In re J.Z.M.

646 S.E.2d 631, 184 N.C. App. 474, 2007 N.C. App. LEXIS 1474
CourtCourt of Appeals of North Carolina
DecidedJuly 3, 2007
DocketNo. COA06-1242.
StatusPublished
Cited by9 cases

This text of 646 S.E.2d 631 (In re J.Z.M.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re J.Z.M., 646 S.E.2d 631, 184 N.C. App. 474, 2007 N.C. App. LEXIS 1474 (N.C. Ct. App. 2007).

Opinions

BRYANT, Judge.

P.A.H.1 (respondent-mother) appeals from an order dated 18 April 2006 terminating her parental rights to her minor children, J.Z.M., R.O.M., and R.D.M. The order dismissed the petition to terminate parental rights as to her minor child, D.T.F. The respondent-father, W.M., is not a party to this appeal. For the reasons below, we reverse the order of the trial court.

Facts and Procedural History

Respondent-mother and respondent-father lived together since February of 1994, were married in May of 1997, and were divorced in late 2003. Charlotte-Mecklenburg Youth and Family Services' (YFS/petitioner) first referral of inappropriate discipline by respondent-mother against one of her older children in 1994 was substantiated. In 1997, YFS substantiated a second referral for unstable housing and improper supervision of the children. Another referral in late 1998 similarly alleged that the family was homeless. Subsequent referrals were made in 1999, 2000, and 2003 for allegations of domestic violence between the respondent-parents.

R.O.M. was born in 1999, J.Z.M. was born in 2002 and R.D.M. was born in 2003; all were born in Mecklenburg County. All three are children of respondent-mother and respondent-father. On 5 December 2003, YFS removed the three children from the home of their mother. The trial court, on 3 February 2004, adjudicated the children as neglected and dependent juveniles. On 10 January 2005, YFS filed petitions to terminate respondent's parental rights. The hearing to terminate parental rights was continued on 27 October 2005 to 27 January 2006 and again to 7 March 2006. On 7 March 2006, the hearing to terminate parental rights as to J.Z.M., R.O.M., R.D.M., and D.T.F. was held. The order dated 18 April 2006 terminated parental rights as to J.Z.M., R.O.M., and R.D.M. and dismissed the petition as to D.T.F. Respondent-mother appeals.

The dispositive issue before this Court is whether the trial court erred in failing to hold the initial hearing on the petition within the mandated time frame. Under North Carolina General Statute § 7B-1109, the trial court must hold the initial adjudicatory hearing on a petition to terminate parental rights "no later than 90 days from the filing of the petition or motion unless the judge pursuant to section (d) of this section orders that it be held at a later time." N.C. Gen.Stat. § 7B-1109(a) (2005). Further, "[c]ontinuances 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." N.C. Gen.Stat. § 7B-1109(d) (2005).

This Court has repeatedly held that "a trial court's violation of statutory time limits in a juvenile case is not reversible error per se." In re S.N.H., 177 N.C.App. 82, 86, 627 S.E.2d 510, 513 (2006) (citing In re C.J.B., 171 N.C.App. 132, 614 S.E.2d 368 (2005)). "Rather, we have held that the complaining party must appropriately articulate the prejudice arising from the delay in order to justify reversal." Id. (citing In re As.L.G., 173 N.C.App. 551, 619 S.E.2d 561 (2005)). However, this Court "has gravitated towards a pattern resembling a per se rule of reversal in all cases wherein the delay was approximately six months or longer." In re J.N.S., ___ N.C.App. ___, ___, 637 S.E.2d 914, 918 (2006) (Levinson, J., concurring) (citations omitted); see also In re D.M.M., ___ N.C.App. ___, 633 S.E.2d 715 (2006) (reversing an order terminating parental rights where the trial court failed to hold the termination hearing for over one year after the *633filing of the petition to terminate and entered its order an additional seven months after the statutorily mandated time period). In addition, this Court has held that the same logic we have determined to be applicable to the failure of trial courts to file a written termination order within the time provided in N.C.G.S. § 7B-1109(e) "must be applied to the timeliness of the termination hearing after the filing of the termination petition under [N.C.G.S. §] 7B-1109(a)." In re S.W., 175 N.C.App. 719, 722, 625 S.E.2d 594, 596, disc. review denied, 360 N.C. 534, 635 S.E.2d 59 (2006).

In the instant case, the juvenile petitions to terminate respondent's parental rights as to J.Z.M., R.O.M., and R.D.M. were filed on 11 January 2005. The initial hearing on the merits of the petitions was set for 27 October 2005, 289 days after the filing of the juvenile petition and 199 days (over six and a half months) after the deadline mandated by N.C.G.S. § 7B-1109(a). By an order dated 14 November 2005, the trial court continued this matter from the 27 October 2005 hearing date until 27 January 2006 after making the following findings:

3. . . . [W.M] was served by publication beginning August 26, 2005.

4. This matter was previously scheduled for hearing on the petitions to terminate parental rights for today; however due to other matters on the court's calendar there is insufficient time to hear the case today. The court has therefore conducted a pre-trial hearing.

5. Mr. Clifton has made a motion to withdraw citing a lack of contact with his client. The Court has denied that motion; however, will reconsider it at a later time.

6. Mr. Fuller has made a motion to continue this matter as his client was not brought over from the Mecklenburg County Jail.

7. There appear to be no other issues to be resolved prior to a hearing on the petition to terminate parental rights.

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Bluebook (online)
646 S.E.2d 631, 184 N.C. App. 474, 2007 N.C. App. LEXIS 1474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jzm-ncctapp-2007.