Opinion
No. COA07-643-2
Filed 15 June 2010 This case not for publication
Appeal by respondents from order entered 8 March 2007 by Judge Edward A. Pone in Cumberland County District Court. Originally heard in the Court of Appeals 13 November 2007. Upon remand by order from the North Carolina Supreme Court filed 28 August 2009.
Elizabeth Kennedy-Gurnee for petitioner-appellee. Lisa Skinner Lefler for respondent-appellant mother. Annick Lenoir-Peek for respondent-appellant father. Beth A. Hall for guardian ad litem.
Cumberland County Nos. 06 JA 400, 06 JA 401, 06 JA 402, 06 JA 403.
This Court filed an opinion in this case on 18 December 2007. See In re M.G., M.B., K.R., J.R., 187 N.C. App. 536, 653 S.E.2d 581 (2007), rev'd in part, 363 N.C. 570, 681 S.E.2d 290 (2009). In our previous opinion, we held that the trial court properly concluded that M.G. ("Martin") and M.B. ("Michelle"), the biological children of respondent mother, and K.R. ("Kristen") and J.R. ("Jack"), the biological children of respondent father, were abused as defined by N.C. Gen. Stat. § 7B-101(1)(b) (2005) and neglected as defined by N.C. Gen. Stat. § 7B-101(15). 187 N.C. App. at 538, 653 S.E.2d at 582. We further affirmed the trial court's determination that Kristen was sexually abused under N.C. Gen. Stat. § 7B-101(1)(d). 187 N.C. App. at 538, 653 S.E.2d at 582. We reversed the portion of the order concluding that Kristen and Jack were abused under N.C. Gen. Stat. § 7B-101(1)(f). 187 N.C. App. at 551, 653 S.E.2d at 590. In addition, we remanded for further findings of fact regarding the trial court's subject matter jurisdiction with respect to Kristen and Jack. Id. at 538, 653 S.E.2d at 583. Finally, we held that the trial court improperly allowed petitioner to amend its petition to add allegations of sexual misconduct as to Michelle, and we, therefore, reversed the portion of the order concluding that Michelle was sexually abused. Id., 653 S.E.2d at 582-83.
The same pseudonyms used by this Court in our previous opinion — Martin, Michelle, Kristen, and Jack — are used throughout this opinion to protect the children's privacy and for ease of reading.
The Supreme Court granted discretionary review solely to consider the issue whether the trial court had improperly allowed petitioner to amend the petition to add allegations of sexual misconduct as to Michelle. As to that issue, the Supreme Court held that the allegations of sexual abuse did not change the nature of the abuse condition already alleged in the petition and that the trial court, therefore, properly allowed the amendment. In re M.G., M.B., K.R., J.R., 363 N.C. at 574, 681 S.E.2d at 292. The Supreme Court reversed our opinion as to this issue alone and remanded for this Court to consider any remaining assignments of error not addressed in our previous opinion. Id. at 575, 681 S.E.2d at 293.
The only assignments of error not addressed in our prior opinion relate to the amended petition's allegations of sexual misconduct as to Michelle. The facts of the case are fully set forth in our previous opinion, and we need not repeat them in this opinion in order to address the remaining assignments of error.
With respect to the amended petition and the allegations of sexual misconduct, respondent father makes no argument other than that the trial court was not authorized to grant the motion to amend the petition. Any arguments relating to the trial court's authority, even if not specifically addressed in our prior opinion, are subsumed within the Supreme Court's holding that the trial court properly allowed petitioner's motion to amend.
Respondent mother argues in addition that petitioner failed to serve the motion to amend and the proposed amended petition in accordance with the Rules of Civil Procedure, as she had not received a copy of the amended petition by the February 2007 adjudicatory hearing. The Supreme Court, however, noted that respondents "were aware well before the adjudicatory hearing that the additional factual allegations and a claim of abuse as defined in N.C.G.S. § 7B-101(1)(d) were at issue." Id. Indeed, the trial court acknowledged in its order that respondent father faced criminal charges of first degree rape, first degree sexual offense, sexual act by a substitute parent, and crime against nature based on his alleged conduct with Michelle. Because respondent mother has failed to show that she was prejudiced by any deficiency in the service of the motion to amend, we overrule this assignment of error. See In re Krauss, 102 N.C. App. 112, 117, 401 S.E.2d 123, 126 (1991) (rejecting respondent's contention that he lacked notice and chance to be heard on amendments to petition where respondent did not establish he was denied notice of substance of petitioner's allegations or chance to be heard).
Respondent mother also claims that she was unfairly prejudiced by the trial court's order shortening to two weeks her time to respond to the amended petition. The court wanted to avoid delaying the hearing that had previously been scheduled for a special session on 22 January 2007. Respondent mother does not, however, make any attempt on appeal to show that she was prejudiced in any way by having less time to respond. See 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) (explaining that violations of statutory time limitation in Juvenile Code are not necessarily jurisdictional and, in such cases, trigger reversal only when violation has been prejudicial), aff'd per curiam and disc. review improvidently allowed, 360 N.C. 475, 628 S.E.2d 760 (2006). We do not believe that any failure of the trial court to adhere to the applicable time line in this case requires reversal in the absence of a showing of prejudice.
Lastly, respondent mother argues that although respondent father was accused of sexually abusing Michelle, there is no evidence in the record that respondent mother sexually abused Michelle. As we explained in our previous opinion, "in an abuse, neglect, and dependency proceeding, the question is whether the children were abused and not whether respondent mother committed the abuse." In re M.G., M.B., K.R., J.R., 187 N.C. App. at 549, 653 S.E.2d at 589. Respondent mother has not specifically challenged the trial court's findings of fact or conclusion of law related to respondent father's sexual abuse of Michelle. Consequently, respondent mother has failed to demonstrate that the trial court erred in concluding Michelle was sexually abused under N.C. Gen. Stat. § 7B-101(1)(d) (2009).
In accordance with our previous opinion and the Supreme Court's opinion, we affirm the trial court's determination that all four children were abused as defined by N.C. Gen. Stat. § 7B-101(1)(b) and neglected as defined by N.C. Gen. Stat. § 7B-101(15). We also affirm the trial court's determination that both Kristen and Michelle were sexually abused under N.C. Gen. Stat. § 7B-101(1)(d). We reverse the portion of the order concluding that Kristen and Jack were abused under N.C. Gen. Stat. § 7B-101(1)(f), and we remand for further findings of fact regarding the trial court's jurisdiction with respect to Kristen and Jack.
Affirmed in part; reversed in part; remanded in part.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).