Link to PDF file
How to access the above link?
Return to nccourts.org
Return to the Opinions Page
Termination of Parental Rights_untimely order_prejudice
A termination of parental rights order was reversed where the order was entered more
than 30 days after the last hearing (nearly six months later, in fact), and respondent specifically
argued and articulated the prejudice he and his minor child suffered as a result of the delay.
N.C.G.S. § 7B-1110(a).
Judge LEVINSON concurring.
C.S. (respondent) appeals from order entered terminating his parental rights to his minor child, J.N.S. We reverse.
LEVINSON, Judge concurring.
At the conclusion of the hearing on the termination of
parental rights petition, the trial court ruled from the bench that
respondent's parental rights be terminated. N.C. Gen. Stat. § 7B-
1110(a) (2005) requires that an order for termination of parental
rights be reduced to writing and entered within thirty (30) days of
the end of the hearing. In the instant case, the order was entered
on 23 August 2005, almost six months later. The majority opinion
holds that the respondent articulated prejudice arising from this
delay, and that the proper remedy is reversal of the termination of
parental rights order. I am required by precedent to concur withthe majority's decision in this regard. In the Matter of Appeal
from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)
(Where a panel of the Court of Appeals has decided the same issue,
albeit in a different case, a subsequent panel of the same court is
bound by that precedent, unless it has been overturned by a higher
court.) (citation omitted). To date, I have followed the line of
cases cited by the majority opinion without expressing my
disagreement with the same. See, e.g., In re P.L.P., 173 N.C. App.
1, 618 S.E.2d 241 (2005) (Levinson, J.), aff'd, 360 N.C. 360, 625
S.E.2d 779 (2006) (affirming as to issues raised in dissent, which
did not include the remedy, if any, for a trial court's failure to
timely enter an order on termination of parental rights). I now
take this opportunity to express my profound disagreement with the
approach that this Court has taken in regards to the untimely entry
of orders on termination of parental rights.
First, none of this Court's authorities attempt to define the term prejudice as used in the context of delayed entry of termination of parental rights orders. The general definition of prejudice is essentially the same in both civil and criminal cases - whether the error in question had a probable impact on the outcome of the proceeding. See N.C. Gen. Stat. § 15A-1443(a) (2005) (A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.); Lewis v. CarolinaSquire, Inc., 91 N.C. App. 588, 595-96, 372 S.E.2d 882, 887 (1988) (judgment should not be reversed because of a technical error which did not affect the outcome at trial. The test for granting a new trial is whether there is a reasonable probability that at the new trial the result would be different.) (citation omitted).
This definition of prejudice has been applied to termination of parental rights cases. See, e.g., In re Norris, 65 N.C. App. 269, 274, 310 S.E.2d 25, 29 (1983) (respondent appeals order for termination of parental rights; Court holds that errors will not authorize a new trial unless it appears that the objecting party was prejudiced thereby[.] . . . We find no reasonable probability that the results of the trial would have been favorable to respondents had such error not occurred.) (citing Hines v. Frink and Frink v. Hines, 257 N.C. 723, 127 S.E.2d 509 (1962), and Mayberry v. Coach Lines, 260 N.C. 126, 131 S.E.2d 671 (1963)).
The error at issue herein _ the trial court's delay in entering the order for termination of parental rights _ occurs after the hearing, and thus cannot affect the outcome of the previously conducted hearing. Accordingly, the term prejudice must of necessity have a different meaning in this context. Unfortunately, none of the pertinent opinions by this Court define prejudice in this situation, or address (1) to whom the respondent must show prejudice; (2) the standard for assessing the existence of prejudice; and (3) whether a respondent may obtain a reversal by demonstrating prejudice to other parties, such as the foster parents or the juveniles, who may not even want a new hearing. Absent a clear definition of prejudice, a respondent cannot know what evidence this Court requires to establish prejudice, and this Court cannot make a reasoned determination about its existence. Furthermore, attorneys who represent respondents in termination of parental rights cases necessarily rely on boilerplate assertions that a respondent was prejudiced by the delayed entry of the order because he or she was unable to visit with the child or was unable to file an appeal during these months; or that the delay prejudiced the need of all involved for finality and permanence. Moreover, without a clear standard for the determination of prejudice, this Court, while theoretically reviewing the issue on a case by case basis, has gravitated towards a pattern resembling a per se rule of reversal in all cases wherein the delay was approximately six months or longer. See, e.g., In re K.D.L., 176 N.C. App. 261, 267, 627 S.E.2d 221, 224 (2006) (respondent argues reversible error where trial court entered the order fifty days after the deadline but admits, '[t]his Court has not previously found prejudice to exist from this short of a time violation'); In re C.J.B. & M.G.B., 171 N.C. App. 132, 134, 614 S.E.2d 368, 369 (2005) (our Court's more recent decisions have been apt to find prejudice in delays of six months or more) (citations omitted); In re L.E.B., K.T.B., 169 N.C. App. 375, 379, 610 S.E.2d 424, 426, disc. review denied, 359 N.C. 632, 616 S.E.2d 538 (2005) (We agree with respondent-mother's argument that a delay in excess of six months to enter the adjudication and disposition order terminating her parental rights is highlyprejudicial to all parties involved.). Conversely, where the delay is less than six months, this Court generally has not found this to be reversible error. See, e.g., In re S.B.M., 173 N.C. App. 634, 636, 619 S.E.2d 583, 585 (2005) (where trial court filed the [termination] order . . . five months after the termination hearing this Court holds respondent has not met his burden of proving prejudice); In re J.B., 172 N.C. App. 1, 26, 616 S.E.2d 264, 279-80 (2005) (termination order entered three months after hearing; after noting that this Court has found prejudice and reversed termination orders where the orders were entered approximately six to seven months after the conclusion of the termination hearings[,] the Court holds that in the instant case, we conclude that respondent has failed to sufficiently demonstrate such prejudice regarding the delay in the entry of the termination order). In short, it is often unclear why one order is reversed while another is not.
I am troubled by our unexamined assumption that a permissible and appropriate remedy for delayed entry of the termination of parental rights order is to reverse the order and remand for a new hearing. In the usual case, reversal is an appropriate remedy precisely because the error at issue casts doubt on the outcome or verdict in the proceeding. A new trial or hearing is then required to ensure the fairness of the result in a case. In contrast, the delayed entry of an order for termination of parental rights does not cast doubt on the integrity of the decision. Additionally, reversal of the order with its associated further delay does nothing to remedy the late entry of the termination order. In cases presenting this issue, respondents generally argue that, as a result of the trial court's delayed entry of a termination order: (1) his or her ability to appeal the order was delayed; (2) the child lost the benefit of finality with an adoptive family for some unwarranted months; or (3) the parent's ability to visit with the child was thwarted while awaiting the entry of order on termination. Ironically, this Court's decision to require a new termination of parental rights hearing generally delays finality for at least another year. This compounds the delay in obtaining permanence for the child, and continues the status quo concerning parents' lack of access to their children. Simply put, the remedy of reversing bears no relationship whatsoever to the wrong that it seeks to redress.
More significantly, I know of no statutory basis for our authority to reverse in this circumstance. Reversing orders on termination for the trial court's procedural failure to enter an order within the statutory duration is a draconian result that benefits no one. In the absence of a legislative mandate to do so, we should not continue with a common law rule allowing reversal of these orders as a routine matter.
When the trial court fails to enter an order in a timely fashion, the parties have access both to the trial court and to this Court to bring about the entry of an order. First, the matter may be calendared administratively to inquire about the status ofthe order and encourage the trial court judge to sign an order. (See footnote 1) Secondly, every interested person has the option of applying to this Court for a writ of mandamus. Mandamus is the proper remedy to compel public officials to perform a purely ministerial duty imposed by law[.] In re Alamance County Court Facilities, 329 N.C. 84, 104, 405 S.E.2d 125, 135 (1991) (citation omitted). N.C. Gen. Stat. § 7A-32(c)) (2005) provides:
The Court of Appeals has jurisdiction, exercisable by one judge or by such number of judges as the Supreme Court may by rule provide, to issue the prerogative writs, including mandamus . . . in aid of its own jurisdiction, or to supervise and control the proceedings of any of the trial courts of the General Court of Justice[.]
This Court frequently rules on applications for mandamus that involve a wide variety of substantive legal matters pending in our district and superior courts. Where a party attempts to prompt the trial court to enter an order, but is unsuccessful in doing so, he should apply to this Court for a writ of mandamus. I do not agree that a party who waits passively for the trial court to perform the ministerial duty of entering an order _ that which mandamus concerns _ should be allowed to successfully argue on appeal prejudice resulting from the delayed entry of the order. And, as discussed above, I do not believe that reversal for delayed entryof these termination orders, particularly under the current standards set forth by our precedent, is the correct result in any event.
I recognize that it is important for our trial courts to faithfully observe the time guidelines set forth in our Juvenile Code. And I respect and understand not only the gravity of cases concerning individuals' fundamental right to parent, but also the interests and concerns of children who need permanence. With the provisions of the Juvenile Code and these considerations in mind, it is my central conclusion that this Court should evaluate the merits of father's appeal in the instant case, and reverse the court order should it be in error, and affirm the order should it be legally correct in all respects.
I concur in the majority opinion only because I am required to do so.
*** Converted from WordPerfect ***