In re J.N.S.

637 S.E.2d 914, 180 N.C. App. 573
Court of Appeals of North Carolina·Decided December 19, 2006·No. No. COA06-395.·Published·Cited by 16 cases

Opinions

TYSON, Judge.

C.S. ("respondent") appeals from order entered terminating his parental rights to his minor child, J.N.S. We reverse.

*915I. Background

In April 1996, J.N.S. was born to D.D., J.N.S.'s mother ("petitioner"), and respondent. Petitioner and respondent never married and lived together for three years after J.N.S.'s birth. Petitioner has maintained physical custody of J.N.S. since her birth.

In July 2000, petitioner married. Petitioner's spouse desires to adopt J.N.S. In February 2002, respondent also married.

On 10 March 2004, petitioner filed a petition to terminate respondent's parental rights. Petitioner alleged the following grounds for termination of parental rights: (1) respondent has failed to provide substantial financial support or consistent care for J.N.S., pursuant to N.C. Gen.Stat. § 7B-1111(5)(d); (2) respondent is incapable of providing proper care for J.N.S., pursuant to N.C. Gen.Stat. § 7B-1111(6); and (3) respondent willfully abandoned J.N.S. for at least six consecutive months immediately preceding the filing of the petition and prior to his incarceration, pursuant to N.C. Gen.Stat. § 7B-1111(7). Respondent was incarcerated in Powahatan Correctional Institution in Powahatan, Virginia on 29 March 2002. On 7 April 2004, respondent filed a pro se response to the petition and requested appointed counsel. On 26 May 2004, respondent was granted parole and released from incarceration by the Virginia Parole Board. On 8 April 2004, counsel was appointed to respondent and an additional response was filed on 22 June 2004.

The trial court conducted hearings on the petition on 23 July 2004, 26 August 2004, and 10 March 2005. The trial court found facts to terminate respondent's parental rights pursuant to N.C. Gen.Stat. §§ 7B-1111(6) and (7) for incapability of providing for the proper care and supervision of J.N.S. and for willfully abandoning J.N.S. for at least six consecutive months preceding the filing of the petition. On 10 March 2005, the trial court ruled from the bench that respondent's parental rights were terminated. Nearly six months later, on 23 August 2005, the trial court reduced the order to writing, signed, and filed and entered it with the Clerk of Superior Court. Respondent appeals.

II. Issues

Respondent argues the trial court erred by: (1) failing to reduce its order to writing within the statutorily prescribed time limit; (2) entering findings of fact numbered 30, 31, and 32 because they are not supported by clear, cogent, and convincing evidence; and (3) concluding it was in J.N.S.'s best interest to terminate his parental rights.

III. Standard of Review

"On appeal, [o]ur 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." In re Baker, 158 N.C.App. 491, 493, 581 S.E.2d 144, 146 (2003) (citations and internal quotations omitted).

"The trial court's `conclusions of law are reviewable de novo on appeal.'" In re D.M.M., ___ N.C.App. ___, ___, 633 S.E.2d 715, 715 (2006) (quoting Starco, Inc. v. AMG Bonding and Ins. Servs., 124 N.C.App. 332, 336, 477 S.E.2d 211, 215 (1996)).

IV. Order in Writing

Respondent argues the trial court erred when it failed to reduce its order to writing, sign, and enter it within the statutorily prescribed time period. We agree.

N.C. Gen.Stat. § 7B-1110(a) (2005) mandates, "[a]ny order shall be reduced to writing, signed, and entered no later than 30 days following the completion of the termination of parental rights hearing." (Emphasis supplied). The last hearing on the petition was held on 10 March 2005, but the order was not entered until 23 August 2006.

This Court has previously stated that absent a showing of prejudice, the trial court's failure to reduce to writing, sign, and enter a termination order beyond the thirty day time window may be harmless error. See In re J.L.K., 165 N.C.App. 311, 315, 598 S.E.2d 387, 390 (2004) (order entered eighty-nine days after the hearing), disc. rev. denied, 359 N.C. 68, 604 S.E.2d 314 (2004).

*916In re L.E.B., K.T.B., 169 N.C.App. 375, 378-79, 610 S.E.2d 424, 426, disc. rev. denied, 359 N.C. 632, 616 S.E.2d 538 (2005).

While "a trial court's violation of statutory time limits . . . is not reversible error per se . . ., the complaining party [who] appropriately articulate[s] the prejudice arising from the delay . . . justif[ies] reversal of the order." In re S.N.H., ___ N.C.App. ___, ___, 627 S.E.2d 510, 513 (2006).

While "[t]he passage of time alone is not enough to show prejudice, . . . [we] recently [held] that the `longer the delay in entry of the order beyond the thirty-day deadline, the more likely prejudice will be readily apparent.'" Id. at ___, 627 S.E.2d at 513-14 (quoting In re C.J.B., 171 N.C.App. 132

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In re J.N.S., 637 S.E.2d 914, 180 N.C. App. 573 (N.C. Ct. App. 2006).

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