Opinion
No. 07-1248.
Filed March 18, 2008.
Burke County No. 05J110.
Appeal by respondent mother from judgment entered 22 August 2007 by Judge Robert M. Brady in Burke County District Court. Heard in the Court of Appeals 21 February 2008.
Burke County Department of Social Services, by Stephen M. Schoeberle, for petitioner-appellee. Mary R. McKay, for guardian ad litem. Jeffrey L. Miller, for respondent-appellant.
L.C. ("respondent") appeals from an order, which terminated her parental rights to her minor child D.A.A.W. ("D.W."). We affirm.
I. Background
On 30 August 2005, the Burke County Department of Social Services ("DSS") filed a juvenile petition and alleged D.W. was an abused and neglected juvenile due to "shaken-baby syndrome" injuries he had received while in the care of respondent's live-in boyfriend. The trial court granted nonsecure custody of D.W. to DSS in an order dated 30 August 2005 and entered 1 September 2005. On 29 September 2005, an adjudication and disposition hearing was held. On 4 October 2005, the trial court adjudicated D.W. to be a neglected juvenile and continued custody of D.W. with DSS. The trial court ordered respondent to complete substance abuse and psychological assessments and any recommended treatment, comply with the case plans implemented by DSS, and become trained with regard to D.W.'s special medical needs.
On 26 June 2006, the trial court entered an order that ceased efforts to reunify D.W. with respondent. In an order dated 18 July 2006, the trial court changed the permanency plan for D.W. to adoption. On 31 August 2006, DSS filed a motion to terminate respondent's parental rights. The motion to terminate parental rights alleged respondent: (1) neglected D.W. and (2) left D.W. in placement outside of the home for more than twelve months without reasonable progress in correcting the conditions which led to D.W.'s removal.
The hearing on DSS's motion to terminate respondent's parental rights, set for 9 November 2006, was continued several times and finally heard on 16 August 2007, almost two years after DSS's original petition was filed. The trial court found clear, cogent, and convincing evidence supported its findings and conclusion to terminate respondent's parental rights to D.W. under both alleged grounds. The trial court entered its order and terminated respondent's parental rights to D.W. on 22 August 2007. Respondent appeals.
II. Issues
Respondent argues the trial court erred when it: (1) held the termination hearing almost one year after the motion to terminate respondent's parental rights was filed; (2) concluded that grounds existed to terminate respondent's parental rights under N.C. Gen. Stat. § 7B-1111(a)(1) and (2); and (3) made broad incorporations of unsupported findings of fact and conclusions of law. Respondent also argues she received ineffective assistance of counsel at the adjudication and disposition hearings.
III. Standard of Review
"On appeal, our standard of review for the termination of parental rights is whether the trial court's findings of fact are based upon clear, cogent and convincing evidence and whether the findings support the conclusions of law. The trial court's conclusions of law are reviewable de novo on appeal." In re J.N.S., 180 N.C. App. 573, 575, 637 S.E.2d 914, 915 (2006) (internal citations and quotations omitted).
IV. Timeliness of Termination Hearing
Respondent argues the trial court erred when it held the termination hearing almost one year after the motion to terminate respondent's parental rights was filed and two years after the original petition was filed.
N.C. Gen. Stat. § 7B-1109 (2005) provides mandates for hearings on motions to terminate parental rights:
(a) The hearing on the termination of parental rights shall be conducted by the court sitting without a jury and shall be held in the district at such time and place as the chief district court judge shall designate, but no later than 90 days from the filing of the petition or motion unless the judge pursuant to subsection (d) of this section orders that it be held at a later time.
. . . . (d) The court may for good cause shown continue the hearing for up to 90 days from the date of the initial petition in order to receive additional evidence including any reports or assessments that the court has requested, to allow the parties to conduct expeditious discovery, or to receive any other information needed in the best interests of the juvenile. Continuances that extend beyond 90 days after the initial petition shall be granted only in extraordinary circumstances when necessary for the proper administration of justice, and the court shall issue a written order stating the grounds for granting the continuance.
(Emphasis supplied).
"[T]his Court has held that time limitations in the Juvenile Code are not jurisdictional," and the failure to comply with a time requirement does "not require reversal of orders in the absence of a showing by the appellant of prejudice resulting from the time delay." In re C.L.C., K.T.R., A.M.R., E.A.R., 171 N.C. App. 438, 443, 615 S.E.2d 704, 707 (2005), aff'd, 360 N.C. 475, 628 S.E.2d 760 (2006). In In re C.T. R.S., this Court "conclude[d] that respondent . . . failed to meet her burden to show prejudice caused by the delay in scheduling the hearing." 182 N.C. App. 472, 476, 643 S.E.2d 23, 26 (2007). This Court stated:
At the time the petition was filed, petitioner had not demonstrated any real progress in changing the underlying circumstances and conditions that led to the children's removal from her home. Consequently, an immediate resolution would not have been in her favor, while the delay inured to her benefit. Secondly, the record shows that respondent sought more time when this matter came on for hearing 24 October 2005. We agree with appellees that, on these facts, the delay was not prejudicial, such that the order on termination must be reversed.
Id. at 476-77, 643 S.E.2d at 26.
Here, the motion to terminate respondent's parental rights was filed 31 August 2006 and a hearing was set for 9 November 2006. A review of the record indicates the trial court continued the case seven times between 9 November 2006 and 16 August 2007 without making any findings or conclusions of "extraordinary circumstances" as required by N.C. Gen. Stat. § 7B-1109(d). Respondent stipulated that four of the continuances were for "good cause pursuant to [N.C. Gen. Stat. §] 7B-1109(d)." One additional continuance was the result of respondent's attorney's unavailability. On 16 August 2007, the motion to terminate respondent's parental rights was finally heard.
The trial court violated express statutory mandates when it allowed continuances beyond the initial ninety-day statutory time frame without making the findings or conclusions of "extraordinary circumstances" as required by N.C. Gen. Stat. § 7B-1109(d). The overall delay allowed respondent the benefit of extra time to comply with her plan and address the concerns of the trial court. Respondent has failed to show the trial court's error was prejudicial.
V. N.C. Gen. Stat. § 7B-1111(a)(1) and (2)
Respondent argues the trial court erred when it concluded that grounds existed to terminate her parental rights under N.C. Gen. Stat. § 7B-1111(a)(1) and (2). We disagree. A trial court may terminate a party's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (2005) if it concludes "[t]he parent has abused or neglected the juvenile."
To establish neglect as a ground for termination of parental rights, . . . [DSS] must present clear, cogent, and convincing evidence that (1) the child is neglected as described in N.C. Gen. Stat. § 7B-101(15) . . ., and (2) the child "has sustained some physical, mental, or emotional impairment . . . or there is substantial risk of such impairment as a consequence of the neglect."
In re C.W. J.W., 182 N.C. App. 214, 219-20, 641 S.E.2d 725, 729 (2007) (quoting In re Beasley, 147 N.C. App. 399, 403, 555 S.E.2d 643, 646 (2001)). Generally, "[a] finding of neglect sufficient to terminate parental rights must be based on [clear, cogent, and convincing] evidence showing [continuing] neglect at the time of the termination proceeding." In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997) (citation omitted). "Termination of parental rights for neglect may not be based solely on past conditions which no longer exist." Id. (citation omitted).
[Where] there is no evidence of neglect at the time of the termination proceeding . . . parental rights may nonetheless be terminated if there is a showing of a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to her parents.
In re Reyes, 136 N.C. App. 812, 815, 526
Here, the trial court relied on a past adjudication of neglect and found that "[d]ue to [respondent's] failure to comply with the Court's orders there is a substantial likelihood that, were the minor child to be returned to [respondent], the neglect of him by [respondent] would be repeated."
Respondent never fully complied with the court's order to obtain a psychological assessment and to comply with any recommended treatment. Petitioner gave respondent the option to receive a free psychological assessment through a doctor under contract with petitioner or to obtain a psychological assessment through another provider, the costs of which would be borne by her. While respondent maintains she obtained an assessment from Cognitive Connections, she failed to pay Cognitive Connections for its services and never obtained a report detailing any diagnosis or treatment recommendations.
Respondent obtained an initial substance abuse assessment, however she tested positive for controlled substances on at least three subsequent drug tests, failed to attend at least one drug test, and failed to complete an ordered follow-up substance abuse test. By respondent's own admission, she had been "clean" for only sixty days prior to the termination hearing. Respondent's testimony at the hearing further evidenced her inability to maintain stable employment and stable living arrangements.
Clear, cogent, and convincing evidence supports the trial court's findings and conclusion that D.W. had been neglected in the past and that there is a substantial likelihood that the neglect would be repeated should D.W. be returned to respondent. We hold that these findings of fact support the trial court's conclusion that grounds exist to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). As such, we do not address the other ground for termination. See In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984) (a finding based upon one statutory ground is sufficient to support the termination of parental rights). This assignment of error is overruled.
VI. Prior Orders' Findings of Fact
Respondent argues the trial court erred when it made "broad incorporations and findings and conclusions unsupported by any evidence presented at the termination trial and which were otherwise unsupported by clear, cogent, and convincing evidence." We agree.
"`In juvenile proceedings, it is permissible for trial courts to consider all written reports and materials submitted in connection with those proceedings.' Nevertheless, `despite this authority, the trial court may not delegate its fact finding duty' by relying wholly on DSS reports and prior court orders." In re Z.J.T.B., ___ N.C. App. ___, ___, 645 S.E.2d 206, 211 (2007) (quoting In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004)). Where the prior orders contain findings of fact based on a lesser evidentiary standard than required by the instant proceeding, the trial court cannot rely on the prior findings without making an independent adjudication based on all evidence admitted at the instant hearing. See In re N.G., ___ N.C. App. ___, ___, 650 S.E.2d 45, 51 (2007) ("[T]he doctrine of collateral estoppel permits the trial court to rely on only those findings of fact from prior orders that `were established by clear and convincing evidence.'").
Respondent objects to finding of fact numbered 12 in the trial court's termination order, which states, "[t]he Court incorporates herein the prior findings of fact contained in the prior orders in this matter." Several of the prior orders entered in this matter were from custody review or permanency planning hearings, neither of which require the trial court's findings of fact be based upon clear, cogent, and convincing evidence. See N.C. Gen. Stat. §§ 7B-906(c), -907(b) (2005) (In custody review and permanency planning hearings, "[t]he court may consider any evidence, including hearsay evidence . . . that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition.").
Only the initial order that adjudicated D.W. to be a neglected juvenile contains findings of fact grounded on clear, cogent, and convincing evidence. Only the findings from that order may be incorporated by the trial court into its termination order without making an independent finding and adjudication on whether the other findings are supported by clear, cogent, and convincing evidence.
The trial court erred by entering finding of fact numbered 12. Excluding finding of fact numbered 12, the trial court's other findings of fact are based upon clear, cogent, and convincing evidence and those findings support its conclusions that grounds exist to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). See In re Beck, 109 N.C. App. 539, 548, 428 S.E.2d 232, 238 (1993) (Where no evidence supported a particular finding, its inclusion in the trial court's order was not prejudicial because "there remain[ed] an abundance of clear, cogent, and convincing evidence to support a finding of neglect."). Respondent has failed to show the trial court's error was so prejudicial as to warrant a new hearing.
VII. Ineffective Assistance of Counsel
Respondent contends she received ineffective assistance of counsel when her appointed counsel: (1) failed to file a response to the petition to terminate respondent's parental rights; (2) did not advocate on her behalf, object to inadmissible evidence, or provide any meaningful testing of DSS's case; and (3) made no closing arguments on her behalf in either the adjudication or the disposition phases of the hearing.
An indigent parent has a right to counsel, including appointed counsel in all proceedings related to the termination of their parental rights. N.C. Gen. Stat. §§ 7B-1101.1(a), -1109(b) (2005); In re J.A.A. S.A.A., 175 N.C. App. 66, 74, 623 S.E.2d 45, 50 (2005). Implicit in this right to counsel is the right to effective assistance from counsel. In re Oghenekevebe, 123 N.C. App. 434, 436, 473 S.E.2d 393, 396 (1996). "To prevail in a claim for ineffective assistance of counsel, respondent must show: (1) [the] counsel's performance was deficient or fell below an objective standard of reasonableness; and (2) [the] attorney's performance was so deficient [respondent] was denied a fairhearing." In re J.A.A. S.A.A., 175 N.C. App. at 74, 623 S.E.2d at 50.
An ineffective assistance of counsel claim may be brought on direct review "when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing." State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001) (citations omitted), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).
Here, the record is insufficient for us to review and rule on respondent's ineffective assistance of counsel claim. The transcripts and record are insufficient for us to determine whether respondent's counsel's actions resulted from trial tactics and strategy or from a lack of preparation or an unfamiliarity with the legal issues. The transcripts and record are also insufficient for us to determine whether respondent's counsel's actions prejudiced her defense. We decline to reach respondent's ineffective assistance of counsel assignment of error because the record is inadequate at this stage of review. This assignment of error is dismissed without prejudice.
VIII. Conclusion
Respondent has failed to show the trial court's continuance of the case without a finding of "extraordinary circumstances" was prejudicial. N.C. Gen. Stat. § 7B-1109(d). The trial court also erred when it entered finding of fact numbered 12. Excluding finding of fact numbered 12, the trial court's other findings of fact are based upon clear, cogent, and convincing evidence and those findings support its conclusions that grounds exist to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1).
The merits of respondent's claim of ineffective assistance of counsel are not properly before us and this assignment of error is dismissed without prejudice. We affirm the trial court's order terminating respondent's parental rights.
Affirmed.
Judges GEER and JACKSON concur.
Report per Rule 30(e).