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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 5 June 2007
In the Matter of: Macon County
C.N. and J.N., Nos. 04 J 49
Minor Children. 04 J 50
Appeal by Respondent-Mother from orders entered 28 April and
7 September 2006 by Judge Bradley B. Letts in Macon County District
Court and from order entered 12 December 2006 by Judge Danny E.
Davis in Macon County District Court. Heard in the Court of
Appeals 30 April 2007.
Christy E. Wilhelm for Respondent-Appellant.
William R. Shilling for Petitioner-Appellee Macon County
Department of Social Services.
Mary G. Holliday for Guardian ad Litem-Appellee.
Respondent-Appellant (Respondent) is the mother of the
juveniles who are the subject of this appeal. By two Petition[s]
for Termination of Parental Rights, filed 18 October 2004, the
Macon County Department of Social Services (DSS) alleged that
grounds existed to terminate Respondent's parental rights to C.N.
and J.N. in that each juvenile was previously adjudicated to be a
neglected juvenile as defined by N.C. Gen. Stat. § 7B-101(15), and
that Respondent had not complied with court orders, psychological
recommendations, and substance abuse treatment recommendations, norotherwise taken steps to correct the conditions that led to the
removal of the juveniles from her custody. Two Summons[es] in the
Proceeding[s] for Termination of Parental Rights for C.N. and J.N.
were served on Respondent on 28 October 2004. On 2 March 2005,
Respondent filed answers to the petitions to terminate her parental
By orders filed 13 May 2005, the Honorable Danny E. Davis
allowed DSS to amend the petitions to add language stating that
each juvenile had a guardian ad litem appointed, and that each
juvenile's guardian ad litem had not been relieved of her
responsibilities. The case continued for regular review hearings
in Macon County District Court. On or about 24 June 2005,
Respondent sustained a brain injury when she was involved in an
incident in which she exited a motor vehicle while it was still
moving . . . , she fell to the ground, [and] hit her head[.] On
3 October 2005, DSS moved to file supplemental pleadings alleging
that, because of Respondent's brain injury, each juvenile was
dependent and, based on Respondent's condition and progress toward
completing her goals, the likelihood of dependency would continue
for the foreseeable future. The Honorable Richlyn Holt, by orders
filed 25 October 2005, allowed DSS's supplemental pleadings. On 6
March 2006, Respondent filed answers to the supplemental pleadings.
The case then came on for a hearing on 27 March 2006 regarding
DSS's petitions to terminate Respondent's parental rights. On 28
April 2006, the Honorable Bradley B. Letts filed two orders in
which he found that grounds existed to terminate Respondent'sparental rights to each juvenile. Judge Letts then continued the
case to conduct the disposition phase of the hearing. Following a
disposition hearing held 15 August 2006, Judge Letts determined by
order filed 7 September 2006, that it was in the best interests of
each juvenile to terminate Respondent's parental rights.
On 6 October 2006, Respondent purported to file notice of
appeal from Judge Letts's order. However, Respondent failed to
personally sign the notice of appeal and, therefore, failed to
comply with Rule 3A of the North Carolina Rules of Appellate
Procedure. Pursuant to a Motion to Dismiss[,] filed 13 October
2006 by DSS, on 12 December 2006, Judge Davis dismissed
Respondent's appeal. On 21 December 2006, Respondent properly
noticed appeal from Judge Davis's order dismissing her appeal.
Prior to filing her brief supporting her appeal from Judge
Davis's order, Respondent petitioned this Court to issue its writ
of certiorari to review the merits of her appeal from Judge Letts's
orders terminating her parental rights. We grant Respondent's
petition and reach the merits of her appeal. As set forth below,
however, we conclude that her arguments are without merit.
By her first argument, Respondent contends that the trial
court committed reversible error by taking judicial notice of
previous court orders in this case. Specifically, Respondent
argues that the trial court delegated its fact-finding duty by
basing its findings of fact in the adjudicatory orders on evidence
not presented at the hearing. We disagree. Rule 52 of the North Carolina Rules of Civil Procedure
provides in relevant part that [i]n all actions tried upon the
facts without a jury . . . the court shall find the facts specially
and state separately its conclusions of law thereon and direct the
entry of the appropriate judgment. N.C. Gen. Stat. § 1A-1, Rule
52(a)(1) (2005). Thus, the trial court must, through 'processes
of logical reasoning,' based on the evidentiary facts before it,
'find the ultimate facts essential to support the conclusions of
law.' In re J.S., 165 N.C. App. 509, 510-11, 598 S.E.2d 658, 660
(2004) (quoting In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d
334, 337 (2003)). However, in termination of parental rights
cases, the evidence on which the trial court relies may consist of
more than simply the testimony presented at the hearing because
this Court repeatedly has held that a trial court may take
judicial notice of earlier proceedings in the same case. In re
W.L.M., ___ N.C. App. ___, ___, 640 S.E.2d 439, 442 (2007)
(citations omitted). Moreover, when taking judicial notice of
previous orders in a termination of parental rights case, there is
a well-established supposition that the trial court in a bench
trial 'is presumed to have disregarded any incompetent evidence.'
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), appeal dismissed and disc. review denied, 353 N.C. 374, 547
S.E.2d 9 (2001)).
In this case, at the beginning of the adjudicatory hearing and
without objection from Respondent, Judge Letts took judicialnotice of all prior orders filed in this case[.] Therefore, under
this Court's holding in J.B. and the Rules of Civil Procedure, it
was permissible for Judge Letts to rely on these previous orders as
long as he made independent findings of fact thereupon.
Consequently, it was not necessary to present new testimony at the
adjudicatory hearing to support all of the trial court's findings
of fact. Moreover, based upon a review of Judge Letts's two
adjudicatory orders, each containing over two hundred findings of
fact, it is clear that Judge Letts did not simply adopt the
previous orders of the district court, or find what the previous
orders tended to show; rather, as required by Rule 52, Judge Letts
found the facts specially. Accordingly, Respondent's argument that
Judge Letts committed reversible error by relying on previous court
orders to make his findings of fact is without merit.
Respondent also argues that the trial court erred in basing a
finding of fact on testimony that was stricken from the record.
Respondent is correct that the trial court struck the testimony of
C.N.'s therapist, stating that [t]here's no weight to her
testimony whatsoever[,] but nevertheless made a finding of fact
based on her testimony. Nonetheless, even after removing this
finding of fact from the trial court's order, there remain
sufficient findings of fact, supported by competent evidence, to
sustain the trial court's determination that the juveniles were
neglected. Therefore, Respondent's argument that the trial court's
inclusion of this finding of fact constitutes reversible error is
Respondent next contends that the trial court erred in
concluding that clear, cogent and convincing evidence supported its
conclusions that there were grounds to terminate Respondent's
parental rights. Relying on her previous argument, Respondent
contends that [b]ecause the findings of fact that supported these
conclusions of law are not supported by clear, cogent and
convincing evidence as argued above in Argument I . . ., these
conclusions of law are unsupported by adequate findings of fact.
Since we have held that the trial court's findings of fact are
supported by clear, cogent and convincing evidence from judicially
noticed court orders and testimony, this argument is without merit.
Accordingly, Respondent's second argument is overruled.
Similar to her first argument, by her third argument
Respondent contends that the trial court committed reversible error
because the findings of fact contained in Judge Letts's 7 September
2006 dispositional order were based on previous orders of the trial
court of which Judge Letts took judicial notice. As discussed
above, it is not error for the trial court to take judicial notice
of previous orders in a termination of parental rights case and to
base independent findings of fact on those court orders. See J.B.,
supra. As with the adjudicatory orders, in his dispositional order
terminating Respondent's parental rights, Judge Letts specially
found facts from the evidence before him, including previous ordersof the trial court of which he had properly taken judicial notice.
Accordingly, Judge Letts did not err in his dispositional order.
In her next argument, Respondent contends that the trial
court's conclusions of law in its dispositional order were not
supported by appropriate findings of fact because, as argued above,
the findings of fact were based on previous court orders and not
testimony presented at the termination hearing. Again, since we
have held that the trial court did not err in relying on previous
court orders, and that, from the record before us, the findings of
fact are plainly supported by clear, cogent, and convincing
evidence, Respondent's argument is without merit. Thus, we
overrule this assignment of error.
Respondent next argues that the trial court committed
reversible error by failing to conduct the termination hearing
within ninety days of the filing of the petitions to terminate her
parental rights. Because Respondent has failed to demonstrate
prejudice resulting from the trial court's delay, her argument is
Under North Carolina law, [t]he hearing on the termination of
parental rights shall be conducted by the court sitting without a
jury . . . no later than 90 days from the filing of the petition or
motion[.] N.C. Gen. Stat. § 7B-1109(a) (2003). However,
[t]he court may for good cause shown continue
the hearing for up to 90 days from the date of
the initial petition in order to receive
additional evidence including any reports orassessments that the court has requested, to
allow the parties to conduct expeditious
discovery, or to receive any other information
needed in the best interests of the juvenile.
N.C. Gen. Stat. § 7B-1109(d) (2003). This Court has recently
recognized that it has extended the reasoning regarding failure to
enter a timely order to the failure to hold the termination hearing
within the time period set forth in G.S. § 7B-1109(a). In re
C.T., ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (Apr. 3, 2007)
(COA06-923) (citing In re S.W., 175 N.C. App. 719, 625 S.E.2d 594,
disc. review denied, 360 N.C. 534, 635 S.E.2d 59 (2006)). That is,
a termination of parental rights order need only be reversed when
the appellant demonstrates prejudice as a result of the delay
between the filing of the petition or motion and the termination
hearing. S.W., 175 N.C. App. at 722, 625 S.E.2d at 596 (citations
In this case, each termination petition was filed on 18
October 2004. Therefore, under section 7B-1109(a), the hearing
should have been held on or before 17 January 2005. However, the
termination hearing was not held within the time frame established
by the statute and, on or about 24 June 2005, Respondent sustained
a head injury when she was involved in an incident in which she
exited a motor vehicle while it was still moving . . . , she fell
to the ground, [and] hit her head[.] As a result of this injury,
on 3 October 2005, DSS moved to supplement the termination
petitions to add the additional ground of dependency, resulting
from Respondent's alleged brain injury. After a hearing,
Respondent was appointed a guardian ad litem to assist herthroughout the proceedings and was further ordered to complete a
neurological evaluation and submit the results of the evaluation to
In her brief to this Court, Respondent argues that she was
prejudiced in that the delay in holding the hearing allowed DSS to
supplement the petitions to add the additional ground of dependency
and, because of the delay, she was recovering from a brain injury
at the time of the hearing. We do not find Respondent's argument
persuasive. As a preliminary matter, we note that the trial
court's orders do not rely on the ground of dependency. Rather,
Judge Letts based his decision solely on the ground of neglect that
existed at the time the termination petitions were filed and
continued to exist at the time of the hearing. Furthermore, had
the termination hearing been held in a timely manner, or before
Respondent's accident, the record reflects that neglect existed at
those times as well. Accordingly, Respondent has failed to
demonstrate that she was prejudiced from the delay in holding the
Citing In re D.M.M., ___ N.C. App. ___, ___, 633 S.E.2d 715,
718 (2006), Respondent also argues that precedents clearly require
reversal where the hearing on the petition to terminate is held
egregiously late, or a late entry of an order occurs and the
respondent alleges prejudice. In D.M.M., this Court reversed a
termination order where there was a combined nineteen month delay
in holding the hearing and entering the order[.] Id. In the case
currently before this Court, even though there was a twenty-twomonth delay between the filing of the termination petitions and the
entry of the final order, we conclude that the extraordinary delay
was justified because of Respondent's accident which occurred
during the pendency of the case and required additional procedural
steps and substantive evaluations. Accordingly, Respondent's
argument is overruled.
By her sixth argument, Respondent contends that the trial
court committed reversible error by failing to file its orders
within the time frames established by the legislature. We find
Respondent's arguments without merit.
Respondent first argues that the trial court committed
reversible error by failing to file its permanency planning orders
within thirty days as required by N.C. Gen. Stat. § 7B-907(c).
This argument is not properly before this Court. The North
Carolina Rules of Appellate Procedure provide in pertinent part
that [t]he notice of appeal required to be filed and served . . .
shall designate the judgment or order from which appeal is taken
and the court to which appeal is taken[.] N.C. R. App. P. 3(d).
Failure to comply with the requirements of Rule 3 of our Rules of
Appellate Procedure requires the dismissal of [an] appeal as this
rule is jurisdictional. In re I.S., 170 N.C. App. 78, 84, 611
S.E.2d 467, 471 (2005) (citations omitted). In this case, the
record on appeal contains no notice of appeal taken from any
permanency planning order. Therefore, under Rule 3 and I.S., this
Court does not have jurisdiction to reach the merits ofRespondent's argument. Additionally, as Respondent's case is
before this Court pursuant to a grant of our writ of certiorari,
and Respondent's petition for certiorari clearly limited the scope
of review to the trial court's 28 April and 7 September 2006 orders
terminating her parental rights, we are without jurisdiction to
reach the merits of this argument. Accordingly, Respondent's
assignment of error is dismissed.
Respondent also contends that the trial court committed
reversible error because, after the adjudicatory hearing, the trial
court failed to file its orders within the time frame set forth in
N.C. Gen. Stat. § 7B-1109(e). Since Respondent does not adequately
demonstrate any prejudice caused by the trial court's delay, we
overrule this argument.
Section 7B-1109(e) provides in relevant part that, in a
termination of parental rights case, [t]he adjudicatory order
shall be reduced to writing, signed, and entered no later than 30
days following the completion of the hearing. N.C. Gen. Stat. §
7B-1109(e) (2005). In In re P.L.P., 173 N.C. App. 1, 7, 618 S.E.2d
241, 245 (2005) (citation omitted), aff'd per curiam, 360 N.C. 360,
625 S.E.2d 779 (2006), this Court recognized that [i]t has not
been an uncommon practice for our trial courts to delay the entry
of orders on termination in violation of [established] time
standards. In such circumstances, our appellate courts have
uniformly applied a 'prejudicial error' analysis to determine
whether the subject order must be reversed. In this case, the
adjudicatory portion of the termination hearing was held on 27March 2006 and the adjudicatory order entered 28 April 2006,
resulting in a delay of two days. Because Respondent has failed to
demonstrate any prejudice suffered from the trial court's failure
to timely file its adjudicatory orders, this minimal delay does not
constitute reversible error. Accordingly, Respondent's argument is
Respondent next contends that the trial court committed
reversible error by relying on incompetent hearsay testimony and
testimony presented without proper or sufficient foundation, in
violation of Respondent's constitutional rights. Because
Respondent failed to raise this alleged error before the trial
court, this issue is not properly before this Court and this
assignment of error is dismissed.
In In re A.E., 171 N.C. App. 675, 679, 615 S.E.2d 53, 56
(2005) (quoting N.C. R. App. P. 10(b)(1)), this Court held that, in
a juvenile proceeding, a respondent's right to appellate review may
be waived by the failure to object to . . . testimony during the
hearing[,] because '[i]n order to preserve a question for
appellate review, a party must have presented to the trial court a
timely request, objection or motion, stating the specific grounds
for the ruling the party desired the court to make[.]' In the
case sub judice, our review of the transcript reveals that
Respondent failed to object to any of the testimony that she now
alleges is incompetent. Accordingly, under Rule 10 of the North
Carolina Rules of Appellate Procedure and this Court's holding inA.E., Respondent did not preserve this alleged error for our review
and her assignment of error is dismissed.
By her final argument, Respondent contends that the trial
court erred in dismissing her initial appeal because of a violation
of Rule 3A of our appellate rules. As noted above, by order filed
12 December 2006, Judge Danny E. Davis dismissed Respondent's
appeal from the trial court's dispositional order terminating her
parental rights. Respondent timely filed notice of appeal from
Judge Davis's order. However, in light of our grant of
Respondent's petition for certiorari, we need not address the
merits of this argument.
In Lange v. Lange
, 357 N.C. 645, 647, 588 S.E.2d 877, 879
(2003) (quoting Roberts v. Madison County Realtors Ass'n
, 344 N.C.
394, 398-99, 474 S.E.2d 783, 787 (1996)), our Supreme Court
recognized that [a] case is considered moot when 'a determination
is sought on a matter which, when rendered, cannot have any
practical effect on the existing controversy.' In this case,
because we have already granted our writ of certiorari to address
Respondent's appeal from the orders terminating her parental
rights, a determination on Respondent's appeal from Judge Davis's
order dismissing her initial appeal will have no practical effect
on this case. That is, if we were to hold that Judge Davis was
correct in dismissing Respondent's appeal, we would still reach the
merits of her case pursuant to our grant of certiorari; conversely,
if we were to determine that Judge Davis erred in dismissingRespondent's appeal, we would then rule on the merits of her case.
Either way, Respondent receives the benefit of our evaluation of
her substantive arguments. Accordingly, Respondent's appeal from
Judge Davis's order dismissing her initial appeal is moot. This
assignment of error is therefore dismissed.
For the reasons stated, Respondent's appeal is dismissed in
part. The orders of the trial court terminating Respondent's
parental rights are affirmed.
APPEAL DISMISSED IN PART AND AFFIRMED.
Judges JACKSON and STROUD concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***