In re T.M.

• Decision Date: 19 December 2006
• Docket Number: No. COA06-79.,COA06-79.
• Court: North Carolina Court of Appeals
• Parties: In the Matter of T.M., Minor Child.

638 S.E.2d 236

In the Matter of T.M., Minor Child.

No. COA06-79.

Court of Appeals of North Carolina.

December 19, 2006.

Appeal by respondent from judgment entered 26 July 2005 by Judge Marvin P. Pope in Buncombe County District Court. Heard in the Court of Appeals 13 September 2006.

C. Reid Gonella, Asheville, for petitioner-appellee.

Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for respondent-appellant.

Judy N. Rudolph, Asheville, for guardian ad litem-appellee.

GEER, Judge.

Respondent appeals from a 26 July 2005 order adjudicating her son to be a neglected child.¹ Because we conclude that the trial court's findings of fact are supported by clear, cogent, and convincing evidence, we affirm the trial court's order.

Appellate Rules Violations

As a preliminary matter, we observe that the statement of facts in respondent's brief fails to comply with the Rules of Appellate Procedure, which require that a brief contain "a non-argumentative summary of all material facts underlying the matter in controversy...." N.C.R.App. P. 28(b)(5). Respondent's statement of facts, just over a page long, contains almost entirely naked argument and includes no citations at all to the record. Unfortunately, this is not the first time that this Court has admonished respondent's counsel for violations of our appellate rules. See In re B.B., ___ N.C.App. ___, 628 S.E.2d 867, 2006 N.C.App. LEXIS 956, *8-9, 2006 WL 1147771, *3 (2006) (unpublished) (dismissing appeal for rule violations, with Judge Steelman in concurrence stating that "[t]he bombast which appellant labels as `Statement of Facts' meets none of the stated requirements for that portion of the brief" and suggesting counsel "should be personally sanctioned"). We note that respondent's counsel would have further violated the appellate rules had this Court not granted counsel's motion to amend the record on appeal with respect to the assignments of error.

Because we do not believe that respondent should be prejudiced by having had the Appellate Defender appoint counsel who has a tendency to overlook the appellate rules, we choose to sanction respondent's counsel. We believe that a sanction is particularly warranted given the frivolous nature of some of the arguments respondent's counsel chose to assert on appeal. Pursuant to Rules 25 and 34 of the Rules of Appellate Procedure, we direct the Clerk of this Court to enter an order providing that counsel shall personally pay the costs of this appeal.

Facts

Buncombe County Department of Social Services ("DSS") first became involved with Tim's family in August 2003. At the time, respondent was in a relationship that she admitted to DSS involved domestic violence and excessive drinking. Although respondent signed a safety agreement with DSS, in which she agreed not to expose Tim to her boyfriend or other abusive individuals, respondent violated the agreement by allowing Tim to have contact with the boyfriend. Respondent finally terminated the relationship after the boyfriend held her and Tim hostage until the police intervened.

Subsequently, respondent became involved with another boyfriend named Travis. Travis, respondent, and Tim all lived together in the home of respondent's mother. While living with respondent's family, Travis accused the grandmother of being a "nosy bitch" and changed the locks to his and respondent's part of the house. Travis also restricted Tim's contact with the grandmother. When Tim sneaked away to see his grandmother, Travis whipped him.

Ultimately, the grandmother was forced to ask respondent and Travis to move out of her home. While the family was moving, a fight between respondent and her sister took place on the front lawn in the presence of Tim. About the same time, the family agreed with DSS that Tim would stay with the grandmother and that Travis would not be allowed in Tim's presence. While DSS was investigating reports that the agreement was being violated, Travis and Tim were found riding in the same truck.

DSS also learned that, although respondent denied "inappropriate discipline" of the child, respondent would spank Tim with a paint stirrer. Travis admitted that he would spank Tim when the child wet the bed. DSS further learned that Travis directed violent behavior towards animals, "including kicking ducks, throwing cats, and beating dogs."

On 4 February 2005, DSS responded to a report that Travis had physically abused respondent and Tim. When Tim answered the door, respondent yelled for him to get back to his bedroom. Respondent "did not deny the allegations contained in the report" of physical abuse. DSS requested permission to examine Tim for physical injuries, but respondent refused access to the house and the child.

On the same day, DSS filed a petition alleging neglect and obtained non-secure custody of Tim. Upon examining Tim for injuries, social workers noticed a bruise on the side of his face and linear bruises to each side of his waist area. While in foster care and during his psychological evaluations, Tim displayed aggressive, violent, and volatile behavior suggestive of past exposure to traumatic events.

The adjudicatory and dispositional hearing commenced on 31 March 2005, but the district court continued the hearing in order to allow time for respondent, Tim, and Travis to undergo psychological evaluations. The hearing resumed on 29 June 2005, and the court entered an order adjudicating Tim to be a neglected child on 26 July 2005.

Discussion

The role of this Court in reviewing an initial adjudication of neglect is to determine "(1) whether the findings of fact are supported by clear and convincing evidence, and (2) whether the legal conclusions are supported by the findings of fact." In re Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365 (2000) (internal quotation marks and citation omitted). "In a non-jury neglect adjudication, the trial court's findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings." In re Helms, 127 N.C.App. 505, 511, 491 S.E.2d 672, 676 (1997).

We note at the outset that respondent's appeal suffers from a fatal defect: she has not challenged on appeal the court's conclusions of law. Respondent originally assigned error to the court's third conclusion of law that "[Tim] is a neglected child ... in that the minor child lived in an environment injurious to his welfare due to repeated exposure to severe ongoing domestic violence between the respondent mother and her male partners." In her brief, however, respondent chose to expressly withdraw this assignment of error. Other than this withdrawn assignment of error, respondent did not assign error to any other conclusion of law.

Respondent's omission eviscerates respondent's appeal since an "appellant must assign error to each conclusion it believes is not supported by the evidence. Failure to do so constitutes an acceptance of the conclusion and a waiver of the right to challenge said conclusion as unsupported by the facts." Fran's Pecans, Inc. v. Greene, 134 N.C.App. 110, 112, 516 S.E.2d 647, 649 (1999) (internal citation omitted). Having withdrawn her assignment of error as to the third conclusion of law, respondent effectively accepted the trial court's conclusions in toto. Notwithstanding her various challenges to the trial court's factual findings, failure to challenge any conclusion of law precludes this Court from overturning the trial court's judgment. Id. (summarily affirming trial court's ruling on issue that was subject of unchallenged conclusion of law); see also In re J.A.A., 175 N.C.App. 66, 74, 623 S.E.2d 45, 50 (2005) (applying Fran's Pecans in termination of parental rights appeal). Nonetheless, even ignoring this fatal defect, our review of respondent's arguments on appeal reveals that they do not support reversal of the trial court's order.

I

Respondent contends that the trial court was without authority or jurisdiction to hear the case because the adjudication hearing was not held within 60 days from the filing of DSS' petition as required by N.C. Gen.Stat. § 7B-801(c) (2005). We note that respondent's suggestion that violations of statutory time limitations deprives a trial court of subject matter jurisdiction is contrary to the well-established law. As this Court stated in In re C.L.C., 171 N.C.App. 438, 443, 615 S.E.2d 704, 707 (2005), aff'd per curiam in part and disc. review improvidently allowed in part, 360 N.C. 475, 628 S.E.2d 760 (2006), "time limitations in the Juvenile Code are not jurisdictional in cases such as this one and do not require reversal of orders in the absence of a showing by the appellant of prejudice resulting from the time delay." See also In re S.W., ___ N.C.App. ___, ___, 625 S.E.2d 594, 596 (holding that respondent must show prejudice as a result of an untimely termination of parental rights hearing), disc. review denied, 360 N.C. 534, 635 S.E.2d 59 (2006). Respondent has made no serious attempt to establish prejudice.

In any event, the record reveals no violation of § 7B-801(c). The petition in this case was filed on 7 February 2005, and the adjudication hearing was commenced on 31 March 2005-within the 60-day requirement. On 5 April 2005, the court decided to continue the proceedings in order to allow for psychological evaluations of respondent, Tim, and Travis. Respondent argues that this continuance made the hearing untimely.

N.C. Gen.Stat. § 7B-803 (2005), however, specifically allows a court, for good cause, to continue a hearing for receipt of additional evidence, reports, or assessments. Once the trial court determined that additional input from psychological experts was necessary to resolve the issue of neglect, it was entitled to continue the hearing so that such information could be obtained. Respondent, notably, did not object to the continuance, but rather agreed to cooperate and participate with respect to the further...