Appeal by respondent from judgment and order entered
2003, by Judge Gary S. Cash in District Court, Buncombe County.
Heard in the Court of Appeals 22 September 2004.
Charlotte A. Wade for petitioner-appellee.
Michael N. Tousey for Guardian ad Litem.
The Turrentine Group, PLLC, by Karlene Scott-Turrentine, for
Respondent appeals from an adjudication judgment and interim
dispositional order finding that his daughter, E.L., was a
neglected child. E.L.'s mother, D.L., does not appeal.
The evidence at the adjudication hearing tended to show that
E.L. was born prematurely on 17 October 2001 at Mission-St.
Joseph's Hospital in Asheville (Mission Hospital). Staff at
Mission Hospital contacted Buncombe County Department of Social
Services (DSS) on 28 October 2001 after observing "borderline
abusive/aggressive behavior towards [E.L.] by [D.L.] when another
family member was not present." Mission Hospital refused to
discharge E.L. until DSS became involved.
Pending an investigation, DSS entered into a protection planwith E.L.'s parents on 28 October 2001. The protection plan
[D.L.] will not be left alone at any time with
[E.L.]. Either the maternal grandmother
. . . or the father, [respondent], agree to be
responsible for [E.L.] at all times, and they
will not allow [D.L.] to be alone with [E.L.].
[D.L.] is allowed to be with [E.L.] whenever
she wishes, but [the maternal grandmother] or
[respondent] will be present and supervising
all interactions all the time.
DSS received a second report on 7 December 2001 that:
[E.L.] had been taken to the emergency room of
[Mission Hospital] on [6 December 2001]
because she had a fever and was vomiting. The
hospital staff observed that both [D.L.] and
[respondent] appeared angry and aggressive
toward [E.L.] and that they were handling her
in a "very rough manner." Security had to be
called because the [respondent and D.L.]
became combative with a doctor. [E.L.] was
admitted to the hospital because of concerns
about [respondent and D.L.], as opposed to the
significance of [E.L.'s] illness.
DSS investigated and substantiated neglect of E.L., and
placed her with D.L.'s sister, J.R. Respondent and D.L.'s
visitation were not limited and they often stayed at J.R.'s home
E.L. was removed from J.R.'s home in late February 2001.
Respondent and J.R. were experiencing "increasing difficulties" and
DSS "became concerned not only for the safety of [E.L.] but for the
safety of [J.R.'s] children and [J.R.]." E.L. was placed with R.E.
and G.E., respondent's aunt and uncle. DSS filed a petition on 27
August 2002, alleging that E.L. was a neglected child in that she
did not receive proper care, supervision, or discipline from
respondent or D.L. E.L. was adjudicated a neglected child, and aninterim dispositional order was entered on 11 June 2003. A final
dispositional order was also entered on 11 June 2003.
We note that respondent gave notice of appeal only from the 11
June 2003 adjudication judgment and interim dispositional order.
As a result, several of respondent's assignments of error are not
properly before this Court.
Respondent assigns error to the trial court's order that
respondent's visits with E.L. be limited to one hour and that
respondent's home be subject to unannounced visits by DSS and
E.L.'s guardian ad litem. These orders are found in the trial
court's dispositional order. However, respondent only gave notice
of appeal from the trial court's 11 June 2003 adjudication judgment
and interim dispositional order. Rule 3 of the North Carolina
Rules of Appellate Procedure provides: "The notice of appeal
. . . shall designate the judgment or order from which appeal is
taken[.]" N.C.R. App. P. 3(d). As our Court stated in Johnson &
Laughlin, Inc. v. Hostetler
, 101 N.C. App. 543, 546, 400 S.E.2d 80,
82 (1991), "[Rule 3(d)]
is jurisdictional and cannot be waived."
Furthermore, "if the requirements of [Rule 3(d)] are not complied
with, the appeal must be dismissed." Foreman v. Sholl
, 113 N.C.
App. 282, 291, 439 S.E.2d 169, 175 (1994). We lack jurisdiction to
review the dispositional order challenged in this assignment of
In his next assignment of error, respondent contends no
competent evidence supports the trial court's finding, pursuant to
N.C. Gen. Stat. § 7B-507(a)(1)-(2), that (1) DSS made reasonable
efforts to prevent E.L. being removed from the home; (2) that
removal of E.L. from the home was necessary in order to ensure
E.L.'s safety; (3) that continuation of E.L. in the home would be
contrary to E.L.'s welfare; and (4) that no reasonable efforts to
protect E.L. were possible short of removal. These findings appear
in the trial court's 11 June 2003 interim dispositional order.
Our ability to review a juvenile matter is governed by N.C.
Gen. Stat. § 7B-1001 (2003):
Upon motion of a proper party as defined in
[N.C. Gen. Stat. §] 7B-1002, review of any
final order of the court in a juvenile matter
under this Article shall be before the Court
of Appeals. . . . A final order shall
(1) Any order finding absence of
(2) Any order which in effect
determines the action and
prevents a judgment from which
appeal might be taken;
(3) Any order of disposition after
an adjudication that a juvenile
is abused, neglected, or
(4) Any order modifying custodial
Our Court has held that a temporary dispositional order is not a
final order and is not an order from which a party may appeal. In
, 156 N.C. App. 639, 642, 577 S.E.2d 377, 379, disc. review
, 357 N.C. 459, 585 S.E.2d 762 (2003). In Laney
, the respondent gave notice of appeal from an
adjudication of neglect and temporary dispositional order. Id
640, 577 S.E.2d at 378.
We held that the temporary dispositional
order was not a final order and stated: "The broad reading
advocated by respondent would open the door for multiple appeals
whenever adjudication orders and temporary dispositions are entered
before a final disposition. The statutory language does not show
that the General Assembly intended this result." Id
. at 642, 577
S.E.2d at 379.
Since respondent's assignment of error concerns findings in
the trial court's interim dispositional order, we do not review
this assignment of error. Moreover, any review of the interim
dispositional order would have no significance since the final
dispositional order would remain in effect. See id
. at 643, 577
S.E.2d at 380.
We recognize that the trial court, in its final dispositional
order, made findings similar to those in the interim order. As
stated above, respondent did not give notice of appeal from the
final dispositional order and we are therefore precluded from
reviewing it. We also note that at the time respondent gave notice
of appeal, the final dispositional order had been entered but
respondent chose not to appeal from that order.
We next address respondent's contention, made throughout his
brief to this Court, that the trial court committed plain error at
the adjudication hearing. Our Courts have held that the plainerror rule applies only in criminal cases. Durham v. Quincy Mut.
Fire Ins. Co.
, 311 N.C. 361, 367, 317 S.E.2d 372, 377 (1984);
Wachovia Bank v. Guthrie
, 67 N.C. App. 622, 626, 313 S.E.2d 603,
606, disc. review denied
, 311 N.C. 407, 319 S.E.2d 280, cert.
, 312 N.C. 90, 321 S.E.2d 909 (1984). We have also declined
to apply the plain error rule in reviewing adjudicatory orders of
neglect. In re Gleisner
, 141 N.C. App. 475, 479, 539 S.E.2d 362,
365 (2000). Therefore, we do not review respondent's assignments
of error under the plain error rule.
Respondent assigns error to the admission of the testimony and
report of neuropsychologist Dr. Mark Hill (Dr. Hill). Dr. Hill
evaluated respondent in December 1993, approximately two months
after respondent suffered a traumatic brain injury in a motor
vehicle accident, and almost nine years prior to the filing of the
petition. At the adjudication hearing, respondent objected to the
relevance of Dr. Hill's testimony and report. The trial court
allowed Dr. Hill to testify and admitted his report to the extent
that it corroborated his testimony.
Respondent first argues that admission of Dr. Hill's testimony
and report was in error because Dr. Hill was not fully licensed, or
was only newly licensed, as a neuropsychologist at the time he
evaluated respondent. Respondent argues that Dr. Hill could not
qualify as an expert at the time of the evaluation and that it was
therefore error for the trial court to base its findings on Dr.
Hill's testimony. At the adjudication hearing, petitioner tendered Dr. Hill as
an expert in the field of neuropsychology. Respondent objected to
the relevancy of Dr. Hill's testimony but failed to object to his
qualifications as an expert in the field of neuropsychology. Our
Supreme Court has stated:
An objection to a witness's qualifications as
an expert in a given field or upon a
particular subject is waived if it is not made
in apt time upon this special ground, and a
mere general objection to the content of the
witness's testimony will not ordinarily
suffice to preserve the matter for subsequent
State v. Hunt
, 305 N.C. 238, 243, 287 S.E.2d 818, 821 (1982).
Since respondent did not object to Dr. Hill's testimony on the
special ground of his qualifications, this assignment of error is
not properly before this Court. Nevertheless, we review this
assignment of error pursuant to our discretionary authority under
Rule 2. N.C.R. App. P. 2.
"[W]hether a witness qualifies as an expert is exclusively
within the discretion of the trial judge and is not to be reversed
on appeal absent a complete lack of evidence to support [the]
ruling." State v. Howard
, 78 N.C. App. 262, 270, 337 S.E.2d 598,
603 (1985), disc. review denied
, 316 N.C. 198, 341 S.E.2d 581
(1986). It is not necessary for an expert witness to be a licensed
specialist for the expert's testimony to be admissible. State v.
, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984).
Furthermore, it is error for a trial court to prevent an expert
witness from testifying based on a lack of clinical experience when
the witness is otherwise better qualified than the trial court torender an opinion. In re Chasse
, 116 N.C. App. 52, 59-60, 446
S.E.2d 855, 859 (1994).
The evidence presented at the adjudication hearing showed that
Dr. Hill, while employed at Thoms Rehabilitation Hospital (Thoms
Hospital), evaluated respondent. Dr. Hill testified that Thoms
Hospital was his first employment as a licensed psychologist. Dr.
Hill further testified that prior to his employment at Thoms
Hospital, he completed a post-doctoral fellowship and approximately
fifty neuropsychological evaluations. Dr. Hill was clearly better
qualified than the trial court to give an opinion about
respondent's neuropsychological condition and we cannot find that
there was "a complete lack of evidence to support [the trial
court's] ruling." Howard
, 78 N.C. App. at 270, 337 S.E.2d at 603.
Therefore, the trial court did not err in admitting Dr. Hill's
testimony and report and making findings based on that evidence.
Respondent next contends that the trial court erred in
admitting Dr. Hill's testimony and report because they were not
relevant. Respondent bases his argument on the grounds that:
a) neither the testimony nor the report were
relevant to the care of the minor child who
was not even born at the time the report was
made; b) neither the testimony nor the report
were relevant as to [respondent's] ability to
care for the minor child; [and] c) Dr. Hill's
assessment of [respondent's] mental state and
abilities was ten-years-old.
Our Supreme Court has held that trial courts are "afforded
wide latitude of discretion when making a determination about the
admissibility of expert testimony." Bullard
, 312 N.C. at 140, 322
S.E.2d at 376. Expert testimony is admissible when the trier offact "can receive 'appreciable help' from the expert witness."
State v. Knox
, 78 N.C. App. 493, 495, 337 S.E.2d 154, 156 (1985)
(quoting 7 J. Wigmore, Evidence
§ 1923 at 29 (Chadbourn rev.
In a neglect proceeding, "the court's primary concern must be
the child's best interest." In re Pittman
, 149 N.C. App. 756, 760-
61, 561 S.E.2d 560, 564, disc. review denied
, 356 N.C. 163, 568
S.E.2d 608 (2002), cert. denied
, 538 U.S. 982, 155 L. Ed. 2d 673
(2003). In determining a child's best interest,
any evidence which is competent and relevant
to a showing of the best interest of that
child must be heard and considered by the
trial court, subject to the discretionary
powers of the trial court to exclude
cumulative testimony. Without hearing and
considering such evidence, the trial court
cannot make an informed and intelligent
decision concerning the best interest of the
In re Shue
, 311 N.C. 586, 597, 319 S.E.2d 567, 574 (1984).
"The determination of whether relevant evidence should be
excluded . . . 'is a matter left to the sound discretion of the
trial court, and the trial court can be reversed only upon a
showing of abuse of discretion.'" State v. Golphin
, 352 N.C. 364,
434, 533 S.E.2d 168, 215 (2000), cert. denied
, 532 U.S. 931, 149 L.
Ed. 2d 305 (2001), cert. denied
, 358 N.C. 157, 593 S.E.2d 84 (2004)
(quoting State v. Wallace
, 351 N.C. 481, 523, 528 S.E.2d 326, 352-
53, cert. denied
, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000)). "Abuse
of discretion occurs when the trial court's ruling is 'manifestly
unsupported by reason.'" State v. Jones
, 357 N.C. 409, 413, 584
S.E.2d 751, 754 (2003) (quoting State v. T.D.R.
, 347 N.C. 489, 503,495 S.E.2d 700, 708 (1998)).
In this case, the petition alleged neglect in that E.L. did
not receive proper care, supervision, or discipline from
respondent. Through his testimony, Dr. Hill explained respondent's
brain injury and how it may have affected respondent's ability to
be "flexible in dealing with problems and in problem-solving types
of tasks." Dr. Hill's report stated a concern that respondent's
"cognitive and physical limitations may currently pose safety
hazards in situations that demand rapid decision-making or
inhibition of inappropriate impulses."
Any evidence as to respondent's ability to problem solve and
deal with safety hazards was clearly relevant to his ability to
properly care for E.L., who was just over ten months old at the
time the petition was filed. See In re Pittman
, 149 N.C. App. at
761, 561 S.E.2d at 564 (in a neglect proceeding, any competent and
relevant evidence must be considered by trial court). Dr. Hill's
testimony about respondent's injury and how it may have affected
his abilities in these areas was helpful in determining
respondent's ability to give E.L. proper care, regardless of the
time at which respondent sustained his injury. As a result, we
cannot find that the trial court's admission of Dr. Hill's
testimony and report was "manifestly unsupported by reason." See
, 357 N.C. at 413, 584 S.E.2d at 754.
We also find that the fact the evaluation and report were ten
years old concerns only the weight, not the relevancy, of the
evidence, which was noted by the trial court. After hearingargument regarding the relevancy of Dr. Hill's testimony and
report, the trial court stated:
All right, counsel, hearing the argument and
reviewing the document, at least at this point
it does appear that it may be relevant
information that Dr. Hill has to offer. The
weight to be given to that relevant evidence
may be an issue, and I would certainly let you
argue that at the appropriate time. But I'm
going to deny the motion to suppress this
[report], and I'll let [DSS] go ahead and
schedule [Dr. Hill] to appear tomorrow as [the
attorney for DSS wants].
Finally, even if the admission of Dr. Hill's testimony and
report was in error, it was not prejudicial. The record is devoid
of any suggestion that the trial court relied on Dr. Hill's
testimony in adjudicating E.L. a neglected child.
Respondent next assigns error to several of the trial court's
findings of fact, arguing that no competent evidence supported
these findings. When reviewing the findings in a trial court's
adjudication order of neglect, "this Court examines the evidence to
determine whether there exists clear, cogent and convincing
evidence to support the findings." In re McCabe
, 157 N.C. App.
673, 679, 580 S.E.2d 69, 73 (2003). If supported by clear, cogent
and convincing evidence, "[a] trial court's findings of fact are
deemed conclusive, even where some evidence supports contrary
findings[.]" In re Smith
, 146 N.C. App. 302, 304, 552 S.E.2d 184,
186 (2001). "The trial judge determines the weight to be given the
testimony and the reasonable inferences to be drawn therefrom. If
a different inference may be drawn from the evidence, [the trialcourt] alone determines which inferences to draw and which to
reject." In re Hughes
, 74 N.C. App. 751, 759, 330 S.E.2d 213, 218
Respondent assigns error to the trial court's finding that
respondent bounced E.L. violently, arguing that no competent
evidence supports the finding. In its adjudication judgment, the
trial court found:
That regarding the time when the child was
placed with [R.E. and G.E.] that on occasion
[respondent] would bounce [E.L.] excessively
and violently and not respond to correct his
behavior even when instructed to do so by the
Respondent argues that although there was evidence that D.L.
bounced E.L. violently, there was no evidence that respondent did
the same. We disagree.
DSS social worker Anita Russell (Russell) testified that at
respondent's visitations with E.L., Russell was concerned that
respondent bounced E.L. vigorously. At the hearing, the following
[DSS ATTORNEY]: When [E.L.] cries, what does
[RUSSELL]: Typically walks with [E.L.] and --
and bounces her up and down.
[DSS ATTORNEY]: Does the Department have any
concerns about the bouncing that you've
[RUSSELL]: That has not been as much the case
in the last couple of months because [E.L.] is
older and usually does very well at the
visits. Originally that was a big concern,
and I instructed [respondent] on several
occasions to make gentler motions, not to
shake her so vigorously or bounce her sovigorously. And he was not able to correct
that from visit to visit. It seemed to keep
We find that this testimony is clear, cogent and convincing
evidence that supports the trial court's finding of fact that
respondent, and not just D.L., bounced E.L. violently.
Respondent next argues that no competent evidence supported
the trial court's finding of fact that during an argument between
respondent and J.R., E.L. was injured, causing a "small
indentation" in E.L.'s head. Again, we find that testimony at the
adjudication hearing provided clear, cogent and convincing evidence
to support the finding.
J.R. testified that on 5 December 2001,
respondent and D.L.
got into an argument. According to J.R.'s testimony, she was
standing in the doorway to her home and D.L. and E.L. were behind
her. Respondent tried to get through the doorway and tried to
"reach through [J.R.] to get [D.L. and E.L.]." J.R. testified: "As
[respondent] went to reach towards me, he pushed me. And when he
pushed me, I hit [D.L.] and [E.L.'s] head at the doorknob. [E.L.]
had a place in her head about like that for days." J.R. further
testified that: "[The doorknob] didn't cut [E.L.]. It just made
like a little indention place, just like it sunk in."
Respondent attempts to refute J.R.'s testimony by pointing to
Dr. Howald's testimony that he observed no injuries on E.L. on the
day following the encounter. We disagree that Dr. Howald's
testimony precludes the trial court from finding that E.L. suffered
an injury as a result of the argument. As noted above, the trialcourt alone weighs the evidence and determines which inferences to
draw from conflicting testimony. See McCabe
, 157 N.C. App. at 679,
580 S.E.2d at 73. We find that J.R.'s testimony was clear, cogent
and convincing evidence that supported the trial court's finding of
Respondent next assigns as error the trial court's finding
that on 6 December 2001, respondent and D.L. were "inattentive and
indifferent to [E.L.] at times." Respondent argues that this
finding was based on the testimony of Dr. Howald to which
respondent's objection was sustained. The transcript of the
adjudication hearing reads as follows:
[DSS ATTORNEY]: How did you observe -- what
was the attitude that you observed for
[respondent and D.L.] toward the child as you
were treating her?
BY THE COURT: Doctor, as you answer this
statement [sic], you can stated [sic] what you
observed but not what you conclude from your
observations. The question is: What did you
see that you are able to state as an
[DR. HOWALD]: Indifference, inattentiveness,
lack of basic knowledge of ---
[ATTORNEY FOR D.L.]: Objection.
[ATTORNEY FOR RESPONDENT]: Objection.
BY THE COURT: Sustained.
Petitioner and the Guardian ad Litem argue that the trial court
sustained respondent's objection only to the extent that Dr. Howald
was testifying as to respondent's and D.L.'s "lack of basic
knowledge." In support of their argument, petitioner and the
guardian ad litem point to the testimony that followed after Dr.Howald was qualified as an expert:
[DSS ATTORNEY]: Dr. Howald, how -- what was
your observation as to how [respondent and
D.L.] were reacting or interacting with this
child during the time you were treating her?
[DR. HOWALD]: As I said earlier, indifferent.
[ATTORNEY FOR D.L.]: Objection.
BY THE COURT: Overruled.
In light of this subsequent testimony, we agree with petitioner and
the guardian ad litem that respondent's objection was sustained
only to Dr. Howald's testimony about respondent's and D.L.'s
In addition, other evidence supports the trial court's finding
that respondent and D.L. were "inattentive and indifferent" to E.L.
on 6 December 2001. Medical records dated 6 December 2001 appear
in the record and were relied upon by respondent at trial. The
medical records state: "Poor interaction between [E.L. and]
parents. [E.L.] left uncovered, laying on stretcher, put down
immediately when placed in [D.L.'s] arms by staff." We find
that Dr. Howald's subsequent testimony and the medical records are
clear, cogent and convincing evidence to support the trial court's
Respondent next argues that the trial court erred in finding
that E.L. was a neglected child because "on one occasion, when a
social worker suggested that [respondent and D.L.] pay attention to
E.L.'s diaper, [respondent and D.L.] did not respond."
Russell testified at the adjudication hearing that duringsupervised visits she had "never seen [respondent or D.L.] check
[E.L.'s] diaper even where there [was] a concern that she might
need a diaper change. I have never witnessed them checking that or
changing her diaper during these visits." Russell further
testified on cross-examination that she had never suggested that
respondent and D.L. pay attention to E.L.'s diaper, but that
another worker had. On redirect, Russell explained: "On the one
occasion that it was obvious that [E.L.] needed a diaper change,
another worker was supervising at that point, and she made that
suggestion to [respondent and D.L.]. And they didn't respond to
N.C. Gen. Stat. § 7B-101 (15) (2003) defines a neglected
juvenile as one "who does not receive proper care, supervision, or
discipline from the juvenile's parent[.]" The trial court's
adjudication judgment contained the following pertinent findings of
22. That the Court finds that over a period
of months [E.L.] has received improper
care so that the Court should intervene
because these problems were not
corrected. That the Court finds that
there were occasions of neglect in caring
for [E.L.] and that if taken collectively
it amounts to the conclusion that
[respondent and D.L.] have at times not
provided the proper care for [E.L.].
23. That the acts of improper care as found
by the Court are:
a) That on December 6, 2001 at the
hospital both [respondent and D.L.]
appeared inattentive and indifferent
to [E.L.] at times. That both
[respondent and D.L.] were
physically extremely rough inhandling [E.L.].
b) That regarding the time when [E.L.]
was placed with [J.R.] during
December of 2001 until February 28,
2002 both [respondent and D.L.]
occasionally shook [E.L.]
excessively when she would
cry. . . . That on one occasion on
December 5, 2001, when [J.R.] would
not let [E.L.] go with [respondent]
and an argument between [J.R. and
respondent] occurred when [E.L.] was
present and [E.L.] was slightly
injured as a result of [respondent]
c) That regarding the time when [E.L.]
was placed with [R.E. and G.E.] that
on occasion [respondent] would
bounce [E.L.] excessively and
violently and not respond to correct
his behavior even when instructed to
do so by the social worker. That
both [respondent and D.L.] have
continued to hold [E.L.] excessively
during visits even after having been
instructed not to do so. That both
[respondent and D.L.], at times,
failed to check [E.L.'s] diaper when
necessary during visits; that on one
occasion, when a social worker
suggested that [respondent and D.L.]
pay attention to [E.L.'s] diaper,
[respondent and D.L.] did not
respond. That [respondent and D.L.]
have failed to check the temperature
of [E.L.'s] heated bottle of formula
prior to giving the bottle to her on
occasion even after having been told
of the need to check the
It is clear from the trial court's order that it did not find
E.L. neglected based solely on the fact that respondent failed to
pay attention to E.L.'s diaper one time. Rather, the trial court
made clear in its extensive list that it was not just one act ofimproper care but the sum total of all of the acts of improper care
that led to the finding of neglect. The trial court emphasized
this in open court:
[The important issue] is over a period of
months . . . had Elizabeth received improper
care by her parents to such an extent that the
Court should exercise its jurisdiction over
the child. . . . Was there improper care
given over time and was the improper care not
corrected as it should have been? . . . I am
going to find that there were occasions of
improper care and that the collective nature
of those occasions rises to the level of my
concluding that [E.L.] did not receive proper
care from [respondent and D.L.] at certain
times leading up to the filing of the
(emphasis added). Based on the trial court's emphasis on the
"collective nature" of the acts of improper care in both its
written findings and in open court, we find that the trial court
did not find E.L. to be a neglected child based solely on one
instance of inattention to E.L.'s diaper and we overrule this
assignment of error.
In his final assignment of error, respondent contends that the
trial court erred by failing to meet the statutory time frame in
which an adjudicatory order of neglect must be entered. N.C. Gen.
Stat. § 7B-807(b) (2003) states: "The adjudicatory order
. . . shall be reduced to writing, signed, and entered no later
than 30 days following the completion of the [adjudication]
In this case, the trial court adjudicated E.L. a neglected
child in open court on 8 January 2003. The order was reduced towriting and entered on 11 June 2003, approximately four months
beyond the thirty-day period prescribed by the statute. Respondent
first argues that the delay was error due to the statutory use of
the word "shall." Respondent cites In re Wade
, 67 N.C. App. 708,
313 S.E.2d 862 (1984) for the proposition that failure to follow
the mandate of the statutory use of "shall" is error. In Wade
held that "[t]he statutory use of 'shall' [in N.C. Gen. Stat. § 7A-
637] is a mandate to trial judges requiring them to affirmatively
state that the allegations of the juvenile petition are proved
beyond a reasonable doubt. Failure to follow the mandate of the
statute is error." 67 N.C. App. at 711, 313 S.E.2d at 864.
We addressed an argument similar to respondent's in In re
, 164 N.C. App. 146, 595 S.E.2d 167 (2004). In E.N.S.
respondent assigned as error the failure of the trial court to
timely enter adjudicatory and dispositional orders. Id
. at 153,
595 S.E.2d at 171. The respondent cited "several cases in which
this Court held that 'use of the language "shall" is a mandate to
trial judges, and that failure to comply with the statutory mandate
is reversible error.'" Id
. at 153, 595 S.E.2d at 171. However,
"none of those cases involved the untimeliness of orders, nor do
the statutes at issue address the repercussions associated with
untimely filing [of an order of an adjudication of neglect]." Id
at 153, 595 S.E.2d at 171.
Like the cases cited in E.N.S.
does not involve the
untimeliness of filing an adjudication order of neglect or the
repercussions of such untimeliness. As a result, Wade
is notcontrolling in our present case.
Respondent also argues that the delay prejudiced him in that
he was unable to begin the appellate process until there was a
written order from which to appeal, and as such the trial court's
adjudication judgment must be reversed. We also addressed this
issue in E.N.S
., where we stated:
The General Assembly added the thirty-day
filing requirement to these statutes in 2001.
2001 Sess. Laws 2001-208, § 17. While we
have located no clear reasoning for this
addition, logic and common sense lead us to
the conclusion that the General Assembly's
intent was to provide parties with a speedy
resolution of cases where juvenile custody is
at issue. Therefore, holding that the
adjudication and disposition orders should be
reversed simply because they were untimely
filed would only aid in further delaying a
determination regarding [the juvenile's]
custody because juvenile petitions would have
to be re-filed and new hearings conducted.
. at 153, 595 S.E.2d at 172. We went on to hold that the
respondent suffered no prejudice as a result of the late filing
since her right to visitation and right to appeal were not affected
by the untimely filings. Id
. at 153-54, 595 S.E.2d at 172.
Based on our reasoning in E.N.S.
, reversing the trial court's
adjudication judgment in this case would only cause further delay
and subject respondent and E.L. to protracted litigation. As in
, respondent's right to visitation was not affected by the
Finally, respondent argues that he has been subjected to an
incorrect judgment and order for a longer period of time than the
General Assembly intended, preventing him from parenting andbonding with E.L. As we determined above, there was no error in
the trial court's finding that E.L. was a neglected child.
Therefore, respondent was not subject to an incorrect judgment and
order and consequently did not suffer any prejudice.
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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