to permit appellate review of

what transpired during the 1 hour and 30 minutes which caused

Haugen harm. That record simply is not present in this case.

There is absolutely nothing in the record before this Court to

show how Haugen was prejudiced in any way by anything that

occurred in the hearing after her telephone participation

ceased. As no record exists by which any prejudice could be

determined, the issue of abuse of discretion raised sua sponte

by the majority opinion cannot be reached without resort to

pure speculation and outright guesswork. Rule 5:11 applies to

end this appeal. “When the appellant fails to ensure that the

record contains transcripts or a written statement of facts

necessary to permit resolution of appellate issues, any

assignments of error affected by the omissions shall not be

considered.” Rule 5:11(b); see also McDonald, 262 Va. at 195,

547 S.E.2d at 211.

VI. CONCLUSION

The majority opinion reaches what can only be seen as the

adoption of a per se rule: that in termination of parental

rights cases, the failure by a court to grant a continuance

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(even when not requested) where the subject parent does not

participate in some part of the hearing is prejudice per se

and an abuse of discretion as a matter of law. Virginia,

alone among the fifty states and the District of Columbia, now

holds that in a termination of parental rights case a court

abuses its discretion as a matter of law when it fails to

grant a continuance, requested or not, when a parent does not

participate in some part of a termination proceeding even

though represented by counsel.

Such an unprecedented result is all the more puzzling

because the practical effect, as in this case, is that the

minor child, who has been in foster care limbo for over five

years, will now be forced to endure the absence of a legal end

to his status indefinitely. This result is contrary to the

public policy of the Commonwealth to expeditiously give the

child a permanent home once placed in foster care and expedite

any appeal. Code §§ 16.1-281, 16.1-282, and 16.1-296(D).

For all the foregoing reasons, I respectfully dissent and

would dismiss this appeal.

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