An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Respondent argues that the trial court's violations of the
statutory timelines constitute reversible error. N.C. Gen. Stat.
§ 7B-1109(a) (2004) requires that the TPR hearing shall be
conducted . . . 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. Id.
requires good cause to continue the termination
NORTH CAROLINA COURT OF APPEALS
Filed: 2 January 2007
IN RE: C.C.L.
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.
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
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.
* * *
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
* * *
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
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.
Judges WYNN and STEPHENS concur.
Report per Rule 30(e).
The judges participated and submitted this opinion for
filing prior to 1 January 2007.
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