In re T.H.T.

TYSON, Judge dissenting.

The majority's opinion erroneously affirms the trial court's order that adjudicated T.H.T. an abused and neglected juvenile and awarded custody of T.H.T. to her father. I vote to reverse the trial court's order pursuant to N.C. Gen.Stat. § 7B-807(b). The adjudication order was not entered within thirty days to respondent-mother's extreme prejudice and no statutorily mandated hearing was held to explain any purported reason for the delay or to expedite entry of the order. Petitioner fails to argue any basis to explain why the order was entered late or to show the reason for the failure to hold the hearing. I respectfully dissent.

I. Late Entry of Order

Respondent-mother argues the adjudication order should be reversed because she was prejudiced by the late entry of the order. I agree.

N.C. Gen.Stat. § 7B-807(b) (2005) states an adjudication order "shall be reduced to writing, signed, and entered no later than 30 days following the completion of the hearing." (Emphasis supplied). Here, the adjudicatory hearing commenced on 5 April 2006 and concluded on 26 July 2006 over three and one-half months later. At the conclusion of the hearing, the trial court ordered DSS "to draw up the Order with the appropriate findings." DSS failed to comply with the court's order. The adjudicatory order was not filed *529until 3 November 2006, more than thirteen weeks after the completion of the last hearing in July, and six months after the hearing commenced.

The majority's opinion concedes the entry of the adjudication order was late and violates the statute, but holds respondent-mother was not prejudiced because neither her visitation with T.H.T. was affected, nor was she delayed in her right to appeal the order. I disagree.

The order established legal and physical custody of T.H.T. with her father and orally disposed of the pending custody action. Respondent-mother argues she was prejudiced by DSS and the unexplained delays in entering the order in violation of N.C. Gen.Stat. § 7B-807(b). Respondent-mother asserts "the delay prejudiced [her] ability to move forward with a motion to modify, or seek other relief in, the civil custody case until [after] entry of the order" and she was prejudiced because she could not appeal the trial court's order. I agree.

"[A] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court." N.C. Gen.Stat. § 1A-1, Rule 58 (2005). "The announcement of judgment in open court is the mere rendering of judgment, not the entry of judgment. The entry of judgment is the event which vests this Court with jurisdiction." In re Pittman, 151 N.C.App. 112, 114, 564 S.E.2d 899, 900 (2002) (citation omitted); see In re Bullabough, 89 N.C.App. 171, 180, 365 S.E.2d 642, 647 (1988) (The trial court may make an oral entry of a juvenile order provided the order is subsequently reduced to written form.).

Until the order was reduced to writing, filed, and entered, respondent-mother could neither seek to modify custody nor appeal from the oral rendition. Respondent-mother, T.H.T., and all other parties are prejudiced by DSS's repeated and extraordinary delays in the initiation, resolution, and disposition of this matter. The trial court and DSS's unexplained and repeated failures to comply with the statutory time limits "defeats the purpose of the time requirements specified in the statute, which is to provide [all] parties with a speedy resolution of cases where juvenile custody is at issue" and prejudiced both respondent-mother and T.H.T. In re B.M., M.M., An.M., & Al.M., 168 N.C.App. 350, 355, 607 S.E.2d 698, 702 (2005).

Prejudice is also shown because the "appellate process was put on hold[][and] any sense of closure for the children, respondent, or the children's current care givers was out of reach . . . ." In re C.J.B. & M.G.B., 171 N.C.App. 132, 135, 614 S.E.2d 368, 370 (2005). Respondent-mother, T.H.T., and T.H.T.'s care-givers suffered delays, and respondent-mother has alleged and shown prejudice resulting from the trial court and DSS's failure to comply with the statutory mandated maximum time limits in N.C. Gen. Stat. § 7B-807(b). I vote to reverse the trial court's order.

II. No Subsequent Hearing

Respondent-mother also argues the adjudication order should be reversed because no subsequent hearing was held "to determine and explain the reasons for the delay" as required by N.C. Gen.Stat. § 7B-807(b). As a conjunctive reason or as an alternative basis to respondent-mother's argument above, the order should be reversed.

N.C. Gen.Stat. § 7B-807(b) was amended in 2005 and mandates:

If the order is not entered within 30 days following completion of the hearing, the clerk of court for juvenile matters shall schedule a subsequent hearing at the first session of court scheduled for the hearing of juvenile matters following the 30-day period to determine and explain the reason for the delay and to obtain any needed clarification as to the contents of the order.

(Emphasis supplied). This amendment unambiguously shows the General Assembly's obvious and continuing concern with and its intent: (1) to further mandate a halt to the long delays in entry of orders after the conclusion of hearings; (2) to remove procrastination and inaction from DSS's trial and post-trial tactics; and (3) to further the juvenile code's stated purpose to timely resolve the issues that lead to the removal of the child and "for the return of juveniles to their homes consistent with preventing the unnecessary or inappropriate separation of juveniles *530from their parents." N.C. Gen.Stat. § 7B-100(4) (2005); see Adams v. Tessener, 354 N.C. 57, 60, 550 S.E.2d 499, 501 (2001) ("[A] parent enjoys a fundamental right to make decisions concerning the care, custody, and control of his or her children under the Due Process Clause of the Fourteenth Amendment to the United States Constitution." (internal quotation omitted)). Here, the record fails to show the statutorily required hearing was conducted after the thirty days elapsed from the prior hearing and why the order was not entered earlier.

The majority's opinion again properly concludes the trial court erred by failing to conduct the hearing as is statutorily required by N.C. Gen.Stat. § 7B-807(b), but concludes respondent-mother must show further prejudice to justify reversal on this ground. The statute clearly places the mandate and burden on "the clerk of court . . . shall schedule a subsequent hearing" and places no burden on respondent-mother to prove any prejudice. N.C. Gen.Stat. § 7B-807(b) (emphasis supplied). Prejudice to respondent-mother had already occurred because the order was not timely entered as required by the statute in order to trigger this provision.

The majority's opinion erroneously relies on In re E.N.S., 164 N.C.App. 146, 595 S.E.2d 167, disc. rev. denied, 359 N.C. 189, 606 S.E.2d 903 (2004), to conclude absent a showing of prejudice the trial court's failure to hold the hearing as is required by N.C. Gen.Stat. § 7B-807(b) does not require reversal of the order. The majority's opinion concludes the goal of a speedy resolution of juvenile custody cases would not be furthered by reversal where no prejudice is shown. In re E.N.S., 164 N.C.App. at 153, 595 S.E.2d at 172. I disagree. The requirement to hold the subsequent hearing does not arise until after the trial court has violated the thirty day mandate for entering the order.

In re E.N.S. was decided in 2004 and involved the late entry of an adjudication order pursuant to N.C. Gen.Stat. § 7B-807(b) and not the failure to hold the required hearing. 164 N.C.App. at 153, 595 S.E.2d at 172. N.C. Gen.Stat. § 7B-807(b) was amended in 2005, after In re E.N.S. was decided, to include the additional mandatory language to require a subsequent hearing, if the order was not entered within thirty days post hearing.

The amendment was enacted and amended the juvenile code to require expedited outcomes for children and their families involved in juvenile cases and appeals. The General Assembly clearly intended to restore the effectiveness of the statutory time lines in juvenile cases by mandating an additional hearing to be held "to determine and explain the reason[s]" for non-entry of an order within the statutory deadlines. N.C. Gen.Stat. § 7B-807(b).

No burden is placed on the respondent to demonstrate further prejudice. Prejudice is already shown by the trial court's failure to enter these orders within thirty days after the hearing as is previously mandated. This provision only arises after previous failures to comply with the statute. Here, thirteen weeks elapsed after the hearing concluded and six months had passed after hearings commenced before the order was entered. The trial court's failure to hold the additional hearing is error requiring reversal. To hold otherwise would recognize the respondent-mother's statutory right to the hearing, yet provide no remedy for its violation.

Even if a further showing of prejudice is required, respondent-mother has clearly shown prejudice. The trial court's failure to hold the hearing deprived respondent-mother from requiring the trial court "to determine and explain the reason[s] for the delay" or "to obtain any needed clarification. . . ." N.C. Gen.Stat. § 7B-807(b). The statute mandates the order to be entered within thirty days after the hearing. Id. This additional information "to determine and explain the reason" may have aided respondent-mother in her appeal to this Court. Id. Even though no showing of prejudice is required, and the clerk carries the statutory burden and mandate to "schedule a subsequent hearing at the first session of court . . . following the 30-day period." Respondent-mother has clearly demonstrated the prejudice she suffered by the trial court's failure to hold the hearing required by N.C. Gen.Stat. § 7B-807(b) by suffering even further delays, longer *531separation from her child, and her inability to appeal until the order was entered. Id. Concurrently with the reasons above, or alternatively on this ground alone, I vote to reverse the trial court's order.

III. Conclusion

The trial court's order adjudicating T.H.T. as an abused and neglected juvenile and awarding custody to her father should be reversed pursuant to N.C. Gen.Stat. § 7B-807. The adjudication order was not entered within the statutorily mandated thirty days after the hearing. Respondent-mother was prejudiced by delays exceeding six months from when the hearing commenced and over thirteen weeks after conclusion of the hearing before the order was entered.

No statutory mandated hearing was scheduled and held after the original thirty days mandate was violated to "determine and explain" any purported reasons for the delays or "obtain any needed clarification. . . ." Id. DSS failed to file a response to respondent-mother's arguments of prejudice on appeal to this Court, offers no excuse for, and makes no attempt to "explain the reason[s] for the delay. . . ." Id.

The majority's opinion argument is an attempt to shift the burden to respondent-mother to show further prejudice where the burden to hold the hearing clearly and solely rests upon the clerk, and ultimately upon the trial court. The only legislative intent that can be inferred from the amended statute is to place the duty and burden on the trial court to timely enter its order to avoid prejudice to respondent-mother. Even if a showing of prejudice is required, respondent-mother has clearly articulated and shown prejudice to reverse the order. I vote to reverse the order and respectfully dissent.