Converted WP file 060610-1

IN RE: G.K., J.K., and            Sampson County
J.L.D.                        No. 94 J 30-31, 00 J 23
    Minor Juveniles.



    Appeal by Irma K., from judgment entered 29 July, 2005 by Judge Louis F. Foy, Jr. in Sampson County District Court. Heard in the Court of Appeals 10 January 2007.
    Corinne A. Railey, for petitioner-appellee.

Katherine Chester, for respondent-appellant.

    Womble Carlyle Sandridge & Rice, PLLC, by Lewis S. Rowell, for guardian ad litem appellee.

    ELMORE, Judge.
    Respondent Irma K. appeals the district court's 29 July 2005 order terminating her parental rights as the mother of G.K., J.K., and J.L.D.
    Respondent is the mother of G.K., J.K., and J.L.D. The Sampson County Department of Social Services (petitioner) initially became involved with G.K. and J.K. in March, 1994. Petitioner substantiated neglect of the children by respondent, and she signed a case plan with petitioner on 27 April 1994. However, respondent refused to cooperate with petitioner's home visits. On 13 June1994, petitioner filed a petition alleging neglect and requesting the court to compel respondent to cooperate. On 13 September 1994, after respondent had cooperated in the completion of her case plan with petitioner, the petition was voluntarily dismissed without prejudice. In March of 1997, petitioner again substantiated neglect of G.K. and J.K. A non-secure custody order was entered placing the children into the custody of petitioner on 13 August 1997; the children were subsequently placed in foster care. G.K. and J.K. were first adjudicated neglected on 9 September 1997. The court found that respondent's house was dirty and noted her unwillingness to cooperate with petitioner. The court ordered that legal custody of the minors remain with petitioner, while physical custody was returned to respondent and her current husband, Jerry D., on the condition that they each obtain psychological evaluations, follow the recommended treatment, participate in parenting classes, maintain a clean home, and cooperate with petitioner.
    On 27 January 1998, the court reviewed the case. Neither respondent nor Jerry D. had cooperated with the case plan. Additionally, the Guardian ad Litem (GAL) submitted a report that the Clinton Police Department had responded to domestic disputes in the home at least once since September, 1997. On 14 July 1998, the court returned legal custody to respondent.     On 10 December 1998, petitioner filed a third petition alleging neglect. Again, a non-secure custody order was entered placing the children in the physical custody of petitioner. Since that time, G.K. and J.K. have remained in petitioner's custody in Sampson County.
    On 26 October 1999, G.K. and J.K. were adjudicated neglected for a second time. During this hearing, respondent admitted that Jerry D. had been arrested for assault and domestic violence against her on at least one occasion since the hearing on 29 December 1998. The GAL submitted a report describing the conditions in the home as “rivaling the results of a tornado.” The Court Report, dated 26 October 1999, outlines the progress made by respondent and Jerry D. since the children were placed in foster care on 29 December 1998. Petitioner submitted a potential case plan for the family including anger management classes, keeping the home clean, obtaining psychological testing, and following the recommendations which resulted from that testing. Respondent refused to sign that case plan. Respondent also refused to undergo psychological evaluation despite repeated court orders to do so.
    At the hearing, petitioner advised against continuation of the children in the home, citing evidence of reports to petitioner of loud arguments, and of Jerry D. moving in and out of the home frequently. Respondent admitted to repeated separations, includingJuly, 1999, when respondent reported to petitioner that Jerry D. had moved out of the house due to excessive drinking and drug use. However, the following month Jerry D. moved back into the home. By September, respondent had again reported that he was living somewhere else. Jerry D. was jailed in September, 1999 for assault on a female and communicating threats; in October, 1999, he was again residing with respondent.
    On 21 March 2000, a petition was filed alleging the third child, J.L.D., to be neglected. J.L.D. was nine months old. The petition described an incident of domestic violence on or about 20 March 2000, in which respondent and Jerry D. had engaged in physical fighting while J.L.D. was in their care, and after which, respondent was again jailed for assault on Jerry D. An order for non-secure custody of J.L.D. was entered but unserved as respondent refused to release the location of the child. Respondent was charged with obstruction by the Clinton Police Department. J.L.D. was located on 22 March 2000. Since that time, J.L.D. has remained in petitioner's custody in Sampson County.
    On 9 May 2000, J.L.D. was adjudicated neglected due to the injurious environment within respondent's home. The GAL's report, dated 9 May 2000, stated that, despite the domestic violence, respondent and Jerry D. were still residing together as recently as 11 April 2000. The court concluded that there was ongoing maritalconflict and substance abuse in the household and that respondent believed Jerry D. was using cocaine and being hunted by drug dealers. The court further found that both parents had neglected J.L.D. and ordered respondent and Jerry D. to either accept or reject petitioner's case plan, which they had again refused to sign.
    At the hearing on 23 May 2000, the court concluded that reunification should remain the plan for a short period despite the recommendations by the GAL and petitioner that reunification efforts cease. Respondent and Jerry D. were given until 24 July 2000 (two months) to make progress on their case plan. The court required respondent and Jerry D. to attend AA meetings each week, attend marriage counseling; anger management counseling; and undergo substance abuse evaluations; maintain full time employment; acquire and keep a working phone in the house; keep the home clean at all times; cooperate with petitioner and GAL; and allow unannounced visits at any time until 24 July 2000.
    The review hearing was held on 24 July 2000 for all three children to determine what, if any, progress had been made by respondent. The court found that respondent had again sought a protective order from Jerry D. in May, 2000, and concluded that domestic violence was still ongoing in the home. Respondent and Jerry D. had failed to obtain psychological evaluations orsubstance abuse testing. The court concluded that it was in the best interests of the children to seek relative placement or, in the alternative, institute termination proceedings. Petitioner retained legal custody of the children, and the permanent plan became relative placement, and, that failing, termination of parental rights.
    The case was reviewed on 13 March 2001. At that time petitioner recommended that visitation cease between respondent and the children. The Court Record shows that during visitation, respondent repeatedly questioned G.K. and J.K. about their treatment in foster care and acted inappropriately with them. The older children had expressed their desire to discontinue visitation. The court concluded that, since the attempt to place the children with a relative had continued unsuccessfully for nine months, petitioner should proceed to termination of parental rights. Additionally, the court held that visitation with respondent and Jerry D. should cease while termination proceedings were instituted. Respondent and Jerry D. appealed the Permanency Planning Order (dated 13 March 2001) to this Court. The Order was affirmed.
    Petitioner filed petitions to terminate parental rights to G.K., J.K., and J.L.D. on 23 May 2003. The original petitions listed Adrian Sykes as the father of G.K., Jose Maldonado as theputative father of J.K., and Jerry D. as the father of J.L.D. On 18 December 2003, a review hearing was held. The court received into evidence a domestic violence complaint filed by respondent against Jerry D. in August, 2003. “Based on the evidence presented, the court concluded that there had been 'no change in circumstances since the entry of the Order of March, 2001' and 'it is in the best interest of the child that the petition to terminate parental rights proceed.'” The court ordered that the permanent plan be and remain termination of parental rights.
    In response to the petition for the termination of parental rights, respondent filed an answer denying that Adrian Sykes and Jose Maldonado were the fathers of G.K. and J.K. On 29 January 2004, a hearing to determine the paternity for G.K., J.K., and J.L.D. was conducted. Paternity testing, completed in May 2004, verified that Douglas Edward Lewis is the father of G.K. and J.K. He relinquished his parental rights to both children to petitioner on 14 June 2004.
    Following a hearing, the court entered a judgment terminating respondent's parental rights on 29 July 2005. In that order, the court found that: the children were all residing in the same foster home, which provided a stable and secure environment; respondent and Jerry D. continued to engage in domestic violence against one another; J.L.D. had been in foster care since she was nine monthsold and did not recognize respondent as her mother; G.K. and J.K. have been in foster care for more than six years, and it had been over four years since either child has had contact with respondent; and all three children have expressed that it is their wish to be adopted. Based on its findings of facts, the court concluded, in relevant part:
    1. That Respondent Mother has willfully left the juveniles in foster care outside the home for more than [twelve] months without showing to the satisfaction of the [trial court] that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile[s].
    2. That Respondent Father has willfully left the juveniles in foster care outside the home for more than [twelve] months without showing to the satisfaction of the [trial court] that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile[s].
    3. That it is in the best interest of the juveniles that parental rights be terminated.
    4. That no evidence has been presented that it is in the best interest of the juveniles to forego termination of parental rights.

     Respondent first contends that the trial court committed reversible error by failing to hold a timely hearing, thereby prejudicing respondent. According to respondent, the trial court erred twice in delaying the hearing: initially by failing to filethe petition to terminate parental rights in a timely manner, and then by failing to hold a hearing to terminate in a timely manner.
    Under N.C. Gen. Stat. § 7B-907(e):

        If a proceeding to terminate the parental rights of the juvenile's parents is necessary in order to perfect the permanent plan for the juvenile, the director of the department of social services shall file a petition to terminate parental rights within 60 calendar days from the date of the permanency planning hearing unless the court makes written findings why the petition cannot be filed within 60 days.

N.C. Gen. Stat. § 7B-907(e) (2003).

    Respondent contends that the trial court changed the permanency plan from reunification to TPR in July, 2000, but that petitioner did not file a petition to terminate until May, 2003. Such a delay would violate the statutory limit by more than two and one half years. However, a review of the chronology of the case shows that such delay is, in fact, explainable and largely due to respondent's own actions.
    Subsequent to a review hearing on 24 July 2000, the permanent plan for the children became relative placement and, that failing, termination of parental rights. Petitioner attempted to locate a suitable relative for nine months. The case was reviewed on 13 March 2001. At that time, the court ordered that visitation cease between respondent and the children and that the permanent plan be changed to termination of parental rights. This order is dated 13March 2001, and is the date from which the statutory time limit should begin to run.
    However, respondent chose to appeal the Permanency Planning Order to this Court. The cases were initially scheduled to be heard on 30 April 2002, and then on 11 June 2002. At each hearing, a continuance was requested by respondent's counsel. On 6 August 2002, this Court affirmed the 13 March 2001 Permanency Planning Order ceasing visitation with respondent and ordering petitioner to proceed with termination of parental rights. Again, respondent filed a petition for discretionary review with the Supreme Court.
    Meanwhile, the case was reviewed by the trial court on 26 November 2002. At that time, the court determined that petitioner had done all that was reasonably possible to provide a permanent plan for the children. The court decided that the permanency plan decision should be put on hold pending the outcome of the Supreme Court decision.
    The petition for discretionary review was denied by the Supreme Court on 21 November 2002. In re Kennedy, 356 N.C. 436, 572 S.E.2d 789 (2002). The parties were notified of the denial on 3 January 2003. Petitioner subsequently filed petitions to terminate parental rights to the children on 23 May 2003.
     At the time of appeal, the law was unclear as to whether the trial court should proceed forward while awaiting results of theappeal. In In re Hopkins, this Court held that “by entering the TPR order while [the parent]'s appeal from [an] earlier permanency planning review order is still pending, the trial court exceed[s] the authority expressly granted to it under N.C. Gen. Stat. § 7B-1003.” In re Hopkins, 163 N.C. App. 38, 42, 592 S.E.2d 22, 25 (2004). However, that case was overruled by In re R.T.W., which held that “a trial court retains jurisdiction to terminate parental rights during the pendency of a custody order appeal in the same case.” In re R.T.W., 359 N.C. 539, 553, 614 S.E. 2d 489, 498 (2005).
        We note that our General Assembly has recently amended N.C. Gen. Stat. § 7B-1003 (2005) to provide that, pending disposition of an appeal, the trial court no longer continues to exercise jurisdiction over termination proceedings. However, this statutory change applies only to petitions filed on or after 1 October 2005 and therefore does not apply to the appeal in this matter.

In re A.B., __ N.C. App. __, __ 635 S.E.2d 11, 14, n.2

(2006).

    Although the statutory revision of 2005 does not apply here, the case law interpreting N.C. Gen. Stat. § 7B-1003 was unclear at the time of the trial court's decision. Under these circumstances, we hold that it was reasonable for the trial court to continue the TPR proceedings until after the decision of the Supreme Court was rendered.     Therefore, the window of time to which the statutory limit applies begins at the time the parties were notified that the Supreme Court had refused the petition for discretionary review (3 January 2003) and ends when the petition to terminate was filed (23 May 2003). This constitutes a delay of two and one half months beyond what the statutory limit allows.
    Respondent additionally contends that there was a prejudicial delay between the filing of the petitions to terminate and the TPR hearings. Pursuant to N.C. Gen. Stat. § 7B-1109(a), a TPR hearing shall be held “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.” N.C. Gen. Stat. § 7B-1109(a) (2003). The Petitions to Terminate were filed on 23 May 2003. The Order to Terminate was not filed until 29 July 2005. Again, however, a review of the facts of the case explain a substantial portion of the delay.
    The review hearing initially scheduled for 29 May 2003, was continued by respondent's counsel in order to have an expert witness present. The counsel requested that the matter be continued until late August, 2003, and the court granted the continuance. At the rescheduled hearing on 21 August 2003, Chief District Court Judge Leonard Thagard recused himself from the proceedings, indicating that respondent had contacted the SampsonCounty Clerk of Court's Office alleging that Judge Thagard had drug convictions in South Carolina, and threatening that if he ruled against her, she would expose his alleged criminal background. As a result, the matter was continued once again until 4 December 2003.
    On 4 December 2003, the matter was continued to allow respondent access to her expert testimony (the location of the review was not amenable to testimony by phone). Finally, on 18 December 2003, a review hearing was held, during which the court reviewed more evidence of continuing domestic violence in the home and concluded that petitioner should move forward with the TPR proceedings.
    In response to the petition for the termination of parental rights, respondent filed an answer denying that the two men she had previously identified as the fathers of G.K. and J.K. on child support documents were the biological fathers of G.K. and J.K. For the first time, respondent identified Douglas Edward Lewis as the father of G.K. and J.K. On 29 January 2004, a hearing to determine the paternity of G.K., J.K., and J.L.D. was conducted. The court ordered that petitioner locate Douglas Edward Lewis in order to determine paternity. Paternity testing, completed in May, 2004, verified that Douglas Edward Lewis is the father of G.K. and J.K.; he relinquished his parental rights for both children to petitioner on or about 14 June 2004.
    Pursuant to a motion filed by petitioner, a hearing was set to review the case on 1 July 2004. Judge Paul Hardison indicated that he had previously recused himself from this case, and the case was continued until 26 August 2004. On 26 August 2004, the court continued the case due to insufficient court time. Finally, following hearings held on 23 November 2004, 19 May 2005, 2 June 2005, and 16 June 2005, the court entered a judgment terminating parental rights on 29 July 2005.
    Under these circumstances, it is clear that the majority of the delay was caused by respondent herself. Although most of the delays were the result of her asserting claims she was entitled to make, she may not cause such delay and then rely on it as a basis for reversing the lower court's order. The time period to be considered for the statutory limits is from 26 August 2004 until 23 November 2004, which is within the statutory limits under N.C. Gen. Stat. § 7B-1109.
    This Court has repeatedly held that failure to comply with statutory limits in a juvenile custody case is not error per se. See, e.g., In re T.S., __ N.C. App. __, 631 S.E.2d 19, 23 (2006). “Rather, we have held that the complaining party must appropriately articulate the prejudice arising from the delay in order to justify reversal.” Id. at ___, 631 S.E.2d at 24 (quotations and citationsomitted). Additionally, it has been held that “[t]he passage of time alone is not enough to show prejudice, although this Court has recently noted that the longer the delay in entry of the order beyond the thirty-day deadline, the more likely prejudice will be readily apparent.” Id. (quotations and citations omitted). “Whether a party has adequately shown prejudice is always resolved on a case-by-case basis; however, determining prejudice is not a rubric by which this Court vacates or reverses an order when, in our opinion, the order is not in the child's best interest.” In re As.L.G. & Au.R.G., 173 N.C. App. 551, 554, 619 S.E.2d 561, 564 (2005).
    In the case at hand, the delay before the filing of the petitions was only two and one half months outside of the statutory limit, despite the contentions of respondent. Additionally, the delay before the TPR hearing was almost completely due to the actions of respondent and the necessities of an overloaded court schedule. The prejudice cited by respondent is a missed opportunity during which respondent was deprived of services and support by means of which she could have continued her efforts at reunification. Additionally, respondent asserts the fact that the children have been left in legal limbo, and the foster parents have not been able to adopt the children as prejudice. Respondent cites In re C.J.B., 171 N.C. App. 132, 135, 614 S.E.2d 368, 370 (2005),as an example of a case where there was unnecessary and prejudicial delay. However, the delay in that case was a five month period between the court's oral order to terminate and the completion of a written order which put the appeal process on hold for the appellant, thus creating prejudice warranting re-hearing. In the instant case, the delay is only a couple of months, and the order was completed promptly after the court's decision. Additionally, respondent has been more than willing to delay the proceedings for her own causes, and has shown no earlier concern for bias. Here, respondent's contention that the due process rights of mother and children were violated rests upon the assumption that this court would find a substantial delay in years beyond the statutory limit. However, as discussed above, there is no such delay, and prejudice has not been properly articulated. Accordingly, we overrule this assignment of error.

    Respondent next contends that the trial court should be reversed because the Petitions for Termination were legally insufficient, thereby depriving the trial court of subject matter jurisdiction. The legal sufficiency of Petitions to Terminate Parental Rights is governed by N.C. Gen. Stat. § 7B-1104. Under that statute, the petition must state “[f]acts that are sufficient to warrant a determination that one or more of the grounds forterminating parental rights exist.” N.C. Gen. Stat. § 7B-1104 (2003). “While there is no requirement that the factual allegations be exhaustive or extensive, they must put a party on notice as to what acts, omissions or conditions are at issue.” In re Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002).
    However, respondent failed to preserve this matter for appeal. In In re Quevedo, this Court addressed the legal sufficiency of a Petition to Terminate Parental Rights. In re Quevedo, 106 N.C. App. 574, 419 S.E.2d 158 (1992). The father in that case (who was incarcerated at the time of the termination proceedings) also alleged that the Petitions for Termination failed to state sufficient facts as required by statute. This Court treated the assignment of error as a failure to state a claim under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure: “we . . . treat it as a Rule 12(b)(6) motion for failure to state a claim because (1) the basis for the motion is that the petition fails to state sufficient facts as required by N.C. Gen. Stat. § 7A-289.25(6) and (2) a motion is treated according to its substance and not its label.” Id. at 578, 419 S.E.2d at 159. Here, as in Quevedo, the allegation of legal insufficiency of the petitions will be treated as a motion under Rule 12(b)(6), for failure to state a claim. A Rule 12(b)(6) motion may not be made for the first time on appeal. Dale v. Lattimore, 12 N.C. App. 348, 351-52,183 S.E.2d 417, 419 (1971) (citations omitted).
    In this case, respondent did make a motion to dismiss after the presentation of petitioner's evidence. But that motion was based on insufficient evidence, not the legal insufficiency of the petitions themselves. Therefore, respondent has not properly preserved this issue for appeal, and this assignment of error is overruled.

(2) 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. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty.

N.C. Gen. Stat. § 7B-1111 (2003).
Under this section of the statute, a court must perform a two part analysis. In re J.G.B., ___ N.C. App. ___,___, 628 S.E.2d 450, 456 (2006). The court must first determine that the mother left the child outside of the home willfully for more than twelve months, and then must determine that the mother has failed to make reasonable progress. Id.

In this two-part analysis, [e]vidence and findings which support a determination of “reasonable progress” may parallel or differ from that which supports the determination of “willfulness” in leaving the child in placement outside the home for the statutory twelve-month period. Under N.C.G.S. § 7B-1111(a)(2), the twelve-month period begins when a child is left in foster care or placement outside the home pursuant to a court order, and ends when the motion or petition for termination of parental rights is filed. Where the twelve-month threshold does not expire before the motion or petition is filed, a termination on the basis of N.C.G.S. § 7B-1111(a)(2) cannot be sustained.

Id. (quotations and citations omitted) (alteration in original).

    Additionally, this Court stated that
        evidence supporting a determination of reasonable progress under N.C.G.S. § 7B-1111(a)(2) is not limited to that which falls during the twelve month period next preceding the filing of the motion or petition to terminate parental rights. Rather, a trial court may consider evidence of reasonable progress made by a respondent until the date of the termination hearing.

Id. (quotations and citations omitted).
    In the instant case, G.K. and J.K. have been living in fostercare since 1998. J.L.D. has been living in foster care since 2000. The petitions for termination were filed in May of 2003. The delay in filing the petitions has already been addressed. Such a period is much longer than the twelve months required by statute. However, it is clear that during that period respondent was unable to make “reasonable progress” on any case plan. In fact, as late as August, 2003, there was a complaint of domestic violence filed by respondent.
    In this case, the mother is and has been a fully competent adult since 1998, which is the last time she had custody of any of her three children. For at least five years, she has chosen not to make the changes recommended by petitioner to receive custody of her children.
    Respondent relies heavily on the testimony of one Department of Social Services worker who was not familiar with the history of the case. However, that testimony was not all of the evidence which that the court had to consider. The past court records show a long history of domestic violence and respondent's refusal to cooperate with petitioner. Reasonable progress was never made after 1998, when all three children were taken from the home. None of the children were ever returned to respondent's physical custody. There were hearings and permanency planning, but respondent consistently refused to sign case plans and never madeany progress. As late as August, 2003, there was no reasonable progress in correcting the conditions that had resulted in domestic violence. The court had to consider the whole history of the case in determining whether there was reasonable progress. Petitioner provided a history dating from 1994 through August, 2003 of problems existing in the household. We hold that there was enough clear, cogent, and convincing evidence to support the trial court's conclusion. This assignment of error is overruled.
    Additionally, respondent contends that by adopting petitioner's brief as its Findings of Fact, the court delegated its fact finding duty. That is not the case. At the close of all evidence in the adjudicatory phase   (See footnote 1) , the court requested that both attorneys brief the evidence that they would like considered as findings of fact and their arguments about what the court could and could not consider in making the adjudicatory decision. The court reviewed briefs written by counsels for both respondent and petitioner, as well as the case history, the evidence, and the file before making a decision. Thus, the court did not delegate its duty as a fact finder.

    Respondent's final assignment of error is that the trial courtabused its discretion during the adjudicatory phase of the hearing by exercising its discretion during this phase instead of limiting its focus to determining whether there were statutory grounds for termination. As previously stated, the court need not hold the adjudicatory phase and the dispositional phase during two separate hearings. During the adjudicatory phase of the hearing, the court must determine whether grounds for termination exist by clear, cogent, and convincing evidence. In re Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908. However, the court may not exercise its discretion during the adjudicatory phase, thereby combining two separate phases into one. In re Carr, 116 N.C. App. 403, 407, 448 S.E.2d 299, 302 (1994).
    In the case at hand, at the close of the adjudicatory phase, the court stated that “it is clearly in the best interest of the children at this time that . . . respondent's parental rights be terminated. . . .” As appellant contends, this statement was made two weeks before the trial court moved to the dispositional phase of the hearing. However, we hold that the statement made by the court was a misstatement and harmless error.
    The two phases of a termination hearing do not need to be held separately, but, in this case, they were. It is clear that all parties were aware that they were at the close of the adjudicatory phase of the hearing only, and that the actual determination madeby the court at the time of this statement was that there was sufficient evidence to move on to the dispositional phase of the hearing. (“This was the close of our adjudicatory evidence only, not our dispositional evidence.”)
    The court scheduled the disposition hearing for 16 June 2005, at which time respondent was given the opportunity to testify as to her relationship with the children, and present any evidence regarding the best interest of the children. The court's language at the close of the adjudicatory phase was premature. However, given the context of the case and the subsequent hearing on the dispositional issues of the case, the statement is harmless error, and does not justify reversal.
    For the foregoing reasons, we affirm the trial court's order terminating respondent's parental rights.
    Affirmed.

Judges MCGEE and BRYANT concur.

Report per Rule 30(e).

Footnote: 1 We note that respondent did not present any evidence during this phase.

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