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1. Appeal and Error--appealability--subject matter jurisdiction--law of the case
The trial court possessed subject matter jurisdiction to enter the 28 February 2006 review
order in a child neglect case, because: (1) in respondent's prior appeal, the Court of Appeals held
that although the trial court did not have jurisdiction when the order for nonsecure custody was
filed and summons was issued, the trial court nevertheless acquired subject matter jurisdiction
once the juvenile petition was signed and verified in accordance with N.C.G.S. §§ 7B-403 and
7B-405; and (2) the holding in respondent's prior appeal with respect to this jurisdictional issue
is the law of the case.
2. Child Abuse and Neglect_waiver of further review hearings_insufficient findings
The trial court erred in a child neglect case by failing to comply with N.C.G.S. § 7B-
906(b)(1), (3), and (4) in its order waiving further review hearings, and the case is reversed on
this issue and remanded for the issuance of a new order with written findings of fact with respect
to whether: (1) the minor child was in the custody of a relative or suitable person for at least one
year; (2) neither the minor child's best interests nor the rights of any other party, including
respondent, required the continued holding of review hearings every six months; and (3) all
parties are aware that a review may be held at any time by the filing of a motion for review or on
the court's own motion.
3. Appeal and Error--appealability--mootness
Although respondent contends the trial court erred in a child neglect case by leaving her
visitation rights to the discretion of the minor child's guardians, this issue will not be reviewed
because respondent's appeal on the visitation issue has been rendered moot when the language in
the instant review order concerning visitation is substantively identical to the portion of the 27
October 2005 permanency planning order which the Court of Appeals reversed in respondent's
prior appeal.
4. Child Abuse and Neglect--consideration and incorporation of reports submitted by
DSS and guardian ad litem--independent findings
The trial court did not err in a child neglect case by considering and incorporating reports
submitted by DSS and the guardian ad litem, because: (1) the Court of Appeals addressed this
identical argument in respondent's prior appeal; and (2) the trial court did not improperly
delegate its factfinding duty when it made numerous independent findings in addition to
incorporating reports submitted by DSS and the guardian ad litem in the 28 February 2006
review order.
5. Child Abuse and Neglect--findings of fact--recitation of testimony and statements
The trial court did not err in a child neglect case by its findings of fact that are recitations
of statements made during the review hearing where the remaining findings of fact adequately
support the trial court's conclusions.
6. Evidence--trial court calling witness on own motion-_bench trial
The trial court did not abuse its discretion in a child neglect case by calling respondent as
a witness at the review hearing, because: (1) N.C.G.S. § 8C-1, Rule 614 allows the trial court, on
its own motion or at the suggestion of a party, to call witnesses and all parties are entitled to
cross-examine witnesses thus called; and (2) there is no danger in the trial court suggesting an
opinion as to the weight of the evidence or the credibility of certain witnesses in a bench trial
when the trial court is the ultimate arbiter of such issues.
7. Child Abuse and Neglect--findings of fact--sufficiency of evidence
Competent evidence supported the trial court's findings of fact demonstrating the lack of
concern and love respondent has shown for her child, the child's lack of interest in maintaining a
relationship with respondent, and the nurturing home that the guardians continue to provide for
the child and her half-siblings. In turn, those findings fully support the trial court's conclusion
that the best interest of the child will be served by continuing custody with the present guardians.
8. Trials--recordation--tape recordings accidentally destroyed
Respondent has not been denied due process in a child neglect case even though the tape
recordings of the 26 January 2006 hearing were accidentally destroyed, because: (1) it cannot be
said that respondent has done all that she can do to reconstruct the transcript; and (2) assuming
arguendo that respondent had done all that she could do, it was incumbent upon respondent to
demonstrate prejudice, and the use of general allegations is insufficient to show reversible error
resulting from the loss of specific portions of testimony.
E.B. Borden Parker, for Wayne County Department of Social
Services, petitioner-appellee.
Jeremy B. Smith, for Guardian ad Litem.
Jeffrey L. Miller, for respondent-mother-appellant.
JACKSON, Judge.
Tracie B. (“respondent”) is the mother of L.B., the juvenile
who is the subject of this appeal.
(See footnote 1)
For the following reasons, we
affirm in part and reverse in part the trial court's order. By nonsecure custody order dated 17 August 2004, L.B. was
placed in the custody of the Wayne County Department of Social
Services (“DSS”). The nonsecure custody order was based on a
juvenile petition, signed and verified on 19 August 2004, alleging
that L.B. was neglected and dependent. On 23 November 2005, the
trial court filed a permanency planning order, and respondent
appealed to this Court. See In re L.B., 181 N.C. App. 174, 639
S.E.2d 23 (2007). As such, the facts of this case are stated in
detail in the earlier opinion.
Subsequent to the trial court's 23 November 2005 order but
before the 2 January 2007 filing of this Court's opinion in
respondent's prior appeal, the trial court entered an order on 28
February 2006 following a review hearing on 26 January 2006. In
that order, the trial court changed the permanent plan from
reunification with respondent to guardianship with L.B.'s
custodians, Steven and Doris Johnson (“the Johnsons”). The trial
court left respondent's visitation to the Johnsons' discretion and
determined that there was no need for further review hearings.
Thereafter, respondent filed notice of appeal.
[1] In her first argument, respondent contends that because
the initial juvenile petition was not signed and verified until 19
August 2004, two days after the order for nonsecure custody was
filed and one day after the summons was issued, all subsequent
orders, including the 28 February 2006 review order, should be
vacated for lack of subject matter jurisdiction. In respondent's
prior appeal, however, this Court held that although “the trialcourt did not have jurisdiction when the order for nonsecure
custody was filed and summons was issued,” the trial court
nevertheless acquired subject matter jurisdiction once the juvenile
petition was signed and verified in accordance with North Carolina
General Statutes, sections 7B-403 and 7B-405. L.B., 181 N.C. App.
at 187, 639 S.E.2d at 29. “Therefore, the trial court had
authority to enter its permanency planning order.” Id. As the
holding in respondent's prior appeal with respect to this
jurisdictional issue is the law of the case, see N.C. Nat'l Bank v.
Va. Carolina Builders, 307 N.C. 563, 566, 299 S.E.2d 629, 631
(1983), we hold that the trial court possessed subject matter
jurisdiction to enter the 28 February 2006 review order.
Accordingly, respondent's first assignment of error is overruled.
In her second argument, respondent contends that the trial
court erred: (1) in failing to comply with the mandates of North
Carolina General Statutes, section 7B-906 before waiving further
review hearings; (2) in delegating judicial responsibility for
visitation to L.B.'s custodians; (3) in considering and
incorporating reports and summaries submitted by DSS and the
guardian ad litem; (4) in making findings which recited testimony
or statements of the court; (5) in calling respondent as a witness
at the review hearing; and (6) in findings of fact numbers 19 and
21 through 25, on the grounds that they are not supported by
competent evidence and, in turn, do not support the court's
conclusions. We review these arguments in the order presented. [2] First, respondent contends that the trial court failed to
comply with North Carolina General Statutes, section 7B-906(b). We
agree.
Pursuant to North Carolina General Statutes, section 7B-
906(a), “[i]n any case where custody is removed from a parent,
guardian, custodian, or caretaker the court shall conduct a review
hearing within 90 days from the date of the dispositional hearing
and shall conduct a review hearing within six months thereafter.”
N.C. Gen. Stat. . 7B-906(a) (2005). The trial court, however, may
dispense with review hearings if the court finds the following by
clear, cogent, and convincing evidence:
(1) The juvenile has resided with a relative
or has been in the custody of another suitable
person for a period of at least one year;
(2) The placement is stable and continuation
of the placement is in the juvenile's best
interests;
(3) Neither the juvenile's best interests nor
the rights of any party require that review
hearings be held every six months;
(4) All parties are aware that the matter may
be brought before the court for review at any
time by the filing of a motion for review or
on the court's own motion; and
(5) The court order has designated the
relative or other suitable person as the
juvenile's permanent caretaker or guardian of
the person.
N.C. Gen. Stat. . 7B-906(b) (2005). Failure to find all of these
criteria constitutes reversible error. See In re R.A.H., 182 N.C.
App. 52, 62, 641 S.E.2d 404, 410 (2007). Preliminarily, we note that the statute does not state whether
the trial court must make the required findings in writing. “In
matters of statutory construction, our task is to determine the
intent of the General Assembly.” In re T.R.P., 360 N.C. 588, 600,
636 S.E.2d 787, 796 (2006). Written findings of fact will ensure
that the trial court, before waiving the holding of further review
hearings, carefully considers each of the five enumerated factors
in section 7B-906(b). Such findings also will provide an
opportunity for meaningful appellate review. See Sain v. Sain, 134
N.C. App. 460, 466, 517 S.E.2d 921, 926 (1999) (mandating that the
“trial court must enter written findings of fact” when the
controlling statute only required that “the court shall make
findings of fact.”). Accordingly, we hold that the trial court
must make written findings of fact satisfying each of the
enumerated criteria in section 7B-906(b).
In the instant case, the trial court complied with portions of
section 7B-906. First, section 7B-906(b)(2) required that the
trial court find that “[t]he placement is stable and continuation
of the placement is in [L.B.'s] best interests.” N.C. Gen. Stat. .
7B-906(b)(2) (2005). The trial court found as fact the following:
25. That the best interest of permanence for
the children, even though this is not a
permanency planning hearing, is to leave the
children where they are safe.
26. That Steven and Doris Johnson continue to
be fit and proper persons to have custody of
the juvenile.
These findings were supported by competent evidence. Specifically,
the guardian ad litem's report states that “[t]he Johnsons providea loving, stable home for these children [including L.B.] and offer
them love and parental guidance, which is what the children need.”
The DSS report echoed the guardian ad litem's statement, noting
that “[t]he children continue to do well in their current
placement” and “[t]he children . . . finally have some stability.”
Accordingly, the trial complied with section 7B-906(b)(2).
The trial court also complied with section 7B-906(b)(5), which
required the trial court to find that the custody order designated
L.B.'s “permanent caretaker or guardian of the person.” N.C. Gen.
Stat. . 7B-906(b)(5) (2005). Specifically, the trial court
satisfied section 7B-906(b)(5) with findings of fact numbers 2 and
3, in which the court found that the Johnsons were L.B.'s
custodians and “[t]hat the custodians were designated as guardians
of the juvenile on October 27, 2005.”
The trial court, however, failed to make findings with respect
to sections 7B-906(b)(1), (3), and (4). First, pursuant to section
7B-906(b)(1), the trial court was required to find that L.B. had
resided with a relative or been in the custody of another suitable
person for at least one year. See N.C. Gen. Stat. . 7B-906(b)(1)
(2005). The trial court found that the juveniles continue to
reside with the Johnsons, who were designated as their guardians.
However, the statute expressly requires a finding that L.B. was in
the custody of a relative or suitable person for at least one year,
and the trial court failed to make such a finding.
Next, section 7B-906(b)(3) required the trial court to find
that neither L.B.'s best interests nor the rights of any otherparty, including respondent, required the continued holding of
review hearings every six months. See N.C. Gen. Stat. . 7B-
906(b)(3) (2005). The trial court made the following findings of
fact:
9. That [respondent] had an opportunity to
call witnesses and did not do so.
. . . .
12. That [respondent] was previously ordered
to bring all the belongings of the juvenile
and the half siblings . . . to the children
but has not done so.
13. That [respondent] informed the Court that
she does not have any of the possessions of
the juveniles.
. . . .
19. That [respondent] did not bring a
Christmas present for this juvenile when she
brought Christmas presents for the half
siblings of the juvenile . . . .
. . . .
21. That [respondent] calls on Tuesdays, but
the juvenile and the half sister of the
juvenile do not want to talk to [respondent].
22. That [respondent] refuses to go to the
home of the custodians.
23. That . . . [respondent] refuses to go to
Johnston County.
24. That the Court informed [respondent] that
it was her responsibility to see her children
and not the responsibility of the Johnsons to
transport the children.
These findings were supported by competent evidence. Nevertheless,
the trial court must make a written finding that neither L.B.'s
best interests nor the rights of any other party, includingrespondent, require the continued holding of review hearings every
six months. In the instant case, the trial court failed to do so
as required by section 7B-906(b)(3).
Finally, section 7B-906(b)(4) requires the trial court to find
that all parties are aware that a review may be held at any time by
the filing of a motion for review or on the court's own motion. See
N.C. Gen. Stat. . 7B-906(b)(4) (2005). The trial court made no
such finding of fact and, indeed, the court sent the contrary
signal to respondent by expressly relieving respondent's trial
counsel of any further responsibility in the matter without
explaining to respondent that she either could seek to have her
counsel reappointed or could file motions pro se with the court.
In sum, the record is devoid of any finding that respondent was
aware that she was entitled to another review hearing by filing a
motion for review.
As the trial court's order fails to satisfy the requirements
of sections 7B-906(b)(1), (3), and (4), we reverse on this issue
and remand the case to the trial court to issue a new order with
written findings of fact consistent with this opinion and the
requirements of section 7B-906(b).
[3] Respondent next contends that the trial court erred in
leaving respondent's visitation rights to the discretion of the
Johnsons. On 16 January 2007, the guardian ad litem filed a motion
to dismiss this portion of respondent's brief on the grounds that
the issue is moot. Specifically, the guardian ad litem noted that
the language in the instant review order concerning visitation issubstantively identical to the portion of the 27 October 2005
permanency planning order, which this Court reversed in
respondent's prior appeal. See L.B., 181 N.C. App. at 192, 639
S.E.2d at 32 (“[W]e hold that the trial court erred by leaving
visitation within the discretion of the Johnsons.”). On 31 January
2007, this Court granted the guardian ad litem's motion to dismiss
respondent's brief in part, ruling that respondent's appeal as to
the visitation issue has been rendered moot. Accordingly, we
decline to review this argument.
[4] Next, respondent argues that the trial court erred in
considering and incorporating reports submitted by DSS and the
guardian ad litem. Respondent made this identical argument in her
prior appeal, and this Court held that “the trial court properly
incorporated DSS and guardian ad litem reports and properly made
findings of fact . . . based on these reports.” Id. at 193 , 639
S.E.2d at 33. Similarly, in the trial court's 28 February 2006
review order, the court incorporated reports submitted by DSS and
the guardian ad litem, but also made numerous independent findings
of fact. As such, the trial court did not improperly delegate its
fact-finding duty. Respondent's assignment of error is overruled.
[5] In her next argument, respondent challenges findings of
fact numbers 13, 15 through 18, 20, and 24 on the grounds that the
trial court simply recited respondent's statements and the court's
statements at the hearing. We disagree.
Preliminarily, we note that two of the findings of fact to
which respondent assigns error simply state that the trial courtcalled a witness to testify. In finding of fact number 18, the
court found “[t]hat the Court called the mother as a witness,” and
in finding of fact number 20, the court found “[t]hat the Court
also called Doris Johnson as a witness.” These findings do not
constitute recitation of testimony or statements of the trial
court.
As this Court has noted, “verbatim recitations of the
testimony of each witness do not constitute findings of fact by the
trial judge, because they do not reflect a conscious choice between
the conflicting versions of the incident in question which emerged
from all the evidence presented.” In re Green, 67 N.C. App. 501,
505 n.1, 313 S.E.2d 193, 195 (1984) (emphasis in original).
Respondent is correct that findings of fact numbers 13, 15, 16, 17,
and 24 are recitations of statements made during the review
hearing.
(See footnote 2)
However, notwithstanding the five findings of fact that
constitute recitation of testimony and statements by the trial
court, the remaining findings of fact adequately support the trial
court's conclusions. See In re S.W., 175 N.C. App. 719, 724, 625
S.E.2d 594, 597 (“[W]e hold that the remaining findings of fact are
more than sufficient to support the trial court's conclusions of
law complained of by respondent.”), disc. rev. denied, 360 N.C.
534, 635 S.E.2d 59 (2006). Accordingly, respondent's assignment of
error is overruled. [6] Next, respondent contends that the trial court erred in
calling respondent as a witness at the review hearing. Respondent
alleges that the trial judge acted as an adverse party in calling
respondent as a witness,
(See footnote 3)
and that as a result of the trial court's
alleged impartiality, the review order should be reversed. We
disagree.
Pursuant to Rule 614 of the North Carolina Rules of Evidence,
“[t]he court may, on its own motion or at the suggestion of a
party, call witnesses, and all parties are entitled to
cross-examine witnesses thus called.” N.C. Gen. Stat. . 8C-1, Rule
614(a) (2005). Furthermore, “[t]he court may interrogate
witnesses, whether called by itself or by a party.” N.C. Gen. Stat.
. 8C-1, Rule 614(b) (2005). A trial court's actions pursuant to
Rule 614 are reviewed under an abuse of discretion standard. See
State v. Bethea, 173 N.C. App. 43, 52, 617 S.E.2d 687, 693 (2005).
As this Court has noted, “[trial] [c]ourts . . . rarely call
witnesses, and rightly so because it is hard for judges to maintain
impartiality while becoming an active participant in summoning
witnesses.” Grasty v. Grasty, 125 N.C. App. 736, 740, 482 S.E.2d
752, 754.55 (internal quotation marks and citation omitted), disc.
rev. denied, 346 N.C. 278, 487 S.E.2d 545 (1997). However, the
danger of impartiality is relevant primarily in a jury trial. Thisis underscored by the commentary to Rule 614, which provides that
“[t]he court may not in calling or interrogating a witness do so in
a manner as to suggest an opinion as to the weight of the evidence
or the credibility of the witness in violation of [North Carolina
General Statutes, section] 15A-1222 or Rule 51(a) [of the Rules of
Civil Procedure].” N.C. Gen. Stat. . 8C-1, Rule 614 cmt. (2005).
(See footnote 4)
In a bench proceeding, such as the review hearing in the case sub
judice, there is no danger in the trial court suggesting an opinion
as to the weight of the evidence or the credibility of certain
witness as the trial court is the ultimate arbiter of such issues.
See In re P.L.P., 173 N.C. App. 1, 14, 618 S.E.2d 241, 249 (2005),
aff'd, 360 N.C. 360, 625 S.E.2d 779 (2006) (per curiam).
Therefore, we hold that the trial court did not abuse its
discretion in calling respondent as a witness, and accordingly,
respondent's assignment of error is overruled.
[7] Respondent next contends that the trial court erred in
making findings of fact numbers 19 and 21 through 25, on the
grounds that they are not supported by sufficient competent
evidence and, in turn, do not support the court's conclusions of
law. We disagree. As stated supra with respect to respondent's argument
concerning North Carolina General Statutes, section 7B-906(b),
findings of fact numbers 19 and 21 through 25 are supported by
competent evidence. In fact, respondent concedes in her brief that
the DSS summary supports “the findings about the 2005 Christmas
presents,” i.e., finding of fact number 19. Further, these
findings of fact demonstrate: (1) the lack of concern and love
respondent has shown for L.B.; (2) the lack of interest L.B. has in
maintaining a relationship with respondent; and (3) the stable,
safe, and nurturing home that the Johnsons continue to provide for
L.B. and her half-siblings. As such, these findings fully support
the trial court's conclusion “[t]hat the best interest of the
juvenile will be promoted and served by continuing custody with
Steven and Doris Johnson, who have been designated as guardians of
the juvenile.” Respondent's assignment of error, therefore, is
overruled.
[8] In her final argument, respondent contends that she has
been denied due process because the tape recordings of the 26
January 2006 hearing were destroyed. We disagree.
Pursuant to North Carolina General Statutes, section 7B-806,
“[a]ll adjudicatory and dispositional hearings shall be recorded by
stenographic notes or by electronic or mechanical means.” N.C. Gen.
Stat. . 7B-806 (2005). As this Court has held, “[a] party, in
order to prevail on an assignment of error under section 7B-806,
must also demonstrate that the failure to record the evidenceresulted in prejudice to that party.” In re Clark, 159 N.C. App.
75, 80, 582 S.E.2d 657, 660 (2003).
This Court has stated that in situations “[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. at 80, 582 S.E.2d at 660
(quoting Miller v. Miller, 92 N.C. App. 351, 354, 374 S.E.2d 467,
469 (1988)). However, “where the appellant has done all that she
can [] do [to reconstruct the transcript], but those efforts fail
because of some error on the part of our trial courts, it would be
inequitable to simply conclude that the mere absence of the
recordings indicates the failure of appellant to fulfill that
responsibility.” Coppley v. Coppley, 128 N.C. App. 658, 663, 496
S.E.2d 611, 616, disc. rev. denied, 348 N.C. 281, 502 S.E.2d 846
(1998).
In the case sub judice, respondent filed a motion on 11 July
2006 for an extension of time to prepare the record on appeal. In
her motion, respondent alleged that over two weeks prior, on 23
June 2006, the Wayne County Clerk's Office informed respondent's
attorney on appeal that the electronic recordings of the 26 January
2006 review hearing had been destroyed by accident. Respondent
alleged that “[b]ecause the tape recordings were erased, there can
be no transcript of the hearing.” Respondent sought to prepare a
narrative of the review hearing, but anticipated that it would take
at least thirty days to construct the narrative and approximatelyfifteen days thereafter to complete the proposed record on appeal.
Ultimately, respondent requested until 30 August 2006 to serve a
proposed record on appeal. On 14 July 2006, this Court extended
the deadline to serve the proposed record on appeal until 15 August
2006 and stated that “[n]o further extensions of time shall be
allowed in the absence of a showing of extraordinary cause.” Four
more weeks elapsed when on 11 August 2006, respondent's trial
counsel sent a letter to respondent's appellate attorney, stating,
I just returned from secured leave on August
9, 2006. I was in DSS court all day on August
10, 2006. At present, it is taking longer
than I expected to recreate the record.
Because of the above-referenced
circumstances I will need an extension of
time.
The record is devoid of any further action taken to reconstruct a
narrative of the 26 January 2006 review hearing.
It is well-established that “[i]t is the appellant's
responsibility to make sure that the record on appeal is complete
and in proper form.” Miller, 92 N.C. App. at 353, 374 S.E.2d at
468. Although respondent's trial attorney indicated the need for
an additional extension of time, respondent made no attempt to
request any further extensions of time from this Court, despite
this Court's statement in its 14 July 2006 order that it may have
permitted an additional extension of time with “a showing of
extraordinary cause.” The record on appeal, without any transcript
or narrative from the 26 January 2006 review hearing, was settled
on 22 September 2006, filed on 26 September 2006, and docketed 6
October 2006. At no point did respondent make any further attemptto provide this Court with a narrative of the proceedings in the
trial court. As such, it cannot be said that respondent “has done
all that she can [] do [to reconstruct the transcript].” Coppley,
128 N.C. App. at 663, 496 S.E.2d at 616.
Nevertheless, assuming arguendo that respondent had “done all
that she [could] do,” id., it is incumbent upon respondent to
demonstrate prejudice. See Clark, 159 N.C. App. at 80, 582 S.E.2d
at 660. In her brief, respondent makes the bald assertion that
“[s]ome of the record would have included the trial judge's
statements, questions, and assertions which would evidence his bias
and lack of impartiality.” Respondent further notes that she has
challenged “several findings of the court as not being supported by
any evidence presented at the hearing.” “[A]lthough respondent has
generally asserted that the failure to record all of the testimony
. . . was prejudicial, she points to nothing specific in the record
to support her argument.” Id. at 83, 582 S.E.2d at 662 (emphasis
added). This Court has held that “the use of general allegations
is insufficient to show reversible error resulting from the loss of
specific portions of testimony caused by gaps in recording.” Id. at
80, 582 S.E.2d at 660. Regardless, we have held herein that
numerous findings of fact in the trial court's review order are
supported by competent evidence and that those findings, in turn,
amply support the court's conclusions of law. Accordingly,
respondent's assignment of error is overruled.
Respondent's remaining assignments of error not argued in her
brief are deemed abandoned. See N.C. R. App. P. 28(b)(6) (2006). Affirmed in part; Reversed and Remanded in part.
Judges McGEE and LEVINSON concur.
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