Appeal by respondents from order entered 25 October 2005 by
Judge Lisa V.L. Menefee in Forsyth County District Court. Heard in
the Court of Appeals 12 October 2006.
Forsyth County Attorney Davida W. Martin, by Assistant County
Attorney Twanda M. Staley, for petitioner-appellee.
Charlotte Gail Blake for respondent-appellant mother.
Richard Croutharmel for respondent-appellant father.
Womble Carlyle Sandridge & Rice, PLLC, by John E. Pueschel,
for guardian ad litem.
Respondent mother appeals an order terminating her parental
rights as to her minor children, Da.A. ("David") and De.A.
("Dennis"); respondent father appeals the same order, which
terminated his parental rights as to Dennis.
(See footnote 1)
With respect to
respondents' argument that the trial court's failure to comply with
statutory time limitations requires reversal, we hold that they
have failed to show that they suffered prejudice warrantingreversal. Since the father challenges the order only on the basis
of the allegedly prejudicial delays, we affirm the termination of
his parental rights. With respect to the mother, however, we must
remand for further proceedings because neither of the two grounds
relied upon by the trial court for termination of her parental
rights is supported by sufficient findings of fact.
This appeal concerns two half-brothers, David and Dennis.
Respondent mother is the biological mother of both children, while
respondent father is the biological father of Dennis. David's
biological father consented to the termination of his parental
Forsyth County Department of Social Services ("DSS") obtained
custody of David and Dennis in November 2001, after respondent
mother gave birth to Dennis while in prison. Until that point,
David, the older brother, had been living with a friend of the
mother, but the friend decided she would be unable to care for both
children. In December 2001, the children were adjudicated
dependent by the Forsyth County District Court. In its
adjudication order and subsequent review orders, the district court
directed the mother to undergo a psychological evaluation and
complete a substance abuse assessment and parenting skills classes.
She completed the psychological evaluation, but did not comply with
the other requirements.
The mother was released from prison on 29 April 2002, but
found herself incarcerated again a month later for a felony theftoffense. During the brief period when she was not incarcerated,
the mother had the opportunity to visit her children six times but
only took advantage of two visits. Her expected release date from
prison is June 2007.
Respondent father has been incarcerated since at least
November 2001, when his son Dennis was taken into DSS custody. In
the six-month period preceding the filing of the petition to
terminate his parental rights, the father had two visits with
Dennis in prison. He did not otherwise send cards, letters, or
gifts to his son. Although the trial court required him to
complete parenting classes, a substance abuse assessment, and a
psychological evaluation, he did not do so. Respondent father's
expected release date is November 2008.
The father has expressed a desire that his mother be
considered as a possible placement option for the child. Not only,
however, was the grandmother incarcerated for a period of time, it
also came to light, at the time of the hearing, that she had a
substance abuse problem, was unemployed, and had no stable housing
to offer Dennis.
David and Dennis, meanwhile, have lived with the same foster
family since coming into DSS custody in November 2001. David was
five years old and Dennis nine days old when they were placed with
the foster family. The children have bonded with the foster
parents and have done well under their care. In addition, the
foster parents have been approved as an adoptive home for the
children. In February 2003, the district court relieved DSS of efforts
to reunify respondents with David and Dennis and changed the
permanent plan to adoption. In April 2003, DSS filed petitions to
terminate respondents' parental rights. In its order entered on 25
October 2005, the court found three grounds for terminating the
father's parental rights: (1) he neglected Dennis; (2) he willfully
left Dennis in foster care for more than 12 months without showing
that reasonable progress had been made to correct the conditions
leading to Dennis' removal; and (3) he willfully abandoned Dennis
for at least six months immediately preceding the petition. With
respect to the mother, the court found two grounds existed for
terminating her parental rights: (1) she willfully left David and
Dennis in foster care for more than 12 months without showing that
reasonable progress had been made to correct the conditions leading
to their removal, and (2) she was incapable of providing for their
proper care and supervision such that they were dependent
juveniles. After finding grounds for termination, the court
concluded that it was in the best interests of the children to
terminate the parental rights of both respondents. Both the mother
and the father timely appealed this order.
Respondents argue that the trial court's failure to comply
with certain statutory deadlines constituted reversible error.
Specifically, the trial court did not adhere to: (1) N.C. Gen.
Stat. § 7B-1109(a) (2005), which requires that an adjudicatory
hearing be held "no later than 90 days from the filing of the[termination of parental rights] petition"; and (2) N.C. Gen. Stat.
§§ 7B-1109(e) and 7B-1110(a) (2005), which require that an
adjudicatory and dispositional order "be reduced to writing,
signed, and entered no later than 30 days following the completion
of the termination of parental rights hearing." DSS does not
dispute that the deadlines were violated.
Violations of a statutory time limitation may trigger reversal
only when the delay has been prejudicial. See In re C.L.C.
N.C. App. 438, 443, 615 S.E.2d 704, 707 (2005) ("[T]his Court 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."), aff'd per curiam and
disc. review improvidently allowed
, 360 N.C. 475, 628 S.E.2d 760
(2006). See also In re S.W.
, ___ N.C. App. ___, ___, 625 S.E.2d
594, 596 (respondent must show prejudice from untimely hearing and
untimely entry of order), disc. review denied
, 360 N.C. 534, 635
S.E.2d 59 (2006).
(See footnote 2)
The father argues that the delay in the hearing and the delay
in the filing of the order prejudiced him because the father-son
relationship "remained severed" in the absence of reunification
efforts by DSS. Similarly, the mother argues that she was
prejudiced by having an "unresolved" relationship with her children and because of DSS' suspension of reunification efforts. Neither
parent, however, chose to appeal the February 2003 order that
relieved DSS of reunification efforts and sanctioned a permanent
plan of adoption. See C.L.C.
, 171 N.C. App. at 445, 615 S.E.2d at
708 (holding that parent failed to show prejudice from delay in
filing of termination of parental rights order when she could have
appealed from permanency planning order but did not do so). If the
parents had found the cessation of reunification efforts
prejudicial to their interests, they could have appealed that
N.C. Gen. Stat. § 7B-1001 (2005); In re Weiler
N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003) ("An order that
changes the permanency plan in this manner is a dispositional order
that fits squarely within the statutory language of section
7B-1001" and is therefore appealable). For the same reasons, we
find unpersuasive the parents' accompanying claim that they were
prejudiced by the delay in their inability to appeal the
termination of parental rights order. See In re B.M.
, 168 N.C.
App. 350, 354-55, 607 S.E.2d 698, 701 (2005) (holding that
respondents' right to appeal was not affected by the untimely
filing of the termination of parental rights order when respondents
could have appealed from orders directing cessation of
reunification efforts and changing the permanent plan to
termination of parental rights).
Further, the father's complaint about a lack of reunification
efforts by DSS is unconvincing in the face of the trial court's
finding _ not challenged on appeal _ that the father did not complywith any of the limited steps that were a prerequisite to
reunification with his son, such as parenting classes, a
psychological evaluation, and a substance abuse assessment. If
anything, the delay in holding the hearing benefitted the father by
providing him with additional time to fulfill the prescribed steps
for reunification. He did not, however, avail himself of this
As for the mother's argument, even after reunification efforts
were ceased, she continued to have "regular contact" with her
children even though she was incarcerated and they were in DSS
custody. The fact that she was able to maintain communication with
her children tends to belie her claim that the delay was
prejudicial to her.
The mother argues further that the delayed order prejudiced
"the foster parents' ability to proceed with adoption proceedings."
In a similar manner, the father argues the delays were prejudicial
because they denied Dennis permanence. Although we have recognized
that the prejudice suffered by foster parents and children may
contribute to a conclusion that reversal is in order, we must also
take into account the fact that reversal would magnify the
prejudice suffered by Dennis and the children's foster parents.
See In re D.J.D.
, 171 N.C. App. 230, 243-44, 615 S.E.2d 26, 35
(2005) (pointing out that "[d]elays prejudice the children, who are
denied permanency" and "reiterat[ing] that the best interests of
the children are the paramount concern"). Errors on appeal are
reversed in order to remedy prejudice. The type of prejudice thatwarrants reversal of a termination of parental rights order
generally cannot be prejudice that will be perpetuated and
increased by remanding for further proceedings.
Accordingly, under these circumstances, we refuse to reverse
the trial court's order on the basis of prejudicial delay,
especially when such a result would operate to the further
detriment of the only parties _ namely, the foster parents and the
children _ who conceivably could have been prejudiced by the delay.
Indeed, in cases such as this, we believe we must give effect to
"the General Assembly's intent . . . to provide parties with a
speedy resolution of cases where juvenile custody is at issue." In
, 164 N.C. App. 146, 153-54, 595 S.E.2d 167, 172 (holding
failure to comply with statutory deadline to be "harmless error"
where "respondent cannot show how she was prejudiced by the late
filing"), disc. review denied
, 359 N.C. 189, 606 S.E.2d 903 (2004).
These assignments of error are overruled. Because respondent
father has not brought forward in his brief any other assignment of
error, we affirm the trial court's order terminating his parental
We now address the remaining arguments of respondent mother
challenging the trial court's determination that grounds for
termination of her parental rights existed. We agree with the
mother that the trial court applied the wrong test under N.C. Gen.
Stat. § 7B-1111(a)(2) (2005) and made inadequate findings of factunder N.C. Gen. Stat. § 7B-1111(a)(6). We therefore remand for
further findings of fact.
The mother first contends that the trial court erred in
failing to appoint a guardian ad litem ("GAL") for her when the
petition relied upon N.C. Gen. Stat. § 7B-1111(a)(6) as one of its
grounds for termination. A GAL was eventually appointed, but not
until 22 September 2004, long after the filing of the petition.
The mother did not, however, assign as error the belated
appointment of a GAL. The assignment of error referenced in this
section of the mother's brief states only: "The trial court erred
in finding and concluding that the mother is incapable of providing
for the proper care and supervision of her children, such that they
are dependent children and that such incapability will continue for
the foreseeable future." This Court's review "is confined to a
consideration of those assignments of error set out in the record
on appeal . . . ." N.C.R. App. P. 10(a). Because of the absence
of an assignment of error, we do not address this issue.
N.C. Gen. Stat. § 7B-1111(a)(2) provides that parental rights
may be terminated if: "The parent has willfully left the juvenile
in foster care or placement outside the home for more than 12
months without showing to the satisfaction of the court that
reasonable progress under the circumstances has been made in
correcting those conditions which led to the removal of the
juvenile." The mother contends that the trial court
inappropriately limited its review of the evidence to whether shehad made "reasonable progress" within 12 months prior to the filing
of the termination of parental rights petition.
A previous version of the statute contained the language
"within 12 months." As our Supreme Court has explained:
[D]uring the 2001 session of the General
Assembly, the legislature struck the "within
12 months" limitation from the existing
statute detailing the requirements for
establishing grounds for the termination of
parental rights. Thus, under current law,
there is no specified time frame that limits
the admission of relevant evidence pertaining
to a parent's "reasonable progress" or lack
In re Pierce
, 356 N.C. 68, 75 n.1, 565 S.E.2d 81, 86 n.1 (2002)
(internal citations omitted); see also C.L.C.
, 171 N.C. App. at
447, 615 S.E.2d at 709 ("The focus is no longer solely on the
progress made in the 12 months prior to the petition.").
Despite the change in the law, the trial court's order
specifically states that "[t]he relevant time period to be
considered in this proceeding is April 24, 2002 to April 24, 2003"
_ the 12 months before the filing of the TPR petition. Further,
the court expressly concluded that the mother failed to make
"reasonable progress . . . within 12 months
in correcting those
conditions which led to the removal of the juvenile." (Emphasis
added.) The trial court thus applied the wrong standard in
determining whether grounds existed under N.C. Gen. Stat. § 7B-
Although DSS and the children's guardian ad litem argue that
the trial court did not merely confine its focus to the 12 months
preceding the petition, citing a few findings that reflect aconsideration of evidence outside the 12-month period, those
findings cannot override the trial court's express articulation of
the wrong standard. In any event, those findings do not
necessarily relate to the trial court's analysis under § 7B-
1111(a)(2). On remand, the trial court must consider the evidence
in light of the proper standard.
With respect to the next ground for termination of the
mother's parental rights, the trial court tracked part of the
language of N.C. Gen. Stat. § 7B-1111(a)(6), concluding that the
mother "is incapable of providing for the proper care and
supervision of her children, such that they are dependent juveniles
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." The remainder of the statute, as in effect at
the time the petition was filed in this case,
(See footnote 3)
"Incapability under this subdivision may be the result of substance
abuse, mental retardation, mental illness, organic brain syndrome,
or any other similar cause or condition
." N.C. Gen. Stat. § 7B-
1111(a)(6) (2001) (emphasis added). N.C. Gen. Stat. § 7B-101(9)
(2001) in turn provided that a dependent juvenile is "[a] juvenile
in need of assistance or placement because the juvenile has no
parent, guardian, or custodian responsible for the juvenile's care
or supervision or whose parent, guardian, or custodian is unable toprovide for the care or supervision and lacks an appropriate
alternative child care arrangement."
The trial court made no findings of fact that the mother's
incapability of providing care and supervision was due to one of
the specified conditions or any other "similar cause or condition."
Further, the order contains no specific finding that the mother
lacked an appropriate alternative child care arrangement. Without
such findings, the trial court's order terminating the mother's
parental rights based on N.C. Gen. Stat. § 7B-1111(a)(6) cannot be
upheld. See In re Clark
, 151 N.C. App. 286, 289, 565 S.E.2d 245,
248 (reversing order when record contained no evidence and trial
court made no findings that the respondent, who was incarcerated,
suffered from any physical or mental condition or that he was
incapable of arranging for appropriate supervision for his child),
disc. review denied
, 356 N.C. 302, 570 S.E.2d 501 (2002).
Accordingly, we remand for further findings of fact on this ground
Because of our resolution of this appeal, we need not address
the mother's remaining arguments. We leave to the discretion of
the trial court the decision whether to conduct further evidentiary
hearings on remand.
Affirmed in part; reversed and remanded in part.
Judges STEELMAN and STEPHENS concur.
Judge STEPHENS concurred prior to 31 December 2006.
Report per Rule 30(e).