An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
IN THE MATTER OF:
T.C.(2) Wilkes County
Nos. 98 J 130-32
02 J 193
Appeal by respondent mother from order signed 16 December 2003
by Judge David V. Byrd in Wilkes County District Court. Heard in
the Court of Appeals 13 June 2005.
Paul W. Freeman, Jr. for petitioner-appellee Wilkes County
Department of Social Services.
Michael E. Casterline for respondent-appellant.
(See footnote 1)
(respondent mother) appeals an order signed 16 December
2003 changing the permanency plan from reunification to adoption.
Respondent is the mother of the four minor children involved
in this action. The evidence of record tends to show she has an
I.Q. of 58, and currently lives with her aging mother. The father
of the three oldest children, T.C. (9), T.C. (7) and T.C. (5) is
R.C.C. He and respondent mother were married, but have been living
apart due in part to respondent mother obtaining a restraining
order after incidences of domestic violence. R.C.C. was allegedlyincarcerated at one time, but is currently on probation because of
multiple DWI's and various other charges. He currently lives with
his uncle in Morganton, North Carolina in a camper. R.C.C. has had
little contact with his three minor children, and the children have
stated that they do not want to visit with their father. The
father of T.C. (2) is R.L.B. He and the respondent mother have
never been married. In fact, R.L.B. has been married at all times
pertinent to another women. R.L.B. has a history of mental
illness, and receives disability.
The Wilkes County Department of Social Services (DSS),
involved since 1994, removed the four minor children from the home
in October 2002 due to allegations of inappropriate discipline,
filthy living environment, respondent mother's declining health,
and a sexual perpetrator living in the home. At the time of
hearing, all of respondent mother's children had been removed from
the home. Respondent mother is oxygen-dependent and is in poor
health. She lives with, and is dependent upon her mother to take
care of her financial affairs. Respondent mother has a home health
care worker who comes in to assist respondent mother with daily
tasks and chores for approximately 60 hours per month. R.C.'s
mother is aging and hindered by limited cognitive abilities and a
past stroke. Significantly, R.C.'s mother allows her boyfriend and
an uncle, both perpetrators of sexual abuse on T.C. (7), to reside
in the home.
In addition, the evidence tended to show that each of the
minor children has special needs. T.C. (9) had been hospitalizedat least five times due to suicidal ideations and problems with
anger management. T.C. (7), a victim of sexual abuse, was dealing
with issues of sexual abuse and neglect suffered while in her
mother's care. Both T.C. (9) and T.C. (7) were in counseling, and
special behavioral classes in school. Although it had been
anticipated that T.C. (7) could be mainstreamed into regular
classes, her behavior in school was worsening and the decision was
made to continue her in special behavioral classes. Visits with
her mother made T.C. (7) relive her abuse and neglect. T.C. (5)
was in therapy, but was doing well when compared to his other
siblings. T.C. (2) was described as being developmentally delayed.
The minor children's social worker testified that visits between
the minor children and respondent mother were chaotic, and that
respondent mother related to the children in a childlike manner.
The therapist for the three older minor children did not feel
visits between the children and respondent mother were advisable.
On 5 December 2003, after hearing the evidence, arguments of
counsel and reviewing the case file, the district court announced
in open court a change in the permanency plan for the minor
children from reunification to adoption. The court subsequently
entered an order in compliance with its oral announcement on 16
December 2003. Upon hearing the trial court's order, respondent
mother entered written notice of appeal on 5 December 2003.
The issues on appeal are whether: (I) respondent mother's
written notice of appeal was untimely and (II) defendant's noticeof appeal was insufficient to confer jurisdiction on this Court.
DSS first contends that respondent mother's written notice was
untimely. We disagree. North Carolina Rule of Appellate Procedure
3(b) provides that special provisions under N.C. Gen. Stat. § 7B-
1001 shall govern the time and manner for noticing appeal. In In
re Laney, this Court noted:
The General Assembly has expressly set forth
the procedure for review of a trial court's
final order in a juvenile petition in N.C.
Gen. Stat. § 7B-1001.
Upon motion of a proper party as defined in
G.S. § 7B-1002, review of any final order of
the court in a juvenile matter under this
Article shall be before the Court of Appeals.
Notice of Appeal shall be given in writing
within ten days after entry of the order.
In re Laney, 156 N.C. App. 639, 641, 577 S.E.2d 377, 378 (2003).
N.C. R. App. P. 3(d) further provides that the content of the
notice of appeal:
shall specify the party or parties taking the
appeal; shall designate the judgment or order
from which appeal is taken and the court to
which appeal is taken; and shall be signed by
counsel of record for the party or parties
taking the appeal, or by any such party not
represented by counsel of record.
N.C. R. App. P. 3(d).
It is well settled that [t]he provisions of Rule 3 are
jurisdictional, and failure to follow the requirements thereof
requires dismissal of an appeal. Abels v. Renfro Corp., 126 N.C.
App. 800, 802, 486 S.E.2d 735, 737 (1997) (citation omitted).
This Court has previously noted that the oral pronouncement,or rendering of judgment, [in open court] establishes the point
from which a party may appeal under [N.C. R. App. P.] 3[(c)], and
the entry of judgment marks the beginning of the period during
which a party must file written notice of appeal. Stachlowski v.
Stach, 328 N.C. 276, 278, 401 S.E.2d 638, 640 (1991). We
distinguish the present case from In re Hawkins, 120 N.C. App. 585,
463 S.E.2d 268 (1995), as cited by DSS. In Hawkins, the court's
judgment rendered at the conclusion of the hearing was not final
given that other findings had not been made and additional matters
left undetermined. Here, the district court's order was final as
it addressed all matters included in the written order during open
court on 16 December 2003. Accordingly, we conclude respondent
mother's notice of appeal, filed 11 days prior to the entry of the
trial court's written order, had satisfied the time period for
filing timely notice of appeal.
DSS next contends defendant's notice of appeal was
insufficient to confer jurisdiction on this Court.
Respondent mother's notice of appeal reads as follows: NOW
COMES THE RESPONDENT, [R.C.], by and through counsel, and gives
NOTICE OF APPEAL to the North Carolina Court of Appeals, Raleigh,
North Carolina in the above captioned matters. Such notice is
inadequate because it fails to (1) specify the order from which the
appeal was taken, (2) reference the judge who rendered or entered
the order or judgment, or (3) list the date the order or judgment
was rendered or entered. Due to respondent mother's failure toproperly notice appeal, this appeal should be dismissed for lack of
However, the Court elects to review respondent mother's
appeal, as a petition for writ of certiorari acting under its
general supervisory powers pursuant to N.C. R. App. P. 2 and 21 and
N.C. Gen. Stat. § 7A-32(c). Here, the trial court made 18 factual
findings, in support of its conclusions of law. In re J.C.S.
N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004) (Appellate Review of
a permanency planning order is limited to whether there is
competent evidence in the record to support the findings and the
findings support the conclusions of law.). We conclude that those
findings are amply supported by the evidence of record. Id.
the trial court's findings of fact are supported by any competent
evidence, they are conclusive on appeal.) Moreover, those
findings fully support the trial court's conclusion that it was in
the best interests of the minor children to cease reunification
efforts with respondent mother.
Accordingly, we affirm the order of the trial court.
Judges ELMORE and GEER concur.
Report per Rule 30(e).
Initials are used throughout to protect the identity of the
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