Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 THE MATTER OF Cabarrus County
D.L.B., T.L.B., K.L.B., Nos. 04 J 18-20
Appeal by Respondent mother from order entered 9 December 2005
by Judge Donna H. Johnson in Cabarrus County District Court. Heard
in the Court of Appeals 14 November 2006.
Kathleen Arundell Widelski, for Petitioner-Appellee Cabarrus
County Department of Social Services.
Hall & Hall Attorneys at Law, P.C., by Susan P. Hall, for
Respondent mother (Respondent) appeals from an order of the
Cabarrus County District Court terminating her parental rights to
the minor children D.L.B, T.L.B., and K.L.B. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On 20 January 2004, Respondent was arrested for shoplifting.
Pursuant to a juvenile petition alleging that Respondent's three
minor children were neglected and dependent, a nonsecure custody
order was entered that same day, and Petitioner Cabarrus County
Department of Social Services (DSS) took the three children into
custody. On 29 January 2004, Respondent entered into a consent
order stipulating that the children were neglected. Respondent
undertook to comply with a number of court directives to regain
custody of her children. These included submitting to apsychological evaluation, a separate substance abuse assessment,
random drug screens, attendance at Narcotics Anonymous meetings,
and obtaining appropriate employment and housing.
On 8 April 2004, Respondent was convicted of possession of a
Schedule II controlled substance and placed on probation,
concurrent with an earlier thirty-six month probationary sentence
imposed in Mecklenburg County. She was arrested again on 22 April
2004, apparently for failure to appear in court in response to the
earlier shoplifting and separate Driving While License Revoked
charges. She was subsequently bonded out on 26 April 2004.
The trial court reviewed Respondent's compliance with its
earlier directives on 29 April 2004. DSS reported that Respondent
had refused the court-mandated drug screens on 10 March 2004, 11
March 2004 and 15 April 2004. She had attended three out of
eighteen scheduled substance abuse group sessions. Similarly, she
did not complete her parenting classes due to numerous absences,
nor did she provide any verification of attendance at Narcotics
Anonymous meetings or her efforts to maintain stable employment.
She had, however, appeared for her psychological assessment and had
maintained contact with DSS.
DSS records indicated that Respondent appeared to be under the
influence of controlled substances while meeting with her children
on 11 March 2004 and 15 April 2004. Those visits had to be
cancelled or cut short. The children were upset and angry with
their mother, and T.L.B. cried uncontrollably on the way home.
Upon being questioned, Respondent stated that she had takenKlonopin, but could stop anytime. The records further indicated
that Respondent's conduct was appropriate during the visits when
she was not under the apparent influence of controlled substances.
She brought snacks, clothes and gifts for the children, who
appeared to enjoy her visits. The court continued custody
arrangements until the next review hearing.
The next hearing was held on 5 August 2004. Respondent had
been late to her last psychological evaluation, which had been
rescheduled. She had missed enough substance abuse assessments to
require a second intake assessment, but stated that she did not
have the funds to undertake this. She did not provide verification
of her attendance at Narcotics Anonymous sessions. She did provide
some proof of employment and completed parenting classes. She
behaved appropriately in her visits with the children and continued
to bring them snacks, clothes and gifts. She also maintained
contact with DSS. Once again, the court continued custody
The next hearing was held on 12 November 2004. Respondent had
been terminated from the substance abuse assessment group for
accumulating excessive absences and had not attended Narcotics
Anonymous meetings. She had also failed drug tests on 23 August
2004, 7 October 2004 and 28 October 2004. She continued to behave
appropriately during her visits with the children, maintained
contact with DSS, and had obtained a part-time position at a
restaurant in Kannapolis. Respondent had also ceased attending
psychological assessment sessions, stating that she felt she nolonger needed therapy. The therapist stated that she did not
believe she could assist Respondent unless Respondent was willing
to take responsibility for her own actions. At that point, DSS
recommended that the permanent plan be changed to adoption.
However, the trial court ordered that reunification efforts with
Respondent continue until the next hearing.
The next review hearing was scheduled on 13 January 2005.
Respondent, however, had been incarcerated for a probation
violation and could not attend. At that point, the trial court
ordered that reunification efforts cease, and that DSS initiate
adoption efforts. DSS filed a Motion in the Cause to Terminate
Parental Rights (TPR) on 25 May 2005. Respondent filed a reply
on 3 June 2005. The hearing on the Motion was scheduled on 18
August 2005, and again on 30 September 2005. Because Respondent
was not writted in from the correctional facility on either
occasion, postponement of the termination hearing was required.
The hearing was finally conducted on 18 November 2005, and the
district court's order terminating Respondent's parental rights was
filed on 9 December 2005.
The district court concluded, inter alia, that Respondent was
incapable of providing for the proper care and supervision of the
children such that they were dependent juveniles under N.C. Gen.
Stat. § 7B-101, and that there was a reasonable probability such
incapability would continue for the foreseeable future. The trial
court found that Respondent, who had an eighth-grade education, had
supported herself since the age of thirteen primarily by illegallyselling drugs. Her last legitimate employment had terminated in
October 2004 after five weeks. She had been unable to find
employment since her release from prison on 9 October 2005. She
had not completed any drug treatment program and had repeatedly
failed drug screenings. Finally, she had little family support,
since her mother had her own addiction problems in addition to
being HIV positive. Her brother and husband were in prison.
The trial court also concluded that grounds existed to
terminate Respondent's parental rights because
Respondent neglected the juveniles and said
juveniles are neglected within the meaning of
N.C.G.S. § 7B-101(15), in that the Respondent
failed to provide the proper care, supervision
or discipline of the juveniles and there is a
probability that neglect will continue in the
future . . . .
The court supported this conclusion with nineteen detailed findings
of fact. Proceeding to disposition, the court determined that
terminating Respondent's parental rights would be in the best
interests of the children. Respondent appeals and brings forward
eleven assignments of error for our review.
Respondent's first assignment of error concerns the failure of
petitioner DSS to file the TPR motion within sixty days of the
permanency planning hearing held on 13 January 2005, as required by
statute. See N.C. Gen. Stat. § 7B-907(e) (2005). Respondent
argues that this delay stripped the trial court of subject matter
jurisdiction. Respondent cites no legal authority for herargument, and our research has failed to unearth any. Her brief
does contain a citation to this Court's decision in In re Triscari
Children, 109 N.C. App. 285, 426 S.E.2d 435 (1993), as purported
support for her position. However, Triscari addressed the lack of
subject matter jurisdiction when the TPR petition has not been
verified, as required by statute. Respondent has not argued that
such is the case here, and we cannot create an argument for her.
Viar v. N.C. DOT, 359 N.C. 400, 402, 610 S.E.2d 360, 361 (It is
not the role of the appellate courts, however, to create an appeal
for an appellant.), reh'g denied, 359 N.C. 643, 617 S.E.2d 662
With regard to the delay, this Court has repeatedly stated
that exceeding statutory time frames in termination cases does not
constitute reversible error per se. See, e.g., In re E.N.S., 164
N.C. App. 146, 595 S.E.2d 167, disc. review denied, 359 N.C. 189,
606 S.E.2d 903 (2004). We acknowledge that the purpose of the
legislature in including the filing specifications in the statute
was to provide parties with a speedy resolution of cases where
juvenile custody is at issue[,] as in this case. Id. at 153, 595
S.E.2d at 172. However, requiring reversal of a trial court's
order terminating parental rights in every case where a statutory
deadline is not met would only aid in further delaying a
determination regarding [the minor children] because juvenile
petitions would have to be re-filed and new hearings conducted.
Id. Instead, the decisions of this Court require that, to
constitute reversible error, a respondent must demonstrate
prejudice suffered from the delay. In re B.M., 168 N.C. App. 350,
607 S.E.2d 698 (2005). Despite a long line of case law
establishing this principle, Respondent has not argued any
prejudice in this instance. Indeed, in this case, the delay
actually benefitted Respondent since it allowed her to be released
from prison and gave her the opportunity to get her affairs in
order prior to the termination hearing. This assignment of error
is without merit and is therefore overruled.
In her second assignment of error, Respondent argues that the
trial court was without subject matter jurisdiction to hear the TPR
motion since it failed to hold the hearing within the time required
by N.C. Gen. Stat. § 7B-1109(a). In particular, she argues that
because of the court's failure to hold the termination hearing
within ninety days of DSS's filing of the motion to terminate her
rights, this Court should find that such significant non-
compliance with the ninety-day statutory requirement is prejudice
per se, thus requiring a new hearing. Again, however, she fails
to cite any controlling authority for this assertion. On the
contrary, in In re S.N.H. ___ N.C. App. ___, 627 S.E.2d 510 (2006),
this Court specifically held that such a delay does not
automatically strip the trial court of subject matter jurisdiction,
particularly where the delay was occasioned by the parent's own
actions. Here, the termination hearing was originally scheduled well
within the statutory time frame, but was continued because
Respondent was in prison. Respondent's guardian ad litem and trial
counsel were present for that hearing, and there is no indication
in the record before us that either of them objected to a
continuance to give Respondent the opportunity to attend the next
scheduled hearing. At the next hearing on 30 September 2005, the
trial court continued the hearing again because Respondent remained
in prison and records subpoenaed for the hearing had not been
received. The record reflects no objection from Respondent's
attorney, who was present. On the contrary, according to the order
of continuance, [t]he parties agree[d] that the matter is
continued. . . .
While N.C. Gen. Stat. § 7B-1109(a) requires the trial court to
conduct the termination hearing within ninety days of the filing of
the TPR motion, subsection (d) of this provision allows the court
to continue the termination hearing up to ninety additional days
in extraordinary circumstances when necessary for the proper
administration of justice. . . . N.C. Gen. Stat. § 7B-1109(a),
(e) (2005). As with her first assignment of error, Respondent has
failed to advance any argument as to how the delay in holding the
termination hearing prejudiced her or any other party. We find the
reasoning of S.N.H., supra, to be controlling here. Therefore,
this assignment of error is overruled.
III. & IV.
Respondent's next arguments concern the statutory requirements
for holding pretrial conference hearings in termination proceedings
to give parents adequate notice of the issues raised by the
pleadings and to be addressed at the termination hearing. See N.C.
Gen. Stat. § 7B-1108 (2005). In her third assignment of error,
Respondent argues that the trial court did not conduct a pretrial
hearing. This Court has previously held that the statutory
requirement of a pretrial hearing can be satisfied with a brief
hearing just prior to the trial[.] In re Peirce, 53 N.C. App.
373, 383, 281 S.E.2d 198, 204 (1981). Here, the trial court opened
its proceedings by suggesting that the pretrial conference orders
be handled first.
Court: . . . Ready to begin. We've done our
pretrial. There is a pretrial order in the
file - excuse me - a pretrial conference order
in the file and an answer. Is that correct?
Ms. Widelski: I do not recall seeing a
pretrial conference order.
Court: All right, let's do that then.
We hold that the pretrial hearing conducted immediately before the
termination hearing, without objection by Respondent, satisfied the
statutory criteria, as interpreted in Peirce. This assignment of
error lacks merit and is also overruled.
Respondent's fourth assignment of error alleges that she was
not given proper notice of the pretrial hearing. As noted above,
the pretrial hearing was held at the outset of the termination
proceeding with the consent of Respondent. After allowing an
amendment to the termination motion, without objection, the trialcourt offered Respondent a further continuance to prepare for the
hearing, as evidenced by the following exchange:
Court: . . . Anytime there is an amendment to
a petition or to a pleading, the other side
has an absolute right to a continuance. Mr.
Nance, as of today, does your client still
have a motion to continue?
Mr. Nance [Respondent's Attorney]: Your Honor,
after consulting with her guardian ad litem,
Mr. Small, she advises me that she does not
wish to continue and that she will proceed
In assessing whether she had sufficient notice, we also note that
Respondent had filed an answer to the termination motion and that,
with the exception of the amendment to the motion which arose
during the pretrial hearing, Respondent was therefore on notice,
through the earlier pleadings, of the issues upon which DSS was
proceeding to establish grounds for the termination of her parental
rights. The pleadings and pretrial proceedings thus covered every
material issue to be addressed in the termination hearing. Given
Respondent's assent to proceeding with the termination hearing
immediately after the pretrial hearing, we find no merit in this
assignment of error and, thus, overrule it. Cf. Peirce, 53 N.C.
App. at 382, 281 S.E.2d at 204 (holding that the statute does not
prescribe the exact form the [pretrial] hearing is to take except
that it is to be used to determine the issues raised by the
pleadings) (emphasis added).
Respondent's fifth argument is that the trial court lacked
subject matter jurisdiction because the TPR motion did not conform
to the statutory requirements of N.C. Gen. Stat. § 7B-1104.Specifically, Respondent argues that a copy of the order giving DSS
custody of the minors was not attached to the motion. However, the
transcript reveals that at the start of the hearing, DSS requested
that the TPR motion be deemed to include the order giving the
Department custody[.] Before granting the motion, the trial court
offered Respondent an opportunity to object. Both Mr. Nance and
Mr. Small, counsel and guardian ad litem respectively for
Respondent, stated that they had no objection. The order granting
DSS custody of the children was thus added to the TPR motion with
their consent. As modified, the motion conformed to the
requirements of N.C. Gen. Stat. § 7B-1104, and to this Court's
recent decision in In re T.B., ___ N.C. App. ___, 629 S.E.2d 895
(2006). Therefore, the trial court had subject matter
jurisdiction. This argument is wholly lacking in merit.
By her sixth assignment of error, Respondent asserts that the
trial court erroneously relied on evidence admitted under a lower
evidentiary benchmark than the clear, cogent and convincing
threshold required for a termination of parental rights
adjudication. Respondent cites this Court's decision in In re
Brim, 139 N.C. App. 733, 535 S.E.2d 367 (2000), to argue that it
is error for the trial court to consider evidence admitted under a
lower evidentiary standard. However, our review of Brim reveals no
such holding. Further, we recently rejected a virtually identical
argument in In re J.B., 172 N.C. App. 1, 16, 616 S.E.2d 264, 273
(2005) (quoting In re Huff, 140 N.C. App. 288, 298, 536 S.E.2d 838,845 (2000) (citation omitted), disc. review denied, 353 N.C. 374,
547 S.E.2d 9 (2001)), noting the well-established supposition that
the trial court in a bench trial 'is presumed [to have] disregarded
any incompetent evidence.' Though the trial court's order does
refer to its own earlier proceedings, we have long held that it is
entirely appropriate for a trial court to take judicial notice of
earlier proceedings in the same matter. In re Isenhour, 101 N.C.
App. 550, 400 S.E.2d 71 (1991). This argument likewise is wholly
without merit, and this assignment of error is overruled.
VII. & VIII.
Respondent's seventh and eighth assignments of error challenge
the trial court's conclusions of law that grounds existed to
terminate her parental rights because the minor children are
dependent pursuant to N.C. Gen. Stat. § 1111(a)(6) and neglected
under section 1111(a)(1). Respondent argues that these conclusions
are not supported by sufficient findings of fact. These
assignments of error either intentionally ignore or inadvertently
overlook well-settled law in this State that [a] finding of any
one of the . . . enumerated grounds is sufficient to support a
termination [of parental rights]. In re Pierce, 67 N.C. App. 257,
261, 312 S.E.2d 900, 903 (1984). Indeed, the statute itself
plainly provides that [t]he court may terminate the parental
rights upon a finding of one or more of the following grounds.
N.C. Gen. Stat. § 7B-1111(a) (2005) (emphasis added).
Here, the trial court concluded that terminating Respondent's
parental rights to the minor children was warranted by four of thestatutorily enumerated grounds. In addition to neglect and
dependency of the children, the court entered conclusions of law
that Respondent had willfully failed to pay for the cost of the
juveniles' care for a continuous period of six months next
preceding the filing of [the TPR] motion although financially and
physically able to do so[,] and that Respondent had willfully
left the children in foster care for more than twelve months
without showing to the satisfaction of the court that reasonable
progress under the circumstances had been made to correct the
conditions that led to the removal of the children from
Respondent's custody. See N.C. Gen. Stat. §§ 7B-1111(a)(2), (3).
These conclusions of law are supported by detailed findings of fact
based on clear, cogent and convincing evidence. Respondent has
neither assigned error to the findings of fact nor to the
conclusions of law which support terminating her parental rights
under sections 7B-1111(a)(2) and (3). Further, she has not
assigned error to any of the court's detailed findings of fact
which support its conclusion of law that the juveniles are
dependent within the meaning of the statute. It is also well
settled that findings of fact of the trial court which are not
challenged by assignments of error on appeal are deemed to be
supported by competent and sufficient evidence, and are binding on
appeal. See, e.g., In re L.A.B., ___ N.C. App. ___, 631 S.E.2d 61
(2006). Thus, even if there is merit to her arguments that the
court's conclusions based on neglect and dependency are not
supported by sufficient findings of fact, an issue on which weexpress no opinion because we decline to address these assignments
of error, vacating those portions of the trial court's termination
order based on neglect and dependency of the children would not
change the adjudication result that grounds existed to terminate
Respondent's parental rights. We thus reject assignments of error
seven and eight.
Respondent's ninth argument is that the trial court erred in
making its dispositional findings before determining that
sufficient grounds existed to terminate her parental rights. This
argument has no merit. The record shows that the trial court first
determined that grounds existed to terminate Respondent's parental
rights. The trial court then offered additional analysis in
separate findings of fact related to the best interests of the
children. Moreover, the proceedings commenced with an observation
that [b]y agreement of the parties, this matter will be non-
bifurcated. There is no requirement that the trial court hold
separate hearings on adjudication and disposition so long as the
requisite evidentiary safeguards are followed. In re Shepard, 162
N.C. App. 215, 591 S.E.2d 1 (2004). Here, the court made detailed
findings of fact on all four of the statutory grounds it concluded
were in existence to support termination of Respondent's parental
rights. The court clearly stated that these findings of fact were
based on clear, cogent and convincing evidence, the evidentiary
standard required for adjudicatory findings. See, e.g., In re
C.C., 173 N.C. App. 375, 618 S.E.2d 813 (2005). As indicated, manyof these findings are unchallenged on this appeal and are, thus,
binding on this Court. Further, the trial court did not enter its
findings of fact on disposition until after it completed its
findings of fact on adjudication. The court also clearly stated
that its dispositional findings were made in the best interest of
the children[.] We perceive no error in the form of the court's
termination order and, therefore, this assignment of error is
Respondent next contends that the trial court failed to make
any findings of fact on the record, in violation of N.C. Gen. Stat.
§ 7B-1109(e). After exhaustive review of counsel's argument, we
fail to comprehend the thrust of her contention. The statute
states in relevant part that
[t]he court shall take evidence, find the
facts, and shall adjudicate the existence or
nonexistence of any of the circumstances set
forth in G.S. 7B-1111 which authorize the
termination of parental rights of the
Respondent. 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.
N.C. Gen. Stat. § 7B-1109(e) (2005). As previously discussed, the
trial court made extensive findings of fact, covering more than ten
single-spaced pages in the record. Our review of the transcript
and the exhibits admitted at the termination hearing establishes
that the court's findings are well supported by the evidence and,
since most are uncontested on this appeal, are binding, as we have
also previously observed. We hold that the trial court's findingsof fact satisfy the statutory requirement. This argument is wholly
lacking in merit and is rejected.
Finally, Respondent argues that the trial court erred in
admitting Petitioner's Exhibit 2, her prison record. In the
assignment of error relating to this argument, Respondent asserts
that the exhibit was not properly authenticated. We note that
although the trial court reserved its ruling on the admission of
this exhibit, the record is silent as to the court's eventual
decision. Nevertheless, the trial court relied on the document in
its findings 9(i), 9(j) and 9(n). The inference, thus, is that the
trial court admitted the evidence. In doing so, it acted correctly
under our general statutes, which state that:
A seal shall be provided to be affixed to any
paper, record, copy or form or true copy of
any of the same in the files or records of the
Records Section, and when so certified under
seal by the duly appointed custodian, such
record or copy shall be admitted as evidence
in any court of the State.
N.C. Gen. Stat. § 148-80 (2005). The requisite certification is in
the record. Therefore, the trial court properly admitted
Respondent's prison record.
In her argument on this assignment of error, however,
Respondent contends that since the court did not include its ruling
on the admission of this exhibit in the termination order, the
evidentiary standard under which this evidence was considered
cannot be determined. Respondent thus argues that, for this
alleged error, the court's termination order should be vacated andthis matter remanded. Respondent requests such drastic relief
despite the fact that (1) this assignment of error concerns only
three subparts of only one finding of fact; (2) the court stated in
making its findings of fact that they were based on clear, cogent
and convincing evidence[,] and Respondent has advanced no argument
as to how her properly authenticated prison record did not meet
this evidentiary standard, and (3) even without the challenged
subparts of this one finding of fact, the unchallenged findings of
fact and conclusions of law sufficiently support the trial court's
termination of Respondent's parental rights. This assignment of
error also wholly lacks merit and is overruled.
The order of the trial court terminating Respondent's parental
Judges WYNN and HUDSON concur.
Report per Rule 30(e).
The judges concurred prior to 31 December 2006.
*** Converted from WordPerfect ***