An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 17 October 2006
IN THE MATTER OF
K.P., Stokes County
A Minor Child No. 05 J 03A
Appeal by Respondent-father from order entered 8 June 2005 by
Judge Mark H. Badgett in Stokes County District Court. Heard in
the Court of Appeals 24 August 2006.
Hall & Hall Attorneys at Law, P.C., by Susan P. Hall, for
Hunt Law Group, P.C., by James A. Hunt, for Appellee Guardian
Respondent-appellant (Respondent) is the father of K.P., the
juvenile who is the subject of this action. In a juvenile petition
filed 6 January 2005, the Stokes County Department of Social
Services (DSS) alleged that K.P. was neglected in that he did not
receive proper care, supervision, or discipline from the
juvenile's parent, guardian, custodian, or caretaker.
Specifically, the petition alleged that on 3 January 2005, Child
Protective Services received a report that after a recent suicide
attempt by K.P.'s mother (K.T.), Respondent left the child with
K.T.'s mother and her boyfriend, both of whom were intoxicated.
The petition alleged further that in a 5 January 2005 meeting with
a social worker, K.T. and Respondent could not agree on a placementfor K.P. and neither believed that K.P. would be safe with the
other parent. In an order filed 6 January 2005, the Honorable Mark
H. Badgett placed K.P. in the non-secure custody of DSS. On 5 May
2005, an adjudicatory hearing was held in Stokes County District
Court before Judge Badgett. Following this hearing, a juvenile
adjudication order was filed, on 8 June 2005, in which Judge
Badgett concluded that K.P. was a neglected juvenile. On 17 August
2005, Respondent filed written notice of appeal. Subsequent to
this notice, in a review order filed 27 October 2005, the Honorable
Spencer G. Key, Jr. concluded that [p]ending further hearings, the
juvenile should be returned to the custody of father[.] From
Judge Badgett's juvenile adjudication order, Respondent appeals.
By motion filed 28 March 2006, DSS moved to dismiss this
appeal on grounds that the adjudication order appealed from is not
a final order and that the appeal is moot because legal custody of
the juvenile was later returned to Respondent. We decline to
dismiss the appeal.
North Carolina law provides in pertinent part that
[u]pon motion of a proper party as defined in
G.S. 7B-1002, review of any final order of the
court in a juvenile matter under this Article
shall be before the Court of Appeals. Notice
of appeal shall be given in writing within 10
days after entry of the order. However, if no
disposition is made within 60 days afer entry
of the order, written notice of appeal may be
given within 70 days after such entry.
N.C. Gen. Stat. § 7B-1001 (2003). This Court has interpreted this
statutory provision to provide for an appeal from an order thathas not been the subject of a final disposition within sixty days,
providing that the notice of appeal is filed after day sixty and
before the end of day seventy. In re Laney, 156 N.C. App. 639,
643, 577 S.E.2d 377, 379, disc. review denied, 357 N.C. 459, 585
S.E.2d 762 (2003). In this case, the adjudication order was filed
on 8 June 2005, and Respondent's notice of appeal was filed on 17
August 2005, within the time frame established by the statute and
this Court. Therefore, Respondent's appeal is timely.
DSS next argues that the appeal is moot because in a review
order filed 27 October 2005, Judge Key ordered that [p]ending
further hearings, the juvenile should be returned to the custody of
father[.] We likewise reject this argument.
In a recent decision, our Supreme Court determined that [i]t
is axiomatic . . . that reinstatement of parental custody during
the pendency of an appeal challenging a child's neglect or abuse
adjudication does not render a case moot as the adjudication may
result in collateral legal consequences for the parent. In re
A.K., ___ N.C. ___, ___, 628 S.E.2d 753, 756 (2006). Based on the
direction provided by our Supreme Court, we must not dismiss this
appeal as moot. We thus reach the merits of this case.
By his first assignment of error, Respondent argues that the
trial court erred by failing to make findings of fact supported by
clear, cogent and convincing evidence as required by N.C. Gen.
Stat. § 7B-807(a). We find this argument without merit. When an appellant challenges the findings of fact, each
contested finding of fact must be separately assigned as error, and
the failure to do so results in a waiver of the right to challenge
the sufficiency of the evidence to support the finding. Okwara v.
Dillard Dep't Stores, Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481,
484 (2000) (citations omitted). If error is not assigned
separately to each finding of fact, appellate review is limited to
the question of whether the trial court's findings of fact, which
are presumed to be supported by competent evidence, support its
conclusions of law and judgment. Okwara, 136 N.C. App. at 591-92,
525 S.E.2d at 484 (citing Taylor v. N.C. Dep't of Transp., 86 N.C.
App. 299, 357 S.E.2d 439 (1987)). In this case, since Respondent
failed to separately assign error to any finding of fact, our
review is limited to the determination of whether the trial court's
findings of fact support its conclusions of law and judgment.
The trial court concluded that K.P. was a neglected juvenile.
Under North Carolina law, a neglected juvenile is
[a] juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or
caretaker; . . . or who lives in an
environment injurious to the juvenile's
N.C. Gen. Stat. § 7B-101(15) (2005). To support this conclusion of
law, Judge Badgett found the following facts by clear and
2) Mother [K.T.] attempted to commit suicide
by an overdose of medication on the night of
January 3, 2005. She had left the juvenile at
the home of her mother (the juvenile's
maternal grandmother) with the maternalgrandmother and the grandmother's boyfriend,
both of whom were drunk and not appropriate
caretakers for the juvenile.
3) [Respondent] . . ., while Stokes County EMS
was present at the home responding to the
overdose by [K.T.], placed the juvenile at the
home of the maternal grandmother, with the
maternal grandmother and her boyfriend, both
of whom were drunk and not appropriate
caretakers for the juvenile. He then took the
juvenile with him to the hospital when [K.T.]
4) By his own testimony, [Respondent] was
present with the juvenile at the trailer where
he and [K.T.] were living, from approximately
3:00 pm on January 3, 2005 until the overdose
incident that night. The home had no
electricity, no sewer and septic, and no food.
5) By his own testimony, [Respondent] was
present at the trailer where he and [K.T.]
were living, on the late afternoon or evening
of January 3, 2005, when [K.T.] became
agitated and grabbed a knife. The juvenile
was strapped in a car seat on the couch in the
trailer during this incident. [Respondent]
left the trailer and shut the agitated [K.T.]
and the juvenile in the trailer together and
called for [K.T.'s] brother.
6) By his own testimony, [Respondent] had
known that [K.T.] had drug problems for quite
a while, but December 31, 2004 was the first
time he had gotten himself and the juvenile
out of that situation, and he returned with
the juvenile to the trailer he shared with
[K.T.] shortly thereafter.
These findings of fact, which we must presume to be supported by
competent evidence presented at the hearing, are clearly sufficient
to support the trial court's determination that K.P. was neglected.
That is, it is clear that K.P. did not receive proper care from
Respondent and lived with Respondent in an environment that was
injurious to his welfare. Therefore, this assignment of error is
overruled. Although not specifically stated in his assignments of error,
Respondent, in his brief, argues that the trial court's order
should be reversed because the attorney for the prevailing party
may have drafted the adjudication order. It is unclear from the
record and transcript who drafted the order. However, even if the
order was drafted by the attorney for DSS, [n]othing in the
statute or common practice precludes the trial court from directing
the prevailing party to draft an order on its behalf. In re J.B.,
172 N.C. App. 1, 25, 616 S.E.2d 264, 279 (2005)(finding no error
when the prevailing party drafted an order terminating parental
rights). This argument is also without merit.
Respondent next argues that the trial court was without
subject matter jurisdiction, and thus, without authority to enter
the adjudication order because the adjudicatory hearing was not
timely held after the filing of the petition. We disagree.
North Carolina law requires that an adjudicatory hearing
shall be held in the district at such time and place as the chief
district court judge shall designate, but no later than 60 days
from the filing of the petition unless the judge pursuant to G.S.
7B-803 orders that it be held at a later time. N.C. Gen. Stat. §
7B-801(c) (2005). Section 803 of the Juvenile Code provides that
[t]he court may, for good cause, continue the
hearing for as long as is reasonably required
to receive additional evidence, reports, or
assessments that the court has requested, or
other information needed in the best interestsof the juvenile and to allow for a reasonable
time for the parties to conduct expeditious
discovery. Otherwise, continuances shall be
granted only in extraordinary circumstances
when necessary for the proper administration
of justice or in the best interests of the
N.C. Gen. Stat. § 7B-803 (2005). 'A motion to continue is
addressed to the court's sound discretion and will not be disturbed
on appeal in the absence of abuse of discretion.' In re Humphrey
156 N.C. App. 533, 538, 577 S.E.2d 421, 425 (2003) (quoting Doby v.
, 72 N.C. App. 22, 24, 324 S.E.2d 26, 28 (1984) (citation
Nothing in the record reflects any court orders continuing the
case. However, at the hearing, Respondent's counsel indicated that
this matter had been continued five or six times. Respondent
makes no showing that these alleged continuances constituted an
abuse of discretion by the trial court. Instead, Respondent argues
that the delay constituted prejudice per se
. We disagree.
Based on the cases cited by the parties and our research, a
violation of N.C. Gen. Stat. § 7B-801 has yet to be addressed by
our appellate courts. However, other provisions dealing with
timely disposition of juvenile cases have repeatedly been
addressed. For example, in In re J.L.K.
, 165 N.C. App. 311, 598
S.E.2d 387, disc. review denied
, 359 N.C. 68, 604 S.E.2d 314
(2004), this Court determined that absent a showing of prejudice,
a failure to comply with N.C. Gen. Stat. § 7B-1109(e) (directing
the timely filing of an adjudication order after a termination ofparental rights hearing) did not warrant reversal. Additionally,
in In re B.M.
, 168 N.C. App. 350, 607 S.E.2d 698 (2005), this Court
declined to reverse a trial court's order because of a violation of
N.C. Gen. Stat. § 7B-907(e) (directing the timely filing of a
termination of parental rights petition) without a showing of
prejudice. Taken as a whole, these decisions recognize that
reversing an order for non-adherence to these time lines further
unbalances the need for swift finality in [juvenile] proceedings,
the undisputed intent and presumed effect of the Legislature. In
, 171 N.C. App. 132, 134, 614 S.E.2d 368, 370 (2005)
(citing In re A.D.L.
, 169 N.C. App. 701, 612 S.E.2d 639, disc.
, 359 N.C. 852, 619 S.E.2d 402 (2005)).
We are persuaded by the rationale previously employed by this
Court. Accordingly, we hold that to support reversal of the trial
court's order due to an untimely hearing under N.C. Gen. Stat. §
7B-801, a party must establish prejudice. In this case, Respondent
neither proved prejudice, nor even attempted to show prejudice.
Therefore, this assignment of error is overruled.
For the reasons stated, the order of the trial court is
Judges STEELMAN and LEVINSON concur.
Report per Rule 30(e).
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