In re J.N.S.

• Decision Date: 19 December 2006
• Docket Number: No. COA06-395.,COA06-395.
• Citation: 637 S.E.2d 914
• Court: North Carolina Court of Appeals
• Parties: In re J.N.S.

637 S.E.2d 914

In re J.N.S.

No. COA06-395.

Court of Appeals of North Carolina.

December 19, 2006.

Appeal by respondent father from order entered 23 August 2005 by Judge Paul A. Hardison in Onslow County District Court. Heard in the Court of Appeals 18 October 2006.

Amy Jordan & Jennifer Pope Attorneys at Law, by Amy R. Jordan, Jacksonville, for petitioner mother-appellee.

Winifred H. Dillon, Garner, for respondent father-appellant.

TYSON, Judge.

C.S. ("respondent") appeals from order entered terminating his parental rights to his minor child, J.N.S. We reverse.

I. Background

In April 1996, J.N.S. was born to D.D., J.N.S.'s mother ("petitioner"), and respondent. Petitioner and respondent never married and lived together for three years after J.N.S.'s birth. Petitioner has maintained physical custody of J.N.S. since her birth.

In July 2000, petitioner married. Petitioner's spouse desires to adopt J.N.S. In February 2002, respondent also married.

On 10 March 2004, petitioner filed a petition to terminate respondent's parental rights. Petitioner alleged the following grounds for termination of parental rights: (1) respondent has failed to provide substantial financial support or consistent care for J.N.S., pursuant to N.C. Gen.Stat. § 7B-1111(5)(d); (2) respondent is incapable of providing proper care for J.N.S., pursuant to N.C. Gen.Stat. § 7B-1111(6); and (3) respondent willfully abandoned J.N.S. for at least six consecutive months immediately preceding the filing of the petition and prior to his incarceration, pursuant to N.C. Gen.Stat. § 7B-1111(7). Respondent was incarcerated in Powahatan Correctional Institution in Powahatan, Virginia on 29 March 2002. On 7 April 2004, respondent filed a pro se response to the petition and requested appointed counsel. On 26 May 2004, respondent was granted parole and released from incarceration by the Virginia Parole Board. On 8 April 2004, counsel was appointed to respondent and an additional response was filed on 22 June 2004.

The trial court conducted hearings on the petition on 23 July 2004, 26 August 2004, and 10 March 2005. The trial court found facts to terminate respondent's parental rights pursuant to N.C. Gen.Stat. §§ 7B-1111(6) and (7) for incapability of providing for the proper care and supervision of J.N.S. and for willfully abandoning J.N.S. for at least six consecutive months preceding the filing of the petition. On 10 March 2005, the trial court ruled from the bench that respondent's parental rights were terminated. Nearly six months later, on 23 August 2005, the trial court reduced the order to writing, signed, and filed and entered it with the Clerk of Superior Court. Respondent appeals.

II. Issues

Respondent argues the trial court erred by: (1) failing to reduce its order to writing within the statutorily prescribed time limit; (2) entering findings of fact numbered 30, 31, and 32 because they are not supported by clear, cogent, and convincing evidence; and (3) concluding it was in J.N.S.'s best interest to terminate his parental rights.

III. Standard of Review

"On appeal, [o]ur standard of review for the termination of parental rights is whether the trial court's findings of fact are based upon clear, cogent and convincing evidence and whether the findings support the conclusions of law." In re Baker, 158 N.C.App. 491, 493, 581 S.E.2d 144, 146 (2003) (citations and internal quotations omitted).

"The trial court's `conclusions of law are reviewable de novo on appeal.'" In re D.M.M., ___ N.C.App. ___, ___, 633 S.E.2d 715, 715 (2006) (quoting Starco, Inc. v. AMG Bonding and Ins. Servs., 124 N.C.App. 332, 336, 477 S.E.2d 211, 215 (1996)).

IV. Order in Writing

Respondent argues the trial court erred when it failed to reduce its order to writing, sign, and enter it within the statutorily prescribed time period. We agree.

N.C. Gen.Stat. § 7B-1110(a) (2005) mandates, "[a]ny order shall be reduced to writing, signed, and entered no later than 30 days following the completion of the termination of parental rights hearing." (Emphasis supplied). The last hearing on the petition was held on 10 March 2005, but the order was not entered until 23 August 2006.

This Court has previously stated that absent a showing of prejudice, the trial court's failure to reduce to writing, sign, and enter a termination order beyond the thirty day time window may be harmless error. See In re J.L.K., 165 N.C.App. 311, 315, 598 S.E.2d 387, 390 (2004) (order entered eighty-nine days after the hearing), disc. rev. denied, 359 N.C. 68, 604 S.E.2d 314 (2004).

In re L.E.B., K.T.B., 169 N.C.App. 375, 378-79, 610 S.E.2d 424, 426, disc. rev. denied, 359 N.C. 632, 616 S.E.2d 538 (2005).

While "a trial court's violation of statutory time limits . . . is not reversible error per se . . ., the complaining party [who] appropriately articulate[s] the prejudice arising from the delay . . . justif[ies] reversal of the order." In re S.N.H., ___ N.C.App. ___, ___, 627 S.E.2d 510, 513 (2006).

While "[t]he passage of time alone is not enough to show prejudice, . . . [we] recently [held] that the `longer the delay in entry of the order beyond the thirty-day deadline, the more likely prejudice will be readily apparent.'" Id. at ___, 627 S.E.2d at 513-14 (quoting In re C.J.B., 171 N.C.App. 132, 135, 614 S.E.2d 368, 370 (2005)).

We recently held, "prejudice has been adequately shown by a five-month delay in entry of the written order terminating respondent's parental rights. For four unnecessary months the appellate process was put on hold, any sense of closure for the children, respondent, or the children's current care givers was out of reach[.]" In re C.J.B., 171 N.C.App. at 135, 614 S.E.2d at 370. Upon similar allegations, this Court has repeatedly found prejudice to exist in numerous cases with facts analogous to those here. See In re D.M.M., ___ N.C.App. at ___, 633 S.E.2d at 716 (trial court's order reversed when the trial court failed to hold the termination hearing for over one year after DSS filed its petition to terminate and by entering its order an additional seven months after the statutorily mandated time period); In re D.S., ___ N.C.App. ___, 628 S.E.2d 31 (2006) (trial court's entry of order seven months after the termination hearing was a clear and egregious violation of N.C. Gen. Stat. § 7B-1109(e) and § 1110(a), and the delay prejudiced all parties); In re O.S.W., 175 N.C.App. 414, 623 S.E.2d 349 (2006) (trial court's order was vacated because the court failed to enter its order for six months, and the father was prejudiced because he was unable to file an appeal); In re T.W., L.W., E.H., 173 N.C.App. 153, 617 S.E.2d 702 (2005) (trial court entered its order just short of one year from the date of the hearing and this Court reversed the trial court's order); In re L.L., 172 N.C.App. 689, 616 S.E.2d 392 (2005) (nine month delay prejudiced the parents); In re T.L.T., 170 N.C.App. 430, 612 S.E.2d 436 (2005) (trial court's judgment reversed because the trial court failed to enter its order until seven months after the hearing); In re L.E.B., K.T.B., 169 N.C.App. 375, 610 S.E.2d 424 (2005) (a delay of the entry of order of six months was prejudicial to respondent, the minors, and the foster parent).

Undisputed facts show the trial court completed hearings on the petition on 10 March 2005. The trial court ruled respondent's parental rights were terminated on that day from the bench. On 23 August 2005, nearly six months later, the trial court reduced the order to writing, signed it, and filed it with the Clerk of Superior Court.

Respondent specifically argues the prejudice he and J.N.S. suffered by the trial court's failure to timely enter the order: (1) he is entitled to a speedy resolution of the termination of the parental rights petition; (2) J.N.S. is entitled to a "permanent plan of care at the earliest possible age;" see N.C. Gen.Stat. § 7B-1100(2); (3) the trial court's delay in entering the order delayed respondent's right to appeal; (4) the trial court's delay extends the time when parents are separated from their children to the prejudice of his relationship with J.N.S.; and (5) petitioner barred respondent from any communication with J.N.S. since the dispositional hearing and rendering of judgment on 10 March 2005. Our precedents clearly requires reversal where a late entry of order occurs and respondent alleges and demonstrates prejudice. See In the Matter of D.M.M., ___ N.C.App. ___, 633 S.E.2d 715 (2006).

V. Conclusion

The trial court erred and prejudiced respondent and J.N.S. when it entered its order nearly six months after conclusion of the hearings and after the Court orally rendered its order. "This late entry is a clear and egregious violation of both N.C. Gen.Stat. § 7B-1109(e), N.C. Gen.Stat. § 7B-1110(a), and this Court's well established interpretation of the General Assembly's use of the word `shall.'" In re L.E. B., 169 N.C.App. at 378, 610 S.E.2d at 426.

Respondent specifically argued and articulated the prejudice he and his minor child suffered as a result of the delay. In light of our holding, it is unnecessary to consider respondent's remaining assignments of error. The trial court's order is reversed.

Reversed.

Judge BRYANT concurs.

Judge LEVINSON concurs by separate opinion.

LEVINSON, Judge concurring.

At the conclusion of the hearing on the termination of parental rights petition, the trial court ruled from the bench that respondent's parental rights be terminated. N.C. Gen.Stat. § 7B-1110(a) (2005) requires that an order for termination of parental rights be reduced to writing and entered within thirty (30) days of the end of the hearing. In the instant case, the order was entered on 23 August 2005, almost six months later. The majority opinion holds that the respondent articulated prejudice arising from this delay, and that the proper remedy is reversal of the termination of parental rights order. I am required by precedent to...