An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 21 March 2006
IN THE MATTER OF: Ashe County
A.A.E. Nos. 04 J 16
H.M.E. 04 J 17
Appeal by respondent-mother and respondent-father from orders
entered 20 January 2005 by Judge Jeanie R. Houston in Ashe County
District Court. Heard in the Court of Appeals 25 January 2005.
Hall & Hall Attorneys at Law, P.C., by Susan P. Hall, for
Robert W. Ewing for respondent-father appellant.
Tracie M. Jordan for Guardian ad Litem appellee.
Grier J. Hurley for Ashe County Department of Social Services,
Respondent-father C.E. and respondent-mother S.M. appeal from
two district court orders terminating their parental rights of
A.A.E. and H.M.E. We affirm.
Respondents are the biological parents of both A.A.E. and
H.M.E. H.M.E. was originally placed in DSS custody on 17 July
2002 and was subsequently adjudicated neglected and placed into
foster care on 26 July 2002 due to allegations of domestic violence
and abuse. Both parents entered into a Family Services Case Plan on
28 October 2002 in which the parents agreed to attend individualcounseling, couples counseling, anger management classes, parenting
skills and life skills classes. The parents further agreed to
refrain from further acts of domestic violence and keep all
appointments for supervised visits with H.M.E. In January 2003,
while the parents were attempting to fulfill all the obligations
under the plan, A.A.E. was born. On 13 June 2003, pursuant to a
six-month review and permanency plan review, the court entered an
order to place H.M.E. back in the home for a trial visit in
response to the parents' progress and compliance with their Family
Services Case Plan. In June 2003, C.E. was unemployed and the
family was evicted from their current place of residence. Around
this time, H.M.E. began to show signs of abuse similar to those
which prompted the first removal from the home. Ceanne Barnett (Ms.
Barnett) testified that she noticed bruises, dark circles under the
eyes of H.M.E., and nervous behavior. During a home visit by DSS,
S.M. asked that both children be removed from the home and
indicated evidence of maltreatment. Both A.A.E. and H.M.E. were
placed in foster care on 29 August 2003 and were subsequently
The parents again entered into a Family Services Case Plan in
September 2003 in which they agreed to get and maintain employment,
maintain a home paying rent and utilities, maintain visits with the
children, consult a professional consumer credit organization and
financial counselor, and seek mental health evaluations and
counseling. Both parents obtained jobs; however, neither were able
to maintain these jobs resulting in numerous periods ofunemployment. Ms. Barnett, the caseworker, testified that the
mother held at least three different jobs and was lying to the
father about her employment. The father has failed to make
regularly scheduled visits with A.A.E. or H.M.E and has failed to
make any visits at all since April 2004. Further, the father was
incarcerated on charges of assault in January 2004 and released 11
The caseworker assigned to work with A.A.E. and H.M.E.
indicated that the children are doing wonderfully well in their
foster home. The trial court ruled that the parental rights of S.M.
and C.E. should be terminated because the respondent-parents had
neglected both A.A.E. and H.M.E. within the meaning of N.C. Gen.
Stat. § 7B-101. Further, the trial court determined that the best
interests of the children would be served by the termination of
respondents' parental rights.
Respondents now appeal.
On appeal the respondent-parents both contend that the trial
court erred by finding and concluding that A.A.E. and H.M.E. were
in a state of neglect at the time of the hearing. We conclude that
the challenged determination with respect to each respondent must
This Court reviews an order terminating parental rights for
whether findings of fact are supported by clear, cogent, and
convincing evidence, and whether those findings of fact support aconclusion that parental rights should be terminated for one of the
grounds set forth in the North Carolina General Statutes. In re
Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996).
Where a trial court concludes that parental rights should be
terminated pursuant to several of the statutory grounds, the order
of termination will be affirmed if the court's conclusion with
respect to any one of the statutory grounds is supported by valid
findings of fact. In re Swisher, 74 N.C. App. 239, 240-41, 328
S.E.2d 33, 34-35 (1985).
N.C. Gen. Stat. § 7B-1111(a)(1) provides that the trial court
may terminate a parent's parental rights based upon neglect if
[t]he parent has . . . neglected the juvenile. The juvenile shall
be deemed to be . . . neglected if the court finds the juvenile to
be . . . a neglected juvenile within the meaning of G.S. 7B-101.
N.C. Gen. Stat. § 7B-1111(a)(1)(2005). N.C. Gen. Stat. § 7B-101(15)
(2005) defines a neglected juvenile as:
A juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; or
who has been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of law.
In instances where the minor children have been adjudicated
neglected and the parents have not had custody for a significant
period prior to the termination hearing, the prior adjudication
standing alone will not be sufficient to support termination. In reBrim, 139 N.C. App. 733, 742, 535 S.E.2d 367, 372 (2000). This
Court in Brim further explained that
the court must take into consideration any
evidence of changed conditions in light of the
evidence of prior neglect and the probability
of a repetition of neglect. The determinative
factors must be the best interests of the
child and the fitness of the parent to care
for the child at the time of the termination
Id. (quoting In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232
In the instant case, the trial court made certain findings of
fact indicating that at the time of the first removal of H.M.E.,
the father had held a lighter to H.M.E.'s face causing a burn to
her left eyelid; there was domestic violence in the home towards
the child and mother; and the family apartment was filthy. After
H.M.E. was returned to the home, there was a second removal in
which the mother indicated that she would rather A.A.E. and H.M.E.
be taken away than to see them live under these conditions and
informed the social worker that the father was again being rough.
Further, the parents had been evicted from their home, were
unemployed, H.M.E. was exhibiting dark circles under her eyes and
was sad and withdrawn, and A.A.E. had been repeatedly bound tightly
in a blanket causing gross motor difficulties. DSS provided funds
to respondent-mother and respondent-father; however, they were
still evicted on numerous occasions from their homes for failure to
pay rent. A couple of months before the hearing, the parents'
furniture had been repossessed for failure to make rental payments.Both children have been in foster care for over half of their lives
and respondent-father has not visited with A.A.E. or H.M.E. since
April 2004. Respondent-father further was charged with assault in
February 2004 and incarcerated, has several other criminal
problems, and has failed to maintain stable employment. The mother
had also lied to DSS workers about her living arrangements.
Though the respondent-parents may argue to the contrary, a
review of the transcript reveals that they have done little to
correct the conditions that originally led to A.A.E. and H.M.E.
being removed from the home. Both parents have been unable to
maintain stable employment, holding sporadic jobs. They have made
poor financial decisions, reflected by the repossession of
furniture a few months prior to the hearing. Respondent-father has
had little to no personal contact with the children, his last visit
being in April 2004. Respondent-mother has failed to be truthful
with DSS regarding her living conditions. Though respondent-father
did complete domestic violence classes, he appears to still have
anger and control issues.
To this end, we conclude that the court's findings in this
regard are supported by clear, cogent, and convincing evidence.
Moreover, those findings wholly support the court's conclusion that
there is a probability of repetition of neglect to A.A.E. and
H.M.E., who were previously adjudicated neglected.
Our holding with respect to this ground for termination makes
it unnecessary for us to consider respondent-parents' arguments
concerning the other grounds upon which their parental rights wereterminated. See Swisher, 74 N.C. App. at 240-41, 328 S.E.2d at 34-
35. The corresponding assignments of error are overruled.
Respondent-mother further contends on appeal that the lower
court abused its discretion in finding that it was in the best
interests of the children to terminate parental rights. We
If the lower court determines that grounds to terminate
parental rights existed, the court shall issue an order
terminating the parental rights of such parent with respect to the
juvenile unless the court shall further determine that the best
interests of the juvenile require that the parental rights of the
parent not be terminated. N.C. Gen. Stat. § 7B-1110(a)(2003)
amended by 2005 N.C. Session Laws ch. 398, § 17. The trial
court's decision to terminate parental rights, if based upon a
finding of one or more of the statutory grounds supported by
evidence in the record, is reviewed on an abuse of discretion
standard. In re McMillon, 143 N.C. App. 402, 408, 546 S.E.2d 169,
174, disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001).
In the instant case, the trial court properly found that
A.A.E. and H.M.E. had been neglected and that there was a
probability of repetition of the neglect. Moreover, the evidence at
the termination hearing demonstrated that both children were doing
very well in their foster home. Based on the foregoing, this Court
is not inclined to find that the trial court abused its discretion
in determining that terminating the parental rights of S.M. andC.E. was in the best interests of the children. Therefore, this
assignment of error is overruled.
Next, respondents contend on appeal that the lower court erred
in considering prior orders and exhibits entered or admitted under
lower evidentiary standards. Where no objection was made at the
lower court, this issue is not properly before the Court. Further,
respondents contend that the lower court erred in failing to make
findings of facts and delegating the responsibility to the attorney
for DSS. We disagree.
In order to preserve a question for appellate review, a party
must have presented to the trial court a timely request, objection
or motion. N.C.R. App. P. 10(b)(1)(2005). Because respondents did
not raise an objection to the court taking judicial notice of
prior orders at the termination hearing, they have failed to
preserve the issue for appellate review and therefore it is waived.
Moreover, a trial judge may direct the prevailing party to
prepare a judgment draft including proposed findings of fact and
conclusions of law for the judge to review and determined whether
or not to adopt as their own. See Johnson v. Johnson, 67 N.C. App.
250, 313 S.E.2d 162 (1984). Therefore, both respondents'
corresponding assignments of error are overruled.
Lastly, respondent-mother contends on appeal that the lower
court erred in failing to enter an adjudicatory order on thejuvenile matter within 30 days of the termination hearing. We
Section 7B-1109(e) of our General Statutes provides that,
following the trial court's adjudication of a termination petition,
[t]he adjudicatory order shall be reduced to writing, signed, and
entered no later than 30 days following the completion of the
termination of parental rights hearing. N.C. Gen. Stat. §
7B-1109(e) (2005). However, orders terminating parental rights
should not be reversed for failure to meet the specified time line
unless prejudice can be shown. See In re J.L.K.
, 165 N.C. App. 311,
315-16, 598 S.E.2d 387, 390-91, disc. review denied,
359 N.C. 68,
604 S.E.2d 314 (2004). [T]he need to show prejudice in order to
warrant reversal is highest the fewer number of days the delay
exists. . . . And the longer the delay in entry of the order beyond
the thirty-day deadline, the more likely prejudice will be readily
apparent. In re C.J.B.
, ___ N.C. App. ___, ___, 614 S.E.2d 368,
In the instant case, the termination hearing was held on 9
December 2004 and the orders terminating parental rights were
entered 12 days after the statutorily prescribed period on 21
January 2005. Where respondents have not shown any prejudice
resulting from this short delay, they are not entitled to a
reversal. In re B.M.
, M.M., An.M., & Al.M.,
168 N.C. App. 350, 353,
607 S.E.2d 698, 701-02 (2005) (delay in filing petition seeking
termination of parental rights in violation of N.C. Gen. Stat. §
7B-907(e) not reversible error without a showing of prejudice); Inre A.D.L.
, J.S.L., C.L.L.,
169 N.C. App. 701, 705-06, 612 S.E.2d
639, 642, disc. review denied,
619 S.E.2d 402 (2005) (delay in
entry of order terminating parental rights not reversible error
without a showing of prejudice). Thus, the trial court's failure
to file the orders terminating parental rights within thirty days
amounted to harmless error and is not grounds for reversal. The
corresponding assignments of error are overruled.
Accordingly, the trial judge properly found that there was
sufficient evidence of grounds for terminating respondents'
parental rights and finding that, within his discretion,
termination was in the best interests of the children. Moreover, we
decline to find that the trial court committed error warranting
reversal in delegating the duty of drafting the order or entering
the order more than 30 days after the conclusion of the hearing.
Furthermore, this Court finds no merit in the remaining assignments
of error and they are therefore overruled.
Judges ELMORE and LEVINSON concur.
Report per Rule 30(e).
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