Opinion
No. COA03-1165
Filed August 17, 2004 This case not for publication
Appeal by respondent from order entered 16 April 2003 by Judge Garey M. Ballance in District Court, Franklin County. Heard in the Court of Appeals 8 June 2004.
Katharine Chester for respondent appellant. David R. Guin for petitioner appellee.
Franklin County No. 01 J 59.
Respondent appeals from an order of the trial court adjudicating as neglected the minor child at issue. For the reasons stated hereafter, we affirm the order of adjudication and disposition.
Respondent is the step-grandmother of the minor child, who was three years old at the time of the adjudication hearing before the trial court. On or about 14 August 2001, the Franklin County Department of Social Services ("DSS") received a report alleging that Respondent had improperly disciplined the child, resulting in visible bruising. DSS investigated the complaint by visiting Respondent's home on 16 August 2001. The DSS investigator detected no bruising on the child and requested the names of collateral witnesses she could interview regarding Respondent's care of the child. Respondent provided the investigator with the names of her two adult daughters and adult stepson, who was the father of the minor child. These witnesses informed the investigator they had been subjected to years of physical, mental and sexual abuse by Respondent and her husband while they were children, and expressed grave concern for the safety and well-being of the minor child should she remain in the care of Respondent. Based on these allegations and the details provided to the investigator, DSS filed a juvenile petition on 28 August 2001 alleging the child was neglected on the ground that she was living in an environment injurious to her welfare. DSS assumed non-secure custody of the child the same day.
At the adjudication hearing, DSS presented evidence tending to show that both of the child's natural parents were incarcerated at the time of the child's birth in Texas. Respondent and her husband, the paternal grandfather of the minor child, brought the child from Texas to their home in Franklin County, North Carolina, within several days of her birth. They later obtained an order awarding them custody of the child.
Three of Respondent's adult children and stepchildren testified at length regarding the extensive physical, mental, and sexual childhood abuse inflicted upon them by Respondent and her husband One of Respondent's sons testified on behalf of Respondent. He verified that he and his siblings were whipped several times per week, and that his stepfather beat him unconscious on at least one occasion. He also confirmed specific instances of domestic violence between Respondent and her husband and inappropriate physical punishment of his siblings. For example, Respondent's son testified that Respondent punished her stepson on one occasion by forcing him to crawl on the carpet around a table until his knees bled. In another instance, Respondent placed her stepson in a corner and forced him to hold his arms out straight by taping forks to his armpits. Respondent's son testified that other instances of abuse did not occur or had been exaggerated.
Respondent's stepson, the biological father of the minor child, testified to extensive physical and sexual abuse he suffered as a child. Because he was incarcerated when his daughter was born, Respondent's stepson felt he had little choice at the time but to consent to her custody being temporarily placed with Respondent and her husband He agreed that, with his history of incarceration and drug addiction, he probably could not regain custody of his daughter, but stated that he preferred she be placed for adoption rather than continue her custody with Respondent.
The minor child's paternal grandmother testified she resided for some time with Respondent and her husband while the child was in their custody. She observed a physical altercation between Respondent and her husband during which Respondent threatened her husband with a shotgun. Both Respondent and her husband were arrested as a result of the altercation, which occurred in the presence of the minor child. The paternal grandmother stated Respondent had struck the minor child in the face at least once. She further observed Respondent's husband become sexually aroused during the child's diaper change, following which Respondent's husband masturbated in the bathroom with the door open.
DSS presented testimony by Dr. Denise Everett, a physician who examined the minor child approximately three weeks after DSS took custody, and Dr. Sharon Sevilla, the child's pediatrician. During her evaluation, Dr. Everett found "severe anal fissures" on the child's buttocks, which Dr. Everett characterized as concerning for anal sexual abuse. Dr. Sevilla, the child's pediatrician, viewed the photographs taken of the fissures and agreed with Dr. Everett that such injury was consistent with sexual abuse.
Upon review of the evidence, the trial court concluded the minor child lived in an environment injurious to her welfare, and that she was therefore neglected as defined by section 7B-101(15) of the North Carolina General Statutes. The trial court ordered that custody of the child remain with DSS. Respondent appealed.
Respondent contends the trial court erred in adjudicating the minor child neglected on the grounds that (I) Respondent's due process rights were violated; (II) DSS presented no clear, cogent and convincing evidence that Respondent neglected the minor child; (III) the adjudication order was untimely entered; (IV) the trial court failed to make findings of fact regarding reunification efforts; and (V) Respondent received ineffective assistance of counsel. For the reasons stated herein, we affirm the order of adjudication and disposition.
I. Due Process
Respondent's first assignment of error contains several sub-issues, all of which relate to her contention that her due process rights were violated in the course of the proceedings. Specifically, Respondent argues she received inadequate process in that (1) the trial court allowed the adjudication hearing to be continued several times; (2) the order of adjudication was untimely entered; (3) no substantive orders were entered continuing non-secure custody; (4) no separate dispositional hearing was held; and (5) the adjudication order was effectively an order terminating Respondent's parental rights. We address these contentions in turn.
Respondent argues the adjudication order cannot stand because the adjudication hearing did not take place within sixty days of the filing of the juvenile petition. We do not agree. The juvenile petition was filed and the order for non-secure custody was entered 28 August 2001. On 30 August 2001, the trial court held a seven-day hearing to determine the need for continued non-secure custody of the child. Respondent was present and represented by counsel. At the conclusion of presentation of evidence at the seven-day hearing, following which the trial court determined that continued non-secure custody was necessary, Respondent waived her right to subsequent non-secure custody hearings, and the trial court continued the matter until 27 September 2001. At the hearing on 27 September 2001, neither Respondent nor her counsel were present, but counsel for DSS informed the trial court that "[a]ll the parties have agreed that this matter should go over to next month." Counsel for DSS explained the parties were waiting for the results of a child medical evaluation performed on the minor child, and that, in addition, some of the witnesses did not reside in North Carolina and required more time to ensure their appearance. The trial court agreed to continue the matter until 25 October 2001. Respondent expressly consented to all subsequent continuances and made no objection at the adjudication hearing concerning the delay between the filing of the juvenile petition and the hearing. On the contrary, counsel for Respondent thanked the trial court for the "efforts you've made scheduling this matter as soon as possible. You know [Respondent] is currently residing in Texas and it's been a little difficult to get [the adjudication hearing] scheduled, but I appreciate your making special days and so forth coming back to hear it."
Section 7B-801 of the Juvenile Code provides that an adjudicatory hearing should be held "no later than 60 days from the filing of the petition unless the judge pursuant to G.S. 7B-803 orders that it be held at a later time." N.C. Gen. Stat. § 7B-801(c) (2003) (emphasis added). Under section 7B-803 of the Juvenile Code, the trial court may for good cause
continue the [adjudication] hearing for as long as is reasonably required to receive additional evidence, reports, or assessments that the court has requested, or other information needed in the best interests of the juvenile and to allow for a reasonable time for the parties to conduct expeditious discovery.
N.C. Gen. Stat. § 7B-803 (2003). The decision to grant a continuance is within the trial court's sound discretion and will not be interfered with on appeal unless the ruling is "manifestly unsupported by reason." In re Safriet, 112 N.C. App. 747, 751, 436 S.E.2d 898, 901 (1993).
In the instant case, the trial court determined that good cause existed to grant a continuance in that relevant evidence and out-of-state witnesses were unavailable. Respondent did not appear at the 27 September 2001 hearing to contest a continuance, although she had notice of such hearing. Respondent consented to all subsequent continuances, which, according to her counsel at the adjudication hearing, were beneficial to Respondent inasmuch as she no longer resided in North Carolina. We discern no abuse of discretion by the trial court in continuing the adjudication hearing.
Respondent further contends that because the order of adjudication was not reduced to writing, signed, and filed within thirty days following the completion of the adjudication hearing, the order must be vacated. We disagree.
Section 7B-807 requires an order of adjudication to be "reduced to writing, signed, and entered no later than 30 days following the completion of the hearing." N.C. Gen. Stat. § 7B-807(b) (2003). Here, the adjudication hearing began on 28 February and concluded 25 April 2002. The adjudication order was not filed, however, until 16 April 2003, nearly a year after completion of the hearing. While we agree that the delay involved between the hearing and the filing of the order constitutes error, this Court has noted that "holding that . . . adjudication and disposition orders should be reversed simply because they were untimely filed would only aid in further delaying a determination regarding [a minor child's] custody because juvenile petitions would have to be re-filed and new hearings conducted." In re E.N.S., ___ N.C. App. ___, 595 S.E.2d 167, 172 (2004); see also In re J.L.K., ___ N.C. App. ___, ___ S.E.2d ___ (filed 6 July 2004) (concluding that, while the trial court's 89-day delay in entering an order terminating parental rights "clearly violated the 30-day provision of N.C. Gen. Stat. § 7B-1109(e)" there was "no authority compelling that the TPR order be vacated as a result").
Further, although the order was not filed within the specified time period, Respondent cannot show how she was prejudiced by the late filing. Although Respondent argues DSS "took advantage of the delay" to prevent visitation with the child, the transcript shows that the trial court considered a motion for visitation by Respondent 29 August 2002, well before the actual order of adjudication was entered. Moreover, Respondent's right to appeal was not affected by the untimely filing. Thus, the trial court's failure to file the adjudication order within thirty days is not grounds for reversal.
Similarly, we conclude the trial court's failure to enter an order for continuing non-secure custody following the non-secure custody hearing, while error, does not require reversal of the subsequent adjudication and disposition order. Following a non-secure custody hearing in which the trial court determines that continued non-secure custody of the minor child is warranted, the trial court "shall issue an order to that effect. The order shall be in writing with appropriate findings of fact and signed and entered within 30 days of the completion of the hearing." N.C. Gen. Stat. § 7B-506(d) (2003). Clearly, the trial court erred in failing to abide by the mandates of section 7B-506. Respondent does not demonstrate prejudice arising from such error, however. Although Respondent may be correct in her assertion that the minor child "was retained in DSS custody for nearly twenty months even though there was no facially valid court order allowing them to do so," the technical lack of authority by DSS to retain custody of the child at some prior point does not invalidate the present authority of DSS, pursuant to the adjudication and disposition order, to maintain custody. Respondent does not contend the trial court lacked jurisdiction to enter the adjudication and disposition order, nor did Respondent object at any point during the hearing to the trial court's failure to enter a non-secure custody order. We conclude the trial court's failure to enter a non-secure custody order in the present case was harmless.
Respondent argues the trial court erred in failing to hold a separate dispositional hearing following the adjudication hearing. We disagree. This Court has recently held that, although adjudicatory and dispositional hearings require the application of different evidentiary standards at each stage, there is no requirement that the adjudicatory and dispositional hearings be conducted at two separate times for the purpose of determining whether a child is abused or neglected. In re O.W., ___ N.C. App. ___, 596 S.E.2d 851, 853 (2004); see also In re Dhermy, 161 N.C. App. 424, 433, 588 S.E.2d 555, 560 (2003) (noting that North Carolina statutes and case law contain no requirement that the adjudication and disposition phases of a proceeding for termination of parental rights be conducted during separate hearings); In re White, 81 N.C. App. 82, 85, 344 S.E.2d 36, 38 (same), disc. rev. denied, 318 N.C. 283, 347 S.E.2d 470 (1986).
In the instant case, counsel for DSS informed the trial court that the evidence presented in support of adjudication was the same evidence the agency relied upon in support of disposition, and that no additional evidence would be presented for purposes of disposition. Counsel submitted the recommendations of DSS with respect to disposition. Respondent offered no additional evidence, made no recommendation on disposition, and made no objection to the trial court's consolidation of the adjudication and disposition hearings. We conclude the trial court did not err in consolidating the two hearings. In re O.W., ___ N.C. App. at ___, 596 S.E.2d at 853.
Respondent further contends the order of adjudication and disposition "effectively terminated [Respondent's] parental rights without bothering with the statutory mandates [of] N.C.G.S. § 7B-1100, et seq." This argument has no merit. Respondent is not the minor child's biological or legal parent. As such, she has no parental relationship to terminate, and is not entitled to the procedural guarantees of Article 11. See N.C. Gen. Stat. § 7B-1100(1) (2003) (establishing that the general purpose of Article 11, Termination of Parental Rights, is to "provide judicial procedures for terminating the legal relationship between a juvenile and the juvenile's biological or legal parents"). We reject Respondent's argument to the contrary.
II. Neglect
Respondent contends there was insufficient evidence she neglected the minor child, and the trial court erred in determining otherwise. We do not agree.
"When an appellant asserts that an adjudication order of the trial court is unsupported by the evidence, this Court examines the evidence to determine whether there exists clear, cogent and convincing evidence to support the findings." In re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003). The findings of the trial court are binding and conclusive on appeal where there is competent evidence to support them, even though the evidence might support a finding to the contrary. Id. Under the Juvenile Code, a neglected juvenile is one
who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.
N.C. Gen. Stat. § 7B-101(15) (2003).
Here, the trial court heard extensive testimony from Respondent's grown children and stepchildren regarding the devastating physical, mental and sexual abuse inflicted upon them by Respondent and her husband, the minor child's paternal grandfather, while they were children. DSS also presented evidence tending to show that Respondent inappropriately disciplined the child by striking her on at least one occasion, and engaged in a physical altercation with her husband in front of the child, during which she threatened her husband with a shotgun. Finally, DSS presented medical evidence and testimony indicating a strong likelihood the minor child had been sexually abused. We conclude there was clear, cogent and convincing evidence to support the trial court's findings and conclusion that Respondent neglected the minor child. We therefore overrule this assignment of error.
III. Adjudication Order
Respondent contends the order of adjudication and disposition must be set aside because "it does not bear any resemblance [to] the order rendered in open court" and was untimely entered. We find no merit in these arguments. We have already concluded the trial court's failure to enter the order in a timely fashion did not prejudice Respondent. Further, the trial court stated in open court that it found "by clear and convincing evidence [that the minor child is] a neglected juvenile as to [Respondent and her husband] based on her living in an environment injurious to her health and welfare" and that it would "leave placement authority in the Department of Social Services." As such, there were no fundamental contradictions between the decision rendered orally by the trial court and the order ultimately reduced to writing and filed. Contrary to Respondent's assertions, the trial court was not required to recite each and every one of its findings in open court. This assignment of error is overruled.
IV. Findings of Fact
Respondent contends the trial court failed to make required findings of fact regarding reunification efforts of the minor child with Respondent. Pursuant to section 7B-507 of the Juvenile Code, an order of adjudication and disposition should contain findings "as to whether a county department of social services should continue to make reasonable efforts to prevent or eliminate the need for placement of the juvenile, unless the court . . . determines . . . that such efforts are not required or shall cease." N.C. Gen. Stat. § 7B-507(a)(3) (2003). Section 7B-507 does not require the trial court to make findings regarding reunification of a child with a specific person. Rather, the trial court must find and direct DSS to make reasonable efforts to prevent or eliminate the need for placement of a child. Here, the trial court complied with the statute by directing DSS to "continue with reasonable efforts to reunify this juvenile with her father." Further, the trial court found it to be in the best interests of the minor child to adopt the recommendations of DSS, which included continuation of reunification efforts with the child's parents. We overrule this assignment of error.
V. Ineffective Assistance of Counsel
By her final assignment of error, Respondent contends she was denied effective assistance of counsel. Under our General Statutes, "[i]n cases where the juvenile petition alleges that a juvenile is abused, neglected, or dependent, the parent has the right to counsel and to appointed counsel in cases of indigency unless that person waives the right." N.C. Gen. Stat. § 7B-602(a) (2003). The right to counsel includes the right to effective assistance of counsel. See In re Faircloth, 153 N.C. App. 565, 571, 571 S.E.2d 65, 70 (2002); In re Bishop, 92 N.C. App. 662, 665, 375 S.E.2d 676, 678 (1989). "To prevail on a claim of ineffective assistance of counsel, respondent must show that counsel's performance was deficient and the deficiency was so serious as to deprive her of a fair hearing." Bishop, 92 N.C. App. at 665, 375 S.E.2d at 679.
Assuming arguendo that Respondent had the right to counsel in the instant case, she cannot show her counsel's performance was so deficient as to deprive her of a fair hearing. The record reveals that counsel for Respondent vigorously cross-examined the witnesses presented by DSS, and presented eight witnesses on behalf of Respondent. Counsel made frequent objections, many of which were sustained by the trial court. None of Respondent's arguments concerning her counsel's alleged deficiencies compels the conclusion that she was deprived of a fair hearing. We reject Respondent's arguments on this ground.
In conclusion, we determine the order of adjudication and disposition is supported by clear, cogent and convincing evidence, and the trial court did not err in adjudicating the minor child neglected. We therefore affirm the order of adjudication and disposition.
Affirmed.
Judges CALABRIA and LEVINSON concur.
Report per Rule 30(e).