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