Appeal by respondent mother from order filed 7 February 2002
by Judge Charles M. Neaves, Jr. in Stokes County District Court.
Heard in the Court of Appeals 12 June 2003.
J. Tyrone Browder for petitioner-appellee.
Susan J. Hall for respondent-appellant.
BRYANT, Judge.
Corena Lynn Clark (respondent) appeals from an order filed 7
February 2002 terminating her parental rights over Kayla Leeann
Clark (the juvenile). On 6 September 2000, the juvenile was
adjudicated as neglected and dependent after she was injured when
respondent dropped her on the ground during a physical
confrontation involving the juvenile's father and others on 30
August 1998.
(See footnote 1)
At the time, respondent and the juvenile's father
were living in someone else's home, and the altercation occurred
after respondent had been kicked out of the house. Following this
incident, the juvenile was removed from the home that day, placed
in the custody of the Stokes County Department of Social Services
(DSS), and placed in a foster home. As part of the neglect
disposition order filed on 6 September 2000, defendant was required
to establish a stable residence.
Termination proceedings were instituted on 22 November 2000.
The termination of parental rights (TPR) hearing took place over
six different dates: 22 August 2001; 16 October 2001; 28 November
2001; 18 December 2001; 17 January 2002; and 18 January 2002. The
transcript of these proceedings was transcribed from an open-
microphone recording, and on four occasions a tape ended either in
the middle of testimony or counsel's statements. Further, duringthe cross-examination of respondent, the recording device and the
trial court's microphone malfunctioned. Thus, it appears portions
of the hearing have not been preserved for appellate review,
although there is little indication of the amount of lost testimony
or what the content of that testimony might have been.
Prior to the presentation of evidence, respondent moved to
dismiss the petition based on lack of jurisdiction, due to the fact
that DSS had failed to file an affidavit as to the status of the
child under section 50A-209 of the General Statutes. The trial
court denied the motion and ordered DSS to file the affidavit
within five days.
The evidence presented at the hearing and preserved in the
transcript tends to show that between August 1998 and 2000,
respondent had moved from residence to residence approximately five
times. During that time, respondent failed to maintain stable
employment. Respondent also failed to comply with DSS service
agreements and did not appear for any of the five permanency
planning meetings held by DSS. In addition, respondent missed
numerous visitations with the juvenile.
(See footnote 2)
At the time of the TPR
hearing, respondent was living with her new husband and her two
children by that marriage. A maternal outreach program worker
testified that she had visited respondent at her current residence
between thirty to forty times to help respondent with financial and
transportation problems. On these visits, the worker observed beer
and liquor bottles overflowing from trash cans at the residence andbeer and liquor bottles scattered around the front yard of the
house. She also observed a number of people other than respondent
or respondent's family living in the house, including a fifteen-
year-old boy, whom she witnessed consuming an alcoholic beverage.
Further, the worker expressed concern over the lack of supervision
of respondent's youngest child.
The trial court, inter alia, found:
84. [Respondent], willfully, and not due
solely to poverty, left [the juvenile] in
foster care or placement outside the home
for more than twelve months without
showing to the satisfaction of the [trial
court] that reasonable progress under the
circumstances has been made within twelve
months in correcting those conditions
which led to the removal of the juvenile
. . . .
From this finding the trial court concluded that grounds existed to
terminate respondent's parental rights over the juvenile, and
subsequently ordered those parental rights terminated.
(See footnote 3)
________________________________
The issues are whether: (I) failure by DSS to file an
affidavit pursuant to N.C. Gen. Stat. § 50A-209 contemporaneously
with the juvenile petition deprived the trial court of
jurisdiction; (II) respondent was prejudiced by the failure to
record the entire proceeding; and (III) there is sufficient
evidence to support the trial court's finding that respondentwillfully left the juvenile in foster care for more than twelve
months, without showing to the trial court reasonable progress
under the circumstances.
I
[1] Defendant first contends that failure by DSS to file an
affidavit pursuant to section 50A-209 of the North Carolina General
Statutes at the time of the filing of the juvenile petition
deprived the trial court of jurisdiction to adjudicate this matter
and further, that the trial court's failure to stay the proceedings
until the affidavit was filed constituted error. We disagree.
N.C. Gen. Stat. § 50A-209 requires that a party filing a
petition in cases involving child custody, including termination of
parental rights actions, shall, under oath, either in the first
pleading or in an attached affidavit, give information “if
reasonably ascertainable, . . . as to the child's present address
or whereabouts, the places where the child has lived during the
last five years, and the names and present addresses of the persons
with whom the child has lived during that period.” N.C.G.S. § 50-
209(a) (2001). The purpose of this affidavit is to assist the
trial court in determining whether it can assume subject matter
jurisdiction over the matter.
See Brewington v. Serrato, 77 N.C.
App. 726, 730, 336 S.E.2d 444, 447 (1985) (purpose of former
section 50A-9 was to enable trial court to determine if
jurisdiction existed in child custody matters). Although it
remains the better practice to require compliance with section 50A-
209, failure to file this affidavit does not, by itself, divest the
trial court of jurisdiction.
See Pheasant v. McKibben, 100 N.C.App. 379, 382, 396 S.E.2d 333, 335 (1990) (failure to comply with
former section 50A-9 did not defeat subject matter jurisdiction
where the trial court properly exercised jurisdiction).
In this case, after the failure to comply with the statute was
pointed out, the trial court gave DSS five days to comply, and DSS
complied by filing the affidavit within five days. Respondent does
not argue that the contents of this affidavit do not support a
finding that the trial court had jurisdiction over the juvenile.
Accordingly, we reject the argument that failure to comply with
section 50A-209 divested the trial court of jurisdiction.
Furthermore, the trial court was not required to stay the
proceedings because allowing DSS five days to file the affidavit
was not prejudicial to respondent, as the trial court was able to
determine whether jurisdiction existed prior to rendering its
decision.
II
[2] Respondent next argues that an inadequate recording of the
proceedings and the continuation of the hearing over six different
court sessions constitutes prejudicial error in that it deprives
her of meaningful appellate review.
N.C. Gen. Stat. § 7B-806 requires that all juvenile
“adjudicatory and dispositional hearings shall be recorded by
stenographic notes or by electronic or mechanical means.” N.C.G.S.
§ 7B-806 (2001). Mere failure to comply with this statute standing
alone is, however, not by itself grounds for a new hearing.
See
Miller v. Miller, 92 N.C. App. 351, 354, 374 S.E.2d 467, 469 (1988)
(appeal dismissed where party alleged failure to record proceedingsunder former section 7A-198, now section 7B-806, but failed to
assert prejudice and had not attempted to reconstruct the
proceedings through a narration of the evidence). A party, in
order to prevail on an assignment of error under section 7B-806,
must also demonstrate that the failure to record the evidence
resulted in prejudice to that party.
See id.;
see also In re
Wright, 64 N.C. App. 135, 137-38, 306 S.E.2d 825, 827 (1983)
(argument rejected where there was no showing of prejudice and no
allegation of what transcript would have contained).
Furthermore, the use of general allegations is insufficient to
show reversible error resulting from the loss of specific portions
of testimony caused by gaps in recording.
See In re Peirce, 53
N.C. App. 373, 382, 281 S.E.2d 198, 204 (1981) (no prejudice shown
where party failed to allege or show in the record the contents of
the lost testimony). Where a verbatim transcript of the
proceedings is unavailable, there are “means . . . available for [a
party] to compile a narration of the evidence, i.e., reconstructing
the testimony with the assistance of those persons present at the
hearing.”
Miller, 92 N.C. App. at 354, 374 S.E.2d at 469. If an
opposing party contended “the record on appeal was inaccurate in
any respect, the matter could be resolved by the trial judge in
settling the record on appeal.”
Id.;
see also N.C.R. App. P.
9(c)(1) (providing for narration of the evidence in record on
appeal and, if necessary, settlement of the record by the trial
court on form of narration of the testimony).
“Although, . . . there is a long-standing rule . . . that
there is a presumption in favor of the regularity and correctnessin proceedings in the trial court, where the appellant presents
evidence to rebut such a presumption, this Court will not turn a
deaf ear to that evidence.”
Coppley v. Coppley, 128 N.C. App. 658,
663, 496 S.E.2d 611, 616 (1998) (internal quotations omitted)
(citation omitted). While it is the appellant's responsibility to
make sure the record on appeal is complete:
where the appellant has done all that she can
to do so, but those efforts fail because of
some error on the part of our trial courts, it
would be inequitable to simply conclude that
the mere absence of the recordings indicates
the failure of appellant to fulfill that
responsibility.
Id. (stating it was error for trial court to fail to record
proceedings, but concluding defendant failed to show prejudice).
In this case, portions of the testimony and the hearing are
not available because tapes were changed in the middle of testimony
as well as the malfunctioning of recording equipment and the trial
court's microphone. Evidence was lost briefly during the changing
of tapes on four occasions. The first of these instances was
during the cross-examination of Hugh Mann, a certified substance
abuse counselor and therapist, who testified about his therapy
sessions with respondent and having referred her for psychiatric
and psychological evaluations as well as vocational rehabilitation.
He also testified to respondent's substance abuse. Mann further
testified that respondent did not return for therapy after two
visits and he had not heard from her since 6 April 1999. On cross-
examination, respondent asked Mann:
Q. Do you know whether or not [respondent]
moved out of Stokes County during -
sometime after April---
(Tape ends mid sentence and begins midsentence)
A. --- hearsay.
Q. And you know that she was living in - she
lived in Thomasville for [awhile]?
A. I didn't know Thomasville. I had heard
that she had gone to West Virginia for
[awhile].
The remaining three instances took place during the recall
testimony of Marsha Marshall, a social worker with DSS. Marshall
testified about the altercation leading to the removal of the
juvenile, the initial neglect adjudication, and respondent's
failure to make reasonable progress to regain custody of the
juvenile following the neglect proceeding. On direct examination,
Marshall testified about notes taken from visitations between
respondent and the juvenile:
A. (continuing) She noted on this date
that [respondent] did not know how
to set limits or discipline [the
juvenile]. On August --- (Tape ends
mid sentence and begins mid
sentence) --- [respondent] sent
clothes too small for [the
juvenile].
On cross-examination Marshall was asked:
Q. So there were actually seventeen
[visits] - I mean fifteen of them
that were missed but --- (Tape ends
mid sentence and begins mid
sentence) --- the reason for it?
A. Yes.
Q. Now what reasons were given for
the fifteen that were missed?
A. Do you want dates and reasons
or just the various reasons
given?
Later on cross-examination of Marshall, the tape was changed
during a dialogue between the trial court and respondent's counsel,
during which documents were handed up to the trial court but no
testimony appears to have been lost. Thus, from our thoroughreview of the six volume transcript, covering over 600 pages of
testimony, it appears the interruption in testimony due to changing
of tapes was very brief.
The incident of most concern is the malfunctioning of the
recording equipment and the trial court's microphone that occurred
during the cross-examination of respondent. Her cross-examination
testimony appears to end abruptly with the malfunctioning of the
equipment, and the transcript does not continue until the next
witness is called. There is nothing in the transcript, or
elsewhere in the record on appeal, however, that divulges how much
testimony was lost or the amount of time the equipment was
malfunctioning.
(See footnote 4)
Notwithstanding, respondent has made no attempt to use Rule
9(c)(1) of the rules of appellate procedure to provide a narration
of the evidence in order to “reflect the true sense of the evidence
received” to the extent the record does not do so. N.C.R. App. P.
9(c)(1). Furthermore, although respondent has generally asserted
that the failure to record all of the testimony over the six
different dates was prejudicial, she points to nothing specific in
the record to support her argument.
See Peirce, 53 N.C. App. at
382, 281 S.E.2d at 204. In addition, the record and transcript do
not disclose the exact amount of testimony lost or the amount of
time during which the recording equipment malfunctioned, although
it appears that very little of the testimony was not recorded, andthe interruptions were only very brief. Moreover, the trial
court's extensive findings indicate a careful evaluation of all of
the evidence.
(See footnote 5)
Our review of the record, without the benefit of a
narration of the missing evidence, fails to show any prejudice to
respondent from the missing testimony. Thus, we reject
respondent's argument on this assignment of error.
III
[3] Respondent finally contends that the trial court abused
its discretion by concluding grounds existed to terminate
respondent's parental rights over the juvenile. An order
terminating parental rights will be upheld if there is clear,
cogent, and convincing evidence to support the findings of fact and
those findings of fact support the trial court's conclusions of
law.
In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393,
398 (1996).
In the case
sub judice, the trial court concluded grounds
existed to terminate respondent's parental rights under section 7B-
1111(a)(2). Section 7B-1111(a)(2) provides that parental rights
may be terminated upon a finding that “the parent has willfully
left the juvenile in foster care or placement outside the home for
more than 12 months without showing to the satisfaction of the
court that reasonable progress under the circumstances has been
made in correcting those conditions which led to the removal of thejuvenile.” N.C.G.S. § 7B-1111(a)(2) (2001). Willfulness under
this section is less than willful abandonment, and does not require
a finding of fault.
Oghenekevebe, 123 N.C. App. at 439, 473 S.E.2d
at 398. Willfulness may be found where even though a parent has
made some attempt to regain custody of the child, the parent has
failed to show “reasonable progress or a positive response to the
diligent efforts of DSS.”
Id. at 440, 473 S.E.2d at 398.
In this case, it is undisputed that the juvenile was left in
foster care or placement outside the home for more than twelve
months. Respondent contends only that the juvenile was not
willfully left in foster care. The record shows that DSS made
diligent efforts through implementation of service agreements and
holding permanency planning meetings to assist respondent in
reuniting with her child. Respondent, however, repeatedly failed
to comply with the service agreements, failed to appear at the
permanency planning meetings, and often missed visitations with her
child. Further, although respondent had apparently finally
obtained stable housing, the interior of the home as well as the
front yard area was observed to have been littered with alcoholic
beverage containers and there was at least one incident of underage
drinking. This constitutes clear, cogent, and convincing evidence
that respondent has failed to show reasonable progress or a
positive response to the diligent efforts of DSS.
See id. at 440,
473 S.E.2d at 398 (finding of willfulness not precluded just
because parent has made some efforts to regain custody). Thus,
there is sufficient evidence upon which to base a finding that
respondent willfully left the juvenile in foster care or placementoutside the home, and this finding in turn supports the trial
court's conclusion that grounds existed to terminate respondent's
parental rights. As previously indicated, where we determine the
trial court properly concluded that one ground exists to support
the termination of parental rights, we need not address the
remaining grounds.
See Greene, 152 N.C. App. at 416, 568 S.E.2d at
638. Accordingly, the trial court did not err in terminating
respondent's parental rights.
Affirmed.
Judges McGEE and GEER concur.
Footnote: 1