1. Termination of Parental Rights_delay between hearing and order_no prejudice
There was no prejudice from a five-month delay between a termination hearing and the
order terminating respondent's parental rights where he argued that the delay interfered with his
relationship with his daughter in light of a potentially long incarceration on a pending criminal
charge, but he was continuously incarcerated awaiting trial since before the termination hearing.
2. Termination of Parental Rights_findings_unappealed finding sufficient
Although respondent contends that two of the three grounds for termination of his
parental rights were not supported by the evidence, the conclusion of law to which he did not
assign error was sufficient to terminate his parental rights. Arguments concerning the other
findings were not considered.
3. Termination of Parental Rights_termination in best interest of child_no abuse of
discretion
The trial court did not abuse its discretion by concluding that termination of respondent's
parental rights was in the best interests of the child based on its findings.
Cathy L. Moore for petitioner-appellee Durham County
Department of Social Services.
Wendy C. Sotolongo, for the juvenile.
Carol Ann Bauer, for respondent-appellant/father.
STEELMAN, Judge.
Respondent is the father of minor child S.B.M., who was
adjudicated to be a neglected child on 21 February 2000 and placed
in the custody of the Department of Social Services. Respondent is
a convicted child sex offender, and was in and out of prisonbetween the adjudication of neglect on 21 February 2000 and the
filing of the order terminating his parental rights filed 27 July
2004. Respondent has been continuously incarcerated since November
of 2003. Between February of 2000 and July of 2004, during the
times when he was not incarcerated, respondent failed to attend
certain hearings related to this action though he had the
opportunity to attend; he failed to attend court-ordered sex
offender treatment; he failed to retain stable housing; although he
was working various jobs for much of the time he was not
incarcerated, he provided almost no support to the child; he failed
to keep appointments concerning the child; and his last contact
with the child was in December of 2002, nearly a full year before
he was last incarcerated.
On 18 February 2004 the trial court announced in open court
its order terminating respondent's parental rights, but did not
sign and file the written order until 22 July 2004. From this
written order terminating his parental rights, respondent appeals.
[1] In his first argument, respondent contends that because of
the trial court's failure to file its order terminating his
parental rights within the thirty day period established by N.C.
Gen. Stat. § 7B-1110(a), we should reverse that order and remand to
the trial court for a new proceeding. We disagree.
N.C. Gen. Stat. § 7B-1110(a) states:
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 courtshall further determine that the best
interests of the juvenile require that the
parental 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.
(emphasis added). In order for respondent to obtain a new trial
based on the trial court's failure to file the order terminating
his parental rights in a timely fashion, he must show prejudice. In
re P.L.P., 173 N.C. App. 1, 7, __ S.E.2d __, __ (2005) (filed 6
September 2005); In re J.L.K., 165 N.C. App. 311, 316, 598 S.E.2d
387, 391 (2004), rev. denied, 359 N.C. 68, 604 S.E.2d 314 (2004).
This Court has been more likely to find prejudice as the length of
the delay increases, In re L.E.B., 169 N.C. App. 375, 610 S.E.2d
424 (2005); In re T.L.T., 170 N.C. App. 430, 612 S.E.2d 436 (2005),
but this Court has consistently declined to adopt a per se standard
even when long delays are involved. In re P.L.P., 173 N.C. App. at
7, __ S.E.2d at __; In re L.E.B., 169 N.C. App. at 378-79, 610
S.E.2d at 426.
In the instant case, the trial court filed the order
terminating respondent's parental rights five months after the
termination hearing. Respondent's sole argument is that this delay
prejudiced him “by the delay of his right to appeal and to achieve
finality in the relationship with his daughter before he faces a
potentially long incarceration [from November of 2003 until the
time this record on appeal was filed in January of 2005, respondent
remained incarcerated in the Durham County Jail awaiting trial on
charges of first-degree sex offence].” In light of respondent'scontinuous incarceration since before the termination hearing, we
fail to find sufficient prejudice by the delay to either his right
of appeal or his desire for a sense of finality to warrant a new
trial. We hold that respondent has not met his burden of proving
prejudice. This argument is without merit.
[2] In his fourth and fifth arguments, respondent contends
that two of the three grounds found by the trial court as a basis
for terminating his parental rights were not supported by the
evidence. Respondent did not assign as error the trial court's
eighth conclusion of law, which states: “The father has willfully
left the child in foster care for more than twelve (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 the child.” This conclusion
of law is a sufficient basis to terminate respondent's parental
rights under N.C. Gen. Stat. § 7B-1111(a)(2). Because respondent
has not assigned this conclusion of law as error in the record, he
has abandoned it.
Koufman v. Koufman, 330 N.C. 93, 98, 408 S.E.2d
729, 731 (1991)
. A finding of any one of the grounds enumerated in
N.C. Gen. Stat. § 7B-1111 is sufficient to terminate respondent's
parental rights.
In re Yocum, 158 N.C. App. 198, 204, 580 S.E.2d
399, 403-04 (2003), aff'd, 357 N.C. 568, 597 S.E.2d 674 (2003).
Thus, we need not address defendant's arguments pertaining to the
other two grounds for termination found by the trial court.
[3] In his sixth argument, respondent contends that the trial
court abused its discretion in concluding that termination ofrespondent's parental rights was in the best interests of S.B.M.
We disagree.
Once a petitioner meets its burden of proof at
the adjudicatory stage, the court's decision
to terminate the parental rights is
discretionary. . . . At the dispositional
stage a court is required to issue an order of
termination unless it “determine[s] that the
best interests of the child require that the
parental rights of such parent not be
terminated.” N.C.G.S. Sec. 7A-289.31(a). In
determining the best interests of the child,
the trial court should consider the parents'
right to maintain their family unit, but if
the interest of the parent conflicts with the
welfare of the child, the latter should
prevail.
In re Parker, 90 N.C. App. 423, 430-31, 368 S.E.2d 879, 884 (1988)
(emphasis added). The trial court's findings of fact state, inter
alia, the following: Respondent is a convicted sex offender, who
violated his parole and was returned to prison while S.B.M. was in
the custody of Department of Social Services. Respondent was
permitted only supervised visits with the child, was forbidden to
reside in the same house with the child, and was ordered to
complete sex offender treatment, which he failed to do.
Respondent's mother called 911 to report respondent's violent
behavior towards her, and Department of Social Services removed the
child from her care fearing that she could not protect the child
from respondent. Respondent was required to maintain stable
housing and employment, which he failed to do. S.B.M.'s therapist
recommended against visitations between the child and respondent,
and opined that respondent would need to successfully engage in
individual therapy, then a minimum of six months of joint therapywith the child, before reunification could be considered.
Respondent did not engage in the necessary therapy. Respondent did
little to support S.B.M. while she was in the custody of Department
of Social Services. Respondent's last contact with the child was
in December of 2002. Finally, in the trial court's 28th finding of
fact, it states: “The Department's plan is adoption by the family
members who also have custody of [the child's] half-sibling twin
sisters and with whom she has been placed since June 28, 2002.
[S.B.M.] is doing well in this placement which is stable and she no
longer requires individual or family therapy. The child wishes to
be adopted by the caretakers.”
Based on these findings, we cannot say that the trial court
abused its discretion by refusing to conclude that termination was
not in the best interests of the child. This argument is without
merit.
Because we hold that respondent's parental rights were
properly terminated, we do not address respondent's additional
arguments. Because defendant has not argued his other assignments
of error in his brief, they are deemed abandoned. N.C. R. App. P.
Rule 28(b)(6) (2003).
AFFIRMED.
Judges HUNTER and TYSON concur.
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