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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 February 2007
IN RE: L.A.P., Surry County
Minor Child. No. 02 J 35A
Appeal by respondent from judgment entered 10 June 2005 by
Judge Spencer G. Key, Jr., in Surry County District Court. Heard
in the Court of Appeals 14 September 2006.
Surry County Department of Social Services, by H. Lee Merritt,
Womble Carlyle Sandridge & Rice, by Joann A. Waters, for
Guardian ad Litem.
Hall & Hall, P.C., by Susan P. Hall, for respondent-father.
Marion Boone, for respondent-mother.
James Freeman, Attorney Advocate.
Respondent-appellant appeals from an order terminating his
parental rights in his daughter Dawn.
(See footnote 1)
The record establishes the following: In 2002 respondent
lived with his wife Alice, their daughter Dawn, and Bettina and
Clarissa, Alice's daughters from two other relationships. On 25
March 2002 Alice brought Bettina to the hospital with vomiting and
abdominal pain. Medical personnel diagnosed Bettina with seriouslife-threatening injuries, including perforation of her small
intestine. They found Alice's explanations inconsistent with these
injuries, and noted that Bettina had other unexplained scars,
marks, and abrasions. On 27 March 2002 a nonsecure custody order
was issued, placing Bettina, Clarissa, and Dawn in the custody of
DSS. Dawn was then six months old, and the other girls were of
pre-school age. On 24 April 2002 respondent and Alice were charged
with child abuse.
Dawn was adjudicated neglected on 1 July 2002, and her custody
continued with DSS. Dawn and her sisters were placed in foster
homes. Both parents remained in jail for over a year. In July
2003 respondent pled guilty to felony child abuse and contributing
to the neglect of a minor, pursuant to North Carolina v. Alford,
400 U.S. 25, 27 L. Ed. 2d 162 (1970). He was sentenced to time
served and placed on probation. Respondent was released from jail
on 22 July 2003. Shortly thereafter, he contacted DSS and agreed
to a case plan addressing the issues pertinent to Dawn's placement
in DSS custody. Respondent completed the case plan, as well as the
requirements of his probation; however, his probation initially
included a condition that he not be in the presence of any child
under the age of 16 without a responsible adult present. Based in
part on this condition, the trial court in December 2003 directed
DSS to initiate proceedings for termination of respondent'sparental rights in Dawn.
(See footnote 2)
DSS filed a petition for termination of
parental rights in January 2004, which was amended in August 2004.
As amended, the petition alleged the following grounds for
termination of parental rights:
The respondent-father has willfully left the
child in placement outside the home for more
than twelve (12) months without making
reasonable progress under the circumstances to
correct those conditions which [led] to the
removal of the child.
The respondent-father is incapable of
providing for the proper care and supervision
of the juvenile, such that the juvenile is a
dependent juvenile within the meaning of
N.C.G.S. § 7B-101, and there is a reasonable
probability that such incapability will
continue for the foreseeable future.
Respondent-father committed and has been
convicted of a felony assault that resulted in
serious bodily injury to another child
residing in the home of the minor child,
As an additional ground to terminate the
parental rights of the respondent-parents, it
is alleged that the minor child is a neglected
child as defined by North Carolina General
Statute § 7B-101(15).
These allegations closely track grounds for termination of parental
rights set out in N.C. Gen. Stat. §§ 7B-1111(a)(1), (2), (6), and
(8) (2005). A hearing on the petition was begun 19 August 2004,
continued several times, and concluded 8 April 2005. The trial
court entered an order terminating respondent's parental rights in
Dawn on 10 July 2005, from which order respondent appeals.
Respondent argues on appeal that DSS and the trial court
violated several procedural rules for termination of parental
rights proceedings and that, as a result, the trial court lacked
subject matter jurisdiction to terminate respondent's parental
rights. We disagree.
We first review certain statutory provisions. N.C. Gen. Stat.
§ 7B-907(e) (2005) provides in pertinent part that:
(e) [T]he director of [DSS] shall file a petition
to terminate parental rights within 60
calendar days from the date of the permanency
planning hearing unless the court makes
written findings why the petition cannot be
filed within 60 days. . . .
Other time limits are found in N.C. Gen. Stat. § 7B-1109 (2005):
(a) The hearing on the termination of parental
rights shall be conducted by the court . . .
no later than 90 days from the filing of the
petition or motion unless the judge pursuant
to subsection (d) of this section orders that
it be held at a later time.
(d) . . . Continuances that extend beyond 90 days
after the initial petition shall be granted
only in extraordinary circumstances when
necessary for the proper administration of
justice, and the court shall issue a written
order stating the grounds for granting the
(e) . . . The adjudicatory order shall be reduced
to writing, signed, and entered no later than
30 days following the completion of the
termination of parental rights hearing.
(See footnote 3)
N.C. Gen. Stat. § 7B-1109(a), (d), and (e). Thus, the instant
proceedings violated procedural rules in that (1) the petition was
filed 67 days after the permanency planning hearing, not within the
60 days specified in § 7B-907(e); (2) the hearing was conducted
outside the 90 days specified in § 7B-1109(a); (3) the continuance
orders did not specifically find extraordinary circumstances
requiring continuance, as required by § 7B-1109(d);
(See footnote 4)
and (4) the
written order was not filed until 57 days after the hearing, not
the 30 days required by § 7B-1109(e).
We disagree with respondent's contention that the violations
of these procedural rules were per se
prejudicial and divested the
trial court of subject matter jurisdiction. This Court previously
has held that time limitations in the Juvenile Code are not
jurisdictional in cases such as this one and do not require
reversal of orders in the absence of a showing by the appellant of
prejudice resulting from the time delay. In re C.L.C.
171 N.C. App. 438, 443, 615 S.E.2d 704, 707 (2005),
, 360 N.C. 475, 628 S.E.2d 760 (2006). Thus, for example,
where respondent argued that failure to file the written orderwithin 30 days of the completion of the proceeding for termination
of parental rights was per se
prejudicial, this Court held:
While the trial court's delay clearly violated
the 30-day provision of N.C. Gen. Stat. §
7B-1109(e), this Court has held that a trial
court's violation of statutory time limits in
a juvenile case is not reversible error per
. Rather, we have held that the complaining
party must appropriately articulate the
prejudice arising from the delay in order to
In re S.N.H.
, __ N.C. App. __, __, 627 S.E.2d 510, 513 (2006)
We do not condone delays such as those in the instant case.
However, they do not divest the trial court of subject matter
jurisdiction. Moreover, as regards prejudice, respondent makes
only a generalized statement in his brief that the delay in this
case had prejudiced the father simply by the passage of time.
We conclude the assignments of error corresponding to these
arguments should be overruled.
Respondent argues next that the trial court erred by taking
judicial notice of, or admitting into evidence, the orders and
records from earlier proceedings in this case. Respondent asserts
that, because many of these documents were admitted under a lower
standard of proof than that required in a termination of parental
rights hearing, the trial court improperly considered them, and
that a new hearing is required to remedy this egregious error.
We disagree. In In re J.B., this Court expressly held that the trial court
did not err in taking judicial notice of prior disposition orders
in a juvenile case, even where those orders were entered under a
lower evidentiary standard, especially where 'the trial court in a
bench trial is presumed to have disregarded any incompetent
evidence.' In re S.N.H., __ N.C. App. __, __, 627 S.E.2d 510, 515
(2006) (quoting In re J.B., 172 N.C. App. 1, 16, 616 S.E.2d 264,
Additionally, respondent did not object to the trial court's
taking judicial notice of earlier orders entered in the case, and
thus failed to preserve this issue for appellate review. See N.C.
R. App. P. 10(b)(1).
Respondent also argues that the trial court erred by
considering earlier reports and documents wherein facts were found
by clear and convincing evidence, rather than clear, cogent, and
We note that Chapter 7B, Article 11
interchangeably uses the clear, cogent and
convincing and the clear and convincing
standards. Compare N.C. Gen. Stat. § 7B-1109
(The burden in such proceedings shall be upon
the petitioner or movant and all findings of
fact shall be based on clear, cogent, and
convincing evidence.) with N.C. Gen. Stat. §
7B-1111 (The burden in such proceedings shall
be upon the petitioner or movant to prove the
facts justifying such termination by clear and
convincing evidence.). These two standards
In re Faircloth, 153 N.C. App. 565, 575, 571 S.E.2d 65, 72 (2002)
(internal quotation marks omitted and citations omitted). This
assignment of error is overruled.
Respondent argues next that the trial court erred by
terminating his parental rights, on the grounds that the petition
failed to allege specific facts that would establish a legal basis
for termination. He again argues that, assuming the petition were
deficient in this regard, the trial court would have no subject
matter jurisdiction. We disagree.
Under N.C. Gen. Stat. § 7B-1104(6)(2005), the petition for
termination of parental rights must state [f]acts that are
sufficient to warrant a determination that one or more of the
grounds for terminating parental rights exist. Factual
allegations must be sufficient to put a respondent on notice
regarding the acts, omissions, or conditions at issue in the
petition. In re A.D.L
., J.S.L., C.L.L.,
169 N.C. App. 701, 709,
612 S.E.2d 639, 644 (citing In re Hardesty
, 150 N.C. App. 380, 384,
563 S.E.2d 79, 82 (2002)), disc. review denied,
359 N.C. 852, 619
S.E.2d 402 (2005).
Significantly, petitioner does not cite any authority for his
assertion that the degree of specificity of a petition's
allegations is a matter of subject matter jurisdiction, and we find
none. Moreover, the record reveals that, with respect to at least
one of the grounds the court found to terminate respondent's
parental rights, the petition does comply with G.S. § 7B-1104(6).
(See footnote 5)
Here, the petition alleged, consistent with G.S. § 7B-1111(8),
that respondent committed a felony assault that resulted in
serious bodily injury to . . . [an]other child residing in the
home[.] The amended petition alleges that respondent committed
and has been convicted of a felony assault that resulted in serious
bodily injury to another child residing in the home of the minor
Moreover, the petition specifically referenced the 1 July
2002 neglect adjudication order, wherein the trial court found,
, the following:
The child was seriously injured while in the
care of the mother and stepfather. The child
did not receive any medical treatment for
three days following the injury. The mother
testified and the court finds that the
stepfather struck the child in the stomach.
The child was admitted to Baptist Hospital 3-
25-2002 and was discharged on 4-20-2002.
Thus, respondent was sufficiently informed of acts supporting at
least one of the grounds the trial court found for termination of
his parental rights. This assignment of error is overruled.
Respondent also argues that the termination order must be
vacated, on the grounds that the petitioner failed to attach to the
petition a copy of the order demonstrating that the child was in
DSS custody when the petition was filed. This Court recently
addressed this issue:
[T]o have standing to file for termination of
parental rights, DSS must prove that it has
legal custody of the child at the time the
petition is filed. Courts of record speak
only in their records. They preserve written
memorials of their proceedings, which are
exclusively the evidence of those
proceedings[.] . . . We conclude that, where
DSS files a motion for termination of parental
rights, the trial court has subject matter
jurisdiction only if the record includes a
copy of an order, in effect when the petition
is filed, that awards DSS custody of the
In re T.B
., __ N.C. App. __, __, 629 S.E.2d 895, 897 (2006)
(quoting State v. Tola
, 222 N.C. 406, 408, 23 S.E.2d 321, 323
(1942)). In the instant case, unlike T.B.
, the petition to
terminate parental rights incorporated by reference the juvenile
file containing the custody order in effect when the petition was
filed, and this order is also found in the record.
of error is overruled.
We have considered respondent's remaining assignments of error
and find them to be without merit. For the reasons discussed
above, we conclude that the trial court's order for termination of
parental rights should be
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).
To preserve the privacy of the minor, we refer to her in
this opinion by the pseudonym Dawn. For the same reason, we
refer to the child's mother as Alice, and to Alice's other
daughters as Bettina and Clarissa.
Respondent's probation was amended in February 2004 to
allow him to have unsupervised visitation with Dawn.
The amended version of G.S. 7B-1109(e)(2006), not
applicable to the instant case, adds the following language:
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 todetermine 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 subsection.
The continuance orders entered after the initial 90 days,
G.S. §7B-1109(d), cited reasons for delay such as a lack of
court time and the unavailability of counsel due to criminal
superior court commitments. Subsequently, after each day of
trial, court orders were entered stating that the hearing was
conducted this day but not concluded, and setting a later date
to continue the hearing.
We address this issue notwithstanding some authority that
concludes that appellate review of challenges to the sufficiency
of pleadings, made pursuant to Rule 12(b)(6) of the North
Carolina Rules of Civil Procedure, is not available after a trialon the merits. See, e.g.,
In re Baby W.
, __ N.C. App. __, __,
611 S.E.2d 900, __ (2005)(Steelman, J. concurring)
; Dale v.
, 12 N.C. App. 348, 351-52, 183 S.E.2d 417, 419 (1971).
In the present case, respondent did not even assert a Rule
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