Converted WP file 060462-1

NO. COA06-462

NORTH CAROLINA COURT OF APPEALS

Filed: 2 January 2007

IN RE: C.C.L.
Mecklenburg County
No. 03 J 1240

Appeal by respondent from order entered 31 May 2005 by Judge Elizabeth D. Miller in the District Court in Mecklenburg County. Heard in the Court of Appeals 14 November 2006.
J. Edward Yeager, Jr., for petitioner-appellee Mecklenburg County Department of Social Services.

Jeannie Brown, for petitioner-appellee Guardian ad Litem.

Janet K. Ledbetter, for respondent-appellant.

HUDSON, Judge.
In December 2003, Mecklenburg County Department of Social Services (“DSS”) filed a petition to terminate the parental rights (“TPR”) of respondent parents to minor child C.C.L. The TPR hearing was held in five sessions, beginning on 27 August 2004, and concluding on 7 January 2005. On 31 May 2005, the court filed an order terminating the parental rights of both father and mother. Only respondent mother appeals. We affirm the trial court.
The record shows that in February 2003, DSS filed a petition alleging the parents were neglecting C.C.L. because of substanceabuse and incidents of domestic violence. The trial court subsequently adjudicated C.C.L. neglected and dependent, and respondent entered a case plan, agreeing to complete domestic violence counseling and substance abuse treatment, as well as to obtain and maintain appropriate housing and employment. At a review hearing held on 18 August 2003, the court found that although respondent had enrolled in domestic violence counseling, there was another violent incident between respondent and C.C.L.'s father on 16 July 2003, and the parents maintained contact with one another. On 18 August, the court ordered that the permanent plan for C.C.L. was reunification with respondent mother. At a review hearing held on 14 November 2003, the permanent plan was changed to adoption for C.C.L. At the 14 November hearing, the court found that respondent had tested positive for cocaine on 29 August 2003 and had failed to provide proof of her attendance at Narcotics Anonymous meetings since September 2003. The court also found that the respondent parents were maintaining contact. On 31 December 2003, DSS filed a TPR petition, alleging that respondent failed to comply with the terms of her case plan. On 27 December 2004, respondent mother gave birth to another child fathered by respondent father. Although DSS filed a petition on that child on 5 January 2005, that child is not at issue here.

hearing for up to ninety days, and provides that “[c]ontinuances that extend beyond 90 days after the initial petition shall be granted only in extraordinary circumstances when necessary for the proper administration of justice[.]” Id. However, violations of statutory time requirements require reversal only upon a showing of prejudice. In re S.W., ____ N.C. App.___ ,___, 625 S.E.2d 594, 596 (2006), disc. review denied, 360 N.C. 534, 635 S.E.2d 59 (2006); In re D.J.D., 171 N.C. App. 230, 242-43, 615 S.E.2d 26, 34-35 (2005).
    Here, respondent argues that “the delay of 12 months before completing the termination of parental rights hearing after filing the TPR petition was prejudicial to respondent-appellant mother.” The petition was filed on 31 December 2003 and the TPR hearing concluded on 7 January 2005. Although the record does not reveal why the first session of the TPR hearing did not begin until 27 August 2004, the record reveals that respondentcontributed to delays in finishing the hearing. The transcript shows that on 9 November respondent requested that the court reconvene at another time, and that when the court reconvened on 17 December 2004, respondent was not present. Although she claimed this was due to illness, a DSS investigator later testified that respondent told him that she did not attend court because she was visibly pregnant and was fearful that DSS would take her baby if they found out she was pregnant. The court completed the hearing on 7 January 2005. This Court has previously held that where the respondent contributed to the delays involved by moving to continue the termination hearing, the respondent failed to demonstrate prejudice. In re D.J.D., 171 N.C. App. at 243, 615 S.E.2d at 35. We further note that respondent has failed to articulate how this delay prejudiced her, merely asserting that it was “extremely prejudicial,” without explaining how it was prejudicial. We overrule this assignment of error.
    Respondent also argues that she was prejudiced by the trial court's delay in entering the TPR order. Pursuant to N.C. Gen. Stat. § 7B-1109(e) (2004), “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.” Id. Here, the TPR hearing was completed on 7 January2005, and the order was entered on 31 May 2005. Respondent argues that she was unduly prejudiced by this delay because she was left in “emotional and legal limbo,” she suffered emotional distress, she was deprived of “regular happy visits” with C.C.L., and she was deprived of the right to timely appeal. However, she has not argued prejudice in any detail, and we are not persuaded that any delay prejudiced her beyond the obvious effect that any such proceeding would have. We conclude that respondent has not adequately established prejudice. We overrule this assignment of error.
    Respondent also contends that the trial court erred in finding and concluding that grounds existed to terminate her parental rights. N.C. Gen. Stat. § 7B-1111(a)(1) (2004) provides grounds to terminate parental rights where the parent has abused or neglected the juvenile. Here, the trial court concluded that respondent neglected C.C.L. within the meaning of § 7B-101(15) (2004). On appeal, we review a TPR order to determine whether the findings of fact are supported by clear and convincing evidence, and whether the findings of fact support the legal conclusions. In re Pittman, 149 N.C. App. 756, 763-64, 561 S.E.2d 560, 566 (2002). Here, the court initially adjudicated C.C.L. as neglected based on the parents' domestic violence and substance abuse. While a prior adjudication of neglect isadmissible in a TPR proceeding, the court must consider evidence of changed conditions “and the probability of a repetition of neglect.” In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000). Here, the court made the following pertinent findings of fact:
        7. [Respondent] . . . completed group domestic violence treatment at the Women's Commission on July 29, 2003. However, prior to completion of domestic violence treatment she engaged in another incident of domestic violence on July 17, 2003.
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        17. Despite a history of domestic violence between the parents and the mother's completion of the domestic violence treatment program at the Women's Commission, she has continued to maintain contact with the respondent father. The mother spent three days and two nights in the father's home the week prior to the trial in this matter. The mother and father have an on-again-off-again relationship.
        * * *
        21. The respondent mother has complied with many of the recommendations made in her parenting capacity evaluation. However, the respondent father has complied with none of the recommendations made for him.
        22. Despite father's lack of compliance, the respondent mother has maintained a relationship with him putting herself in danger and putting in danger any child that might be placed with her.

        * * *
        30. [Respondent], however, resumed contact with Mr. [L] in April 2004 and became pregnant by Mr. [L]. She concealed that pregnancy however, from Ms. Nesbit, YFS and the court. She gave birth on December 27, 2004. YFS filed a Juvenile Petition on that child on January 5, 2005.
        31. Ms. Nesbit [a domestic violence counselor from the Women's Commission] testified that [respondent] has been given all the information possible regarding domestic violence and that she has to choose to stay away from Mr. [L].
        32 . . . It is apparent to the court that [respondent] has not made the choice to use the skills she learned at the Women's Commission . . . .
        33. [Respondent] did not attend the final day of the trial or provide any excuse to the court. The mother did not testify . . .
        34. There is no evidence before the Court that [respondent] has stopped her relationship with the father and plenty of evidence that that relationship creates an environment injurious to the child's welfare. The evidence presented leads to the conclusion that that environment will continue in the future because [respondent] is not able to sever her relationship with the father.
In her brief, respondent argues that these findings are not evidence of an ongoing relationship between respondent and C.C.L.'s father, but that respondent's contact with the father is a normal part of the domestic violence cycle. However, ourreview of the hearing transcript and the court reports reveals clear, cogent, and convincing evidence to support these findings
and “[s]uch properly supported findings are binding on appeal, even though there may be evidence to the contrary.” In re Tyson, 76 N.C. App. 411, 415, 333 S.E.2d 554, 557 (1985). We conclude that these findings support the trial court's conclusion that respondent neglected C.C.L. and we are also satisfied that the court considered the probability of repetition of neglect. We overrule this assignment of error.
    Affirmed.
    Judges WYNN and STEPHENS concur.
    Report per Rule 30(e).