In the Matter of
A.A. Jr., B.A., and J.A., Lenoir County
Minor Children Nos. 04 J 100, 101, 102
Griffin & Griffin, by Robert W. Griffin, for petitioner-
appellee Lenoir County Department of Social Services.
Hall & Hall Attorneys at Law, P.C., by Susan P. Hall, for respondent mother.
Mrs. A. (respondent) appeals the order both adjudicating A.A., B.A., and J.A. (the minor children) neglected and granting physical custody of the minor children to the father. We affirm.
Respondent is the mother of the minor children A.A., age seven years, B.A., age four years, and J.A., age three years. On 16 April 2004, Lenoir County Department of Social Services (D.S.S.) received a report concerning respondent's minor children and unsanitary living conditions at her home. About one week later, D.S.S. visited respondent's home and found trash, debris, and dog feces littering the floor.
An adjudication hearing concluded on 7 September 2004. The district court detailed the following pertinent findings of fact:respondent failed to secure her residence to prevent A.J. from going outside the home absent supervision; A.J. was once found by law enforcement in a convenience store at 11 p.m. and on another occasion outside the home at 3 a.m.; respondent failed to take adequate measures to prevent A.J. from leaving the home, particularly considering A.J.'s penchant to leave; and, respondent left her minor children with the 16-year-old niece of her fiancée for more than a day at a time while she worked out of state, and, by her own admission, had left them for as long as five days. The district court concluded that such behavior by respondent did not constitute proper care and supervision of the minor children. The minor children were adjudicated neglected and the adjudication order was entered 13 October 2004.
On the same day, a disposition hearing followed the adjudication order. The district court detailed the following pertinent findings of fact: by 11 August 2004 respondent had voluntarily placed all her minor children with father; all minor children are doing well within this placement; both DSS and a guardian ad litem report that their collective attempts to visit with respondent to assure a sanitary and safe living environment have been rebuffed. The district court concluded that custody of the minor children would be retained jointly between respondent and father as it was in the best interest and general welfare of the minor children. The district court further ordered the following: physical placement of the minor children would remain with father; respondent would receive supervised visitation in a public place;and respondent would have to submit to random drug screens at the request of the DSS, obtain a psychological evaluation, attend parenting classes, procure a substance abuse evaluation, and cooperate fully with both DSS and the guardian ad litem including showing proof of employment as well as permitting inspection of her home. Respondent agreed to comply with all of the above requests. The dispositional order was entered 13 October 2004. Respondent appeals.
Respondent first argues the trial court erred in failing to enter the adjudication and disposition orders within the time limitation as mandated by statute. Respondent contends that such non-compliance requires a new hearing. We disagree.
The requirements of juvenile adjudication and disposition orders are prescribed in North Carolina General Statutes 7B-807 and 7B-905. Included in the list of requirements is a filing deadline necessitating that each order be written, signed, and entered no longer than 30 days after the completion of the hearing. N.C. Gen. Stat. §§ 7B-807(b), 905(a) (2005). As to the 30-day mandate, logic and common sense lead...to the conclusion that the General Assembly's intent was to provide parties with a speedy resolution of cases where juvenile custody is at issue. In re E.N.S., 164 N.C. App. 146, 153, 595 S.E.2d 167, 172, disc. rev. denied, 359 N.C. 189, 606 S.E.2d 903 (2004). Moreover, this Court recently reaffirmed there is no per se reversal for non-compliance with the statutory filing deadlines, but rather the respondent must illustrate prejudice as a result of the delay. In re C.J.B., __N.C. App. __, __, 614 S.E.2d 368, 369 (2005). [T]he need to show prejudice in order to warrant reversal is highest the fewer number of days the delay exists...[a]nd the longer the delay in entry of the order beyond the thirty-day deadline, the more likely prejudice will be readily apparent. In re O.S.W., __ N.C. App. __, __, 623 S.E.2d 349, 350 (2006) (citation and internal quotation marks omitted) (emphasis added). Therefore, while this Court recently determined prejudice existed when a more than six month delay occurred in entering the adjudication and disposition orders in several termination of parental rights cases, see In re L.E.B., __ N.C. App. __, __, 610 S.E.2d 424, 426, disc. rev. denied, 359 N.C. 632, 616 S.E.2d 538 (2005); In re T.L.T., __ N.C. App. __, __, 612 S.E.2d 436, 437-38 (2005), this Court has also reasoned there was no prejudice in an over forty day delay, see E.N.S., 164 N.C. App. at 153, 595 S.E.2d at 172, or even eighty-nine day delay. (See footnote 1) See In re J.L.K., 165 N.C. App. 311, 315, 598 S.E.2d 387, 390, disc. rev. denied, 359 N.C. 68, 604 S.E.2d 314 (2004). Thus, as case law indicates, we must analyze prejudice on a case by case basis.
There was no prejudice in the instant case. The adjudication and disposition orders were filed 13 October 2004. The respective hearing on each concluded 7 September 2004. Thus, the orders were entered 6 days beyond the time required by statute. As a result, the need for respondent to illustrate prejudice is, according to O.S.W., supra, at its zenith. However, respondent makes no claimas to how the six day delay prejudiced her. Thus, absent an illustration of prejudice, this assignment of error is overruled.
Respondent next argues the findings of fact for the adjudication and disposition are not supported by clear, cogent, and convincing evidence. Respondent contends the record and transcript are void of any evidence by which the trial court could have made particular findings of fact. We disagree.
It is well established that [w]here findings of fact are challenged on appeal, each contested finding of fact must be separately assigned as error, and the failure to do so results in a waiver of the right to challenge the sufficiency of the evidence to support the finding. Okwara v. Dillard's Dep't Stores, Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000) (emphasis added). Consequently, our review...is limited to the question of whether the trial court's findings of fact, which are presumed to be supported by competent evidence, support its conclusion of law and judgment. Id., 136 N.C. App. at 591-92.
In the instant case, respondent failed to assign error to any particular finding of fact. Instead, respondent assigned error to the findings of fact...not supported by clear, cogent, and convincing evidence. Since each contested finding of fact was not separately assigned as error as required by Okwara, supra, respondent waives the right to challenge the sufficiency of the evidence supporting such findings. Moreover, the district court's findings of fact, including 1. [t]he mother failed to secure her residence to prevent her five year old..., A.J., from going outsidethe home without supervision[;] 2. [A.J.] was found at various times of the night and early morning away from his home...[; and] 3. [t]he mother did not take sufficient measures to prevent this five year old from leaving her house, particularly after she was on notice that [A.J] had left the home on repeated occasions, more than adequately support the conclusions of law that because the above-described actions of the respondent do not constitute proper care and supervision of children, the juveniles were neglected. This assignment of error is overruled.
Respondent next argues the trial court erred in taking judicial notice of improper matters. Specifically, respondent contends that because the burden is on the petitioner during the adjudication hearing to prove the existence of facts supporting a finding of neglect by clear, cogent, and convincing evidence, the sua sponte action by the trial court to take judicial notice of the location of multiple convenience stores in Pink Hill, North Carolina where A.J. was located late at night and alone, as opposed to requiring petitioner to prove where these stores were in relation to respondent's home, amounted to an abuse of discretion. We disagree.
North Carolina Rule of Evidence 201 permits a trial court to take judicial notice of adjudicative facts including one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. N.C. Gen. Stat.§ 8C-1, Rule 201 (2005) (emphasis added). Adjudicative facts are those involving the immediate parties, including 'who did what, where, when, how, and with what motive or intent.' Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 38, 568 S.E.2d 893, 903 (2002), writ of cert. denied, 540 U.S. 965, 124 S. Ct. 431, 157 L. Ed.2d 310 (2003)(quoting Official Commentary, N.C. R. Evid. 201).
The lay out of Pink Hill, as well as the corresponding location of the convenience stores, was known within the territorial jurisdiction of the court, as required under Rule 201. Moreover, the presiding judge, Les Turner, swore under affidavit that as a lifelong resident and former Mayor of Pink Hill, North Carolina from December 1997 to May 2000, he was cognizant of the town's geographical features and as such, was taking judicial notice of the location of the convenience stores in proximity to the mother's mobile home park. The court was well within the confines of Rule 201 to take judicial notice of this adjudicative fact. We discern no abuse of discretion and overrule this assignment of error.
Respondent next argues the trial court erred in ordering joint legal custody of the children to the respondent parents, with physical custody remaining with the father subject to supervised visitation with the respondent. Respondent contends the findings of fact do not support both the decision for physical placement of the minor children with the father and limiting respondent's contact to supervised visitation. We disagree. This Court has established that '[i]n a...neglect adjudication, the trial court's findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings.' E.N.S., 164 N.C. App. at 150, 595 S.E.2d at 169 (quoting In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997)). Further, [o]ur review of a trial court's conclusions of law is limited to whether they are supported by the findings of fact. Helms, 127 N.C. App. at 511, 491 S.E.2d at 676.
In the instant case, the district court found as fact that respondent failed to properly secure her home, even in the face of proof that A.J. was leaving the home without supervision, resulting in A.J. being located on two distinct occasions by police away from home late at night or very early in the morning by himself. Additionally, respondent admitted leaving her minor children at home overnight with a 16-year-old while she worked out of state. DSS reported the minor children have been and currently are doing well in their placement with father. In fact, the father told the court that in the two months since A.J. had been placed with him, A.J. had not once gotten out of the house. Consequently, the court concluded that the actions of respondent failed to constitute proper care, adjudicated the minor children neglected, and further determined that though it was in the best interest of the children to remain in the joint custody of both respondent and father, it was also prudent to maintain physical custody with father. Moreover, both DSS and the guardian ad litem report that repeatedattempts to make contact with respondent to assure that the home environment is safe have failed. Here, because the court's findings of fact are supported by the above competent and ample evidence and more than ably support the conclusions of law, we overrule this assignment of error.
Respondent next argues there was no factual basis for the trial court's dispositional order requiring her to submit to random drug screens, obtain a psychological evaluation, attend and complete parenting classes, and obtain a substance abuse evaluation. Respondent contends that no finding of fact or supporting evidence by the court substantiate such a conclusion. We disagree.
N.C. Gen. Stat. § 7B-904 permits the trial court at its discretion to
require that the parent...of the juvenile's household...entrusted with the juvenile's care undergo psychiatric, psychological, or other treatment or counseling directed toward remediating or remedying behaviors or conditions that led to or contributed to the juvenile's adjudication.... If the court finds that the best interests of the juvenile require the parent...of the juvenile's household...entrusted with the juvenile's care undergo treatment, it may order that individual to comply with a plan of treatment approved by the court or condition...physical placement of the juvenile with the parent...of the juvenile's household...entrusted with the juvenile's care upon that individual's compliance with the plan of treatment.
N.C. Gen. Stat. § 7B-904(c) (2005) (emphasis added). Moreover, pursuant to N.C. Gen. Stat. § 7B-901 (2005) [t]he dispositional hearing may be informal and the court may consider written reportsor other evidence concerning the needs of the juvenile. In fact [t]he statutes lead to but one conclusion: [i]n juvenile proceedings, trial courts may properly consider all written reports and materials submitted in connection with said proceedings. In re Ivey, 156 N.C. App. 398, 402, 576 S.E.2d 386, 390 (2003) (citation omitted).
The trial court was well within its discretion to order respondent's compliance with such requirements. Further, the court determined that such requirements were necessary after hearing from a DSS representative, as well as attorneys for both DSS and the guardian ad litem at the adjudication and disposition hearings. It was from the DSS and guardian ad litem reports as well as the testimony of the DSS representative that the decision was made to require respondent to comply with the various health demands. Because the court carefully weighed and assessed the reports and testimony pertinent to the matter, we overrule this assignment of error.
In her last assignment of error respondent argues the dispositional order fails to include required findings of fact and is therefore void ab initio. Respondent contends the dispositional order is defective as it does not comply with N.C. Gen. Stat. § 7B- 905(c). We disagree.
The first sentence within 905(c) reads [a]ny dispositional order shall comply with the requirements of G.S. 7B-507. N.C. Gen. Stat. § 7B-905(c) (2005). 7B-507 reads, in pertinent part, [a]n order placing or continuing the placement of a juvenile inthe custody or placement responsibility of a county department of social services... , N.C. Gen. Stat. § 7B-507(a) (2005), shall make certain statutory findings. In the instant case, since the dispositional order of the court expressly provided that custody was to remain with both respondent and father, and not with DSS, respondent's contention the court failed to include particular statutory findings under 7B-905(c) is not applicable. Additionally, respondent contends the trial court made insufficient findings under 7B-905(c) with respect to appropriate visitation as may be in the best interest of the juvenile. As has been adequately demonstrated above, the court here properly concluded premised upon findings of fact and competent evidence in the record that it was in the best interest and general welfare of the children for physical placement to remain with the father while respondent retained supervised visitation. This assignment of error is overruled.
Judges HUDSON and BRYANT concur.
Report per Rule 30(e).
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