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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF: L.E.B., K.T.B.
Filed: 5 April 2005
Termination of Parental Rights--failure to enter order within thirty days from date of
The trial court erred by failing to enter the order terminating respondent mother's
parental rights over the minors within thirty days from the date of the hearing as required by
N.C.G.S. §§ 7B-1109(e) and 7B-1110(a), and the case is remanded for a new hearing. A delay
in excess of six months to enter the adjudication and disposition order terminating parental rights
was highly prejudicial to all parties involved.
Judge TIMMONS-GOODSON concurring.
Appeal by respondent mother from order entered 18 September
2003 by Judge J. H. Corpening, II, in New Hanover County District
Court. Heard in the Court of Appeals 2 December 2004.
Julia Talbutt, for petitioner-appellee New Hanover County
Department of Social Services.
Regina Floyd-Davis, for petitioner-appellee Guardian ad Litem.
Michelle FormyDuval Lynch, for respondent-appellant.
Cora M. Brown (respondent-mother) appeals the trial court's
order terminating her parental rights over her children L.E.B. and
K.T.B. (collectively, the minors). We reverse and remand for a
Respondent-mother and Larry E. Brown (respondent-father),
(collectively, respondents), are the parents of L.E.B. and K.T.B.
A. Minor L.E.B.
L.E.B. was born on 8 December 1991 with a cleft palate andcongenital heart defect. The New Hanover County Department of
Social Services (DSS) provided respondents with in-home services
to help care for L.E.B.'s medical needs. By February 1992, L.E.B.
required hospitalization due to weight loss and failing to
thrive. L.E.B. recovered under hospital care and returned home.
However, he again became sick. On 11 March 1992, DSS received
nonsecure custody of L.E.B. following its petition to the trial
court. On 26 March 1992, the trial court conducted a hearing to
consider DSS's petition to adjudicate L.E.B. neglected and
dependent. The trial court found: (1) respondent-mother was
mentally limited, intellectually challenged, and did not understand
the level of care L.E.B. required; and (2) respondent-father abuses
alcohol. The trial court concluded as a matter of law that L.E.B.
was neglected and ordered that: (1) DSS place L.E.B. in foster
care; (2) respondents obtain safe and adequate housing; (3)
respondent-father submit to substance abuse treatment; and (4)
respondents undergo psychological evaluations. Reunification
efforts between DSS and respondents tended to show that L.E.B.
failed to receive adequate care at respondents' home.
B. Minor K.T.B.
K.T.B. was born on 8 January 1994 with a heart murmur, a
defective heart valve, and velo-cardio facial syndrome. On 25
January 1994, DSS filed a petition with the trial court alleging
she was a neglected and dependent child based on the adjudication
of her brother, L.E.B. The trial court concluded as a matter of
law: (1) K.T.B. was dependent and neglected under N.C. Gen. Stat.§ 7A-517; (2) her best interests would be served by DSS receiving
legal custody; and (3) respondents would maintain physical custody
with close supervision by DSS.
Upon review in November 1994, the trial court found that
respondents were not meeting the needs of K.T.B. on a regular,
consistent, and adequate basis. DSS was granted legal and physical
custody of K.T.B. The trial court also ordered reunification
efforts to continue between respondents and both minors.
C. Minors L.E.B. and K.T.B.
Review orders were entered on June 1995, June 1996, June 1998,
June 1999, January 2000, August 2000, and February 2001. After
each review, the trial court ordered the minors to remain in foster
care and respondents to continue visitation. The final order dated
1 February 2001 ordered DSS to pursue terminating respondents'
In accordance with the 1 February 2001 order, DSS petitioned
the trial court on 22 January 2002 to terminate respondents'
parental rights to the minors. Hearings were held in February and
On 26 September 2003, over 180 days after the hearings, the
trial court entered its termination and adjudication order. It
concluded as matters of law that: (1) respondents willfully left
the children in foster care for more than 12 months without showing
or making reasonable progress in correcting the conditions that led
to the removal of the children; (2) the children are neglected
children and that further conditions of neglect continue to persistsuch that the children would again be neglected were they returned
to the home of their parents; and (3) it is in the best interests
of the [minors] that the parental rights of [respondents] be
terminated. The trial court ordered respondents' parental rights
terminated to both children. Respondent-mother appeals.
Respondent-father did not appeal.
The issues on appeal are whether: (1) the trial court erred
by failing to enter a signed order terminating respondent-mother's
parental rights within thirty days of the hearing as required by
N.C. Gen. Stat. § 7B-1109(e) and § 7B-1110(a); and (2) clear,
cogent, and convincing evidence supported the trial court's
findings of neglect and respondent-mother's failure to make
reasonable progress towards reunification.
III. N.C. Gen. Stat. § 7B-1109 and § 7B-1110
Respondent-mother argues the trial court erred in terminating
her parental rights over the minors by failing to comply with the
time limitations imposed by N.C. Gen. Stat. § 7B-1109(e) and § 7B-
1110(a). We agree.
N.C. Gen. Stat. § 7B-1109 outlines the process and procedure
concerning the adjudication of a termination of parental rights
hearing. It provides in part, [t]he adjudicatory order shall be
reduced to writing, signed, and entered no later than 30 days
following the completion of the termination of parental rights
hearing. N.C. Gen. Stat. § 7B-1109(e) (2003) (emphasis supplied).
Following the trial court's adjudication: Should the court determine that any one or
more of the conditions authorizing a
termination of parental rights of a parent
exist, the court shall issue an order
terminating the parental rights of such parent
. . . . Any order shall be reduced to
writing, signed, and entered no later than 30
days following the completion of the
termination of parental rights hearing.
N.C. Gen. Stat. § 7B-1110(a) (2003) (emphasis supplied). This
Court has 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. In re Eades, 143 N.C. App. 712, 713, 547
S.E.2d 146, 147 (2001) (citations omitted).
The termination of parental rights hearing for respondents was
held on 17 February 2003, 18 February 2003, 26 February 2003, and
19 March 2003. The subsequent adjudication and disposition order
terminating respondents' parental rights was reduced to writing,
signed, and entered on 18 September 2003, more than 180 days later.
This late entry is a clear and egregious violation of both N.C.
Gen. Stat. § 7B-1109(e), N.C. Gen. Stat. § 1110(a), and this
Court's well-established interpretation of the General Assembly's
use of the word shall. Id. at 713, 547 S.E.2d at 147.
This Court has previously stated that absent a showing of
prejudice, the trial court's failure to reduce to writing, sign,
and enter a termination order beyond the thirty day time window may
be harmless error. See In re J.L.K., 165 N.C. App. 311, 315, 598
S.E.2d 387, 390 (2004) (order entered eighty-nine days after the
hearing), disc. rev. denied, 359 N.C. 68, 604 S.E.2d 314 (2004).
This holding has also been applied to adjudication and dispositionorders involving custody proceedings under N.C. Gen. Stat. § 7B-
807(b) and § 7B-905(a). See In re E.N.S., 164 N.C. App. 146, 153,
595 S.E.2d 167, 172 (2004) (no prejudice shown on adjudication and
disposition orders entered over forty days after the hearing),
disc. rev. denied, 359 N.C. 189, ___ S.E.2d ___ (2004). The
reasoning in In re E.N.S. was applied to petitions seeking
termination of parental rights under N.C. Gen. Stat. § 7B-907(e).
See In the Matter of B.M., M.M., An.M., and Al.M., 168 N.C. App.
350, 355, 607 S.E.2d 698, 702 (2005) (although no prejudice was
shown, we stated, [w]e strongly caution against this practice as
it defeats the purpose of the time requirements specified in the
statute, which is to provide parties with a speedy resolution of
cases where juvenile custody is at issue.).
Although respondent-mother acknowledges the precedents on
timeliness, she argues that more than six months is an excessive
delay to enter the order and prejudiced her by adversely affecting:
(1) both the family relationship between herself and the minors and
the foster parent and the minors; (2) delaying subsequent
procedural requirements; and (3) the finality of the matter.
We agree with respondent-mother's argument that a delay in
excess of six months to enter the adjudication and disposition
order terminating her parental rights is highly prejudicial to all
parties involved. Respondent-mother, the minors, and the foster
parent did not receive an immediate, final decision in a life
altering situation for all parties. Respondent-mother could not
appeal until entry of the order. See N.C. Gen. Stat. § 7B-1113(2003). If adoption becomes the ordered permanent plan for the
minors, the foster parent must wait even longer to commence the
adoption proceedings. The minors are prevented from settling into
a permanent family environment until the order is entered and the
time for any appeals has expired.
Further prejudice is shown by the fact that L.E.B., born on 8
December 1991, is thirteen years old, and K.T.B., born on 8 January
1994, is ten years old. Children in the minors' age group
traditionally have faced difficulty finding adoptive homes, as many
prospective parents seeking to adopt limit their search to infants
or younger children.
The delay of over six months to enter the adjudication and
disposition order terminating respondent-mother's parental rights
prejudiced all parties, not just respondent-mother. See In re
E.N.S., 164 N.C. App. at 153, 595 S.E.2d at 172 (While we have
located no clear reasoning for [the thirty day time limit], 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.). Although In re
E.N.S. involved N.C. Gen. Stat. § 7B-807(b) and § 7B-905(a), the
General Assembly added the same thirty day time limitation to both
N.C. Gen. Stat. § 7B-1109(e) and § 7B-1110(a) during the same
legislative session. See 2001 N.C. Sess. Laws ch. 208, § 17, § 22,
and § 23. The logic applied in In re E.N.S. towards N.C. Gen.
Stat. § 7B-807(b) and § 7B-905(a) supports our analysis of N.C.
Gen. Stat. § 7B-1109(e) and § 7B-1110(a). We hold the trial court erred in delaying entry of the
termination of parental rights order for over six months and such
delay prejudiced all parties to this case. We recognize that in
the case at bar, the parties will be delayed further by our
holding. However, many prior cases show that those responsible for
timely entry of all orders have been remiss in complying within the
thirty days required by the statute, which was amended by the
General Assembly to provide prompt resolution in such matters. In
light of our holding, we decline to address respondent-mother's
second assignment of error.
The trial court erred in failing to enter the order
terminating respondent-mother's parental rights over the minors
within thirty days from the date of the hearing. Such failure was
prejudicial to respondent-mother, the minors, and the foster
parent. The trial court's order is reversed and this cause is
remanded for a new hearing.
Reversed and remanded.
Judge GEER concurs.
Judge TIMMONS-GOODSON concurs by separate opinion.
TIMMONS-GOODSON, Judge, concurring.
I fully concur in the result reached by the majority. I write
separately not to distinguish my reasoning in reaching the result,
but to distinguish this case from the line of cases preceding it.
As noted by the majority, our General Assembly has recentlyamended N.C. Gen. Stat. §§ 7B-1109 and 7B-1110 to include the
thirty-day requirements at issue in this appeal. During the same
session, the legislature also amended N.C. Gen. Stat. §§ 7B-807 and
7B-905 to include similar requirements for the entry of juvenile
adjudication and disposition orders. Following the legislature's
amendment to these statutes, this Court has received numerous
appeals citing violations of the statutory requirements. The
appeals have come from all districts and counties within our state,
and while some appeals have cited a delay in order-entry of only
one and one-half months, others have cited a delay of over a year.
In addressing these appeals, we have traditionally weighed the
requirements of the statutes against the practical effects of the
delay, and we have examined the alleged harm resulting from the
trial court's failure to enter an order within the prescribed
period. Our analysis has considered the particular facts of each
case, and our resulting decisions have uniformly concluded that
where error has occurred, that error has been harmless. In the
instant case, respondent asserts that the trial court's failure to
enter an order within thirty days of the termination hearing was
highly prejudicial to her because the delay prevented her from
filing her appeal. While I am aware that this argument has
previously been addressed and rejected by this Court, I am
persuaded by the contention that the harm done in this case and
similar cases is not limited solely to the respondent. In their
own respective manners, juveniles, their foster parents, and their
adoptive parents are each affected by the trial court's inabilityto enter an order within the prescribed time period.
I recognize that our holding in this case will only further
lengthen the time in which these two juveniles experience life
without a permanent plan. However, I note that in the interest of
quick and efficient resolution of juvenile cases, this Court has
held that where an appeal of a permanency plan is currently pending
before us, a subsequent termination of the respondent's parental
rights makes the pending appeal moot. In re V.L.B., 164 N.C. App.
743, 745, 596 S.E.2d 896, 897 (2004); see In re N.B., 163 N.C. App.
182, 183, 592 S.E.2d 597, 598 (2004) (holding that an appeal of
adjudication and disposition of neglect is rendered moot by
subsequent termination of parental rights). By dismissing such
pending appeals as academic and moot, we acquiesce in the trial
court's decision to unilaterally end the potential delay in
disposition caused by the respondent's appeal. But, by allowing
the trial court to delay its entry of the order terminating the
respondent's parental rights, we do nothing to protect the
respondent's right to a quick and speedy resolution when his or her
appeal is no longer academic. I believe that if, in the interest
of efficient case-resolution, this Court allows the trial court to
remove an appeal from our purview by issuing an order terminating
parental rights, we should at least require that the trial court
enter that order in the amount of time mandated by the legislature.
Although the requirements of N.C. Gen. Stat. §§ 7B-807, 7B-
905, 7B-1109, and 7B-1110 are not overly burdensome, assignments of
error based upon violations of the statutes are increasing innumber. While I am aware that some of these errors may stem from
mere inattentiveness or overcrowded dockets at the trial court
level, because of the increasing frequency with which these errors
occur, I am concerned that our past reservation in enforcing the
statutes may soon be seen as an invitation to ignore their clear
mandates. Therefore, because I believe the decision in the instant
case aids in the restoration of these mandates, I concur.
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