Appeal by respondent from order entered 10 June 2003 by Judge
William C. Kluttz, Jr., in Rowan County District Court. Heard in
the Court of Appeals 14 April 2005.
E. Blake Evans and David B. Wilson for petitioner-appellee
Rowan County Department of Social Services.
Paul F. Herzog for respondent-appellant.
TIMMONS-GOODSON, Judge.
Respondent-mother appeals the trial court order terminating
her parental rights to her minor son, Thomas.
(See footnote 1)
Because we conclude
that the trial court erred by failing to enter its order within the
time period required by N.C. Gen. Stat. §§ 7B-1109 and 7B-1110, we
reverse the trial court order and remand the case for a new trial.
The facts and procedural history pertinent to the instant
appeal are as follows: On 12 February 2002, Rowan CountyDepartment of Social Services (“petitioner”) filed a petition to
terminate respondent's parental rights to Thomas. The petition
alleged that sufficient grounds exist to terminate respondent's
parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (2),
(3), (6), and (8). On 15 November 2002, the trial court held a
hearing on the matter. After receiving evidence and hearing
argument from both parties, the trial court concluded that
sufficient grounds exist to terminate respondent's parental rights
to Thomas, and that it was in Thomas' best interests to do so. The
trial court thereafter entered an order terminating respondent's
parental rights to Thomas on 10 June 2003. Respondent appeals.
The dispositive issue on appeal is whether the trial court
erred by failing to enter its order within the time period
prescribed by N.C. Gen. Stat. §§ 7B-1109 and 7B-1110. N.C. Gen.
Stat. § 7B-1109 (2003) provides as follows:
(e) The court shall take evidence, find the
facts, and shall adjudicate the existence or
nonexistence of any of the circumstances set
forth in G.S. 7B-1111 which authorize the
termination of parental rights of the
respondent. The 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.
Similarly, N.C. Gen. Stat. § 7B-1110 (2003) provides as follows:
(a) Should the court determine that any one or
more of the conditions authorizing a
termination of the parental rights of a parent
exist, the court shall issue an order
terminating the parental rights of such parent
with respect to the juvenile unless the court
shall further determine that the best
interests of the juvenile require that theparental rights of the parent not be
terminated. 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.
This Court has previously declined to vacate a trial court
order entered outside these statutory time frames, concluding that
no compelling reason exists to vacate the order where the
respondent is unable to demonstrate that he has “suffered any
prejudice by the trial court's delay.”
In re J.L.K., 165 N.C. App.
311, 316, 598 S.E.2d 387, 391 (2004). However, noting that the
above-detailed provisions of N.C. Gen. Stat. §§ 7B-1109 and 7B-1110
were drafted to protect the rights of each party to a termination
proceeding, we have more recently found prejudice and reversed a
trial court's termination order where the order was entered
approximately six months after the conclusion of the termination
hearing.
In re L.E.B., 169 N.C. App. 375, ___ S.E.2d ___ (April 5,
2005) (No. COA04-463).
In the instant case, as detailed above, the trial court
entered its order approximately seven months after the conclusion
of the termination hearing. Respondent argues that she was
prejudiced by this delay in that during the time period following
the hearing but prior to the entry of the termination order, she
had no right to seek visitation with her child or pursue her appeal
of the trial court's determination. We note that respondent gave
oral notice of appeal on 15 November 2002, following the trial
court's bench determination that sufficient grounds exist to
terminate respondent's parental rights. However, we also note thatN.C. Gen. Stat. § 7B-1113 (2003) provides that a party to a
termination proceeding may appeal from an adjudication or
disposition order only if “notice of appeal is given in writing
within 10 days after entry of the order.” Thus, respondent was
prevented from filing a proper appeal with this Court until seven
months after the conclusion of the termination hearing.
Furthermore, we also note that the trial court's delay of its entry
of the order ran counter to the legislative intent in enacting the
thirty-day requirement: to provide for the quick and speedy
resolution of juvenile cases where juvenile custody is at issue.
L.E.B., 169 N.C. App. at 380, ___ S.E.2d at ___. In the instant
case, pending this Court's determination of the appeal, Thomas
remained in petitioner's custody, and subsequent court proceedings
involving Thomas were limited to those “temporary” orders
authorized by N.C. Gen. Stat. § 7B-1113. Therefore, as we
recognized in
L.E.B., the trial court's failure to enter its
termination order in a timely manner affected not only respondent,
but also Thomas, his foster parents, and his potential adoptive
parents.
In light of the foregoing, we hold that the trial court erred
by failing to enter its termination order within the prescribed
time period. Accordingly, we reverse the trial court order and
remand the case for a new trial.
Reversed and remanded.
Judges CALABRIA and GEER concur.
Footnote: 1