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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF: L.B.
Filed: 4 December 2007
Appeal and Error--notice of appeal--signed by guardian ad litem instead of parents_lack of
Respondent parents' appeal from the termination of their parental rights is dismissed
based on an insufficient notice of appeal signed by trial counsel and the guardian ad litem (GAL)
for each respondent, because: (1) the GAL's role is limited to one of assistance and not one of
substitution to undertake acts of legal import; (2) the General Assembly could have stated the
GAL was authorized to enter consent orders, accept service of process, file pleadings, or
otherwise act on a parent's behalf, but it did not; (3) although it is appropriate for the GAL to
assure that the notice of appeal, or other pleading or legal document, is filed properly with the
parents' signatures as required by N.C. R. App. P. 3A(a), it is not appropriate for the GAL to sign
the notice of appeal in place of the parents; (4) nowhere in N.C.G.S. § 7B-1002 is a parent's
GAL designated as a proper party who may give written notice of appeal under N.C.G.S. § 7B-
1001; and (5) Appellate Rules 3, 3A, and 4 all concern how and when appeals are to be taken,
and the appeal must be dismissed if those Rules are not complied with based on lack of
Judge STEELMAN dissenting.
Appeal by respondents from judgment entered 2 February 2007 by
Judge Marvin P. Pope, Jr. in Buncombe County District Court. Heard
in the Court of Appeals 4 September 2007.
Matthew J. Middleton, for Buncombe County Department of Social
Jerry W. Miller, for guardian ad litem.
Richard E. Jester, for mother, respondent-appellant.
Hartsell & Williams, P.A. by Christy E. Wilhelm, for
Opal and Ellis B. (respondents) appeal the termination of
their parental rights to their son, L.B., on 2 February 2007. For
the reasons stated below, we dismiss the appeal. On 13 February 2002, the Buncombe County Department of Social
Services (DSS) received a report concerning respondents' first
child. Social workers visited respondents' home and found that it
was inadequately maintained. The infant was in a drawer on the
floor of a cold room, lying in his own urine. Respondent mother
could not recall the last time the baby's diaper had been changed.
She stated that he had last been fed six hours earlier. The social
workers returned to the home the next day and found the doors and
windows of the home open. Respondent mother could not remember the
last time the baby's diaper had been changed or when he had last
been fed. Respondents did not have a facility for bathing the
child. The child was adjudicated a neglected child on 7 June 2002.
Respondents underwent psychological evaluations on
26 September 2002. Respondent mother's evaluation indicated she
would be unlikely to effectively raise a child without ongoing
external supports present in the home. She was prone to becoming
cognitively confused, socially isolated, and potentially neglectful
due to her limitations. Respondent father's evaluation indicated
that he was psychologically disconnected from the needs and
feelings of others and that during the evaluation there was no
expression of affection for his child or concerns for his needs.
It concluded that given his psychological makeup, cognitive delays,
and past history,
(See footnote 1)
there was a high risk of abuse and neglect as aparent, should he be allowed around the child.
Respondents' parental rights as to their first child were
terminated on 8 October 2003, upon findings that they had neglected
the child and willfully left the child in foster care for more than
twelve months. Respondents never appealed that order.
DSS obtained non-secure custody of L.B. on 27 October 2005,
one day after birth, after receiving a report that respondents were
having trouble caring for the infant. Respondents underwent new
psychological evaluations on 28 April 2006, which disclosed that
little had changed since the 2002 evaluations.
L.B. has special medical needs. He has acid reflux, which
impacts his ability to swallow food. He also has poorly developed
muscle tone and asthma. L.B. takes several medications that must
be administered in precise amounts and at specific times throughout
the day. The complexity of the medical care required for L.B.
mandates that any person who cares for him must be attentive and
able to understand the actions that must be taken to provide
adequate care for him.
On 15 August 2006, DSS filed a petition to terminate
respondents' parental rights as to L.B. A hearing was held on
6 and 7 December 2006. The trial court concluded that grounds
existed to terminate respondents' parental rights in that (1)
pursuant to North Carolina General Statutes, section 7B-1111(a)(6)
they were incapable of providing the proper care and supervision of
the child such that the child was dependent and there was a
reasonable probability that such incapability would continue forthe foreseeable future; and (2) pursuant to North Carolina General
Statutes, section 7B-1111(a)(9) their parental rights to another
child had been involuntarily terminated on 8 October 2003, and
because of their significant cognitive and intellectual limitations
they were unable to provide a safe home for L.B. Additionally, the
court concluded that grounds existed to terminate respondent
father's parental rights pursuant to North Carolina General
Statutes, section 7B-1111(a)(1), in that he had neglected L.B. both
before and after he came into DSS custody. The court concluded
that termination of respondents' parental rights was in L.B.'s best
interests, and ordered respondents' parental rights terminated on
2 February 2007. Both parents appeal.
We first address a motion to dismiss the appeal which is
pending before this Court. DSS argues that respondents' notices of
appeal are not signed by respondents as required by Appellate Rule
3A(a). This rule governs appeals in juvenile cases and provides
that both the trial counsel and appellant must sign the notice of
appeal[.] N.C. R. App. P. 3A(a) (2007). The notices of appeal in
the instant case were signed by trial counsel and the guardian ad
litem (GAL) for each respondent (appellant). The question we
must decide is whether the signature of an appellant's GAL is a
sufficient signature by the appellant as required by Rule 3A(a).
We hold that it is not.
Respondents' GALs were appointed pursuant to North Carolina
General Statutes, section 7B-1101.1, which permits the appointment
of a GAL when a parent is suspected of having diminished capacity. See N.C. Gen. Stat. . 7B-1101.1 (2005). Chapter 35A of the North
Carolina General Statutes also governs the appointment of
guardians. Pursuant to Chapter 35A, a guardian shall be appointed
for a party who has been adjudicated mentally incompetent. See
N.C. Gen. Stat. . 35A-1120 (2005).
A GAL appointed pursuant to section 7B-1101.1 does not possess
the same authority as a guardian appointed pursuant to Chapter 35A.
The essential purpose of guardianship [appointed pursuant to
Chapter 35A] for an incompetent person is to replace the
individual's authority to make decisions with the authority of a
guardian when the individual does not have adequate capacity to
make such decisions. N.C. Gen. Stat. § 35A-1201(a)(3) (2005)
(emphasis added). In contrast, a GAL's authority is more limited.
Pursuant to North Carolina General Statutes, section 7B-1101.1(e),
a GAL may engage in all of the following practices: (1) helping
the parent to enter consent orders, as opposed to entering consent
orders on behalf of the parent; (2) facilitating service of process
on the parent, as opposed to accepting service of process on behalf
of the parent; (3) assuring that necessary pleadings are filed, as
opposed to filing pleadings on behalf of the parent; and (4)
assisting the parent, as opposed to acting on the parent's behalf,
to ensure that the parent's procedural due process requirements are
met. See N.C. Gen. Stat. § 7B-1101.1(e) (2005).
The dissent misconstrues our reading of section 7B-1101.1(e).
We do not imply that a GAL's actions are limited to those
enumerated in the statute. We acknowledge that prior to theenactment of section 7B-1101.1, a GAL's role in termination cases
was unclear. See In re Shepard, 162 N.C. App. 215, 227, 591 S.E.2d
1, 9 (2004) (North Carolina case law offers little guidance as to
. . . any specific duties of a GAL assigned to a parent-ward in a
termination proceeding.). This statute serves to clarify the
GAL's role in these proceedings. However, the language of the
General Assembly is clear that the GAL's role is limited to one of
assistance, not one of substitution. The General Assembly could
have stated that the GAL was authorized to enter consent orders,
accept service of process, file pleadings, or otherwise act on a
parent's behalf, but it did not.
In addition, the General Assembly amended the statutes
regarding the appointment of GALs in termination proceedings
effective 1 October 2005. With those revisions, there no longer is
a requirement that parents be adjudicated incompetent pursuant to
Chapter 35A in order to have a GAL appointed.
Pursuant to former section 7B-1101, when the termination
petition was based on section 7B-1111(6), alleging the parent was
incapable of caring for the child, and the incapability was the
result of substance abuse, mental retardation, mental illness,
organic brain syndrome, or another similar cause or condition, the
trial court was required to appoint a GAL in accordance with Rule
17 of the North Carolina Rules of Civil Procedure to represent the
parent. See N.C. Gen. Stat. §§ 7B-1101, 7B-1111(6) (2004).
Chapter 35A of the general statutes sets forth the procedure for
determining incompetency, which the trial judge must comply withwhen conducting a competency hearing under Rule 17. In re J.A.A.
& S.A.A., 175 N.C. App. 66, 73, 623 S.E.2d 45, 49 (2005).
In its 2005 revisions to Chapter 7B, the General Assembly
retained the requirement that the appointment of a GAL be in
accordance with Rule 17 only when the parent is under the age of
eighteen years. See N.C. Gen. Stat. § 7B-1101.1(b) (2005).
Pursuant to the current section 7B-1101.1, the court may appoint a
GAL to represent a parent having only a reasonable basis to believe
that the parent is incompetent or has diminished capacity and
cannot adequately act in his or her own interest. See N.C. Gen.
Stat. § 7B-1101.1(c) (2005). This threshold is significantly lower
than that required for appointment of a guardian pursuant to the
requirements of Chapter 35A.
A proceeding to declare an individual incompetent and appoint
a guardian pursuant to Chapter 35A is much more complex. The party
seeking appointment of a guardian and the party for whom the
guardian is sought both are entitled to present testimony and
documentary evidence, to subpoena witnesses and the production of
documents, and to examine and cross-examine witnesses in regard to
the party's competence. N.C. Gen. Stat. § 35A-1112(b) (2005). The
party for whom the guardian is sought is entitled to be represented
by counsel of his own choice or by an appointed GAL. N.C. Gen.
Stat. § 35A-1107(a) (2005). Should a GAL be appointed pursuant to
North Carolina General Statutes, section 35A-1107(a), the GAL
shall make every reasonable effort to determine the respondent's
wishes regarding the incompetency proceeding and any proposedguardianship. N.C. Gen. Stat. § 35A-1107(b) (2005) (emphasis
added). The party for whom the guardian is sought is entitled to
a trial by jury. N.C. Gen. Stat. § 35A-1110 (2005). He may appeal
to the superior court for a hearing de novo. N.C. Gen. Stat. §
There is no evidence that the General Assembly intended the
GAL _ as it did the guardian _ to exercise legal rights in lieu of
the respondent parents as the dissent attempts to argue. Rather,
the language of section 7B-1101.1 plainly indicates the role of the
GAL is to assist the parents rather than replace their authority to
undertake acts of legal import themselves. See In re Shepard, 162
N.C. App. at 227, 591 S.E.2d at 9 (the role of the GAL is to
assist in explaining and executing the parent's rights).
Therefore, although it is appropriate for the GAL to assure that
the notice of appeal _ or other pleading or legal document _ is
filed properly with the parents' signatures as required by North
Carolina Rules of Appellate Procedure 3A(a), it is not appropriate
for the GAL to sign the notice of appeal in place of the parents.
Furthermore, pursuant to North Carolina General Statutes,
section 7B-1001(b), written notice of appeal is to be given by a
proper party as defined in G.S. 7B-1002. N.C. Gen. Stat. § 7B-
1001(b) (2005). Such proper parties are (1) a juvenile who is
acting through his GAL; (2) a juvenile without a GAL, in which case
the court shall appoint [one] pursuant to G.S. 1A-1, Rule 17 ;
(3) DSS; (4) a parent, a guardian appointed under G.S. 7B-600 [for
a juvenile] or Chapter 35A of the General Statutes [for a parent],or a custodian as defined in G.S. 7B-101 who is a nonprevailing
party; and (5) any party who was unsuccessful in obtaining a
termination of parental rights. N.C. Gen. Stat. § 7B-1002 (2005).
Nowhere in section 7B-1002 is a parent's GAL designated as a
proper party who may give written notice of appeal pursuant to
In Stockton v. Estate of Thompson, 165 N.C. App. 899, 600
S.E.2d 13 (2004), this Court held that a GAL appointed for
decedent's two legitimated children had no statutory authority to
intervene in a paternity proceeding initiated by the mother of
decedent's illegitimate child. Id. at 902, 600 S.E.2d at 16 (We
conclude that the General Assembly, in explicitly listing who may
be a party to a paternity proceeding . . . , did not intend for
others not set forth in the statute to intervene in such a
paternity proceeding. To hold otherwise, would render ineffective
the [statute's] clear and unambiguous meaning.) Similarly, by
explicitly listing who may give written notice of appeal in Chapter
7B cases, the General Assembly did not intend for those not listed
to have the right to perfect an appeal.
Appellate Rule 3A became effective 1 May 2006 and applies to
all cases appealed on or after that date. Therefore we are faced
with a case of first impression interpreting this new requirement.
However, [a]ppellate Rule 3 [governing notice of appeal for civil
cases] is jurisdictional and if the requirements of this rule are
not complied with, the appeal must be dismissed. Currin-Dillehay
Bldg. Supply v. Frazier, 100 N.C. App. 188, 189, 394 S.E.2d 683,disc. rev. denied, 327 N.C. 633, 399 S.E.2d 326 (1990) (citing
Giannitrapani v. Duke University, 30 N.C. App. 667, 670, 228 S.E.2d
46, 48 (1976)). Similarly, when a [criminal] defendant has not
properly given notice of appeal [pursuant to Rule 4 governing
notice of appeal for criminal cases], this Court is without
jurisdiction to hear the appeal. State v. McCoy, 171 N.C. App.
636, 638, 615 S.E.2d 319, 320 (2005) (citing State v. McMillian,
101 N.C. App. 425, 427, 399 S.E.2d 410, 411, disc. rev. denied, 328
N.C. 335, 402 S.E.2d 842 (1991)). Because Appellate Rules 3, 3A,
and 4 all concern how and when appeals are to be taken, Rule 3A is
similarly jurisdictional, and if not complied with, the appeal must
Because we hold that a GAL's signature on the notice of appeal
is not sufficient to grant this Court jurisdiction, we cannot
address the merits of the appeal. Accordingly, we dismiss the
Judge STEELMAN dissents in a separate opinion.
Judge STROUD concurs.
STEELMAN, Judge, dissenting.
I must respectfully dissent from the majority opinion.
[T]he appointment of a guardian ad litem will divest the
parent of their fundamental right to conduct his or her litigation
according to their own judgment and inclination. In re J.A.A.,
175 N.C. App. 66, 71, 623 S.E.2d 45, 48-49 (2005) (citation
omitted). The effect of the majority opinion in this matter is toconvert guardians ad litem appointed for parents under N.C. Gen.
Stat. . 7B-1101.1 into nothing more than glorified hand-holders
during termination of parental rights proceedings. I do not
believe that this was the intent of the General Assembly.
I. Structure of N.C. Gen. Stat. . 7B-1101.1
Prior to the enactment of 2005 N.C. Sess. Laws 398, the
District Court was required to appoint a guardian ad litem for a
parent in a termination of parental rights proceeding where there
was an allegation that the parental rights be terminated pursuant
to N.C. Gen. Stat. . 7B-1111(6) and the incapability to provide
proper care for the child was the result of substance abuse,
mental retardation, mental illness, organic brain syndrome, or
another similar cause or condition. N.C. Gen. Stat. . 7B-1101(1)
Sections 14 and 15 of 2005 N.C. Sess. Laws 398 (effective for
petitions filed after 1 October 2005) deleted the portions of N.C.
Gen. Stat. . 7B-1101 pertaining to appointments of guardians ad
litem, and replaced them with a new statute, N.C. Gen. Stat. . 7B-
1101.1. This statute provided that appointment of a guardian ad
litem for parents under the age of 18 years who were not married or
otherwise emancipated was to be in accordance with the provisions
of Rule 17 of the North Carolina Rules of Civil Procedure
subsection (b). It further provided for appointment of a guardian
ad litem for an adult parent if the court determines that there is
a reasonable basis to believe that the parent is incompetent or has
diminished capacity and cannot adequately act in his or her owninterest. N.C. Gen. Stat. . 7B-1101.1(c) (emphasis added).
Finally, subsection (e) provides that:
Guardians ad litem appointed under this
section may engage in all of the following
1) Helping the parent to enter consent
orders, if appropriate.
2) Facilitating service of process on
3) Assuring that necessary pleadings
4) Assisting the parent and the
parent's counsel, if requested by
the parent's counsel, to ensure that
the parent's procedural due process
requirements are met.
N.C.G.S. § 7B-1101.1(e).
The majority opinion makes several erroneous conclusions
concerning this statute. First, it states that the authority of a
guardian ad litem appointed under N.C. Gen. Stat. . 7B-1101.1 is
limited to powers set forth in subsection (e). This is not
correct. Subsection (e) states that guardians may engage in all
of the following practices. . . The purpose of this subsection is
not to limit the powers of the guardian ad litem, but rather to
emphasize the role of a guardian ad litem in these proceedings as
a guardian of procedural due process for [the] parent, to assist
in explaining and executing her rights
. In re Shepard, 162 N.C.
App. 215, 227, 591 S.E.2d 1, 9 (2004). Rather than limiting the
powers of a guardian ad litem, subsection (e) merely assists in
defining the role of the guardian in the peculiar circumstances of
a termination of parental rights proceeding. Second, the majority places emphasis upon the different
procedures for appointment of a guardian ad litem for minors and
adults set forth in subsections (b) and (c) of N.C. Gen. Stat. .
7B-1101.1. Under subsection (b), for minors, the appointment
procedure is pursuant to Rule 17 of the Rules of Civil Procedure.
The reason for this procedure is obvious. Minors are presumed by
law not to have the requisite capacity to handle their own affairs.
See In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981). Based upon
this presumption, there is no requirement of a hearing under Rule
17 for the appointment of a guardian ad litem for minors.
The situation is different for an adult, and this is clearly
recognized by subsection (c). A guardian ad litem can only be
appointed if there is a determination that the parent is
incompetent or has diminished capacity. This subsection
clearly contemplates a hearing before a guardian ad litem can be
appointed. The 2005 statute did away with the provision requiring
that a guardian shall be appointed where an allegation of
incapability is contained in the petition. As noted in J.A.A.,
prior to the appointment of a guardian ad litem for an adult
parent, the trial court should conduct a hearing and must
determine whether the parents are incompetent within the meaning of
N.C. Gen. Stat. . 35A-1101[.] In re J.A.A., 175 N.C. App. at 71,
623 S.E.2d at 48.
II. Application to Instant Case
The fundamental misconception of the majority is that the
guardians ad litem in this case were appointed in a mannerinconsistent with the provisions of Chapter 35A. I freely
acknowledge that the General Assembly could have drafted the
provisions of Chapter 35A, Rule 17, and N.C. Gen. Stat. . 7B-1101.1
with more clarity, precision, and guidance as to how they are to
interact with each other. However, I must assume that the General
Assembly was aware of the provisions of Chapter 35A and Rule 17 at
the time of the enactment of N.C. Gen. Stat. . 7B-1101.1, and that
they intended for the provisions to work together. See State ex
rel. Utilities Comm. v. Thornburg, 84 N.C. App. 482, 485, 353
S.E.2d 413, 415 (1987).
The record in this case is devoid of any information as to the
procedure used by the trial court in the appointment of the
guardians ad litem for the parents. The only thing that appears in
the record is the order of appointment. In the absence of anything
in the record to the contrary, I must assume that the order of
appointment, regular on its face, was properly entered. See
Fungaroli v. Fungaroli, 51 N.C. App. 363, 368, 276 S.E.2d 521, 524
(1981). I further note that petitioner makes no argument that the
order of appointment was not properly entered. I would thus
conclude that the order of appointment was properly entered in
accordance with the provisions of both Chapter 35A and N.C. Gen.
Stat. . 7B-1101.1.
III. Powers of the Guardian Ad Litem
The majority opines that the powers of a guardian ad litem are
limited and do not encompass the authority to execute the notice of
appeal in this matter. This misconstrues the nature of a guardianad litem. It is true that a guardian ad litem's powers are
limited; they are limited to acting on behalf of the parent in the
context of the termination of parental rights proceeding. Once
that proceeding is concluded, so is the role of the guardian ad
However, in the context of the termination of parental rights
proceedings, the guardian has full authority to act on behalf of
the parent. The reason for the appointment is that the parent is
incompetent or has diminished capacity and cannot adequately act in
his or her own interest. N.C. Gen. Stat. § 7B-1101.1(c) (2005).
The majority would have a guardian ad litem appointed, but require
that the incompetent person or a person of diminished capacity act
on his or her own behalf in making all of the fundamental decisions
concerning the litigation proceedings, including deciding whether
to appeal the case.
I would conclude that it was not the intent of the General
Assembly to create a separate class of guardians ad litem for adult
parents in termination of parental rights proceedings that have no
legal authority, and are reduced to the role of holding the
parent's hand during the proceeding. There is no more important
proceeding in our court system than one where the relationship
between a parent and child is forever torn asunder. I would hold
that guardians ad litem of parents who are incompetent or of
diminished capacity are fully empowered to act on their behalf,
including the authority to execute a notice of appeal on their
behalf pursuant to Rule 3A of the North Carolina Rules of AppellateProcedure.
I would deny DSS's motion to dismiss respondents' appeal based
upon the failure of respondents to sign the notice of appeal, and
I would reach the merits of respondents' appeal.
IV. Delay in Entry of Orders
Respondents both argue the trial court erred by failing to
enter a written order within 30 days after completion of the
termination of parental rights hearing as required by N.C.G.S. §
7B-1109(e) and by failing to enter a permanency planning order
within thirty days after the hearing as required by N.C.G.S. § 7B-
907(c). I disagree.
This Court has held that a trial court's violation of
statutory time limits in a juvenile case is not reversible error
; instead, the complaining party must articulate the
prejudice arising from the delay in order to justify reversal. In
re S.N.H. & L.J.H.
, 177 N.C. App. 82, 86, 627 S.E.2d 510, 513
(2006) (citations omitted). Respondents have not demonstrated any
prejudice resulting from the delays of twenty-five days in filing
the termination order and of five days in filing the permanency
planning order. This argument is without merit.
V. Mother's Appeal
Mother contends that the court's findings of fact and
conclusions of law are not supported by adequate evidence. Mother
further argues that [t]he trial court erred in its conclusions of
law . . . in that they are not supported by competent evidence and
are not legally correct. I disagree. The process of terminating parental rights has two stages. In
, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001)
(citation omitted). The first stage is the adjudicatory stage, in
which the petitioner has the burden of establishing by clear and
convincing evidence that at least one of the statutory grounds
listed in N.C.G.S. § 7B-1111 exists. In re Anderson
, 151 N.C.
App. 94, 97, 564 S.E.2d 599, 602 (2002) (citation omitted).
Appellate review of the order terminating parental rights is
limited to whether the findings of fact are supported by clear,
cogent and convincing evidence, and whether the findings in turn
support the court's conclusions of law. In re McMillon
, 143 N.C.
App. 402, 408, 546 S.E.2d 169, 174 (2001) (citations omitted).
Findings of fact not challenged on appeal are binding on the
appellate court. State v. Baker
, 312 N.C. 34, 37, 320 S.E.2d 670,
673 (1984) (citation omitted).
If the court determines that at least one ground for
termination exists, it moves to the dispositional stage, and must
consider whether terminating parental rights is in the best
interests of the child. Blackburn
, 142 N.C. App. at 610, 543
S.E.2d at 908.
Our review of the court's determination regarding
the child's best interests is for abuse of discretion. Anderson
151 N.C. App. at 98, 564 S.E.2d at 602 (citation omitted)
Mother's primary argument is that the Americans with
Disabilities Act and Adoption and Safe Families Act required DSS to
take affirmative and pro-active steps to assist a mentally retarded
parent in caring for a child. However, this argument does not correspond to any of mother's
assignments of error. Appellate review is limited to the issues
presented by assignments of error set out in the record on appeal;
where the issue presented in the appellant's brief does not
correspond to a proper assignment of error, the matter is not
properly considered by the appellate court. Bustle v. Rice,
N.C. App. 658, 659, 449 S.E.2d 10, 11 (1994) (citation omitted).
Additionally, this issue was not presented to the trial court. A
party will not be allowed to raise an issue for the first time on
appeal. In re Crawford,
134 N.C. App. 137, 142, 517 S.E.2d 161,
164 (1999). Finally, in In re C.M.S.
, 184 N.C. App. 488,
(2007), we held that the Americans with Disabilities Act
does not prohibit the termination of parental rights of a mentally
handicapped parent. This argument should be dismissed.
Although mother assigned error to various findings of fact,
she did not argue them in her brief, and those which were not
argued are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6).
As to the remainder, mother does not expressly argue that these
findings are not supported by clear, cogent and convincing
evidence, but instead makes the argument discussed above.
Finally, mother contends that the court erred during the
dispositional stage in failing to expressly state its consideration
of the factors listed in N.C.G.S. . 7B-1110 regarding the
determination of the best interests of the child. However, there
is no requirement that the trial court make findings of fact during
the dispositional stage, Blackburn
142 N.C. App. at 613, 543S.E.2d at 910, and I would hold there was no error committed by the
In making its determination of L.B.'s best interests,
the court considered the arguments of counsel, as well as DSS's
evidence regarding the child's special medical needs. Mother does
not allege an abuse of discretion, and I would find none.
I would affirm the termination of mother's parental rights in
the minor child L.B.
VI. Father's Appeal
Father first contends that findings of fact numbers 6, 12-14,
17, 19, and 21-22 are not supported by clear, cogent and convincing
evidence. I disagree.
In finding of fact number 6, the court found that the parties
consented to continuation of the termination hearing until the week
of court commencing 4 December 2006. Father argues there is no
evidence of consent.
N.C.G.S. § 7B-1109(d) allows the court to continue, with or
without the parties' consent, the termination hearing beyond the
While the order continuing the hearing does not explicitly
state that continuance was with the consent of the parties, the
finding is not without support in the record. The order states
that a necessary witness could not be present at the next available
date, which was within the 90-day period, and that the next date
that all of the parties could be present was the date on which the
termination hearing was actually heard. Nothing in the record
shows that respondents objected to the continuance at the time itwas entered. I further note that the statute does not require
consent of the parties for a continuance to be granted. This
argument is without merit.
Father next challenges certain findings of fact on the ground
they are not actually findings of fact but recitations of evidence.
I would disagree.
An adjudicatory order shall be in writing and shall contain
appropriate findings of fact and conclusions of law. N.C.G.S. §
7B-807(b) (2005). The court's findings in an adjudicatory order
must be more than a recitation of allegations and must include
sufficient ultimate facts for this Court to determine whether the
order is supported by evidence. Anderson, 151 N.C. App. at 97, 564
S.E.2d at 602. Ultimate facts are the final facts required to
establish the plaintiff's cause of action or the defendant's
defense; and evidentiary facts are those subsidiary facts required
to prove the ultimate facts. Woodard v. Mordecai, 234 N.C. 463,
470, 67 S.E.2d 639, 644 (1951). An ultimate fact is the final
resulting effect which is reached by processes of logical reasoning
from the evidentiary facts. Id. at 472, 67 S.E.2d at 645
(citations omitted). There is nothing impermissible about
describing testimony, so long as the court ultimately makes its own
findings, resolving any material disputes. In re C.L.C., 171 N.C.
App. 438, 446, 615 S.E.2d 704, 708 (2005), aff'd per curiam and
disc. review improvidently allowed, 360 N.C. 475, 628 S.E.2d 760
I have examined the challenged findings of fact. Thesefindings refer to prior orders entered in this matter, as well as
reports and evaluations prepared and conducted by a psychologist
and a social worker, all of which are evidentiary facts. After
noting these evidentiary facts, the court then made an ultimate
finding of fact. A representative example of such finding is
finding of fact number 17, in which the court incorporated by
reference a copy of the psychological evaluations the parents
underwent on 28 April 2006. The court summarized the evaluations
and then made an ultimate finding of fact that:
The court finds that the respondent father has
purposefully chosen not to follow the
recommendations of the psychological
evaluations that were designed to decrease
risk to the minor child. The court finds that
the cognitive and intellectual limitations and
anger management issues are substantially the
same on the date of this Termination hearing
as when the Department became involved with
the respondent father in 2002 and that these
limitations are likely to continue into the
I would overrule this assignment of error.
Father next contends that the court erred in relying upon
hearsay and other incompetent evidence, namely the psychological
assessment reports, in making its findings of fact. I disagree.
In challenging an alleged erroneous evidentiary ruling in a
juvenile proceeding, an appellant must show that the court relied
on the incompetent evidence in making its findings. In re Huff,
140 N.C. App. 288, 301, 536 S.E.2d 838, 846 (2000), appeal
dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9
(2001) (citation omitted). If there is competent evidence in the
record to support the court's findings, we presume that the courtrelied upon it and disregarded the incompetent evidence. Id.
There is ample competent evidence in the testimony of the
psychologist and social workers who conducted the evaluations and
prepared the reports to support the court's findings of fact. I
would overrule this assignment of error.
In his next argument, father contends that the trial court
considered inappropriate evidence in making its findings of fact,
and that its conclusions of law are not supported by its findings
of fact, including its determination of L.B.'s best interests. I
Having concluded that the court did not rely upon
inappropriate evidence in making its findings of fact, I would hold
that the trial court's findings support its conclusions of law.
Although father alleges the court's determination of the child's
best interest is unsupported by appropriate findings of fact, he
does not assert abuse of discretion, and I would find none. This
argument is without merit, and I would affirm the termination of
father's parental rights in the minor child L.B.
Father's final argument is that the court erred in failing to
conduct the termination hearing within 90 days after the filing of
the petition. I would disagree.
The trial court's failure to conduct a termination hearing
within 90 days from the filing of the petition as required by
N.C.G.S. § 7B-1109(a) will not result in reversal of the order
unless the complaining party can demonstrate prejudice resulting
from the delay. In re S.W., 175 N.C. App. 719, 722, 625 S.E.2d594, 596, disc. review denied, 360 N.C. 534, 635 S.E.2d 59 (2006).
Here, no prejudice resulting from the hearing being held
approximately three weeks after the 90 days had expired has been
shown. This argument is without merit.
Father does not argue his fourth assignment of error in his
brief, and acknowledges that the argument has been rendered moot
due to the inclusion of page 16 of the Record of Appeal. Mother's
identical assignment of error is likewise moot.
I would hold that the guardians ad litem
were authorized to
sign the notice of appeal on behalf of each of the parents.
I would further affirm the order of the trial court
terminating the parents' parental rights to the minor child L.B.
Respondent father has an extensive criminal history dating
back to 1972. He pled guilty in 1979 to raping a child under the
age of twelve. He also has convictions in 1999 of assault on a
female and assault on a child under the age of twelve. He
violated a domestic violence protective order in 2000.
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