In re B.P.

WYNN, Judge concurring in part and dissenting in part.

In In re J.L.K., 165 N.C.App. 311, 598 S.E.2d 387 (2004), this Court held: "While the trial court's delay clearly violated the 30-day provision of N.C. Gen.Stat. § 7B-1109(e), we find no authority compelling that the TPR order be vacated as a result." Id. at 315, 598 S.E.2d at 390. In this appeal, respondent argues in her brief that a violation of the similar thirty-day provisions of N.C. Gen. Stat. § 7B-905(a) constitutes "prejudicial error per se" and does not require her "to prove specific prejudice." Because N.C. Gen.Stat. § 7B-905(a) like N.C. Gen. Stat. § 7B-1109(e), does not compel that adjudication and dispositional orders be vacated, I dissent from the majority opinion's holding to the contrary.1

First, contrary to Respondent's assertion, prejudice is required to be shown and N.C. Gen. Stat §§ 7B-807(b) and 7B-905(a) are not per se rules. In In re E.N.S., 164 N.C.App. 146, 595 S.E.2d 167 (2004), this Court held that the respondent must show that she was prejudiced by the delay in order to grant a new hearing. Id. at 153, 595 S.E.2d at 172 (trial court's failure to file the adjudication and disposition orders, pursuant to section 7B-905(a) of the North Carolina General Statutes, within thirty days amounted to *335harmless error and is not grounds for reversal where respondent could not show prejudice).

Second, I disagree with Respondent's alternative contention that even if she is required to show specific prejudice, she showed prejudice in this case.

In In re J.L.K., 165 N.C.App. 311, 598 S.E.2d 387, this Court held that an eighty-nine day delay by the trial court in filing a written order, pursuant to section 7B-1109(e) of the North Carolina General Statutes, clearly violated the thirty-day provision of section 7B-1109(e) but there was "no authority compelling that the TPR order be vacated as a result." Id. at 315, 598 S.E.2d at 390. This Court further concluded that "vacating the TPR order is not an appropriate remedy for the trial court's failure to enter the order within 30 days of the hearing." Id. at 316, 598 S.E.2d at 391.2

Here, the written permanency planning review order was not entered until six months following the hearing. However, this delay was due to the fact that the Office of the Clerk of Court could not find the original written order and the order had to be resubmitted and signed by the judge. The trial judge "absolutely remember[ed]" the lost order and the respondent did not dispute the circumstances or object to entry of the 13 February 2003 order on 13 August 2003. When the clerk's office could not find the original order, the trial judge re-filed the order outside of the thirty-day period.

Nevertheless, the majority finds Respondent was prejudiced by not being provided the necessary information to prepare for further proceedings. But at the 13 August 2003 hearing where the trial court signed the resubmitted order from the 13 February 2003 hearing, Respondent did not object to the untimeliness of the order or the reason for the delay. Also, the order did not require anything new of Respondent and the delay in entry did not affect her ability to appeal the order.3 In re E.N.S., 164 N.C.App. at 154, 595 S.E.2d at 172.

In my opinion, if there is prejudice in this matter, it would be to the children, not the respondent. Indeed, in In re E.N.S., this Court stated:

[L]ogic and common sense lead us to the conclusion that the General Assembly's intent to provide parties with a speedy resolution of cases where juvenile custody is at issue. Therefore, holding that the adjudication and disposition orders should be reversed simply because they were untimely filed would only aid in further delaying a determination regarding E.S.' (sic) custody because juvenile petitions would have to be re-filed and new hearings conducted. Further, although the order was not filed within the specified time requirement, respondent cannot show how she was prejudiced by the late filing.

164 N.C.App. at 153, 595 S.E.2d at 172 (emphasis added).

Similarly, in this case, to hold that the juvenile petitions and new hearings must be conducted in this case only aids in furthering the delay for determining the custody of this child.4 Indeed, the facts of this case show that this child and her two siblings have been the subject of proceedings since 20 August 1998 when juvenile summonses were issued to Respondent for abuse, neglect, and dependency. Sadly, the record shows that the *336family had "a very extensive history with the Pitt County Department of Social Services" as three older children of Respondent had been adjudicated neglected and dependent in 1990. The allegations included sexual abuse of two of the female children by the mother's boyfriend, chronic head lice, bruising of the children, roaches and maggots in the kitchen sink, and other abuses that make it clear why this Court most often defers to the judgment of our trial judges in these cases as they see and hear the witnesses and are in a better position than appellate judges to decide these cases. Suffice it to say, the record in this case details gross abuses to these children that inescapably point to the fact that this order should not be vacated on the technical ground that it was not filed within thirty days. This matter is not about a delay in filing this order within thirty days; rather, it was best summarized by the trial court in an unchallenged finding of fact:

46. That over the last five years since these children have been in the custody of the Department [of Social Services], the court has tried everything possible to allow for contact between the children and respondent parents, however every attempt has failed.

These children continue to improve as they receive psychological, psychiatric, medical, education, and remedial services. It is time now to give them a permanent and stable environment. Five-and-a-half years in the legal system is enough for these children.

Section 7B-905(a) (the provision in this case) like section 7B-1109(e) (the provision in In re J.L.K.) requires that juvenile adjudication and disposition orders be reduced to writing, signed, and entered by the trial court no later than thirty days following completion of the hearing. N.C. Gen.Stat. § 7B-905(a) (2004).

Notably, in our holding in In re L.E.B., ___ N.C.App. ___, 610 S.E.2d 424 (2005) (delay of over 180 days between the termination hearing and the entry of the termination order amounted to error), this court did not create a bright-line rule of vacating all orders if they are not filed within the thirty-day time period. Following In re J.L.K., this Court in In re L.E.B., ___ N.C.App. ___, 610 S.E.2d 424 (2005) recognized that to prevail on the technical basis that an order was not timely filed under section 7B-1109(e) like section 7B-905(a), the respondent must show prejudice.

In In Re J.L.K., 165 N.C.App. at 313, 598 S.E.2d at 389, although the order was not "reduced to a written order, signed, and entered [until] 19 November 2002," this Court reviewed respondent's appeal based on a Notice of Appeal filed on 4 September 2002 from the trial court's oral grant of the TPR petition on 21 August 2002.

I agree with the majority's holding dismissing Respondent's appeal as it relates to B.P. and R.T. as interlocutory and overruling Respondent's assignment of error relating to ineffective assistance of counsel. However, I disagree with the majority's result as to S.P.