In re JLK

• Decision Date: 06 July 2004
• Docket Number: No. COA03-421.,COA03-421.
• Citation: 598 S.E.2d 387,165 NC App. 311
• Court: North Carolina Court of Appeals
• Parties: In re J.L.K., a minor juvenile.

598 S.E.2d 387

165 NC App. 311

In re J.L.K., a minor juvenile.

No. COA03-421.

Court of Appeals of North Carolina.

July 6, 2004.

Richard E. Jester, Louisburg, for respondent-appellant.

G.K. Spence, Spence & Tetreault, P.A., by Martin A. Tetreault, Smithfield, for petitioner-appellee, S.B.

James D. Johnson, Benson, as Guardian ad Litem.

ELMORE, Judge.

G.K. (respondent) appeals from an adjudication, announced orally in open court following a hearing on 21 August 2002 and subsequently reduced to a written order, signed, and filed on 19 November 2002, terminating his parental rights to his daughter, J.L.K. For the reasons stated herein, we affirm.

The record establishes the following: respondent and the petitioner herein, S.B., are the parents of J.L.K., who was born on 15 June 1997. By agreement between petitioner and respondent, J.L.K. has been in petitioner's custody since shortly after her birth. At the time of J.L.K.'s birth, respondent was in the midst of what he admits has been a "long ongoing problem with alcohol." Respondent's alcohol problem has had a negative impact on his ability to parent J.L.K. Petitioner testified at the TPR hearing that on one occasion when J.L.K. was approximately two months old, respondent got drunk and "was throwing [J.L.K.] up in the air, and [petitioner] had to stop him." Petitioner testified that a few months later, on 7 November 1997, respondent came to her home drunk and fired a gun into the residence, while J.L.K. was present therein. Respondent was arrested that night and incarcerated until June 1998. Respondent had very limited contact with J.L.K. from the time of his release until October 1998, when petitioner told respondent she never wanted to see or hear from him again due to his drunken, violent, and erratic behavior, and because she "couldn't depend on [respondent] to take care of [J.L.K.] because he was drunk all the time." Petitioner testified that respondent has not seen J.L.K. since October 1998.

Respondent was again jailed in April 1999 and has remained incarcerated at all times since. He is currently serving a 115-144 month sentence pursuant to a plea agreement on charges of being a habitual felon, possession of a firearm by a felon, discharging a firearm into occupied property, embezzlement, and multiple counts of possession of stolen goods, forgery, uttering, and larceny. Respondent's projected release date is March 2009, at which time J.L.K. will be almost 12 years old. Respondent has never called J.L.K. since his incarceration in 1999, although he has regularly called and written other family members and his attorney during that time, and his only communications with J.L.K. since then appear to have been a Christmas card sent in December 2001, a Valentine's Day card sent in February 2002, and a birthday card containing five dollars sent in June 2002. Petitioner testified that during J.L.K.'s life she has never received any child support from respondent.

Respondent was present at the TPR hearing and testified that prior to his incarceration in November 1997, he often cared for J.L.K. while petitioner was at work. Respondent admitted that he had "done some pretty bad things" and "a lot of things [petitioner] says are right, and [petitioner]'s right in what she's saying" with respect to his behavior towards petitioner and J.L.K. Respondent explained his lack of contact with J.L.K. after October 1998 by testifying that petitioner told him "she would have [him] locked up for the rest of [his] life if [he] called back, and [he] didn't." Respondent testified that he has attended Alcoholics Anonymous and Narcotics Abusers Anonymous meetings while incarcerated and that he thinks he could be a better example to J.L.K. when he is released from prison, but "[he's] not going to say that [he's] a changed person."

Petitioner, who at all times relevant to this matter has resided with J.L.K. in Wake County, initiated the underlying proceedings by filing her petition to terminate respondent's parental rights in neighboring Johnston County on 11 March 2002. Respondent, who was at that time incarcerated in Johnston County, was properly served on 15 March 2002 and thereafter filed a pro se written response to the TPR petition on 2 April 2002, in which he expressed his intent to contest the TPR petition and requested court-appointed counsel. On 29 April 2002, respondent's appointed counsel filed an answer denying the allegations of the TPR petition. Immediately following the arguments of counsel and presentation of evidence by both petitioner and respondent at the TPR hearing on 21 August 2002, the trial court orally granted the TPR petition. Respondent gave notice of appeal from this adjudication on 4 September 2002. Thereafter, the trial court's adjudication was reduced to a written order, signed, and entered on 19 November 2002. The TPR order contained the following relevant findings of fact:

1. The child, [J.L.K.], was born on June 15, 1997 in Raleigh, North Carolina. The child resides in Wake County, North Carolina, near the Johnston County line and spends considerable time in Johnston County.

....

3. The minor child was present in Johnston County at the time the Petition in this matter was filed.

....

5. The Respondent[ ] ... currently resides at Piedmont Correctional Institution, although at the time that he was served, he resided at Johnston Correctional Institution, located in Johnston County, North Carolina....

....

9. Respondent has not seen his child since October 1998.

10. Respondent will remain in the custody of the North Carolina Department of [C]orrections until 2009 ....

12. In the six months immediately preceding the filing of this action, Respondent did not call the minor child and his contact with the child was limited to two cards.

13. In the six months immediately prior to the hearing in this matter, Respondent's contact with the minor child was limited to one card.

14. During the same period, Respondent regularly corresponded with his attorney and called his mother twice per month.

15. Respondent has willfully failed without justification to pay for the care, support and education of the child for a period of one year or more prior to his incarceration on August 24, 1999.

16. Respondent has willfully failed without justification to pay for the care, support and education of the child for a period of one year or more next preceding the filing of this action.

17. [Respondent] has neglected the juvenile within the meaning of N.C.G.S. § 7B-101.

18. [Respondent] has willfully abandoned the child for at least six consecutive months immediately preceding the filing of the petition.

19. The juvenile has no relationship with [respondent] as a result of Respondent's repeated incarcerations.

20. The juvenile is doing well at the private school she attends in Raleigh, North Carolina.

21. The best interests of the child require that parental rights of the respondent be terminated in this preceding.

From these findings, the trial court concluded, in relevant part, as follows:

2. The minor child was found in Johnston County, which is part of this District, at the time of the filing of the Petition in this matter, as required by N.C.G.S. § 7B-1101, and this Court has exclusive jurisdiction over this matter.

3. Grounds exist for terminating the parental rights of the Respondent with respect to the child as set fort above in the Findings of Fact.

4. The best interests of the child require that the parental rights of the Respondent be terminated.

From this order terminating his parental rights to J.L.K., respondent appeals.

By his first assignment of error, respondent contends that because the TPR order was not reduced to writing, signed, and filed within 30 days following the completion of the TPR hearing, the TPR order must be vacated. We disagree.

Section 7B-1109(e) of our General Statutes provides that, following the trial court's adjudication of a TPR petition, "[t]he 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. Gen.Stat. § 7B-1109(e) (2003). In the present case, the TPR hearing was held on 21 August 2002 and the trial court did not enter the written order until 89 days later, on 19 November 2002. 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. Further, we reject respondent's assertion that because section 7B-1109(e) provides that a TPR order "shall" be reduced to writing, signed, and entered within 30 days, this Court's decision in In re Alexander, 158 N.C.App. 522, 581 S.E.2d 466 (2003) requires that we vacate the TPR order.

In Alexander, this Court held that in a proceeding to terminate parental rights, the petitioner's failure to comply with the mandatory notice requirements set forth in N.C. Gen.Stat. § 7B-1106.1, which provides that the petitioner "shall" prepare notice directed to the juvenile's parents and that the notice "shall" contain certain elements, was prejudicial error. Alexander, 158 N.C.App. at 523,581 S.E.2d at 467. In reaching this conclusion, the Alexander Court stated that "[t]he mandatory nature of the language employed in N.C. Gen.Stat. § 7B-1106.1 is underscored by N.C. Gen.Stat. § 7B-1102[(b)], which states, in relevant part, that the service of the motion for termination of parental rights `and the notice required by G.S. 7B-1106.1 shall be... in accordance with G.S. 1A-1, Rule 5(b)'...." Alexander, 158 N.C.App. at 524,581 S.E.2d at 468 (emphasis omitted). In rejecting the petitioner's argument that this error was not prejudicial because the respondents received actual notice, the Alexander Court stated that "[t]he notice requirements at issue are part of a statutory framework intended to safeguard a parent's fundamental rights `to make decisions concerning the care,...