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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF: D.M.M., K.G.M.
Filed: 5 September 2006
Termination of Parental Rights_delay in holding hearing and entering order_prejudice
A combined delay of nineteen months in holding a termination of parental rights hearing
and entering the order was egregious (the statute allows a total of 120 days) and prejudicial to
respondent, her children, and all parties concerned. The order was reversed. N.C.G.S. §§ 7B-
Appeal by respondent mother from order entered 19 August 2005
by Judge Denise S. Hartsfield in Forsyth County District Court.
Heard in the Court of Appeals 22 August 2006.
Twanda M. Staley, for petitioner-appellee Forsyth County
Department of Social Services.
Dannielle D. Williard, for petitioner-appellee Guardian ad
Duncan B. McCormick, for respondent-appellant.
P.M. (respondent) appeals from order entered terminating her
parental rights to her minor children, D.M.M. and K.G.M. We
At the time of the hearing, D.M.M. was nine years old and
K.G.M. was seven years old. D.M.M. and K.G.M. were adjudicated
dependent on 13 June 2003. The court ordered respondent to obtain
suitable housing and continue participation in the WISH program.
Forsyth County Department of Social Services (DSS) filed a
petition to terminate respondent's parental rights on 13 January2004. Over one year later, the trial court held a termination
hearing on 24 January 2005 and entered the termination order nearly
seven months after the hearing on 19 August 2005. The trial court
made the following findings of fact:
3. On January 15, 2003, the Forsyth County
Department of Social Services was granted
non-secure custody of the minor children.
The minor children have remained
continuously in the custody of Forsyth
County Department of Social Services
since January 15, 2003.
4. The juveniles have been in the care of
their sister, [A.M.], under the custody
and supervision of DSS since coming into
. . . .
6. There was disputed testimony as to visits
between the juveniles and [respondent]
that were not supervised by DSS.
[Respondent] attended 10% of the visits
supervised by DSS.
7. [Respondent's] daughter and the caretaker
of the juveniles, [A.M.], was unequivocal
in her testimony of seeking out
[respondent] when the juveniles asked to
see her. [A.M.] initiated these visits
. . . .
10. [Respondent] did visit the children some
weekends but did not visit the juveniles
from June 2003 to January 2004, the six
months prior to the filing of the TPR
. . . .
(e). [Respondent's] behavior with respect to
her children has been inconsistent. She
is more like a Santa Claus or baby sitter
to her children than a mother.
The trial court concluded:
2. DSS has proven by clear, cogent and
convincing evidence that [respondent] has
neglected her children within the meaning
of 7B-101 and she has wilfully abandoned
her children for at least six consecutive
months immediately preceding the filing
of the TPR petition.
3. It is in the best interest of the
juveniles that the parental rights of
[respondent] be terminated.
Respondent argues the trial court erred by: (1) conducting
the termination hearing more than one year after DSS filed the
petition; (2) entering the termination order almost seven months
after the date of the hearing; (3) concluding respondent neglected
her children; (4) concluding respondent willfully abandoned her
children; and (5) making findings of fact that were not supported
by clear, cogent, and convincing evidence.
III. Standard of Review
On appeal, our standard of review for the termination of
parental rights is whether the court's findings of fact are based
upon clear, cogent and convincing evidence and whether the findings
support the conclusions of law. In re Baker, 158 N.C. App. 491,
493, 581 S.E.2d 144, 146 (2003) (citations and internal quotations
The trial court's 'conclusions of law are reviewable de novo
on appeal.' In re D.H., C.H., B.M., C.H. III, 177 N.C. App. 700,
703, 629 S.E.2d 920, 922 (2006) (quoting Starco, Inc. v. AMGBonding and Ins. Servs., 124 N.C. App. 332, 336, 477 S.E.2d 211,
IV. Entry of Order and Termination Hearing
Respondent argues the trial court erred when it failed to
conduct the termination hearing for over one year after DSS filed
its petition. Respondent also argues the trial court erred when it
entered the termination of parental rights order almost seven
months after the date of the hearing. We agree.
The stated legislative purpose in enacting the juvenile code
is, [t]o provide standards for the removal, when necessary, of
juveniles from their homes and for the return of juveniles to their
homes consistent with preventing the unnecessary or inappropriate
separation of juveniles from their parents. N.C. Gen. Stat. § 7B-
N.C. Gen. Stat. § 7B-1109(a) (2005) mandates, [t]he hearing
on the termination of parental rights shall be conducted . . . no
later than 90 days from the filing of the petition . . . .
(emphasis supplied). This outer limit of ninety days protects the
parent's right to a prompt adjudication of DSS's petition, and is
consistent with the stated purpose of the statute to prevent the
unnecessary or inappropriate separation of juveniles and their
parents. Id. Normally, once DSS files a petition to terminate
parental rights reunification efforts cease and the parent receives
no further services to facilitate the return of the minor child to
the parent. Regarding the statutory duty on the trial court, N.C. Gen.
Stat. § 7B-1110(a) (2005) provides, [a]ny 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 stated 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. See In re
J.L.K., 165 N.C. App. 311, 315, 598 S.E.2d
387, 390 (2004) (order entered eighty-nine
days after the hearing), disc. rev. denied,
359 N.C. 68, 604 S.E.2d 314 (2004).
In re L.E.B., K.T.B., 169 N.C. App. 375, 378-79, 610 S.E.2d 424,
426, disc. rev. denied, 359 N.C. 632, 616 S.E.2d 538 (2005).
This Court has held a delay in the entry of the order of six
months was highly prejudicial to respondent-mother, the minors,
and the foster parent. Id. at 380, 610 S.E.2d at 427.
Respondent-mother, the minors, and the foster
parent did not receive an immediate, final
decision in a life altering situation for all
parties. Respondent-mother could not appeal
until entry of the order. If adoption becomes
the ordered permanent plan for the minors, the
foster parent must wait even longer to
commence the adoption proceedings. The minors
are prevented from settling into a permanent
family environment until the order is entered
and the time for any appeals has expired.
Id. at 379, 610 S.E.2d at 426-27 (internal quotation omitted).
Although we stated, [a] trial court's violation of statutory
time limits in a juvenile case is not reversible error per se . .
. [T]he complaining party [who] appropriately articulate[s] the
prejudice arising from the delay . . . [does] justify reversal. In re S.N.H. & L.J.H., 177 N.C. App. 82, 86, 627 S.E.2d 510, 513
(2006). This Court also held that while [t]he passage of time
alone is not enough to show prejudice, . . . [we] recently [held]
the 'longer the delay in entry of the order beyond the thirty-day
deadline, the more likely prejudice will be readily apparent.'
Id. at 86, 627 S.E.2d at 513-14 (quoting In re C.J.B., 171 N.C.
App. 132, 135, 614 S.E.2d 368, 370 (2005)).
This Court has repeatedly reversed orders terminating a
respondent's parental rights due to prejudice to the respondent,
the children, and the parties resulting from the trial court's
egregiously late entry of its order. In re D.S., S.S., F.S., M.M.,
M.S., 177 N.C. App. 136, 139, 628 S.E.2d 31, 33 (2006). This Court
stated in In re D.S.:
Respondent argues the delay prejudiced all
members of the family involved, as well as the
foster and adoptive parents. By failing to
reduce its order to writing within the
statutorily prescribed [30 day] time period,
the parent and child have lost time together,
the foster parents are in a state of flux, and
the adoptive parents are not able to complete
their family plan. The delay of over six
months to enter the adjudication and
disposition order terminating
respondent-mother's parental rights prejudiced
all parties, not just respondent-mother.
177 N.C. App. at 139-40, 628 S.E.2d at 33 (internal quotations and
This Court has also stated, prejudice, if clearly shown by a
party is not something to ignore solely because the remedy of
reversal further exacerbates the delay. In re As.L.G. & Au.R.G.,173 N.C. App. 551, 554, 619 S.E.2d 561, 564 (2005), aff'd and disc.
rev. improvidently allowed, 360 N.C. 476, ___ S.E.2d ___ (2006).
Here, respondent argues the delay in holding the termination
hearing prejudiced [her] by one year and by precluding the parties
from reaching closure. Respondent also contends, the delay
impacted the presentation of evidence with respect to the
abandonment ground. The relevant time frame for determining
whether a child has been abandoned is the six-month period
immediately preceding the filing of the petition.
Respondent presented evidence she provided money to her
daughter during the one year period delay, but the trial court
discounted or dismissed this evidence because she had failed to
provide this support during the statutory six month time period.
The trial court held the termination hearing on 24 January
2005, over one year after DSS filed its petition, and entered its
order almost seven months later on 19 August 2005.
by failing to enter the order within thirty
days as required by statute, the trial court
delayed final resolution of this case. During
this delay, [respondent] was not able to
appeal or seek any relief from the trial
court. While [A.M.] was allowing her to visit
with the children prior to the date of the
hearing, [respondent] does not have a right to
visit and does not have a judicial remedy if
[A.M.] or [DSS] decided to prevent her from
continuing to visit her children. [A.M.] could
not proceed with an adoption. The girls were
not able to benefit from the implementation of
a permanent plan. The delay prevented
[respondent], [A.M], and the girls from
reaching closure. In this case, the seven
month delay is clear, egregious, and highly
prejudicial to [respondent] and others.
Upon similar allegations, this Court has repeatedly found
prejudice to exist in numerous cases with facts analogous to those
here. See In re D.S., S.S., M.M., M.S., 177 N.C. App. at 139, 628
S.E.2d at 33 (finding the trial court's entry seven months after
the termination hearing was a clear and egregious violation of N.C.
Gen. Stat. § 7B-1109(e) and § 1110(a), and the delay prejudiced all
parties.); see also In re A.N.J., 175 N.C. App. 793, 625 S.E.2d 203
(2006) (The trial court's judgment was reversed when the respondent
was prevented from filing an appeal for over seven months because
the trial court failed to enter its order within the statutorily
prescribed time limit.); In re O.S.W., 175 N.C. App. 414, 623
S.E.2d 349 (2006) (The trial court's order was vacated because the
court failed to enter its order for six months, and the father was
prejudiced because he was unable to file an appeal.); In re T.W.,
173 N.C. App. 153, 617 S.E.2d 702 (2005) (The trial court entered
its order just short of one year from the date of the hearing and
this Court reversed the trial court's order.); In re L.L., 172 N.C.
App. 689, 616 S.E.2d 392 (2005) (This Court held the eight month
delay prejudiced the parents.); In re C.J.B., 171 N.C. App. at 135,
614 S.E.2d at 370 (This Court reversed the trial court's order
because the trial court failed to enter its order until five months
after the hearing.); In re T.L.T., 170 N.C. App. 430, 612 S.E.2d
436 (2005) (This Court reversed the trial court's judgment because
the trial court failed to enter its order until seven months after
the hearing.). These precedents clearly require reversal where the hearing on
the petition to terminate is held egregiously late, or a late entry
of an order occurs and the respondent alleges prejudice.
Undisputed facts show the trial court heard DSS's petition for
termination on 24 January 2005, more than one year after the
petition was filed, and failed to enter the order until 19 August
2005, nearly seven months later. This combined nineteen month
delay in holding the hearing and entering the order where the
statute allows a total maximum of 120 days is an egregious
violation of the statute and is prejudicial to respondent, her
children, and all parties involved. N.C. Gen. Stat. § 7B-1109(a);
N.C. Gen. Stat. § 1110(a).
The trial court erred and prejudiced respondent and her
children when it failed to hold the termination hearing for over
one year after DSS filed its petition to terminate and by entering
its order an additional seven months after the statutorily mandated
time period. This late entry is a clear and egregious violation
of both N.C. Gen. Stat. § 7B-1109(e), N.C. Gen. Stat. § 1110(a),
and this Court's well-established interpretation of the General
Assembly's use of the word 'shall.' In re L
N.C. App. at 378, 610 S.E.2d at 426.
Respondent specifically argued and articulated the prejudice
she and her children suffered as a result of the combined nineteen
month delay in holding the termination hearing and late entry ofits order. In re As.L
. & Au.R.G., 173 N.C. App. at 555, 619
S.E.2d at 565.
[B]y allowing the trial court to delay its
entry of the order terminating the
respondent's parental rights, we do nothing to
protect the respondent's right to a quick and
speedy resolution when his or her appeal is no
longer academic. . . . [I]f, in the interest
of efficient case-resolution, this Court
allows the trial court to remove an appeal
from our purview by issuing an order
terminating parental rights, we should at
least require that the trial court enter that
order in the amount of time mandated by the
In re L
., 169 N.C. App. at 382, 610 S.E.2d at 428
(Timmons-Goodson, J., concurring). In light of our holding, it is
unnecessary to consider respondent's remaining assignments of
error. The trial court's order is reversed.
Judges WYNN and HUDSON concur.
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