IN RE:
Graham County
W.D.S. No. 04 J 09
Sybil Grace Mann for petitioner-appellee Graham County
Department of Social Services.
Richard E. Steinbron for Guardian ad Litem.
Nancy R. Gaines for respondent-appellant.
HUNTER, Judge.
Respondent-father appeals from judgment terminating parental
rights to his son, WDS. Respondent contends there was insufficient
evidence to support the trial court's findings supporting
termination. Respondent further argues the trial court failed to
hold hearings and enter its orders in a timely fashion. We affirm
the trial court.
Respondent does not contest any of the findings made by the
trial court, which show that the Graham County Department of Social
Services (“DSS”) obtained custody of WDS on the day he was born,
when a physical examination of the infant “revealed that the baby
was hypersensitive, jittery, irritable, sensitive to light and
sound and had a high-pitched cry, all of which is consistent withthe presence of methamphetamines in the baby's system and the
baby's withdrawal from the drug.” WDS now suffers from a number of
health problems and receives specialized care due to his
respiratory problems, reflux, sleeping disorder and sensory
integration problems.
Both respondent and the mother of WDS have a history of severe
substance abuse. Respondent admitted abusing Oxycontin, Oxycodine,
Soma, and Xanaflex medicines. Respondent was incarcerated during
most of the term of pregnancy for WDS. Respondent escaped from
jail on 9 October 2002 and was re-incarcerated on 19 October 2002.
He was released from jail on bond on 31 December 2002 on the
condition that he participate in substance abuse treatment;
however, he failed to participate in such treatment and was again
incarcerated on 8 February 2003. While incarcerated, respondent
continued to test positive for marijuana. Although respondent
earned money through work release while incarcerated, he did not
provide any support for his son's care. Respondent received
substance abuse counseling while incarcerated, but did not follow
through on recommended counseling following his release.
The trial court concluded that grounds for the termination of
respondent's parental rights existed. Specifically, the trial
court found that respondent neglected WDS and had willfully left
the child in foster care for more than twelve months without making
reasonable progress in correcting the conditions which led to the
child's removal. In its order of disposition, the trial courtfound that it would be in the best interests of WDS to terminate
respondent's parental rights. Respondent appeals.
Although respondent does not contest the findings made by the
trial court, he nevertheless asserts that he presented evidence of
reasonable progress that the trial court failed to acknowledge in
its findings of fact. Respondent points to evidence that he
completed a thirty-day drug treatment program and a ninety-day
follow-up support program while incarcerated. He also completed
three parenting classes while incarcerated. When released,
respondent found housing and employment.
Section 7B-1111 of the North Carolina General Statutes sets
out the statutory grounds for terminating parental rights. See
N.C. Gen. Stat. § 7B-1111 (2005). A finding of any one of the
separately enumerated grounds is sufficient to support a
termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230,
233-34 (1990). “[T]he party petitioning for the termination must
show by clear, cogent, and convincing evidence that grounds
authorizing the termination of parental rights exist.” In re
Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997).
In the case sub judice, the trial court concluded that
respondent had willfully left WDS in foster care for more than
twelve months without showing to the satisfaction of the court that
reasonable progress had been made towards correcting those
conditions which led to the child's removal. See N.C. Gen. Stat.
§ 7B-1111(a)(2). The trial court also found that respondent
neglected the child. See N.C. Gen. Stat. § 7B-1111(a)(1). WDS wasoriginally removed from the custody of his parents because of
severe substance abuse. When WDS was born, “a physical examination
. . . revealed that the baby was hypersensitive, jittery,
irritable, sensitive to light and sound and had a high-pitched cry,
all of which is consistent with the presence of methamphetamines in
the baby's system and the baby's withdrawal from the drug.”
Respondent concedes that he is addicted to drugs. He does not
dispute that since his release from incarceration, he has failed to
attend the weekly treatment sessions necessary to address his
substance abuse. The trial court found that respondent's
attendance was sporadic, and that respondent's “only prolonged,
focused substance abuse treatment was on an involuntary basis while
[he] was incarcerated.” Based on respondent's actions, the trial
court found that there was a probability of repetition of neglect
by respondent. Respondent did not assign error to this finding.
In addition to the substance abuse, respondent failed to involve
himself in his child's life. Respondent sent no gifts or cards to
his son, nor did he acknowledge WDS's birthday. Respondent sent no
pictures to WDS, nor did he request pictures of WDS. Respondent
failed to provide any clothes, accessories, or toys to WDS,
although the trial court found he had means to do so.
The evidence in the record supports the trial court's findings
and conclusions regarding respondent's neglect and lack of
reasonable progress. Although respondent has made some effort to
regain control of his life, “[a] finding of willfulness is not
precluded even if the respondent has made some efforts to regaincustody of the children.” In re Nolen, 117 N.C. App. 693, 699, 453
S.E.2d 220, 224 (1995). “Extremely limited progress is not
reasonable progress.” Id. at 700, 453 S.E.2d at 224-25. We
overrule this assignment of error.
Respondent further asserts the trial court failed to hold
hearings and enter its orders in a timely fashion, resulting in
prejudice. Section 7B-1109 and section 7B-1110 of our General
Statutes provide that a trial court must enter a written order
regarding its decision on termination within thirty days of the
completion of the hearing. See N.C. Gen. Stat. §§ 7B-1109(e) and
7B-1110(a) (2005). Here, the order of disposition was timely
entered, but the order of adjudication was not entered until sixty
days after the hearing. However:
Our Court has never held that entry of the
written order outside the thirty-day time
limitations expressed in sections 7B-1109 and
7B-1110 was reversible error absent a showing
of prejudice. To the contrary, we have held
that prejudice must be shown before the late
entry will be deemed reversible error.
In re C.J.B. & M.G.B., 171 N.C. App. 132, 134, 614 S.E.2d 368, 369
(2005); see also In re B.M., M.M., An.M., & Al.M., 168 N.C. App.
350, 353-55, 607 S.E.2d 698, 700-02 (2005) (discussing the need for
prejudice in missing timing requirements of section 7B-907(e)); In
re J.L.K., 165 N.C. App. 311, 315-16, 598 S.E.2d 387, 390-91
(respondent failed to show prejudice from a three-month delay in
violation of N.C. Gen. Stat. § 7B-1109(e)), disc. review denied,
359 N.C. 68, 604 S.E.2d 314 (2004). Although we do not condone thedelay in the present case, respondent has failed to show he was
prejudiced by the sixty-day delay in the present case.
Respondent also contends that the adjudicatory hearing was
untimely. N.C. Gen. Stat. § 7B-1109(a) provides in part that:
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.
Id. Under subsection (d) of N.C. Gen. Stat. § 7B-1109,
[t]he 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 any reports 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.
Id. However, “[c]ontinuances 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.” Id.
Here, the petition to terminate was filed 5 March 2004.
Respondent filed a response 28 May 2004. The mother of WDS filed
her answer 11 June 2004. The adjudicatory hearing was held 26
August 2004, a little under six months after the initial filing for
termination. The trial court thus violated the statute by
approximately ninety days. It did not issue a written orderstating the grounds for a continuance. Respondent contends the
delay was prejudicial, as he was denied access to his child and the
opportunity to develop a relationship with him. We do not agree.
“There is a distinction between the failure of the trial court
to reduce an order to writing, which [a]ffects the respondent's
time to appeal, and a delay in scheduling a matter for hearing.”
In re D.J.D., D.M.D., S.J.D., J.M.D., 171 N.C. App. 230, 243, 615
S.E.2d 26, 35 (2005). Here, the delay for the adjudication hearing
arose in part because respondent did not respond to the petition
for termination within the thirty days allotted by statute. See
N.C. Gen. Stat. § 7B-1107 (2005). Moreover, respondent has never
had a relationship with WDS, and there is no evidence in the record
to suggest that the delay between the filing of the petition and
the adjudication hearing deprived respondent of an opportunity to
develop a relationship. See In re D.J.D., 171 N.C. App. at 243,
615 S.E.2d at 35 (concluding that the respondent failed to show
prejudice arising from delay of the adjudicatory hearing where the
respondent had no relationship with his children for five years,
because “[d]elays prejudice the children, who are denied
permanency”). The trial court had substantial grounds to terminate
respondent's parental rights. While the delay here was error, it
does not rise to egregious, prejudicial delay. See id. at 243-44,
615 S.E.2d at 35 (holding that a forty-four day delay was not so
prejudicial to the respondent to warrant reversal where there was
ample evidence on multiple grounds to terminate the respondent's
rights). In conclusion, we hold the judgment of adjudication is
supported by the unchallenged findings of fact, and that the delay
of the trial court in holding the adjudicatory hearing and entering
the order of adjudication did not unduly prejudice respondent. We
therefore affirm the judgment terminating respondent's parental
rights.
Affirmed.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
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