In re S.W.
| Citation | 625 S.E.2d 594 |
| Decision Date | 07 February 2006 |
| Docket Number | No. COA05-596.,COA05-596. |
| Court | North Carolina Court of Appeals |
| Parties | In the Matter of S.W. |
Peter Wood, for respondent-mother-appellant.
A petition alleging S.W. to be neglected was filed 22 October 2001 after S.W. was found with her mother ("respondent") out in the rain while respondent was buying illegal narcotics. S.W. was placed in the custody of the Durham County Department of Social Services (DSS). An amended petition alleging dependency and neglect was filed 7 November 2001. S.W. was adjudicated dependent and neglected 6 December 2001 at which time S.W. was placed in the custody of respondent. S.W. was again removed from the custody of respondent 26 December 2001 after respondent left S.W. unattended at the homeless shelter in which they both were staying from 24 December until the afternoon of 25 December. S.W. has remained in foster care since that time.
In the interim, respondent has been incarcerated periodically, failed to comply with court-ordered drug testing, failed to maintain regular contact with DSS, failed to maintain stable living arrangements, and has attended drug treatment only sporadically. Respondent had only three visits with S.W. during the course of 2003. A petition to terminate the parental rights of respondent and S.W.'s father was filed 29 August 2003. Respondent filed an answer 31 October 2003, after receiving a thirty day extension of time in which to file. S.W.'s father was served by publication and never filed an answer nor participated in these proceedings in any way and is not a party to this appeal.
A DSS social worker who was a critical witness for DSS in this proceeding was on medical and then maternity leave from some-time between September 2003 and 2 February 2004. DSS took no judicial action in this matter during the time the social worker was on leave. DSS filed a notice of hearing on the day the social worker returned to work which set the termination hearing in the case for 1 April 2004. Respondent filed a motion to dismiss the petition for failure to hold the hearing within the statutorily prescribed time after the filing of the petition. Respondent's motion was heard 2 April 2004 and was denied.
The termination hearing also was held 2 April 2004 and the termination petition was granted. Respondent filed her first notice of appeal 5 April 2004 appealing from the oral in-court grant of the termination petition. The order of termination was filed 4 October 2004. Respondent filed a second notice of appeal 14 October 2004 appealing from the 4 October written order. Appellate entries were made 21 October 2004. The written order of termination was served on respondent 10 December 2004 and respondent filed a third notice of appeal 15 December 2004.
On appeal, respondent assigns as error: (1) the trial court's denial of her motion to dismiss the Termination of Parental Rights Petition ("TPR"); (2) the trial court's failure to sign the Order of Termination within the thirty day period mandated by statute; (3) the admission of alleged hearsay testimony over respondent's objection; (4) that findings of fact numbers 4, 6 through 19, 21, and 23 were not supported by the evidence; (6) that conclusions of law numbers 3 through 5 and 11 were not supported by the findings of fact or evidence; (7) that the trial court abused its discretion in terminating her parental rights; and (8) that she received ineffective assistance of counsel at the termination hearing.
We first address respondent's assignments of error regarding the untimeliness of the termination hearing and of the trial court's entry of the written termination order together. This Court uniformly has held that failure of a trial court to enter termination orders within the time standards set forth in North Carolina General Statutes, section 7B-1109(e) need only be reversed when the appellant demonstrates prejudice as a result of the delay. In re P.L.P., ___ N.C.App. ___, ___, 618 S.E.2d 241, 245 (2005); see, e.g., In re L.E.B., K.T.B., 169 N.C.App. 375, ___, 610 S.E.2d 424, 426 (2005). DSS concedes that neither the termination hearing nor the written termination order complied with the time requirements of North Carolina General Statutes, section 7B-1109(a) and (e) respectively. However, respondent fails to show prejudice resulting from either of these statutory infractions.
Although our prior cases cited above have addressed the failure of trial courts to file the written termination order within the time provided in section 7B-1109(e), we hold that the same logic must be applied to the timeliness of the termination hearing after the filing of the termination petition under North Carolina General Statutes, section 7B-1109(a). The extension of this application is logical since the issues are addressed under different subsections of the same statute.
Respondent alleges that her appellate rights were compromised by the failure to timely hold the termination hearing and to timely file the written termination order, but fails to demonstrate which rights were compromised or in what way. Respondent filed notices of appeal at each pertinent stage of these proceedings, and her appeal is being considered on its merits by this Court. Accordingly, respondent has failed to show prejudice as a result of the complained of errors and these assignments of error are overruled.
Respondent next argues that the trial court erred in allowing S.W.'s social worker to testify, over respondent's objection, to statements made to her by respondent. In response to respondent's objections, petitioner argued that the statements were admissible pursuant to the admissions of a party opponent exception to the hearsay rule. The trial court allowed the testimony after hearing from both parties.
Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen.Stat. § 8C-1, Rule 801(c) (2003). One of the enumerated exceptions to the rule prohibiting the introduction of hearsay evidence is for admissions of a party opponent. This exception provides, in relevant part, "[a] statement is admissible as an exception to the hearsay rule if it is offered against a party and it is (A) his own statement, in either his individual or a representative capacity...." N.C. Gen.Stat. § 8C-1, Rule 801(d). In termination of parental rights proceedings, the party whose rights are sought to be terminated is a party adverse to DSS in the proceeding. In re Davis, 116 N.C.App. 409, 412, 448 S.E.2d 303, 305, disc. review denied, 338 N.C. 516, 452 S.E.2d 808 (1994). Accordingly, the social worker's testimony regarding respondent's statements to her was properly allowed. This assignment of error is overruled.
Respondent next assigns as error that the trial court's findings of fact numbers 4, 6 through 19, 21, and 23 are not supported by the evidence and that the trial court's conclusions of law numbers 3 through 5 are not supported by the findings of fact. In reviewing a termination order, this Court must determine whether the trial court's findings of fact are supported by clear and convincing evidence and if its conclusions of law...
To continue reading
Request your trial
- In re D.B.
- In Matter of M.C., No. COA06-158 (N.C. App. 10/3/2006)
- In the Matter of S.J.F.P., No. COA09-186 (N.C. App. 7/7/2009)
- In re L.B.