IN THE MATTER OF:
K.A.B., Nos. 03 J 005-06
J. David Abernethy for petitioner-appellee Catawba County
Department of Social Services.
Mary R. McKay for Guardian ad Litem-appellee.
Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for respondent-appellant father.
Respondent-father appeals the termination of his parental
rights to his son, T.J.B., Jr., and daughter, K.A.B. For the
reasons discussed herein, we affirm the orders of the trial court.
In January of 2003, the Catawba County Department of Social Services (DSS) filed a juvenile petition alleging that T.J.B., Jr., and K.A.B. were dependent and neglected. The juvenile petition specifically alleged that the mother of the minor children had left children with respondent, but that respondent had since been incarcerated and neither parent had made appropriatearrangements for the ongoing medical and remedial care of the minor children. The trial court adjudicated the minor children dependent and neglected in July of 2003 and DSS subsequently took custody of the minor children.
In August of 2004, DSS filed a petition to terminate the parental rights of respondent, alleging that he had neglected the minor children and that he was incapable of providing for the proper care and supervision of the children. The petition noted that the children's mother had relinquished her parental rights. The trial court subsequently terminated respondent's parental rights based on the finding of dependency. Respondent appeals.
Respondent first contends the trial court erred by not making competent findings of fact on the record. Respondent argues that the trial court's findings are mostly recitations of testimony given or reports to the court, and do not reflect the weighing of testimony given. We disagree.
Termination of parental rights involves a two-stage process. See In re Brim, 139 N.C. App. 733, 741, 535 S.E.2d 367, 371 (2000). At the adjudicatory stage, the petitioner must establish by clear, cogent, and convincing evidence that sufficient grounds exist to terminate parental rights. In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997). On appeal, this Court reviews the trial court's findings of fact to determine whether the findings are supported by clear, cogent, and convincing evidence and whether the findings support the trial court's conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000). In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially[.] N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2005). The trial court may not simply recite allegations, but must through 'processes of logical reasoning from the evidentiary facts' find the ultimate facts essential to support the conclusions of law. In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002) (quoting Appalachian Poster Advertising Co. v. Harrington, 89 N.C. App. 476, 479, 366 S.E.2d 705, 707 (1988)). Furthermore, the trial court may not delegate its fact finding duty[ and] should not broadly incorporate . . . written reports from outside sources as its findings of fact. In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004).
In support of its conclusion that respondent's minor children were dependent, the trial court made the following pertinent findings of fact:
5. That an Order of Adjudication entered on or about the 1st day of July 2003, found the minor children, K.[A.]B. and T.[J.]B., Jr., to be neglected and dependent children. The custody of the minor children was placed in and with [DSS] by an Order of Disposition entered on or about the 29th day of July 2003; and
6. That Relinquishments of Minor for Adoption by Parent or Guardian were executed by . . . the mother of the minor children on the 18th day of November, 2003; copies were attached to the Motion in the Cause to Terminate Parental Rights and are incorporated herein by reference;
. . .
8. That T.J.B., Jr., and K.A.B. have been in the legal custody of the Catawba County Department of Social Services since July 2003.
9. That the father, T.J.B., Sr., was convicted of a drug related offense to wit conspiracy to possess with intent to distribute quantities of cocaine and cocaine base in the United States District Court for the Western District of North Carolina in August 2003. The father's conviction was based upon a conspiracy that concluded on or about September 10, 2002. On August 18, 2003, the father was sentenced to 168 months (14 years) in the custody of the United States Bureau of Prisons. At the time of the father's sentence in August 2003, T.[J.B.], Jr., was approximately one year and nine months old; K[A.B.] was approximately two years and eight months old. At the expiration of the father, T.J.B., Sr.'s, sentence with the United States Bureau of Prisons, T.[J.B.], Jr., would be approximately 16 years old and K[A.B.] would be approximately 17 years old.
10. That the father was also convicted of possession of cocaine in the Courts of the State of North Carolina in July 2001, arising out of offenses occurring in June 2000. Additionally, the father was convicted of robbery in the State of Delaware in 1991 and served approximately three years in the Delaware Prison System. The father was also convicted of felonious larceny in Delaware in 1995 and served approximately six months in the Delaware Prison System. Further, the father was convicted of possession with intent to deliver cocaine for an offense occurring October 31, 1996.
11. That the father is also the biological father of two other minor children, T.S., age 10, and A.L., age 4, neither of [whom] reside or resided with their father at the time of the filing of this motion.
12. That the father was incarcerated for approximately two months in the fall of 2002 in Mecklenburg County and for approximately 20 days in the fall of 2002 in Catawba County.
13. That the father is currently 34 years of age.
14. That the father, T.J.B., Sr., is incapable of providing for the proper care and supervision of T.[J.B.], Jr., and K[A.B.], such that both juveniles are dependent juveniles and that there is a reasonable probability that such incapability will continue for the foreseeable future. The father, T.J.B., Sr.'s, incapability to provide for the proper care and supervision of T.[J.B.], Jr., and K[A.B.] has existed, at a minimum, from the date of the father's incarceration in the United States Bureau of Prisons in the fall of 2003 and it is reasonably probable that this incapability to provide for the proper care and supervision of T.[J.B.], Jr., and K[A.B.] will continue for the foreseeable future.
15. That the father, T.J.B., Sr., lacks an appropriate alternate child care arrangement for T.[J.B.], Jr., and K[A.B.] during the period of the father's incarceration in the United States Bureau of Prisons, to wit until 2017. The minor children were placed with Sam B., the paternal great-grandfather from July 2003 through December 2004. The minor children's great- grandfather, Sam B., is 72 years of age, has age-related physical problems, including hypertension and inguinal hernia. A pre- placement assessment for adoption by the paternal great-grandfather was disapproved by the investigating agency. Although the paternal great-grandfather was able to provide temporary placement for T.J.B., Jr., and K.A.B., he does not offer an appropriate alternative and is unable to provide appropriate arrangements for the care of T.[J.B.], Jr., and K[A.B.] for the next decade or until 2017. An appropriate alternative childcare arrangement for T.[J.B.], Jr., and K[A.B.] would require an arrangement for 14 years.
16. That neither the father nor the paternal great-grandfather has suggested alternate appropriate child care arrangements for K[A.B.] and T.[J.B.], Jr., until 2017.
Here, the trial court made twenty-two detailed findings of fact based upon trial testimony provided by DSS social worker Christina Hutchison, DSS reports, previous orders entered in the case, and respondent's deposition. The trial court's findings are not merely a recitation of testimony or allegations, but through 'processes of logical reasoning,' In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003) (citations omitted), are 'specific ultimate facts  sufficient for [this Court] to determine that the judgment is adequately supported by competent evidence.' In re Anderson, 151 N.C. App. at 97, 564 S.E.2d at 602 (citation omitted). We, therefore, conclude the trial court's findings of fact meet the requirements of Rule 52 and are sufficiently supported by clear, cogent, and convincing evidence. Accordingly, respondent's first argument is overruled.
Respondent next contends that the inaudible portions of the 8 March 2005 hearing violated his constitutional and due process rights and compromised his right to pursue his appeal.
N.C. Gen. Stat. § 7B-806 (2005) requires that all juvenile adjudicatory and dispositional hearings shall be recorded by stenographic notes or by electronic or mechanical means. Id. An appellant who raises the issue of an inadequately recorded proceeding must show that the failure to properly record the evidence resulted in prejudice. In re Clark, 159 N.C. App. 75, 83, 582 S.E.2d 657, 662 (2003); see also In re Wright, 64 N.C. App. 135, 137-38, 306 S.E.2d 825, 827 (1983) (argument rejected wherethere was no showing of prejudice and no allegation of what transcript would have contained).
General allegations of prejudice are insufficient to show reversible error resulting from gaps in the recording. In re Clark, 159 N.C. App. at 80, 582 S.E.2d at 660. In Clark, this Court stated, [w]here a verbatim transcript of the proceedings is unavailable, there are 'means . . . available for [a party] to compile a narration of the evidence, i.e., reconstructing the testimony with the assistance of those persons present at the hearing.' Id. (quoting Miller v. Miller, 92 N.C. App. 351, 354, 374 S.E.2d 467, 469 (1988)). Any disputes among the parties regarding the content of testimony, objections, or rulings can be resolved by the trial judge in settling the record on appeal. Id.; see also N.C.R. App. P. 9(c)(1) (providing for narration of the evidence in the record on appeal and, if necessary, settlement of the record by the trial court); see also In re Peirce, 53 N.C. App. 373, 382, 281 S.E.2d 198, 204 (1981) (no prejudice shown where party failed to allege or describe the contents of the lost testimony).
Here, respondent lists nineteen sections of the seventy-two page transcript where it is indicated that parts of statements are inaudible. Although respondent argues that he was unable to reconstruct the testimony, he has not specifically shown how the inaudible portions caused him prejudice. In addition, the record and transcript do not disclose the exact amount of testimony lost. It appears that very little of the testimony was inaudible, and theinterruptions were only very brief. Furthermore, many of the inaudible portions from pages four through twenty are attributable to respondent, who was incarcerated and participated in the hearing via a speaker phone. As noted above, the trial court's extensive findings indicate a careful evaluation of all of the evidence. Our review of the record, without the benefit of a narration of the missing evidence, fails to show any prejudice to respondent from the missing testimony. Thus, we reject respondent's argument on this assignment of error.
Respondent next contends the trial court erred by taking judicial notice of the entire juvenile file and its contents. We disagree.
A trial court may take judicial notice of earlier proceedings in the same cause. In re Isenhour, 101 N.C. App. 550, 553, 400 S.E.2d 71, 73 (1991). Our statutes state that [a] judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. N.C. Gen. Stat. § 8C-1, Rule 201(b) (2005). Furthermore, prior adjudications of abuse or neglect are admissible in a termination of parental rights proceeding, though they are not determinative of the ultimate issue. In re Huff, 140 N.C. App. at 300, 536 S.E.2d at 846.
Respondent argues that the trial court should not have considered as evidence prior orders and court reports in the juvenile file because those documents were admitted under a lowerevidentiary standard. Our Court recently rejected this argument in In re J.B., ___ N.C. App. ___ , ___ , 616 S.E.2d 264, 273 (2005). In deciding this issue, our Court noted that there is a well-established supposition that the trial court in a bench trial 'is presumed to have disregarded any incompetent evidence.' Id. (quoting Huff, 140 N.C. App. at 298, 536 S.E.2d at 845). As in In re J.B., nothing in the record indicates that the trial court failed to conduct the independent determination required at a termination hearing when prior disposition orders have been entered in the matter. Id. Accordingly, the trial court properly took judicial notice of the juvenile file.
Respondent next assigns error to the trial court's failure to conduct its adjudication hearing within the time period required by N.C. Gen. Stat. § 7B-1109(a), or by the 25th Judicial District Local Juvenile Rule 20.1.
N.C. Gen. Stat. § 7B-1109(a) (2005) provides:
(a) The hearing on the termination of parental rights shall be conducted by the court sitting without a jury and shall be held in the district at such time and place as the chief district court judge shall designate, but no later than 90 days from the filing of the petition or motion unless the judge pursuant to subsection (d) of this section orders that it be held at a later time. Reporting of the hearing shall be as provided by G.S. 7A-198 for reporting civil trials.
Subsection (d) further provides:
(d) The court may for good cause shown continue the hearing for up to 90 days from the date of the initial petition in order to receive additional evidence including anyreports or assessments that the court has requested, to allow the parties to conduct expeditious discovery, or to receive any other information needed in the best interests of the juvenile. Continuances that extend beyond 90 days after the initial petition shall be granted only in extraordinary circumstances when necessary for the proper administration of justice, and the court shall issue a written order stating the grounds for granting the continuance.
N.C. Gen. Stat. § 7B-1109(d).
Rule 20.1 requires that hearings be held within sixty days
from the filing of the petition to terminate unless the judge, for
good cause, orders that it be held at a later time. N.C. Jud.
Dist. 25 Local Juv. R. 20.1.
Here, the trial court originally scheduled the adjudication hearing for 19 October 2004, which is two months after the filing of the August 2004 petition to terminate parental rights. Respondent moved to continue the hearing so that he could be deposed telephonically and the trial court continued the hearing for 14 December 2004. After respondent was deposed and the deposition delivered to the parties, the trial court began the adjudication hearing on 14 December 2004. The original October 2004 hearing date meets the time requirements under both the statute and the local rules. Furthermore, both the statute and the local rules permit the trial court to continue the adjudication hearing for good cause, which, in this case, was to allow time to depose respondent per respondent's request. Because the trial court continued the hearing at respondent's request, respondent has failed to demonstrate prejudice. We note that respondent alsoargues that the trial court erred by not entering its written adjudication order within thirty days of the completion of the adjudication hearing under section 7B-1109(e). Respondent, however, did not assign error to the timeliness of the entry of the adjudication order. Furthermore, contrary to respondent's assertion, the adjudication hearing was concluded on 8 March 2005 and the trial court's 8 April 2005 order is within the thirty day time period. This assignment of error is overruled.
Respondent finally contends the trial court erred by not appointing him a guardian ad litem pursuant to N.C. Gen. Stat. § 7B-1101(1), which mandates appointment of a guardian ad litem to represent a parent in proceedings to terminate that parent's parental rights [w]here it is alleged that [the] parent's rights should be terminated pursuant to G.S. 7B-1111(6), and the incapability to provide proper care and supervision pursuant to that provision is the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or another similar cause or condition. N.C. Gen. Stat. § 7B-1101(1) (2003). (See footnote 1) Thus, a trial court need not appoint a guardian ad litem pursuant to N.C. Gen. Stat. 7B-1101(1) unless (1) the petition or motion to terminate parental rights alleges dependency, and (2) the majority of the dependency allegations tend to show that a parent or guardian is incapable as the result of some debilitating condition listed in the statute of providing for the proper care andsupervision of his or her child. In re H.W., 163 N.C. App. 438, 447, 594 S.E.2d 211, 216 (interpreting an analogous provision for the appointment of a guardian ad litem at a termination of parental rights proceeding) (citing In re Estes, 157 N.C. App. 513, 518, 579 S.E.2d 496, 499 (2003)), disc. review denied, 358 N.C. 543, 599 S.E.2d 46 (2004).
In the instant case, the petition to terminate respondent's parental rights specifically alleged that sufficient grounds exist to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(6). The petition also alleged that the children were dependent juveniles and that there was a reasonable probability that respondent would remain incapable to provide for their care. Unlike Estes, the case upon which respondent relies, allegations set out in the petition do not center on respondent's 'irrational behavior and thought patterns.' Estes, 157 N.C. App. at 516, 579 S.E.2d at 498. Rather, the petition alleged that respondent was incapable of providing care for his children because of respondent's incarceration until the year 2017. These allegations do not tend to show incapacity by respondent as defined by the statute and thus, section 7B-1101 did not require the appointment of a guardian ad litem for respondent-father in this case. Accordingly, the trial court did not err by failing to appoint a guardian ad litem to represent respondent.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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