Peirce, Matter of

• Citation: 281 S.E.2d 198,53 N.C.App. 373
• Court: Court of Appeal of North Carolina (US)
• Decision Date: 17 December 1978
• Parties: In the Matter of Amy Beth PEIRCE, Minor (DOB:

Page 198

281 S.E.2d 198

53 N.C.App. 373

In the Matter of Amy Beth PEIRCE, Minor (DOB: 12/17/78).

No. 8025DC919.

Court of Appeals of North Carolina.

Aug. 18, 1981.

Byrd & Edwards, guardian ad litem by C. Thomas Edwards, Greenville, and Powell & Settlemyer by Douglas F. Powell and Sueanna P. Peeler, Morganton, for petitioner-appellee.

Catawba Valley Legal Services, Inc. by Ellis L. Aycock and Warren C. Hodges, Morganton, for respondent-appellants.

MORRIS, Chief Judge.

Respondents made 27 assignments of error in the record on appeal. They cite all but one of these assignments of error in support of 13 arguments which they bring forth in their appellate brief.

Defendant initially argues that the trial court erred by striking paragraphs three and four of respondent's Further Answer and Defense and Counterclaim to the petition to terminate parental rights. Defendant maintains that G.S., Chap. 7A, Art. 24B, "Termination of Parental Rights" allows the respondent in a termination of parental rights case to file counterclaims as part of its answer. Although, G.S. § 7A-289.29(a) does not specifically allow a respondent in such a case to file anything other than an answer to the petition to terminate parental rights, respondents reason by analogy to the N.C. Rules of Civil Procedure, specifically G.S. § 1A-1, Rule 7(a) and Rule 13, that the additional filing of counterclaims attached to the answer is permissible. We disagree.

The intent of the legislature controls the interpretation of a statute. State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978); State v. Hart, 287 N.C. 76, 213 S.E.2d 291 (1975). Moreover, "(w)hen the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give the statute its plain and definite meaning...." In re Banks, 295 N.C. 236, 239, 244 S.E.2d 386, 388 (1978); Peele v. Finch, 284 N.C. 375, 200 S.E.2d 635 (1973).

G.S. § 7A-289.22 defines the legislative intent and construction to be given Art. 24B. G.S. § 7A-289.22(1) provides in part:

The general purpose of this Article is to provide judicial procedures for terminating the legal relationship between a child and his or her biological or legal parents ... (Emphasis added.)

The sections of Art. 24B comprehensively delineate in detail the judicial procedure to be followed in the termination of parental rights. This article provides for the basic procedural elements which are to be utilized in these cases. For example, G.S. § 7A-289.24 sets out who may petition; G.S. § 7A-289.25 establishes the requirements of the petition; G.S. § 7A-289.26 describes the procedure to be followed for a preliminary hearing where the identity of one of the parents is unknown; and G.S. § 7A-289.29 establishes the necessary contents of the answer. Due to the legislature's prefatory statement in G.S. § 7A-289.22 with regard to its intent to establish judicial procedures for the termination of parental rights, and due to the specificity of the procedural rules set out in the article, we think the legislative intent was that G.S., Chap. 7A, Art. 24-B, exclusively control the procedure to be followed in the termination of parental rights. It was not the intent that the requirements of the basic rules of civil procedure of G.S. § 1A-1 be superimposed upon the requirements of G.S., Chap. 7A, Art. 24-B. Therefore, in this case we need only ascertain whether the trial court correctly followed the procedural rules delineated in the latter.

G.S. § 7A-289.29 provides, with regard to the respondent's answer in cases where the court is petitioned to terminate parental rights, that:

(a) Any respondent may file a written answer to the petition. The answer shall admit or deny the allegations of the petition and shall set forth the name and address of the answering respondent or his or her attorney.

This statute does not specifically grant the respondent in these cases the right to file a counterclaim, nor does any other section of G.S., Chap. 7A, Art. 24B, grant to respondent such a right. The statutorily established procedure for the termination of parental rights does not include the right to file a counterclaim, and we will not add that right by imputation. Therefore, it was not error for the trial court in the case sub judice to strike paragraphs three and four from respondents' Further Answer and Defense and Counterclaim.

Respondents allege in the alternative that paragraphs three and four were not counterclaims, but "actually did no more than suggest alternative resolutions of the action for consideration by the court." Therefore, they should not have been stricken by the trial court.

A counterclaim is defined by Black's Law Dictionary, 4th Ed. as "(a) claim presented by a defendant in opposition to or deduction from the claim of the plaintiff." A counterclaim is a separate cause of action, seeking affirmative relief, while a defense merely defeats the plaintiff's cause of action by a denial or confession and avoidance. Both paragraphs of respondents' answer which are in question ask for affirmative relief in a manner which would benefit respondents.

In paragraph three of respondents' Further Answer and Defense and Counterclaim, respondents ask the trial court to place Amy in a foster home close to their own in Florida so that a reconciliation between them and the child might be effected.

Paragraph four asks the trial court to order that custody of Amy be transferred from petitioner to respondents. Both paragraphs ask for affirmative relief for respondents. They are not denials of the petition for termination of parental rights. Thus, the trial court properly considered them as being counterclaims and struck them from respondents' answer.

In their second argument respondents submit that the trial court erred in failing to require adequate equipment and personnel to transcribe the hearing so that it could be preserved in the record on appeal. Respondents allege that the equipment utilized failed to record adequately the entire hearing, and portions actually taped were inaudible. They excepted to three portions of the record where they allege that portions of the testimony of Gayle Ulery and the arguments of counsel and discussion of the court were not recorded.

By motion filed 21 March 1980, respondents asked the trial court to furnish a court reporter or electronic or other mechanical device sufficient to record the trial. G.S. § 7A-289.30(a) provides that the adjudicatory hearing on termination is to be reported as provided by G.S. § 7A-198 for the reporting of civil trials. The latter statute specifies:

(a) Court-reporting personnel shall be utilized, if available, for the reporting of civil trials in the district court. If court reporters are not available in any county electronic or other mechanical devices shall be provided by the Administrative Office of the Courts upon request of the chief district judge.

The record of respondents' hearing does not indicate what type of equipment was used to record it. However, the record does state that, "Petitioner, Respondents, and the Guardian Ad Litem stipulated to the use of recording machines in lieu of a court reporter for the taking of evidence." Thus, respondents are estopped from complaining on appeal as to the quality of the recording equipment used. G.S. § 7A-198 specifically authorizes the use of electronic recording equipment when court reporters are not available. There is nothing in the record to indicate that court reporters were available, and by their stipulation respondents waive any objection they might have had if they were. We find no error in the manner in which the district court had this hearing recorded.

Ancillary to this argument respondents have made general allegations that they were prejudiced by the loss of specific portions of testimony resulting from gaps in the tape recording. Respondents have failed to show that they were prejudiced in any manner by the loss of this testimony. Respondents have not alleged or shown in the record what the contents of the lost testimony was. Therefore, it is impossible for this Court to determine if they were prejudiced thereby.

Respondents argue that the trial court failed to conduct a satisfactory preliminary hearing in this matter. G.S. § 7A-289.29(b) provides:

If an answer denies any material allegation of the petition, ... The court shall conduct a special hearing after notice of not less than 10 days nor more than 30 days to the petitioner, the answering respondent(s), and the guardian ad litem for the child, to determine the issues raised by the petition and answer(s)....

This statute does not prescribe the exact form the special hearing is to take except that it is to be used to determine the issues raised by the pleadings. Respondents argue in their brief that the trial court held a "brief conference" prior to trial in which a variety of issues were raised and discussed, but none was actually framed or reported for trial. Respondents assert that no written notice was given by the court or any party ten days in advance of the hearing. Respondents contend that this procedure did not comply with the requirements of G.S. § 7A-289.29(b).

The only evidence appearing in the record pertaining to any special preliminary hearing in this matter consists of Judge Crotty's statement in the judgment terminating respondents' parental rights. There he stated:

It further appearing to the Court that a preliminary hearing was had in accordance with G.S. 7A-586 after due notice to the parties and that the issues for determination at the hearing to terminate parental rights were whether Amy Beth Peirce was a neglected child within the meaning of N.C.G.S. 7A-278(4), and whether the answering parents had failed to provide a reasonable sum for support for their minor child, Amy Beth Peirce, for six months after her placement in the custody of the Burke County Department of Social Services ...

The...