An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA05-208


Filed: 06 September 2005

IN THE MATTER OF:                     Buncombe County
J.A.D. and A.L.D.,                    No. 96 J 412
    Minor Children

    Appeal by respondent from judgments entered 28 October 2004 by Judge Shirley H. Brown in Buncombe County District Court. Heard in the Court of Appeals 15 August 2005.

    John C. Adams, for petitioner-appellee Buncombe County Department of Social Services.

    Judy N. Rudolph, for Guardian ad Litem.

    Carol Ann Bauer for respondent-appellant.

    STEELMAN, Judge.

    Respondent-father appeals from judgment terminating his parental rights to the minor children J.A.D. and A.L.D.. The Buncombe County Department of Social Services (DSS) filed motions to terminate respondent's parental rights on 8 June 2004, alleging as grounds for termination that he had (1) neglected the children, (2) willfully left the children in a placement outside of the home for more than twelve months without making reasonable progress in correcting the circumstances which led to the placement, and (3) willfully failed to pay a reasonable portion of the costs of the minor children's care despite being physically and financially able to do so. N.C. Gen. Stat. § 7B-1111(a)(1)-(3) (2004). After a hearing held 23 September 2004, the district court concluded thatDSS had shown each of the three alleged grounds for termination by clear, cogent, and convincing evidence. The court then determined that termination of respondent's parental rights served the best interests of the children.
    In his first assignment of error, respondent claims that the district court erred by admitting its prior orders in this cause into evidence at the termination hearing. We disagree.
    While acknowledging the court's power to take judicial notice of its prior orders, he argues that “such judicial notice is in error when the evidentiary standard of such orders is lower than the clear, cogent, and convincing standard” applied at a termination proceeding. See N.C. Gen. Stat. §§ 7B-1109(f), 7B- 1111(b) (2004). Respondent notes that an initial order of nonsecure custody requires the court to find merely “a reasonable factual basis to believe the matters alleged in the petition are true[.]” N.C. Gen. Stat. § 7B-503(a) (2004). Respondent further notes that the court at a permanency planning review hearing is allowed to consider any “relevant, reliable, and necessary” evidence, including hearsay. N.C. Gen. Stat. § 7B-907(b) (2004).     It is well established that “a prior adjudication of neglect is admissible in subsequent proceedings to terminate parental rights for neglect.” In re Byrd, 72 N.C. App. 277, 280, 324 S.E.2d 273, 276 (1985) (citing In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984)); accord In re E.N.S., 164 N.C. App. 146, 150, 595 S.E.2d 167, 169 (2004). Likewise, “[a]s to the court file generally, a court may take judicial notice of earlier proceedings in the samecause.” Byrd, 72 N.C. App. at 279, 324 S.E.2d at 276 (citing In re Stokes, 29 N.C. App. 283, 224 S.E.2d 300 (1976)).
    We agree with respondent that DSS was obliged to prove, and the court was required to find, the facts supporting termination of respondent's parental rights by “clear and convincing evidence.” N.C. Gen. Stat. § 7B-1111(b); see In re Faircloth, 153 N.C. App. 565, 575, 571 S.E.2d 65, 72 (2002). By assigning error to the court's decision to take judicial notice of its prior orders, however, respondent mistakes the standard of proof at a termination proceeding with the standard for admission of evidence. As a general matter, relevant evidence is admissible, even if it is weak or unpersuasive. See N.C.R. Evid. 401-02; see also In re Shermer, 156 N.C. App. 281, 287, 576 S.E.2d 403, 407 (2003) (noting the district court's prior orders “are relevant evidence in the termination proceeding”). Under N.C. Gen. Stat. § 7B-1111(b), it is the court's findings of fact, see, e.g., In re Shepard, 162 N.C. App. 215, 221-22, 591 S.E.2d 1, 6 (2004), not each item of evidence introduced at the termination hearing, which must meet the “clear and convincing evidence” standard. While the court did take judicial notice of its prior orders in this cause, its judgments reflect that it made independent findings of fact “by clear, cogent, and convincing evidence” to support termination, in accordance with N.C. Gen. Stat. § 7B-1111(b). See In re Stewart Children, 82 N.C. App. 651, 653-54, 347 S.E.2d 495, 497 (1986). Inasmuch as respondent does not challenge the court's findings, his assignment of error is overruled.    In his second assignment of error, respondent avers the district court committed reversible error by failing to enter its judgments within thirty days of the termination hearing, as mandated by N.C. Gen. Stat. § 7B-1110 (2004). The court held the termination hearing on 23 September 2004, and entered its judgments on 28 October 2004, five days beyond the statutory deadline. This Court has previously held 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.” In re L.E.B., __ N.C. App. __, __, 610 S.E.2d 424, 426 (2005) (citing In re J.L.K., 165 N.C. App. 311, 598 S.E.2d 387, disc. review denied, 359 N.C. 68, 607 S.E.2d 314, (2004)). See also, In re C.J.B., __ N.C. App. __, __ S.E.2d __ (March 22, 2005) (No. 04992) (2005 N.C. App. Lexis 1168) (holding that this Court has “never held that entry of the written order outside the thirty- day time limitations ... was reversible error absent a showing of prejudice”).
    In C.J.B., this Court held that to balance timeliness against the “need for finality of juvenile custody” the Court must evaluate the prejudice on the “children, petitioners, and adoptive and foster parents.” 2005 N.C. App Lexis 1168 at *5. Respondent has failed to provide this Court with any specific prejudice any interested party suffered by the five day delay. Although respondent claims prejudice to “his right to appeal and to achieve finality in his relationship with his sons[,]” we find the brief, five day delay at issue here to be harmless. Compare In re J.L.K.,165 N.C. App. at 315-16, 598 S.E.2d at 390-91 (finding no prejudice from eighty-nine-day delay), with In re L.E.B., __ N.C. App. at __, 610 S.E.2d at 426 (finding delay of more than six months “highly prejudicial to all parties”), and In re C.J.B., 2005 N.C. App. Lexis 1168 (holding that a five month delay is not prejudicial per se).
    Chief Judge MARTIN and Judge HUNTER concur.
    Report per Rule 30(e).

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