In her first argument, respondent contends the trial court
committed reversible error in terminating her parental rights
because she did not receive adequate notice of the termination
Respondent was served by certified mail with a summons for the
termination proceedings on 26 October 2005. Respondent did not
submit a written answer to the trial court. On 22 November, a
notice of hearing was filed and mailed stating that the termination
hearing was set for 13 December. Respondent was appointed counsel
on 13 December and the termination hearing was continued until 17
January 2006. On 13 January, respondent filed a motion to
continue. The motion was granted and the termination hearing was
set for 28 February. On 17 February, a review hearing was held
regarding respondent's compliance with the original case plan.
Respondent and her attorney were present at this hearing. In the
presence of respondent, the termination hearing was again continued
at her attorney's request and was set for 4 April. The respondent
was not present on 4 April and now challenges the notice for the
When a proceeding is initiated by petition, notification of
the date, time, and place of the termination hearing must be mailed
upon filing of an answer or thirty days from the date of service.
N.C. Gen. Stat. § 7B-1106(b)(5). Respondent does not contest
the adequacy of notice received for the original hearing date. We
do not extend the statutory rules for notice of a termination
hearing to serve as the rules for notice when a hearing iscontinued. See In re Taylor
, 97 N.C. App. 57, 60, 387 S.E.2d 230,
231 (1990). The continuances granted in this case were at the
request of respondent's counsel. Respondent was present at a
review hearing when her case was continued to 4 April. Respondent
had adequate notice of the termination hearing. This assignment of
error is without merit.
Respondent argues she was prejudiced by the failure to record
the entire termination hearing, resulting in an incomplete
transcript. The unavailability of a verbatim transcript does not
automatically constitute error. See Hunt v. Hunt
, 112 N.C. App.
722, 726, 436 S.E.2d 856, 859 (1993). To prevail on such grounds,
a party must demonstrate that the missing recorded evidence
resulted in prejudice. In re Clark
, 159 N.C. App. 75, 80, 582
S.E.2d 657, 660 (2003). General allegations of prejudice are
insufficient to show reversible error. Id
.; see also In re Peirce
53 N.C. App. 373, 382, 281 S.E.2d 198, 204 (1981) (finding an
insufficient showing of prejudice where appellee did not indicate
the content of the lost testimony in the record). As to
unavailable verbatim transcripts, a party has the means to compile
a narration of the evidence through a reconstruction of the
testimony given. Id
. (citing Miller v. Miller
, 92 N.C. App. 351,
354, 374 S.E.2d 467, 469 (1988)); see also
N.C. R. App. P.
9(c)(1). Overall, a record must have the evidence necessary for
an understanding of all errors assigned. N.C. R. App. P.
. In the present case, the court reporter was unable to
transcribe anything said by respondent's attorney, the DSS attorney
or the Guardian ad Litem due to faulty recording equipment.
Respondent did not attempt to provide a narration of the evidence
in order to reflect what might be missing within the transcript.
N.C. R. App. P. 9(c)(1). Respondent contends that the time
constraints of an expedited appeal precluded the creation of a
narration of the evidence. We find no merit in this assertion. As
to prejudice, respondent argued that the missing portions within
the transcript prevented her from pursuing an effective appeal.
Such an argument amounts to a general allegation of prejudice which
is insufficient as a showing of reversible error. In re Clark
N.C. App. at 80, 582 S.E.2d at 660. On review of the record, the
missing portions of the transcript primarily affected questions
asked during the hearing and do not prevent this Court from
understanding the remaining assignments of error.
Next, respondent challenges the adjudication order on the
grounds that the findings of fact were mere recitations of the
allegations in the petition. An adjudicatory order shall be in
writing and shall contain appropriate findings of fact and
conclusions of law. N.C. Gen. Stat. § 7B-807(b) (2005). Although
there is no statutory criteria that must be stated in the findings
of fact or conclusions of law, the trial court's findings must
consist of more than a recitation of the allegations. In re O.W.
164 N.C. App. 699, 702, 596 S.E.2d 851, 853 (2004) (citing In re
, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002)). Findings of fact must be ultimate facts, sufficient for this Court
to determine that the judgement is adequately supported by
competent evidence. In re Anderson
, 151 N.C. App. at 97, 564
S.E.2d at 602.
In this case, while many of the allegations of the petition to
terminate parental rights were recited, there were also independent
findings of fact; all of the findings were based on the evidence
received. Although the trial court included findings of fact which
summarized the testimony, the court also included the necessary
ultimate findings of fact. There is nothing impermissible about
describing testimony, so long as the court ultimately makes its own
findings, resolving any material disputes. In re C.L.C.
, 171 N.C.
App. 438, 446, 615 S.E.2d 704, 708 (2005).
Respondent argues the trial court's findings of fact were not
supported by clear, cogent and convincing evidence and its
conclusions of law were not supported by those findings. On
appeal, this Court must determine whether the trial court's
findings of fact were supported by clear, cogent and convincing
evidence, and whether its conclusion that grounds existed to
terminate parental rights was supported by those findings of fact.
In re Huff
, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000).
The trial court's findings of fact are conclusive, even where some
evidence supports contrary findings, if they are supported by clear
and convincing competent evidence. In re Helms
, 127 N.C. App. 505,
511, 491 S.E.2d 672, 676 (1997). Respondent contends that many of the findings of fact were
mere recitations of the chronological events and restatements of
the case, and not ultimate findings of fact sufficient for this
Court to conduct a proper review. Among the challenged findings,
respondent claims that numbers four, seventeen and nineteen are
actually conclusions of law. Within these three findings, the
court found that respondent neglected the child, that respondent
willfully left the child in foster care for more than twelve months
and that respondent willfully failed to pay a reasonable cost of
the child's care. Findings four, seventeen and nineteen are, in
fact, conclusions of law and will be reviewed as such. See Johnson
, 149 N.C. App. 876, 878 n.1, 561 S.E.2d 588, 589 n.1
(2002). As conceded by DSS, finding number two contains an
improper date on which respondent was served by certified mail with
a summons. The remaining challenged findings were primarily based
on the testimony of Erin Caligan, a foster care worker with DSS.
Careful review of the record reveals that each finding was
supported by clear, cogent, and convincing evidence. The trial
court's findings are, therefore, binding on appeal. In re Helms
127 N.C. App. at 511, 491 S.E.2d at 676.
Respondent next challenges the trial court's conclusion of law
that K. J. was neglected. Having found the trial court's findings
binding, this Court must determine whether the conclusion that
certain grounds existed to terminate parental rights was supported
by those findings of fact. In re Huff
, 140 N.C. App. at 291, 536
S.E.2d at 840. A neglected juvenile is defined as follows: A juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian or caretaker; or
who has been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15) (2005). The determinative factors
must be the best interests of the child and the fitness of the
parent to care for the child at the time of the termination
. In re Ballard
, 311 N.C. 708, 715, 319 S.E.2d 227, 232
(1984). [A] prior adjudication of neglect may be admitted and
considered by the trial court in ruling upon a later petition to
terminate parental rights on the ground of neglect. Id
. at 713-
14, 319 S.E.2d at 231.
In addition, the trial court must consider
evidence of changed circumstances and the probability of a
repetition of neglect. Id
. at 715, 319 S.E.2d at 232.
In the present case, K.J. was adjudicated neglected by the
trial court on 19 November 2004 on the basis of inappropriate
discipline administered by the respondent. Efforts were made by
DSS to reunite K.J. with respondent through the development of a
case plan. The trial court found that the respondent had failed to
complete each and every component of her case plan. A
probability of repetition of neglect was based on respondent's
demonstrated lack of initiative to comply with the DSS case plan.
In sum, the trial court found that the respondent was unable to
demonstrate that she is willing or able to provide a lovingnurturing environment for the juvenile. The findings of fact
support the trial court's conclusion of neglect.
Respondent challenges the trial court's conclusion that
respondent 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. N.C. Gen. Stat. § 7B-
[T]o sustain the trial court's finding that
grounds existed for termination of parental
rights under G.S. § 7B-1111(a)(2), we must
also determine that there was clear, cogent,
and convincing evidence that (1) respondents
willfully left the juvenile in foster care
for more than twelve months, and (2) that each
respondent had failed to make reasonable
progress in correcting the conditions that
led to the juvenile's removal from the home.
In re Baker
, 158 N.C. App. 491, 494, 581 S.E.2d 144, 146 (2003).
Willfulness is established when the respondent had the ability to
show reasonable progress, but was unwilling to make the effort.
In re McMillon
, 143 N.C. App. 402, 410, 546 S.E.2d 169, 175 (2001)
(citations omitted). Willfulness may be established even where the
parent made some effort and progress to regain custody. See In re
, 92 N.C. App. 662, 669, 375 S.E.2d 676, 681 (1989). The
twelve-month period required by statute is measured from the time
of the child's removal from the home pursuant to a court order and
the filing of the motion or petition to terminate parental rights.
In re A.C.F.
, __ N.C. App. __, 626 S.E.2d 729, 734 (2006). Respondent argues that as of the 24 October 2005 filing of the
petition, the twelve-month period had not yet expired. Over a year
earlier, on 22 October 2004, a nonsecure custody order granted DSS
custody of the child. Respondent challenges the validity of this
order. Respondent has not assigned error to the custody order,
however, and its validity is not before this Court. See
App. P. 10(a). The petition was filed more than twelve months
after DSS was granted custody.
As to evidence of willfulness, the trial court found
respondent to have made insufficient progress on her case plan.
See In re McMillon
, 143 N.C. App. at 410, 546 S.E.2d at 175
(finding willfulness where respondent was unwilling to comply
with tasks in a case plan for which respondent had both the
financial and social resource to achieve). Respondent failed to
notify DSS of her contact information or to arrange a time for her
home to be evaluated. Respondent put off attending her classes and
completing her evaluations. Respondent did not financially support
the child. Although respondent made efforts, the court's findings
show efforts that fall short of reasonable progress, supporting the
court's finding of willfulness.
Respondent also claims that the evidence failed to support the
trial court's conclusion that respondent willfully failed to pay
child support. A court may terminate the parental rights of a
parent on a showing of the following:
The juvenile has been placed in the custody of
a county department of social services, a
licensed child-placing agency, a child-caring
institution, or a foster home, and the parent,for a continuous period of six months next
preceding the filing of the petition or
motion, has willfully failed for such period
to pay a reasonable portion of the cost of
care for the juvenile although physically and
financially able to do so.
N.C. Gen. Stat. § 7B-1111(a)(3) (2005).
Here, the trial court found that respondent was gainfully
employed full time from January 2005 until January 2006, a period
of time that included the six months preceding the filing of the
petition. Despite her employment, the court found that respondent
has failed to provide any financial support for the child since he
has been in DSS custody. The required findings were made by the
trial court in its order and after careful review, we hold that
such findings were supported by competent evidence. Respondent's
assignments of error are overruled.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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