In re A.D.L.

• Decision Date: 19 April 2005
• Docket Number: No. COA03-1333.,COA03-1333.
• Citation: 612 S.E.2d 639
• Parties: In the Matter of A.D.L., J.S.L., C.L.L.
• Court: North Carolina Supreme Court

Page 639

612 S.E.2d 639

In the Matter of A.D.L., J.S.L., C.L.L.

No. COA03-1333.

Court of Appeals of North Carolina.

April 19, 2005.

COPYRIGHT MATERIAL OMITTED

Appeal by respondent-mother from order filed 7 October 2002 by Judge Wendy M. Enochs in Guilford County District Court. Heard in the Court of Appeals 25 August 2004.

Guilford County Attorney Jonathan V. Maxwell, by Deputy County Attorney Michael K. Newby, for petitioner-appellee, Guilford County Department of Social Services; and Attorney Advocate Joyce Terres, for the Guardian at Litem Program.

Katharine Chester, Siler City, for respondent-appellant.

BRYANT, Judge.

J.L.¹ (respondent-mother) appeals an order filed 7 October 2002, terminating her parental rights as to A.D.L. (D.O.B. 1 November 1996), J.S.L. (D.O.B. 18 February 1998), C.L.L. (D.O.B. 23 December 2000) based on the grounds of neglect, willfully leaving the children in foster care for more than twelve months without a showing of reasonable progress, and willful failure to pay a reasonable portion of the cost of care.²

On 15 August 2001, Guilford County Department of Social Services (DSS) filed a petition alleging that the three children were neglected. The matter came for non-secure custody hearing and a "7-Day" hearing on 16 August 2001 and 30 August 2001, respectively. The children were in the care of their maternal grandparents at the time of the hearings; and the district court ordered care to be continued with the grandparents and for legal custody to remain with DSS.

The neglect adjudication and disposition hearing was held on 4 October 2001, and an order was filed on 2 January 2002, finding the children remained neglected. No further review hearings were held until 10 January 2002, at which time a permanency planning review hearing was held. The district court ordered care to be continued with the grandparents, basing its order on the recommendations of the guardian ad litem and social workers involved in the case. A second permanency planning review hearing was held on 7 March 2002, at which time the district court rendered an order finding that it would be in the best interest of the children for the respondent's parental rights to be terminated. The district court continued care of the children with the maternal grandparents.

On 6 May 2002, DSS filed a petition seeking the termination of respondent's parental rights based on the grounds of neglect, willfully leaving the children in foster care for more than twelve months without a showing of reasonable progress, and willful failure to pay a reasonable portion of the cost of care. This matter came for hearing at the 19 and 22 August 2002 session of Guilford County District Court with the Honorable Wendy M. Enochs presiding. The district court terminated respondent's parental rights, based on the grounds alleged, by order filed 7 October 2002. Respondent gave notice of appeal in open court and written notice of appeal on 7 October 2002.

Respondent presents several issues on appeal including whether: (I) the district court's adjudication and disposition order must be vacated because the order was filed more than 30 days following the date of hearing; (II) the district court's decision must be reversed because it failed to appoint a guardian ad litem for the children; (III) the district court's order should be reversed because DSS failed to accord any respect to the Native American heritage of the children in violation of the Indian Child Welfare Act; (IV) the district court's order must be reversed because the TPR petition did not allege the ground of neglect, and the findings were not based upon clear, cogent and convincing evidence; and (V) the district court's order must be reversed because it was not in the best interest of the children to terminate respondent's parental rights.

I

Respondent first argues the district court's adjudication and disposition order must be vacated because the order was filed more than 30 days following the date of hearing.

N.C. Gen.Stat. § 7B-1109(e) provides:

The 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.G.S. § 7B-1109(e) (2002) ("Session Laws 2001-208, § 7 and 22, effective January 1, 2002, and applicable to actions pending or filed on or after that date, . . . added the last sentence of subsection (e).") N.C. Gen.Stat. § 7B-1110(a) provides:

Should the court determine that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent with respect to the juvenile unless the court shall further determine that the best interests of the juvenile require that the parental rights of the parent not be terminated. Any 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.G.S. § 7B-1110(a) (2002) ("Session Laws 2001-208, § 23, effective January 1, 2002, and applicable to actions pending or filed on or after that date, added the last sentence of subsection (a.)")

In the instant case, the termination of parental rights (TPR) petition was heard, on 19 and 22 August 2002, and was adjudicated and disposition decreed on 22 August 2002. However, the order was not filed until 7 October 2002 (more than 30 days following adjudication and disposition). While the district court's delay violated the 30-day provision of N.C. Gen.Stat. §§ 7B-1109(e), 1110(a), we find no authority that the TPR order must be vacated as a result.

The General Assembly added the 30-day filing requirement to these statutes in 2001. In re E.N.S., 164 N.C.App. 146, 153, 595 S.E.2d 167, 171 (2004). While we have located no clear reasoning for this addition, logic and common sense lead the Court to the conclusion that the General Assembly's intent was to provide parties with a speedy resolution of cases where juvenile custody is at issue. E.N.S., 164 N.C.App. at 153, 595 S.E.2d at 172. Therefore, holding that the adjudication and disposition orders should be reversed simply because they were untimely filed, would only aid in further delaying a determination regarding the children's custody because juvenile petitions would have to be re-filed and new hearings conducted. Id.

This Court has held a party must show prejudice for a violation of either N.C. Gen. Stat. §§ 807(b)³ or 905(a)⁴. E.N.S., 164 N.C.App. at 153, 595 S.E.2d at 172 ("although the order was not filed within the specified time requirement, respondent cannot show how she was prejudiced by the late filing"). More on point, this Court in In re J.L.K., 165 N.C.App. 311, 598 S.E.2d 387, 390-91 (2004), held the district court's violation of N.C. Gen.Stat. § 7B-1109(e), did not necessitate vacating the court TPR order. J.L.K., 165 N.C.App. at 315, 598 S.E.2d at 390. ("While the trial court's delay clearly violated the 30-day provision of N.C. Gen. Stat. § 7B-1109(e), we find no authority compelling that the TPR order be vacated as a result.").

Here, respondent fails to show any prejudice to her resulting from the late filing of the TPR order. Therefore, the district court's failure to file the adjudication and disposition orders within 30 days amounted to harmless error and is not grounds for reversal. Accordingly, respondent's first assignment of error is overruled.

II

Respondent next argues the district court's decision must be reversed because the court failed to appoint a guardian ad litem for the children.

N.C. Gen.Stat. § 7B-601(a) states in part, "[w]hen in a petition a juvenile is alleged to be abused or neglected, the court shall appoint a guardian ad litem to represent the juvenile. When a juvenile is alleged to be a dependent, the court may appoint a guardian ad litem to represent the juvenile." N.C.G.S. § 7B-601(a) (2003). Here, respondent argues the record fails to disclose guardian ad litem appointment papers, and accordingly, the district court's order must be reversed.

Our Supreme Court has previously held in assessing the impact of clerical or technical violations, such as failure to file an appointment order, does not in itself require the reversal of lower court orders. See State v. Beam, 184 N.C. 730, 742, 115 S.E. 176, 182 (1922), for a discussion of the following cases: McKeel v. Holloman, 163 N.C. 132, 79 S.E. 445 (1913) ("Technical errors will be considered harmless where a reversal would not result in a different verdict."); Alexander v. Savings Bank, 155 N.C. 124, 71 S.E. 69 (1911) ("Where a case is tried in substantial accordance with law, technical errors not prejudicial do not entitle the losing party to a reversal."); and Rich v. Morisey, 149 N.C. 37, 62 S.E. 762 (1908).

In order to obtain relief from an order due to a clerical or technical violation, the complaining party must demonstrate how she was prejudiced or harmed by the violation. See Beam, 184 N.C. 730, 742, 115 S.E. 176, 182, for a discussion of the following cases: Penland v. Barnard, 146 N.C. 378, 59 S.E. 1109 (1907) ("Error to warrant reversal must be prejudicial."); Hulse v. Brantley, 110 N.C. 134, 14 S.E. 510 (1892); accord Carter v. Seaboard Air Line Ry. Co., 165 N.C. 244, 81 S.E. 321 (1914) ("Error alone is not sufficient to reverse, but there must be harm to the party who excepts, and if it appears there is none, his exception fails."). In this case, the respondent has failed to demonstrate such prejudice.

The record on appeal does not reflect a guardian ad litem appointment form was filed. However, except for the initial hearing following the entry of the non-secure order to assume custody of the juveniles in...