In The Matter Of T.D.W.

• Decision Date: 20 April 2010
• Docket Number: No. COA09-1519.,COA09-1519.
• Citation: 692 S.E.2d 177
• Parties: In the Matter of T.D.W., Minor Child.
• Court: North Carolina Court of Appeals

692 S.E.2d 177

In the Matter of T.D.W., Minor Child.

No. COA09-1519.

Court of Appeals of North Carolina.

April 20, 2010.

Appeal by Respondent-Mother from order entered 24 August 2009 by Judge Don W. Creed, Jr., in Randolph County District Court. Heard in the Court of Appeals 22 March 2010.

Erica Glass McDoe, Asheboro, for Randolph County Department of Social Services, petitioner-appellee.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Heather Adams, Raleigh, and Katherine Y. Lavole, for guardian ad litem-appellee.

Betsy J. Wolfenden, Chapel Hill, for mother, respondent-appellant.

ERVIN, Judge.

Respondent-Mother Crystal M. appeals from an order entered by the trial court terminating her parental rights in the minor child T.D.W. (Thomas).¹ On appeal, Respondent-Mother challenges the timeliness and accuracy of the notice that she received pursuant to N.C. Gen.Stat. § 7B-1106.1(b)(5). After careful consideration of Respondent-Mother's contentions in light of the record and the applicable law, we conclude that no prejudicial error occurred in the proceedings leading to the entry of the trial court's termination order and that, for that reason, it should be affirmed.

On 19 July 2006, the Randolph County Department of Social Services filed a juvenile petition alleging that Thomas was a dependent juvenile. On the same day, DSS obtained non-secure custody of Thomas.

On 28 September 2006, the trial court held an adjudication hearing on the juvenile petition. On that date, the trial court rendered an order in open court adjudicating Thomas to be a dependent juvenile and placing him in the custody of DSS. The written order to this effect was filed on 15 October 2007.

On 13 June 2007, the trial court held a permanency planning hearing. The permanent plan adopted for Thomas by the court included reunification with Respondent-Mother. Although reunification remained the permanent plan for an extended period of time, the trial court ceased efforts toward reunifying Thomas with Respondent-Mother and modified the permanent plan to adoption in an order that was announced in open court on 29 October 2008 and entered on 23 February 2009 after a trial home placement proved unsuccessful.

On 13 April 2009, DSS filed a motion to terminate Respondent-Mother's parental rights in Thomas. On 8 July 2009, the trial court held a hearing on the motion to terminate parental rights. Although Respondent-Mother did not appear at the hearing held in connection with the termination motion, her attorney did not lodge any objection to the notice that Respondent-Mother had received at the termination proceeding. The trial court entered an order on 24 August 2009 terminating Respondent-Mother's parental rights in Thomas. On 18 September 2009, Respondent-Mother noted an appeal to this Court from the trial court's termination order.²

Respondent-Mother's sole argument on appeal is that the trial court erred, abused its discretion and violated her constitutional right to due process in terminating her parental rights in Thomas by virtue of the fact that notice of the termination hearing was not timely served and the notice was defective. More specifically, Respondent-Mother contends that the present termination proceeding was not conducted in compliance with N.C. Gen.Stat. § 7B-1106.1 (2009), because DSS did not mail notice of the termination hearing in a timely manner and because the notice provided an incorrect time for the 8 July 2009 termination hearing.

If a termination proceeding is initiated by motion, then the movant is required to prepare a notice directed to the parents of the juvenile which contains the following information:

(1) The name of the minor juvenile.

(2) Notice that a written response to the motion must be filed with the clerk within 30 days after service of the motion and notice, or the parent's rights may be terminated.

(3) Notice that any counsel appointed previously and still representing the parent in an abuse, neglect, or dependency proceeding will continue to represent the parents unless otherwise ordered by the court.

(4) Notice that if the parent is indigent, the parent is entitled to appointed counsel and if the parent is not already represented by appointed counsel the parent may contact the clerk immediately to request counsel.

(5) Notice that the date, time, and place of any pretrial hearing pursuant to [N.C. Gen.Stat. § ] 7B-1108.1 and the hearing on the motion will be mailed by the moving party upon filing of the response or 30 days from the date of service if no response is filed.

(6) Notice of the purpose of the hearing and notice that the parents may attend the termination hearing.

N.C. Gen.Stat. §§ 7B-1106.1(a) and (b). “[S]ection 7B-1106.1 directs the petitioner to notify the respondent that proceedings to terminate his or her parental rights have been commenced and that a TPR hearing will be held at a future date.” In re J.L.K., 165 N.C.App. 311, 316, 598 S.E.2d 387, 391 (emphasis in original) disc. review denied, 359 N.C. 68, 604 S.E.2d 314 (2004).

The notice sent in conjunction with the Motion to Terminate Parental Rights to Respondent-Mother utilizes the language of N.C. Gen.Stat. § 7B-1106.1(b) and was served upon Respondent-Mother by certified mail sent to her last known address.³ An affidavit of service confirms that the Motion to Terminate Parental Rights and the notice required by N.C. Gen.Stat. § 7B-1106.1 was mailed to Respondent-Mother on 13 April 2009. As is evidenced by the affidavit of service, Respondent-Mother was served with the Motion to Terminate Parental Rights and the notice on 17 April 2009.⁴ On 18 June 2009, the office of the Clerk of Superior Court of Randolph County sent Respondent-Mother a notice concerning the date, time and location of the termination hearing, which was set for 8 July 2009 at 9:00 a.m.⁵ Respondent-Mother first contends that the trial court's order terminating her parental rights in Thomas should be vacated because the notice of the “date, time, and place of the hearing” required by N.C. Gen.Stat. § 7B1106.1(b)(5) was not sent to her in a timely manner. As a result of the fact that Respondent-Mother did not file a response to the termination motion, N.C. Gen.Stat. § 7B-1106.1(b)(5) provides that notice of the “date, time, and place” of the hearing be sent within “30 days from the date of service.” As Respondent-Mother notes, the office of the Clerk of Superior Court of Randolph County did not send Respondent-Mother a notice that the hearing on the termination motion would be held at 9:00 a.m. on 8 July 2009 until 18 June 2009.⁶ Respondent-Mother argues that “ ‘[t]he use of the word ‘shall’ by our Legislature has been held by this Court to be a mandate, and the failure to comply with this mandate constitutes reversible error,' ” ⁷ In re Z.T.B., 170 N.C.App. 564, 569, 613 S.E.2d 298, 300 (2005), citing In re Eades, 143 N.C.App. 712, 713, 547 S.E.2d 146, 147 (2001); In re Johnson, 76 N.C.App. 159, 331 S.E.2d 756 (1985); and In re Wade, 67 N.C.App. 708, 313 S.E.2d 862 (1984), and that “[v]iolation of the clear mandate of a statute has been held by this Court to constitute reversible error per se.”

Respondent-Mother is clearly correct in arguing that the 18 June 2009 notice was not sent in a timely manner. As a result of the fact that Respondent-Mother did not file a response within 30 days of service of the notice and a copy of the motion seeking the termination of her parental rights in Thomas, the notice described in N.C. Gen.Stat. § 7B-1106.1(b)(5) should have been transmitted to her no later than 17 May 2009. For that reason, the notice that a hearing would be held on the termination motion on 8 July 2009 was sent to Respondent-Mother approximately 30 days later than contemplated by N.C. Gen.Stat. § 7B-1106.1(b)(5). The existence of this error in the proceedings leading up to the entry of the termination order does not, however, mandate the vacating of the termination order as Respondent-Mother suggests.

Although this Court has rejected the contention that a failure to strictly comply with the general notice requirement of N.C. Gen.Stat. § 7B-1106.1(b) can be excused on the grounds that the parent who did not receive the required notice was not prejudiced Alexander, 158 N.C.App. at 525, 581 S.E.2d at 468-69; In re D.A., Q.A., & T.A., 169 N.C.App. 245, 247-48, 609 S.E.2d 471, 472-73 (2005), it is clear from an examination of our opinions in those case that the error at issue there was either a total failure to provide the notice required by N.C. Gen.Stat. § 7B-1106.1(b) or a failure to provide important components of that notice required by N.C. Gen.Stat. § 7B-1106.1(b), rather than a failure to provide the subsequent notice required by N.C. Gen.Stat. § 7B-1106.1(b)(5). As a result, our decisions in Alexander and D.A. are not controlling on the issue of whether a failure to provide timely notice of the “date, time, and place of ... the hearing on the motion” in accordance with N.C. Gen.Stat. § 7B-1106.1(b)(5) necessitates vacating a termination order entered in the absence of timely notice. Thus, contrary to Respondent-Mother's contentions, we are not persuaded that a failure to provide notice of the date, time, and place of the hearing to be held in connection with a termination motion pursuant to N.C. Gen.Stat. § 7B-1106.1(b)(5) inevitably requires an award of appellate relief.

After careful consideration, we conclude that the failure to provide Respondent-Mother with notice of the date, time, and place of the hearing on the termination motion on or before 17 May 2009 pursuant to N.C. Gen.Stat. § 7B-1106.1(b)(5) does not necessitate an award of appellate relief in this case for two different, albeit related, reasons. First, there is no indication in the present record that Respondent-Mother was in any way prejudiced by the fact that notice of the 8 July 2009 hearing was sent on 18 June 2009 instead of 17 May 2008. We see no reason why a failure to...