NORTH CAROLINA COURT OF APPEALS
Filed: 2 January 2007
IN RE: S.F.
Polk County
No. 03 J 23
Respondents appeal from order entered 4 November 2005 by
Judge Mark Powell in the District Court in Polk County. Heard in
the Court of Appeals 18 October 2006.
Phillip R. Feagan, for petitioner-appellee Polk County
Department of Social Services.
M. Victoria Jayne, for respondent-appellant father.
Renae S. Alt, for respondent-appellant guardians.
HUDSON, Judge.
In April 2005, the court awarded guardianship of minor child
S.F. to her paternal grandparents and also ceased reunification
efforts with respondent father. On 4 November 2005, the court
terminated the guardianship of the grandparents and returned
legal custody of S.F. to the Polk County Department of Social
Services (“DSS”). The order did not change the status of
respondent father. Respondent father and respondent guardians
appeal. We affirm.
The record shows that in October 2003, S.F., then three
years old, was adjudicated abused, neglected and dependent, basedon findings that she had been physically abused by her mother's
boyfriend while in her mother's home. At that time, respondent
father had sporadic contact with S.F. and the court awarded legal
custody of S.F. to DSS; respondent father entered into a service
agreement to reunify with his daughter. In April 2004, the court
found that respondent father had made substantial gains towards
reunification and awarded him trial placement of S.F. In October
2004, at a permanency planning review hearing, the court found
that respondent father had tested positive for controlled
substances and faced some misdemeanor drug and concealed weapon
offenses. S.F. was placed with her paternal grandparents. On 12
April 2005, the court awarded guardianship to respondent
grandparents, ceased reunification efforts with both of S.F.'s
parents, and ordered guardianship as the permanent plan for S.F.
In August 2005, DSS filed a motion seeking review based on a
substantial change in circumstances. DSS alleged that respondent
grandmother had been allowing S.F. to have unsupervised visits
with respondent father and his girlfriend, both of whom were
using drugs, and that respondent grandmother had been told by DSS
that S.F. could not stay unsupervised with respondent father
until he no longer used drugs. At the review hearing on 13
September 2005, the court found that respondent guardians had
neglected their duties and that it was no longer in S.F.'s bestinterests for them to have guardianship. The court terminated
the guardianship and returned custody of S.F. to DSS.
Respondent father and respondent guardians argue that the
trial court made “insufficient findings of fact and conclusions
of law” as required by N.C. Gen. Stat. § 7B-907 (2004). However,
respondents failed to assign error to specific findings of fact
or conclusions or law. Instead, they each employed a single
assignment of error to challenge the findings of fact and
conclusions of law generally. The appellate rules provide that
assignments of error which challenge that
the evidence is legally or factually
insufficient to support a particular issue or
finding, and challenges directed against any
conclusions of law of the trial court based
upon such issues or findings, may be combined
under a single assignment of error raising
both contentions if the record references and
the argument under the point sufficiently
direct the court's attention to the nature of
the question made regarding each such issue
or finding or legal conclusion based thereon.
N.C. Rule App. P. 10(c)(3) (emphasis added). It is
well-established that broadside assignments of error are
inadequate to preserve an issue for appellate review. In re
Beasley, 147 N.C. App. 399, 405, 555 S.E.2d 643, 647 (2001);
Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678,
685, 340 S.E.2d 755, 760 (1986). Here, because this assignment
of error does not sufficiently direct our attention to whichfindings of fact or conclusions of law respondents challenges,
and on what basis, we dismiss this assignment of error as to all
parties.
Before turning to respondents' other arguments, we note that
although respondent father's and respondent guardians' briefs
fail to make “reference to the assignments of error pertinent to
the question, identified by their numbers,” N.C. R. App. P.
28(b)(6)
, we are able to discern which arguments in the briefs
correspond to respondents' assignments of error. Rule 2 of the
rules of appellate of procedure allows this Court to review an
appeal, despite technical rules violations. N.C. R. App. P. 2.
We conclude that we may review respondents' further arguments
pursuant to rule 2, as their “noncompliance with the [appellate]
rules . . . is not substantive nor egregious enough to warrant
dismissal of [the] appeal.”
Coley v. State, 173 N.C. App. 481,
483, 620 S.E.2d 25, 27 (2005)
. See also Davis v. Columbus County
Schs., 175 N.C. App. 95, ___ , 622 S.E.2d 671, 674 (2005).
In his second argument, respondent father argues that “the
order was not entered for three months following the hearing
which substantially affected the father's rights and said order
should be vacated.” The trial court heard this matter pursuant
to N.C. Gen. Stat. § 7B-1000(a) (2004) which states that: Upon motion in the cause or petition, and
after notice, the court may conduct a review
hearing to determine whether the order of the
court is in the best interests of the
juvenile, and the court may modify or vacate
the order in light of changes in
circumstances or the needs of the juvenile.
Notwithstanding the provision of this
subsection, if a guardian of the person has
been appointed for the juvenile and the court
has also made findings in accordance with
G.S. 7B-907 that guardianship is the
permanent plan for the juvenile, the court
shall proceed in accordance with G.S.
7B-600(b).
Id. (emphasis added). N.C. Gen. Stat. § 7B-906(d)(2004), which
governs custody review hearings, requires that “[t]he order must
be reduced to writing, signed, and entered within 30 days of the
completion of the hearing.” Id. Here, the court held the
hearing on 13 September 2005 and the order was entered on 4
November 2005. However, this Court has repeatedly held that a
trial court's failure to adhere to filing deadlines set forth in
various portions of the juvenile code is not reversible error
without a showing of prejudice. See, e.g., 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). Respondent father
argues that the late entry of the trial court's order prejudiced
him because the order did not provide for visitation or services.
However, it is clear from the record that in its 12 April 2005
permanency planning review order, the court had already orderedthat reunification efforts with respondent father cease and did
not provide for visitation with respondent father. Respondent
father did not object to or appeal from this order. We conclude
that respondent was not prejudiced by the 22-day delay in the
entry of the order here.
In their second argument, respondent guardians assert that
the trial court lacked jurisdiction to enter the order
terminating guardianship. We disagree.
Respondents contend that
the trial court lacked personal jurisdiction over them at the 13
September 2005 hearing because they were not parties in the
original petition in this matter and had not been served pursuant
to N.C. Gen. Stat. § 7B-406, as required by N.C. Gen. Stat. § 7B-
200(b) (2004). There is no dispute, however, that respondents
were properly noticed before the 13 September 2005
hearing and
that respondent grandmother was present in court on the day of
the hearing, but left before the matter was heard. It is well-
established that
Rule 12 of the North Carolina Rules of Civil
Procedure requires that certain defenses must
be raised by a pre-answer motion or in a
responsive pleading. Failure to do so waives
these defenses. Among the defenses that must
be raised are jurisdiction over the person,
insufficiency of process, and insufficiency
of service of process. Our Supreme Court has
held that a general appearance of a party in
an action gives the court jurisdiction overthe appearing party even though no service of
a summons is shown.
In re Howell, 161 N.C. App. 650, 655, 589 S.E.2d 157, 160 (2003)
(internal citations omitted). Here, respondents failed to object
to lack of personal jurisdiction, respondent grandmother made a
general appearance at the 12 April 2005 permanency planning
review where respondents were granted permanent guardianship, and
respondent grandmother appeared in court on 13 September 2005
after being properly noticed. We overrule this assignment of
error.
Affirmed.
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
The judges participated and submitted this opinion for
filing prior to 1 January 2007.
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