IN THE MATTER OF:
Catawba County
K.A.B., Nos. 03 J 005-06
T.J.B. Jr.,
Minor Children
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.
HUNTER, Judge.
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.
Id.
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.
Affirmed.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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