Appeal by Respondent-Mother from order entered 3 November 2006
by Judge J. Henry Banks in Vance County District Court. Heard in
the Court of Appeals 23 July 2007.
No brief for Petitioner-Appellee Vance County Department of
Wyrick, Robbins, Yates & Ponton L.L.P., by K. Edward Greene
and Adrienne E. Allison, for Respondent-Appellant.
K.T. (Respondent-Mother) and B.T. were married on 11 October
1999 and separated on 26 July 2005. A daughter, T.H.T., was born
to the parties, and she was seven months old at the time of her
injuries. Pursuant to an agreed upon custodial arrangement, B.T.
and Respondent-Mother shared custody of T.H.T. Between 12 October
2005 and 16 October 2005, T.H.T. was in Respondent-Mother's
custody. When Respondent-Mother returned T.H.T. to B.T. on 16
October 2005, B.T. noticed that T.H.T.'s face was bruised and her
head was swollen. B.T. attempted to contact police and a
magistrate. B.T. then took T.H.T. to Granville Medical Center.
Granville Medical Center was concerned that T.H.T. had a small
subdural hemorrhage and she was transferred to Duke University
Hospital for further evaluation. One month later, on 14 November
2005, B.T. filed a civil action in Vance County District Court
seeking child custody, child support, and attorney's fees. The Vance County Department of Social Services (DSS) filed a
juvenile petition on 2 February 2006, alleging that T.H.T. was
abused and neglected. The petition alleged (1) that during a
scheduled visitation with Respondent-Mother, T.H.T. had sustained
a traumatic head injury that required medical attention; (2) that
T.H.T. suffered a "complex trauma, non-accidental closed head
fracture" and had "facial swelling, a left neck bruise, and a
bruised left arm"; and (3) that Respondent-Mother knew or had
reason to know that T.H.T. was injured and failed to seek
appropriate medical attention.
The trial court conducted a hearing on the petition on several
different days between 5 April 2006 and 26 July 2006. Dr. Karen
St. Claire (Dr. St. Claire), a pediatrician and Medical Director
for the Inpatient and ER Child Abuse Consult Team, testified that
T.H.T. was examined in the Duke University Hospital emergency room
and was also examined by Dr. St. Claire. Dr. St. Claire and a
radiologist determined that T.H.T. did not have a subdural
hemorrhage, but that she did have a skull fracture and other
bruising on her body. T.H.T. was admitted for further evaluation
and remained at Duke for two days. When Dr. St. Claire spoke with
B.T., he reported that he picked up T.H.T. from her great-
grandmother's house and immediately saw a scratch over T.H.T.'s
eyebrow, a bruise on her right forehead, swelling on the left side
of her scalp, a red mark on her neck, and a bruise on her upper
Dr. St. Claire also spoke with Respondent-Mother. Respondent-Mother gave Dr. St. Claire several possible explanations for
T.H.T.'s injuries, including (1) Respondent-Mother's toddler
falling on T.H.T. or pulling a crib toy down onto T.H.T.; (2)
T.H.T.'s great-grandmother holding T.H.T. by one arm; and (3) a
"rough" child who stayed with T.H.T.'s great-grandmother when
T.H.T. was also staying with her great-grandmother.
Dr. St. Claire was asked if she was able to determine when
T.H.T.'s skull fracture had occurred. She responded that T.H.T.
had swelling at the site of the fracture and that
swelling is something that can develop fairly
quickly. It can develop over minutes or
hours. In some cases over skull fractures,
swelling may not be seen for a couple of days
after a fracture, so to date it from the
swelling is not possible. It could have been
there . . . for a longer period of time but
should have been noticed there for that period
of time. The skull fracture itself by its
appearance on x-ray could not be dated. We
can't date skull fractures from that.
Dr. St. Claire also testified that
my medical opinion is that this was non-
accidental trauma, and that I had not heard a
mechanism that could [cause] the fracture in
particular, although some of the bruising may
have been caused by things such as the child
falling on another child but I would not see
the skull fracture could have been caused in
B.T. testified that Respondent-Mother called him once on
Saturday, 15 October 2005 and twice on Sunday, 16 October 2005, to
tell him that T.H.T. had bruises on her face and to say that B.T.
should not be "mad with [Respondent-Mother] . . . because [T.H.T.]
had bruises on her face and [Respondent-Mother] didn't know what
had happened." Respondent-Mother dropped T.H.T. off at her great-grandmother's house on Sunday, 16 October 2005. When B.T. picked
T.H.T. up, he noticed that T.H.T. was "disoriented, real sleepy,
[and] sluggish[.]" B.T. called the magistrate's office, the police
department, and 911. B.T. then took T.H.T. to the Granville
Medical Center. B.T. testified that based upon: (1) the phone
calls he received from Respondent-Mother; (2) the information he
obtained at the hospitals where T.H.T. was treated; (3) the
information he received from DSS; and (4) Dr. St. Claire's
testimony about the injuries, he believed that T.H.T.'s injuries
occurred when T.H.T. was with Respondent-Mother.
Respondent-Mother also testified about the events leading to
T.H.T.'s hospital stay. Respondent-Mother testified that she
picked up T.H.T. from day care on Friday, 14 October 2005. On
Saturday, 15 October 2005, Respondent-Mother, her toddler, and
T.H.T. left Respondent-Mother's home in Henderson and traveled to
Raleigh. She met her boyfriend, Brian Goddard (Goddard), for
lunch. After lunch, they placed the children's car seats in
Goddard's four-door truck. Goddard was in the process of moving,
so they went to the house he was moving from so Goddard could move
some boxes. While there, Respondent-Mother's toddler needed a
diaper change, so Respondent-Mother took the toddler inside the
house to change her, leaving T.H.T. in the truck. Respondent-
Mother testified that when she returned, T.H.T. was crying.
Respondent-Mother asked Goddard what had happened, and Goddard said
he did not know. Respondent-Mother then took T.H.T. inside to
change her diaper. Respondent-Mother called B.T. and left him amessage. She then took T.H.T. and the toddler home. The following
morning, Respondent-Mother discovered the toddler climbing into
T.H.T.'s crib, noticed one of the crib toys had fallen down, and
saw a bruise on T.H.T.'s face. Respondent-Mother testified that
she immediately called B.T. to report the bruise. She dropped
T.H.T. off with B.T.'s grandmother later that morning and called
B.T. again to tell him about the bruises on T.H.T.'s face.
Respondent-Mother testified that she was not aware that T.H.T.
was in the hospital until Monday, 17 October 2005, when an
individual from DSS contacted her. Respondent-Mother called
Goddard twice that night to find out whether he knew what could
have happened to T.H.T. Respondent-Mother testified that she spoke
with Goddard again on Tuesday, 18 October 2005, and Goddard
admitted that a box containing dishes and glasses may have hit
T.H.T. while she was in his truck. Respondent-Mother testified
that when she received this information, she reported it to DSS.
Goddard testified that when Respondent-Mother was helping him
move and the children were in his truck, he stacked sheets and
pillows between the car seats. He then placed a box containing
plates and glasses on top of the pile of sheets and pillows. He
went back inside to bring out more boxes and found T.H.T. crying.
He noticed that the box was no longer on top of the sheets, but was
"in between the seat, in between the two kids, but it was kind of
falling[.]" Goddard moved the box into the back of the truck.
Goddard also testified that the children were never left alone
because a friend of his named "Davey" was also present. The trial court entered an order on 3 November 2006. Based
upon numerous findings of fact, the trial court concluded (1) that
T.H.T. was an abused juvenile in that Respondent-Mother created or
allowed to be created a substantial risk of serious physical injury
by other than accidental means; and (2) that T.H.T. was a neglected
juvenile in that Respondent-Mother did not provide proper care or
supervision. The trial court awarded legal and physical custody of
T.H.T. to B.T., and awarded Respondent-Mother unsupervised
visitation privileges. The trial court relieved DSS and the
guardian ad litem of any further involvement in the case. The
trial court also ordered that, pursuant to N.C. Gen. Stat. § 7B-
911, its 3 November 2006 order would resolve any pending claim for
custody, and upon entry of a civil order in the parties' existing
civil action, the jurisdiction of the trial court would be
terminated. Respondent-Mother appeals.
I. Findings of Fact and Conclusions of Law
 Respondent-Mother first challenges the trial court's
determination that T.H.T. was an abused and neglected juvenile.
Respondent-Mother challenges several of the trial court's findings
of fact and conclusions of law.
"The allegations in a petition alleging abuse, neglect, or
dependency shall be proved by clear and convincing evidence." N.C.
Gen. Stat. § 7B-805 (2005). The role of this Court in reviewing a
trial court's adjudication of neglect and abuse is to determine
"(1) whether the findings of fact are supported by 'clear and
convincing evidence,' and (2) whether the legal conclusions aresupported by the findings of fact[.]" In re Gleisner
, 141 N.C.
App. 475, 480, 539 S.E.2d 362, 365 (2000) (citation omitted). If
such evidence exists, the findings of the trial court are binding
on appeal, even if the evidence would support a finding to the
contrary. In re McCabe
, 157 N.C. App. 673, 679, 580 S.E.2d 69, 73
(2003). "The trial [court] determines the weight to be given the
testimony and the reasonable inferences to be drawn therefrom. If
a different inference may be drawn from the evidence, [the trial
court] alone determines which inferences to draw and which to
reject." In re Hughes
, 74 N.C. App. 751, 759, 330 S.E.2d 213, 218
Respondent-Mother challenges the following findings of fact
made by the trial court:
7. That because [T.H.T.] at the time of [the]
injuries was unable to crawl or walk, the
injury "had to come by her" by at least two
different means of contact according to Dr.
St. Clair[e]'s testimony herein.
8. That the Court further finds based upon Dr.
St. Clair[e]'s testimony that the two means of
contact consisted of a forceful pressing or
squeezing which caused the injury to [T.H.T's]
arm and at least four or five forceful impacts
to the skull with something hitting her or she
hit something with fairly significant force.
9. That none of the several explanations of
. . . Respondent-Mother . . . were consistent
with the injuries observed.
10. The Court finds that between October 15,
2005 and October 16, 2005, while in the
physical custody of [Respondent-Mother],
[T.H.T.] suffered the aforementioned physical
injuries by non-accidental means.
11. That [Respondent-Mother] at all relevant
times herein failed to properly monitor andsupervise [T.H.T]; and that [Respondent-
Mother] created or allowed to be created a
substantial risk of serious physical injury.
Respondent-Mother argues, and we agree, that Dr. St. Claire's
testimony referencing the "four or five impacts" referred to the
number of impacts required to produce all
of T.H.T's injuries, not
just the skull fracture. Therefore, we find the portion of finding
of fact 8 referencing "four or five forceful impacts to the skull"
to be unsupported by clear and convincing evidence.
As to finding of fact 9, we conclude that the testimony of Dr.
St. Claire provides clear and convincing evidence to support the
trial court's finding. Dr. St. Claire testified that, in her
medical opinion, the injuries sustained by T.H.T. were the result
of non-accidental trauma, and that she had not heard an explanation
that could have caused the skull fracture. We find this testimony
adequately supports the finding.
We also conclude that finding of fact 10 was supported by
clear and convincing evidence. In her argument, Respondent-Mother
refers only to Dr. St. Claire's testimony regarding the timing of
the injuries. Dr. St. Claire testified about the difficulty of
determining exactly when the skull fracture had occurred, stating
that she could not date the injury based upon observation of the
swelling, or the x-ray taken. With regard to all the injuries, Dr.
St. Claire stated that she could not date the injuries within a
day, but that she could say the injuries occurred within "hours to
a couple of days" of her examination.
First, we note that Dr. St. Claire's testimony did not statethat T.H.T.'s injuries could not have occurred during 15-16 October
2005 and, therefore, her testimony could provide some support for
a finding that the injuries occurred during that time frame. We
also note that the testimony of a number of the other witnesses'
focused on when the injuries could have occurred. B.T. testified
that Respondent-Mother called him on Sunday, 16 October 2005, and
said that T.H.T. had bruises on her face. B.T. also testified that
he observed the bruises when he picked up T.H.T. from his
grandmother's house, where Respondent-Mother had dropped off T.H.T.
Further, Goddard testified that he was with Respondent-Mother and
T.H.T. on Saturday, 15 October 2005 and that he believed a box in
his truck could have fallen onto T.H.T. while she was in the back
seat. Therefore, we conclude that the trial court's finding as to
the timing of T.H.T.'s injuries was supported by clear and
Respondent-Mother also challenges finding of fact 11.
Respondent-Mother states that the second part of the finding is
actually more properly treated as a conclusion of law, and that the
finding that Respondent-Mother failed to properly monitor and
supervise T.H.T. was not supported. We agree with Respondent-
Mother that the trial court improperly included a conclusion of law
in this finding of fact when it stated that "Respondent-Mother
created or allowed to be created a substantial risk of serious
physical injury." Therefore, we consider that language with the
challenged conclusions of law. However, we disagree with
Respondent-Mother that the remainder of finding of fact 11 wasunsupported by clear and convincing evidence. Although Respondent-
Mother and Goddard stated at times during their testimony that
T.H.T. was not left alone, other parts of their testimony do not
support that assertion. Respondent-Mother testified that she was
inside using the restroom while changing her older daughter's
diaper during the time T.H.T. was in Goddard's truck. Goddard
testified that during this time he was bringing boxes from his
house to his truck. Further, this occurred around the time when
the box of dishes and glasses was stacked upon the sheets and
pillows next to T.H.T.'s car seat. We find this evidence
sufficient to support the trial court's finding that Respondent-
Mother failed to properly monitor and supervise T.H.T.
We find the language of finding of fact 7 to be unclear.
However, even if we assume arguendo
that this finding is
unsupported by clear and convincing evidence, we conclude that the
findings affirmed above, along with the unchallenged findings,
support the trial court's conclusions that T.H.T. was abused and
N.C. Gen. Stat. § 7B-101(15) (2005) includes in its definition
of a neglected juvenile, "[a] juvenile who does not receive proper
care, supervision, or discipline from the juvenile's parent,
guardian, custodian, or caretaker[.]" N.C. Gen. Stat. § 7B-101(1)
(2005) defines an abused juvenile as, inter alia
, a juvenile whose
parent "creates or allows to be created a substantial risk of
serious physical injury to the juvenile by other than accidental
means[.]" The uncontested findings of fact, together with thefindings affirmed above, establish, inter alia
, (1) that T.H.T. was
seen at Duke University Hospital for a scratch and bruise above her
right eye, some left-sided facial swelling, a left neck bruise, a
left arm bruise, mild diaper rash from previous diarrhea, and a
left parietal skull fracture; (2) that Dr. St. Claire concluded
that the skull fracture was a depression fracture caused by non-
accidental means; (3) that Respondent-Mother's explanations were
not consistent with the injuries observed; (4) that the injuries
occurred between 15-16 October 2005, while T.H.T. was in the
physical custody of Respondent-Mother; (5) that the injuries were
severe and obvious; and (6) that Respondent-Mother failed to obtain
medical attention for T.H.T. These findings support the trial
court's conclusions of law (1) that T.H.T. was an abused juvenile
in that Respondent-Mother created or allowed to be created a
substantial risk of serious physical injury to T.H.T. by other than
accidental means; and (2) that T.H.T. was a neglected juvenile in
that T.H.T. did not receive proper care or supervision from
II. Disposition Issues
 Respondent-Mother next contends that the trial court erred
by concluding that awarding custody of T.H.T. to B.T. was in
T.H.T.'s best interest. Specifically, Respondent-Mother contends
that the findings of fact pertaining to B.T. were unsupported by
clear and convincing evidence and therefore could not support the
trial court's conclusion regarding T.H.T.'s best interest. We
disagree. At a dispositional hearing, the trial court must consider the
best interests of the child. In re O.W.
, 164 N.C. App. 699, 701,
596 S.E.2d 851, 853 (2004). The trial court's decision is
In the present case, the trial court found that T.H.T.'s
injuries were severe and obvious, and that Respondent-Mother should
have obtained medical attention but did not. This finding was not
challenged by Respondent-Mother. The trial court also concluded
that allegations of abuse and neglect made by DSS as they related
to B.T. were not proven by clear and convincing evidence. As a
result, the trial court dismissed any claim relating to B.T.
Further, the trial court made the following findings of fact
relevant to B.T.:
4. That on or about October 16, 2005, [B.T.]
sought medical treatment for [T.H.T.] due to
physical injuries about [T.H.T's] head and
. . .
13. That [B.T.] at all relevant times herein
took appropriate and prompt action to seek
necessary medical attention for [T.H.T.] and
to protect [T.H.T] from further injury.
14. That [B.T.] was in no way responsible for
the injuries sustained by [T.H.T.]
We conclude that these findings were supported by clear and
convincing evidence. Respondent-Mother argues that the findings
were not supported because (1) B.T. called police and a magistrate
before taking T.H.T. to the hospital; and (2) Dr. St. Claire's
testimony as to when the injuries to T.H.T. occurred allowed for
the possibility that the injuries were sustained while T.H.T. wasin B.T.'s custody. We note, as Respondent-Mother acknowledges,
that findings may be sustained where the evidence would support a
contrary finding. McCabe
, 157 N.C. App. at 679, 580 S.E.2d at 73.
Further, for the same reasons we stated in upholding the trial
court's finding that the injuries occurred on 15-16 October 2005,
while T.H.T. was in Respondent-Mother's custody, we uphold finding
of fact 14. There was evidence from which the trial court could
find that the injuries occurred while T.H.T. was in Respondent-
Mother's care, and not in B.T.'s care. B.T. also testified in
detail regarding his actions after picking up T.H.T., and we find
this testimony sufficient to support finding of fact 13. We also
conclude that these findings were sufficient to support the trial
court's conclusion that custody with B.T. was in T.H.T.'s best
interest. Therefore, we overrule Respondent-Mother's assignments
of error relating to the trial court's disposition.
III. N.C. Gen. Stat. § 7B-911
 Respondent-Mother next argues that the trial court erred
by decreeing that its order resolved any pending claim for custody
because the trial court failed to make proper findings of fact and
conclusions of law pursuant to N.C. Gen. Stat. § 7B-911.
Specifically, Respondent-Mother argues that the trial court's
findings of fact and conclusions of law were insufficient to
satisfy the requirements of a custody order under Chapter 50, and
therefore, the trial court's order did not comply with N.C. Gen.
Stat. § 7B-911.
N.C. Gen. Stat. § 7B-911(c) (2005) provides, in part: The court may enter a civil custody order
under this section and terminate the court's
jurisdiction in the juvenile proceeding only
(1) In the civil custody order the court makes
findings and conclusions that support the
entry of a custody order in an action under
Chapter 50 of the General Statutes or, if the
juvenile is already the subject of a custody
order entered pursuant to Chapter 50, makes
findings and conclusions that support
modification of that order pursuant to G.S.
N.C. Gen. Stat. § 50-13.2(a) (2005) provides, in part:
An order for custody of a minor child entered
pursuant to this section shall award the
custody of such child to such person, agency,
organization or institution as will best
promote the interest and welfare of the child.
In making the determination, the court shall
consider all relevant factors including acts
of domestic violence between the parties, the
safety of the child, and the safety of either
party from domestic violence by the other
party and shall make findings accordingly. An
order for custody must include findings of
fact which support the determination of what
is in the best interest of the child[.]
"The judgment of the trial court should contain findings of fact
which sustain the conclusion of law that custody of the child is
awarded to the person who will best promote the interest and
welfare of the child." Green v. Green
, 54 N.C. App. 571, 572, 284
S.E.2d 171, 173 (1981). "These findings may concern physical,
mental, or financial fitness or any other factors brought out by
the evidence and relevant to the issue of the welfare of the
child." Steele v. Steele
, 36 N.C. App. 601, 604, 244 S.E.2d 466,
As noted above, the trial court's order contains findings offact which are relevant to the issue of T.H.T.'s best interest and
welfare, that is, T.H.T.'s safety. Further, the trial court made
the necessary conclusion that awarding custody to B.T. was in the
best interest of T.H.T. The order contains findings which
establish that Respondent-Mother failed to seek medical attention
for T.H.T.'s injuries, yet B.T. took appropriate action. The trial
court also made the required findings (1) that no continued
intervention was needed by the State; and (2) that the order be
filed in the existing civil action relating to custody of T.H.T.
We do not believe, as Respondent-Mother urges, that the above
findings are "mere conclusory statements that the party being
awarded custody is a fit and proper person to have custody and that
it will be in the best interest of the child to award custody to
that person," Dixon v. Dixon
, 67 N.C. App. 73, 77, 312 S.E.2d 669,
672 (1984). Rather, we conclude the trial court made sufficient
findings pursuant to N.C. Gen. Stat. § 7B-911(c).
IV. N.C. Gen. Stat. § 7B-807
 Respondent-Mother makes two arguments relating to N.C.
Gen. Stat. § 7B-807. Respondent-Mother argues that the trial court
erred (1) in not entering its adjudication and disposition order
within the thirty-day requirement; and (2) in not holding a
subsequent hearing to determine and explain the reason for the
A. Delay in Entry of Adjudication Order
Respondent-Mother asserts that the trial court erred by
failing to enter the adjudication and disposition order within thetime required by N.C. Gen. Stat. § 7B-807. Respondent-Mother
further asserts that she was prejudiced by the delay, and we must
therefore reverse the order. We do not agree.
N.C. Gen. Stat. § 7B-807(b) (2005) provides that an
adjudicatory order "shall be reduced to writing, signed, and
entered no later than 30 days following the completion of the
hearing." N.C. Gen. Stat. § 7B-905(a) (2005) imposes an identical
thirty-day deadline for the entry of a disposition order. When a
trial court fails to meet this mandate, our Court has held that the
error does not establish a ground for reversal absent a showing of
prejudice. In re E.N.S.
, 164 N.C. App. 146, 153-54, 595 S.E.2d
167, 171-72, disc. review denied
, 359 N.C. 189, 606 S.E.2d 903
(2004). We stated:
While we have located no clear reasoning for
[the addition of the thirty-day deadline],
logic and common sense lead us to the
conclusion that the General Assembly's intent
was to provide parties with a speedy
resolution of cases where juvenile custody is
at issue. Therefore, holding that the
adjudication and disposition orders should be
reversed simply because they were untimely
filed would only aid in further delaying a
determination regarding [a child's] custody
because juvenile petitions would have to be
re-filed and new hearings conducted.
at 153, 595 S.E.2d at 172. We determined that no prejudice
resulted from the late entry of the order in E.N.S.
record demonstrated that the "respondent's right to visitation with
[the child] was not affected by the untimely filings nor was her
right to appeal the orders." Id.
at 154, 595 S.E.2d at 172.
In the present case, the adjudication and disposition hearingwas concluded on 26 July 2006. The adjudication order was entered
on 3 November 2006, over two months after the order should have
been entered. However, like in E.N.S.
visitation with T.H.T. was not affected, nor was her right to
appeal the order. For reasons similar to those stated in E.N.S.
we conclude that Respondent-Mother was not prejudiced by the
untimely filing of the order.
B. Hearing Requirement of N.C. Gen. Stat. § 7B-807(b)
Respondent-Mother's final argument relates to the General
Assembly's 2005 amendment of N.C. Gen. Stat. § 7B-807(b). In
Session Law 2005-398, the General Assembly added the following
language to N.C.G.S. § 7B-807(b):
If the order is not entered within 30 days
following completion of the hearing, the clerk
of court for juvenile matters shall schedule a
subsequent hearing at the first session of
court scheduled for the hearing of juvenile
matters following the 30-day period to
determine and explain the reason for the delay
and to obtain any needed clarification as to
the contents of the order. The order shall be
entered within 10 days of the subsequent
hearing required by this section.
The relevant portion of the title of the act was "An Act to Amend
the Juvenile Code to Expedite Outcomes for Children and Families
Involved In Welfare Cases[.]" The General Assembly added identical
language to N.C. Gen. Stat. § 7B-907(c), pertaining to permanency
planning hearings, and N.C. Gen. Stat. § 7B-1110(a), pertaining to
orders terminating parental rights.
Respondent-Mother argues that the order of the trial court
must be reversed because no hearing was held when the order was notentered within thirty days. We hold that it was error not to
conduct the hearing required by N.C.G.S. § 7B-807(b) when the order
was not entered within thirty days. Although we do not condone
this failure to comply with the statutory mandate of N.C.G.S. § 7B-
807(b), we believe that by enacting this requirement, like the time
requirements found throughout Chapter 7B, the General Assembly
intended "to provide parties with a speedy resolution of cases
where juvenile custody is at issue." E.N.S.
, 164 N.C. App. at 153,
595 S.E.2d at 172. Based upon this goal, absent a showing of
prejudice, our Court has refused to reverse untimely but otherwise
proper orders. See In re As.L.G. & Au.R.G.
, 173 N.C. App. 551, 619
S.E.2d 561 (2005), disc. review improvidently allowed
, 360 N.C.
476, 628 S.E.2d 760 (2006) (discussing numerous cases from our
Court applying the prejudice requirement in juvenile cases where
statutory deadlines were not followed).
We find the same rationale
applies to the hearing requirement added to N.C. Gen. Stat. § 7B-
807(b) and believe that the goal of a speedy resolution of cases
involving juvenile custody would not be furthered by reversal where
no prejudice is shown.
Our cases have applied the prejudice requirement outside the
context of adjudication and disposition orders affecting custody.
This Court has also held that when a trial court fails to timely
enter an order terminating a parent's rights, that error may be
harmless absent a showing of prejudice. In re J.L.K.
, 165 N.C.
App. 311, 316, 598 S.E.2d 387, 391 (2004). We have also required
a showing of prejudice when the statutory time requirement
applicable to the filing of petitions seeking termination of aparent's rights is violated. In re B.M., M.M., An.M., & Al.M.
N.C. App. 350, 354-55, 607 S.E.2d 698, 701 (2005). Further, this
Court has conducted a prejudice analysis in other contexts in the
juvenile setting. See, e.g., In re M.G.T.-B.
, 177 N.C. App. 771,
775, 629 S.E.2d 916, 919 (2006) (holding that even if inadmissible
hearsay was improperly admitted, the error must be prejudicial to
require reversal); In re Clark
, 159 N.C. App. 75, 80, 582 S.E.2d
657, 600 (2003) (applying a prejudice requirement to an error under
N.C. Gen. Stat. § 7B-806 requiring electronic or mechanical
recording of all adjudicatory and dispositional hearings); In re
, 122 N.C. App. 468, 471-72, 470 S.E.2d 539, 541
(1996) (finding that although a statute governing notice and
service by publication was violated, reversal was not warranted
where there was no prejudice to the respondent). For these
reasons, we conclude that applying a prejudice analysis to this
error is appropriate.
In the present case, Respondent-Mother has not shown, nor do
we find, that she was prejudiced by the trial court's failure to
hold the hearing required by N.C.G.S. § 7B-807(b). Therefore, we
do not reverse on this basis.
Judge ELMORE concurs.
Judge TYSON dissents with a separate opinion.
TYSON, Judge dissenting.
The majority's opinion erroneously affirms the trial court'sorder that adjudicated T.H.T. an abused and neglected juvenile and
awarded custody of T.H.T. to her father. I vote to reverse the
trial court's order pursuant to N.C. Gen. Stat. § 7B-807(b). T
adjudication order was not entered within thirty days to
respondent-mother's extreme prejudice and no statutorily mandated
hearing was held to explain any purported reason for the delay or
to expedite entry of the order. Petitioner fails to argue any
basis to explain why the order was entered late or to show the
reason for the failure to hold the hearing. I respectfully
Respondent-mother argues the adjudication order should be
reversed because she was prejudiced by the late entry of the order.
N.C. Gen. Stat. § 7B-807(b) (2005) states an adjudication
order shall be reduced to writing, signed, and entered no later
than 30 days following the completion of the hearing. (Emphasis
supplied). Here, the adjudicatory hearing commenced on 5 April
2006 and concluded on 26 July 2006 over three and one-half months
later. At the conclusion of the hearing, the trial court ordered
DSS to draw up the Order with the appropriate findings. DSS
failed to comply with the court's order. The adjudicatory order
was not filed until 3 November 2006, more than thirteen weeks after
the completion of the last hearing in July, and six months after
the hearing commenced
The majority's opinion concedes the entry of the adjudicationorder was late and violates the statute, but holds respondent-
mother was not prejudiced because neither her visitation with
T.H.T. was affected, nor was she delayed in her right to appeal the
order. I disagree.
The order established legal and physical custody of T.H.T.
with her father and orally disposed of the pending custody action.
Respondent-mother argues she was prejudiced by DSS and the
unexplained delays in entering the order in violation of N.C. Gen.
Stat. § 7B-807(b)
. Respondent-mother asserts the delay prejudiced
[her] ability to move forward with a motion to modify, or seek
other relief in, the civil custody case until [after] entry of the
order and she was prejudiced because she could not appeal the
trial court's order. I agree.
[A] judgment is entered when it is reduced to writing, signed
by the judge, and filed with the clerk of court. N.C. Gen. Stat.
§ 1A-1, Rule 58 (2005). The announcement of judgment in open
court is the mere rendering of judgment, not the entry of judgment.
The entry of judgment is the event which vests this Court with
jurisdiction. In re Pittman, 151 N.C. App. 112, 114, 564 S.E.2d
899, 900 (2002) (citation omitted); see In re Bullabough, 89 N.C.
App. 171, 180, 365 S.E.2d 642, 647 (1988) (The trial court may make
an oral entry of a juvenile order provided the order is
subsequently reduced to written form.).
Until the order was reduced to writing, filed, and entered,
respondent-mother could neither seek to modify custody nor appeal
from the oral rendition. Respondent-mother, T.H.T., and all otherparties are prejudiced by DSS's repeated and extraordinary delays
in the initiation, resolution, and disposition of this matter. The
trial court and DSS's unexplained and repeated failures to comply
with the statutory time limits defeats the purpose of the time
requirements specified in the statute, which is to provide [all]
parties with a speedy resolution of cases where juvenile custody is
at issue and prejudiced both respondent-mother and T.H.T. In re
B.M., M.M., An.M., & Al.M., 168 N.C. App. 350, 355, 607 S.E.2d 698,
Prejudice is also shown because the appellate process was put
on hold [and] any sense of closure for the children, respondent,
or the children's current care givers was out of reach . . . . In
re C.J.B. & M.G.B., 171 N.C. App. 132, 135, 614 S.E.2d 368, 370
(2005). Respondent-mother, T.H.T., and T.H.T.'s care-givers
suffered delays, and respondent-mother has
alleged and shown
prejudice resulting from the trial court and DSS's failure to
comply with the statutory mandated maximum time limits in N.C. Gen.
Stat. § 7B-807(b)
. I vote to reverse the trial court's order.
II. No Subsequent Hearing
Respondent-mother also argues the adjudication order should be
reversed because no subsequent hearing was held to determine and
explain the reasons for the delay as required by
N.C. Gen. Stat.
. As a conjunctive reason or as an alternative basis to
respondent-mother's argument above, the order should be reversed.
N.C. Gen. Stat. § 7B-807(b) was amended in 2005 and mandates:
If the order is not entered within 30 days
following completion of the hearing, the clerkof court for juvenile matters shall schedule a
subsequent hearing at the first session of
court scheduled for the hearing of juvenile
matters following the 30-day period to
determine and explain the reason for the delay
and to obtain any needed clarification as to
the contents of the order.
(Emphasis supplied). This amendment unambiguously shows the
General Assembly's obvious and continuing concern with and its
intent: (1) to further mandate a halt to the long delays in entry
of orders after the conclusion of hearings; (2) to remove
procrastination and inaction from DSS's trial and post-trial
tactics; and (3) to further the juvenile code's stated purpose to
timely resolve the issues that lead to the removal of the child and
for the return of juveniles to their homes consistent with
preventing the unnecessary or inappropriate separation of juveniles
from their parents. N.C. Gen. Stat. § 7B-100(4) (2005); see Adams
v. Tessener, 354 N.C. 57, 60, 550 S.E.2d 499, 501 (2001) ([A]
parent enjoys a fundamental right to make decisions concerning the
care, custody, and control of his or her children under the Due
Process Clause of the Fourteenth Amendment to the United States
Constitution. (internal quotation omitted)). Here, the record
fails to show the statutorily required hearing was conducted after
the thirty days elapsed from the prior hearing and why the order
was not entered earlier.
The majority's opinion again properly concludes the trial
court erred by failing to conduct the hearing as is statutorily
N.C. Gen. Stat. § 7B-807(b)
, but concludes respondent-
mother must show further prejudice to justify reversal on thisground. The statute clearly places the mandate and burden on the
clerk of court . . . shall schedule a subsequent hearing and
places no burden on respondent-mother to prove any prejudice.
Gen. Stat. § 7B-807(b)
(emphasis supplied). Prejudice to
respondent-mother had already occurred because the order was not
timely entered as required by the statute in order to trigger this
The majority's opinion erroneously relies on In re E.N.S., 164
N.C. App. 146, 595 S.E.2d 167, disc. rev. denied, 359 N.C. 189, 606
S.E.2d 903 (2004), to conclude absent a showing of prejudice the
trial court's failure to hold the hearing as is required by
Gen. Stat. § 7B-807(b)
does not require reversal of the order. The
majority's opinion concludes the goal of a speedy resolution of
juvenile custody cases would not be furthered by reversal where no
prejudice is shown. In re E.N.S., 164 N.C. App. at 153, 595 S.E.2d
at 172. I disagree. The requirement to hold the subsequent
hearing does not arise until after the trial court has violated the
thirty day mandate for entering the order.
In re E.N.S. was decided in 2004 and involved the late entry
of an adjudication order pursuant to
N.C. Gen. Stat. § 7B-807(b)
and not the failure to hold the required hearing. 164 N.C. App. at
153, 595 S.E.2d at 172. N.C. Gen. Stat. § 7B-807(b) was amended in
2005, after In re E.N.S. was decided, to include the additional
mandatory language to require a subsequent hearing, if the order
was not entered within thirty days post hearing.
The amendment was enacted and amended the juvenile code torequire expedited outcomes for children and their families involved
in juvenile cases and appeals. The General Assembly clearly
intended to restore the effectiveness of the statutory time lines
in juvenile cases by mandating an additional hearing to be held to
determine and explain the reason[s] for non-entry of an order
within the statutory deadlines.
N.C. Gen. Stat. § 7B-807(b)
No burden is placed on the respondent to demonstrate further
prejudice. Prejudice is already shown by the trial court's failure
to enter these orders within thirty days after the hearing as is
previously mandated. This provision only arises after previous
failures to comply with the statute. Here, thirteen weeks elapsed
after the hearing concluded and six months had passed after
hearings commenced before the order was entered. The trial court's
failure to hold the additional hearing is error requiring reversal.
To hold otherwise would recognize the respondent-mother's statutory
right to the hearing, yet provide no remedy for its violation.
Even if a further showing of prejudice is required,
respondent-mother has clearly shown prejudice. The trial court's
failure to hold the hearing deprived respondent-mother from
requiring the trial court to determine and explain the reason[s]
for the delay or to obtain any needed clarification . . . .
N.C. Gen. Stat. § 7B-807(b). The statute mandates the order to be
entered within thirty days after the hearing. Id. This additional
information to determine and explain the reason may have aided
respondent-mother in her appeal to this Court. Id. Even though no
showing of prejudice is required, and the clerk carries thestatutory burden and mandate to schedule a subsequent hearing at
the first session of court . . . following the 30-day period.
Respondent-mother has clearly demonstrated the prejudice she
suffered by the trial court's failure to hold the hearing required
N.C. Gen. Stat. § 7B-807(b) by suffering even further delays,
longer separation from her child, and her inability to appeal until
the order was entered
Concurrently with the reasons above,
or alternatively on this ground alone, I vote to reverse the trial