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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA07-49

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.

    STEPHENS, Judge.

    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 rights.
    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 without merit.
_________________________    
    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 overruled.
    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 omitted).
    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 the court.
    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 termination hearing.
    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 overruled.
_________________________
    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 ***