Appeal by respondent from judgments entered 18 May 2005 by
Judge Leonard W. Thagard in Sampson County District Court. Heard
in the Court of Appeals 21 August 2006.
Law Offices of Benjamin R. Warrick, by Corrine A. Railey, for
petitioner-appellee Sampson County Department of Social
Services.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P,
by Martin H. Brinkley, for appellee Guardian ad Litem.
Isaac Cortes, Attorney Advocate.
Hall & Hall Attorneys at Laws, P. C., by Susan P. Hall; Keisha
Roberson Philpot, for respondent-appellant.
HUNTER, Judge.
Respondent appeals from judgments terminating her parental
rights to her minor children K.L.R., C.D.R., M.D.R., F.M.R.,
K.D.R., and D.R., respectively, entered 18 May 2005. For the
reasons stated herein, we affirm the orders of termination.
On 7 January 2003, Sampson County Department of Social
Services (“DSS”) received a report alleging neglect of F.M.R. A
visit to the home of K.L.R., C.D.R., M.D.R., F.M.R., K.D.R., andD.R. revealed that the six children were sharing one bedroom in a
small two-bedroom mobile home. There was damage to the floor of
the home, broken windows, and other unsafe and unsanitary
conditions. An investigation revealed that neglect had previously
been substantiated as to all six children in the state of Arkansas.
DSS petitioned for removal of the children from the home on the
grounds of neglect on 15 January 2003.
By way of orders entered 29 January 2003, custody of the
children was removed to DSS. On 28 February 2003, the trial court
entered orders finding all six children neglected. The children
remained in DSS custody through subsequent reviews by the trial
court and were placed with paternal grandparents in Arkansas
following a home study. Attempts were made to work towards
reunification, however, respondent was uncooperative. Following a
permanency planning hearing held 8 April 2004, the trial court
ordered that the permanent plan for the minor children should be
termination of parental rights.
Petitions to terminate parental rights for all six children
were filed 20 August 2004. A hearing was held in the matter on 16
December 2004, but the matter was continued to 27 January 2005 to
provide respondent's newly appointed attorney time to prepare. Due
to a conflict with the guardian ad litem for the children, the
matter was again continued to 24 February 2005. A court conflict
resulted in a continuance of the matter until 28 March 2005.
Respondent requested a continuance due to the unavailability of
witnesses and the matter was continued until 26 April 2005. Thehearing was held on 27 April 2005 and judgments terminating
respondent's parental rights as to K.L.R., C.D.R., M.D.R., F.M.R.,
K.D.R., and D.R., respectively, were entered on 18 May 2005. The
parental rights of respondent-fathers for the children were also
terminated by these judgments, however they are not a party to this
appeal. Respondent appeals from these judgments.
I.
Respondent first contends that the petitions to terminate her
parental rights failed to allege facts sufficient to warrant a
determination that grounds for termination existed. We disagree.
N.C. Gen. Stat. § 7B-1104 (2005) sets out the requirements for
a petition for termination of parental rights. Section 7B-1104(6)
requires that the petition include “[f]acts that are sufficient to
warrant a determination that one or more of the grounds for
terminating parental rights exist.”
Id. As noted in
In re
Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002),
“[w]hile there is no requirement that the factual allegations be
exhaustive or extensive, they must put a party on notice as to what
acts, omissions or conditions are at issue.”
Id.
In
In re Quevedo, 106 N.C. App. 574, 579, 419 S.E.2d 158, 160
(1992), this Court stated that a bare recitation of the alleged
statutory grounds for termination did not comply with the statutory
requirement that a petition state facts sufficient to warrant a
determination that grounds exist to warrant termination.
Id.
However,
Quevedo concluded that the incorporation of an attached
custody award to the petition, which stated facts sufficient towarrant a determination of termination, satisfied the requirements
of the statute.
Id.
Here, the petitions identically alleged the following grounds
for termination as to all six children:
1. N.C.G.S. Section 7B-1111(a)(1) in that
the parents have neglected the
juvenile[s] as defined by N.C.G.S.
Section 7B-101 et seq.
2. N.C.G.S Section 7B-1111(a)(2) in that the
parents have willfully left the
juvenile[s] in foster care or placement
outside the home for more than 12 months
without showing to the satisfaction of
the Court that reasonable progress under
the circumstances has been made in
correcting those conditions which led to
the removal of the juvenile[s].
Although the petitions did not state further facts as the basis for
termination, copies of the orders from 28 February 2003 finding the
children neglected and continuing the children in DSS custody were
referenced in the petitions and attached. These orders contained
factual allegations as to the neglect of respondent in keeping an
unsafe and unsanitary home, as well as allegations of sexual abuse
by respondent's live-in boyfriend. Such allegations were
sufficient to provide notice to respondent as to the acts,
omissions or conditions at issue, and therefore, as in
Quevedo, the
statutory requirements were satisfied. Respondent's assignment of
error is overruled.
II.
Respondent next contends the trial court lacked jurisdiction
to adjudicate the petition to terminate parental rights where itfailed to do so within ninety days of the filing of the petition.
We disagree.
N.C. Gen. Stat. § 7B-1109(a) (2005) requires that a hearing on
a termination of parental rights shall be conducted no later than
ninety 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. Section 7B-1109(d) states that:
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 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.
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.
Id. Violations of time limitations “'are not jurisdictional in
cases such as this one and do not require reversal of orders in the
absence of a showing by the appellant of prejudice resulting from
the time delay.'”
In re As.L.G. & Au.R.G., 173 N.C. App. 551, 555,
619 S.E.2d 561, 564 (2005) (citation omitted),
disc. review
improvidently allowed, 360 N.C. 476, 628 S.E.2d 760 (2006).
Defendant cites to several cases finding prejudice for delays
in entry of termination orders, preventing entry of notice of
appeal, in support of her claim that the continuances in the
instant case were prejudicial and warrant reversal.
See In re
T.L.T., 170 N.C. App. 430, 432, 612 S.E.2d 436, 438 (2005) (findingprejudice in trial court's failure to enter order for seven
months);
In re L.E.B., K.T.B., 169 N.C. App. 375, 379, 610 S.E.2d
424, 427 (finding prejudice in trial court's failure to enter order
for six months),
disc. review denied, 359 N.C. 632, 616 S.E.2d 538
(2005).
However, these cases address N.C. Gen. Stat. §§ 7B-1109(e) and
7B-1110(a), statutory provisions related to entry of adjudicatory
orders, rather than the provision at issue in this case, section
7B-1109(d), which sets out the time for the termination hearing.
In response to a similar challenge, this Court stated in
In re
D.J.D., D.M.D., S.J.D., J.M.D., 171 N.C. App. 230, 615 S.E.2d 26
(2005), that “[t]here 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.”
Id. at 243, 615 S.E.2d at 35.
D.J.D. concluded that
while that case was erroneously delayed, as the hearing was not
scheduled until forty-four days after the ninety-day period, the
trial court had continued to review the case on the permanency
planning schedule and the respondent had asked for a further
continuance, delaying the hearing for an additional sixty-eight
days.
Id. As the respondent had moved for a continuance and added
more than two months delay to the trial court's original error,
D.J.D. held that the respondent had failed to demonstrate
prejudice.
Id.
Similarly here, the initial hearing was scheduled for 16
December 2004, less than one month outside the initial ninety-daywindow. The first continuance to 27 January 2005 was granted in
written orders at the request of respondent's newly appointed
attorney. A second continuance to 24 February 2005 was granted in
written orders with the concurrence of all parties. A third
continuance to 28 March 2005 was granted in written orders due to
a court scheduling conflict. A final continuance to 26 April 2005
was granted in written orders at the request of respondent. The
hearing was ultimately held on 27 April 2005. As respondent moved
for two continuances, delaying both the initially scheduled
termination hearing and a later scheduled date, respondent has
failed to demonstrate prejudice in the continuances granted by
written orders of the trial court as required by section 7B-
1109(d). This assignment of error is overruled.
III.
Respondent finally contends that the trial court was without
jurisdiction to terminate parental rights where the petition to
terminate was not filed within sixty days of the permanency
planning hearing directing the filing. We disagree.
N.C. Gen. Stat. § 7B-907(e) (2005) requires:
If a proceeding to terminate the parental
rights of the juvenile's parents is necessary
in order to perfect the permanent plan for the
juvenile, the director of the department of
social services shall file a petition to
terminate parental rights within 60 calendar
days from the date of the permanency planning
hearing unless the court makes written
findings why the petition cannot be filed
within 60 days. If the court makes findings
to the contrary, the court shall specify the
time frame in which any needed petition to
terminate parental rights shall be filed.
Id. Respondent contends that as termination was made the permanent
plan for the children at the hearing on 8 April 2004, and petitions
for termination of respondent's parental rights were not filed
until 20 August 2004, 134 days later, the trial court lacked
subject matter jurisdiction to proceed on this matter. This Court
has recently addressed this issue in
In re B.M., M.M., An.M., &
Al.M., 168 N.C. App. 350, 607 S.E.2d 698 (2005).
In re B.M. stated
that:
The purpose of the legislature in including
the filing specifications in the statute was
to “provide parties with a speedy resolution
of cases where juvenile custody is at
issue[,]” as is the case here. By holding
that the order terminating respondents'
parental rights should be reversed simply
because it was filed outside of the specified
time limit “would only aid in further delaying
a determination regarding [the minor children]
because juvenile petitions would have to be
re-filed and new hearings conducted.”
Id. at 354, 607 S.E.2d at 701 (citations omitted). The Court
concluded “that the time limitation specified in N.C. Gen. Stat. §
7B-907(e) is directory rather than mandatory and thus, not
jurisdictional[,]” and concluded that despite DSS's delay of the
sixty-day provision, no authority compelled the termination of
parental rights order be vacated.
Id.
Similarly here, we conclude that although DSS erred in
delaying the filing of the petition for termination of parental
rights, such error is not jurisdictional in nature, and the statute
does not provide consequences for failure to comply with the time
period. We also note that the permanency planning written orderswere not entered by the trial court until more than sixty days
following the hearing. As in
B.M., no authority compels the
termination of parental rights order be vacated. This assignment
of error is overruled.
As the petition to terminate respondent's parental rights
provided notice of the factual basis for termination, and as
respondent had failed to show prejudice from the delay in the
hearing on termination, or authority for finding the petition
jurisdictionally defective as a result of a delay in filing, we
affirm the trial court's judgments terminating respondent's
parental rights.
Affirmed.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).
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