Opinion
No. COA11–1184.
2012-04-3
In the Matter of I.B.I., a minor juvenile.
The Sutton Firm, P.A., by Emily Sutton Dezio, for petitioner-appellee. Staples Hughes, Appellate Defender, by J. Lee Gilliam, Assistant Appellate Defender, for respondent-appellant father.
Appeal by respondent from orders entered 12 July 2011 by Judge Roy Wijewickrama in Haywood County District Court. Heard in the Court of Appeals 5 March 2012. The Sutton Firm, P.A., by Emily Sutton Dezio, for petitioner-appellee. Staples Hughes, Appellate Defender, by J. Lee Gilliam, Assistant Appellate Defender, for respondent-appellant father.
THIGPEN, Judge.
Respondent-father appeals from adjudicatory and disposition orders terminating his parental rights to I.B.I., primarily arguing the trial court erred by failing to promptly conduct the termination hearing. After careful review, we affirm.
The evidence of record tends to show that I.B.I. has lived with her grandmother “almost since she was born.” On 14 October 2005, petitioner, the maternal grandmother of I.B.I., was granted custody of the juvenile by court order. On 23 June 2008, petitioner filed a petition alleging that grounds existed to terminate respondent's parental rights due to abandonment and failure to provide substantial financial support or consistent care for the juvenile. SeeN.C. Gen.Stat. § 7B–1111(a)(5)d. and (a)(7) (2011). Respondent filed an answer denying the material allegations in the petition.
After numerous continuances were entered in the matter, a hearing was held on the petition on 30 June 2011. The trial court concluded that grounds existed to terminate respondent's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(5)d. and (a)(7), and that it was in the juvenile's best interest that respondent's parental rights be terminated. Respondent appeals.
I: N.C. Gen.Stat. § 7B–1109(a)
Respondent first argues that the trial court erred by failing to promptly conduct the termination hearing. Respondent notes that the hearing was not held for more than three years after the filing of the petition. Respondent asserts that the trial court egregiously violated N.C. Gen.Stat. § 7B–1109 (2011), and that he was prejudiced by the delay. We are not persuaded.
Pursuant to N.C. Gen.Stat. § 7B–1109 (a), a termination of parental rights hearing must be held within ninety days of the filing of the juvenile petition. N.C. Gen.Stat. § 7B–1109(a). However, this Court has held the time limitations in the Juvenile Code are directory, not jurisdictional, “and do not require reversal of orders in the absence of a showing by the appellant of prejudice resulting from the time delay.” In re C.L.C., 171 N.C.App. 438, 443, 615 S.E.2d 704, 707 (2005) (citation omitted), aff'd per curiam in part and disc. rev. improvidently allowed, 360 N.C. 475, 628 S.E.2d 760 (2006). “[E]gregious delay alone will not give rise to a claim of prejudice per se. The appellant must still articulate some specific prejudice that he or she has suffered.” In re R.L. & N.M.Y., 186 N.C.App. 529, 537, 652 S.E.2d 327, 333 (2007) (citations omitted) (emphasis added). Moreover, our Supreme Court has held, “when delayed entry of an otherwise proper order is the sole purported ground for appeal, a new hearing is not the proper remedy[;][i]nstead, a party's remedy lies in mandamus.” In re T.H.T., 362 N.C. 446, 453, 665 S.E.2d 54, 59 (2008).
Here, the hearing did take place well outside of the ninety day statutory limit. However, respondent has failed to specifically demonstrate how the outcome of the hearing would have been different absent the delay. Respondent also failed to utilize the remedy of mandamus, instead arguing that the delay is a basis for relief on appeal. However, a new hearing at this point in the proceedings would serve no purpose and would only compound the delay in obtaining permanency for the juvenile. See id. at 450, 665 S.E.2d at 57. We emphasize that it is the duty of the trial court to enter its rulings in an expeditious manner, particularly when the well-being of a minor child is at issue. Nonetheless, “[i]t is ultimately the nature of the prejudice shown, not the length of the delay which must control in these cases.” In re J.Z.M., 184 N.C.App. 474, 479, 646 S.E.2d 631, 634 (2007) (Steelman, J., dissenting), reversed per curiam, 362 N.C. 167, 655 S.E.2d 832 (2008) (adopting dissenting opinion of Steelman, J.). Because Respondent failed to file a writ of mandamus, and because Respondent has failed to show how he was prejudiced by the delay, we conclude that the trial court's failure to promptly hold the termination hearing did not constitute reversible error.
II: Adjudication
Respondent next argues that the trial court erred in its conclusion that grounds existed to terminate his parental rights. We disagree.
N.C. Gen.Stat. § 7B–1111 (2011) sets out the statutory grounds for terminating parental rights. A finding of any one of the separately enumerated grounds is sufficient to support termination. In re Taylor, 97 N.C.App. 57, 64, 387 S.E.2d 230, 233–34 (1990). “The standard of appellate review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law.” In re D.J.D., 171 N.C.App. 230, 238, 615 S.E.2d 26, 32 (2005) (citing In re Huff, 140 N.C.App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. review denied, appeal dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001)).
In the present case, the trial court concluded that respondent abandoned the minor child. This Court has defined abandonment as follows:
“[W]ilful neglect and refusal to perform the natural and legal obligations of parental care and support.... [I]f a parent withholds his presence, his love, his care, the opportunity to display filial affection, and wilfully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child.”
In re Humphrey, 156 N.C.App. 533, 540, 577 S.E.2d 421, 427 (2003) (quotation omitted). Pursuant to N.C. Gen.Stat. § 7B–1111(a)(7), parental rights may be terminated when a “parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion....” N.C. Gen.Stat. § 7B–1111(a)(7). The petition to terminate respondent's parental rights was filed on 23 June 2008. Thus, the relevant six month statutory period was from 23 December 2007 to 23 June 2008.
In its adjudicatory order, the trial court found as fact that respondent had not “attempted to seek visitation with the minor child” since October 2005. The trial court further found the following:
[P]rior to the filing of the petition to terminate his parental rights in June 2008, he did not provide any child support and for at least the six months prior to the filing of this petition, he had no contact with the minor child, based off his own admission.
Respondent does not contest the above findings of fact on appeal. Therefore, the findings of fact are deemed to be supported by sufficient evidence, and are binding on appeal. SeeN.C. R.App. P. 28(b)(6) (2012) (“Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned”); see also In re P.M., 169 N.C.App. 423, 424, 610 S.E.2d 403, 404–05 (2005) (concluding respondent had abandoned factual assignments of error when she “failed to specifically argue in her brief that they were unsupported by evidence”). Based on its findings of fact, we hold the trial court could properly conclude that respondent had willfully abandoned the juvenile. Accordingly, we hold the trial court did not err by concluding that grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(7) to terminate respondent's parental rights.
Respondent additionally argues that the trial court erred by concluding that grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(5)d. to terminate his parental rights. However, because we conclude that grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(7) to support the trial court's order, we need not address the remaining ground found by the trial court to support termination. Taylor, 97 N.C.App. at 64, 387 S.E.2d at 233–34.
III: Disposition
Respondent next argues that the trial court abused its discretion when it concluded that termination of his parental rights was in the best interest of the juvenile. We disagree.
Once statutory grounds for termination have been established, the trial court is required to “determine whether terminating the parent's rights is in the juvenile's best interest.” N.C. Gen.Stat. § 7B–1110(a) (2011). “We review the trial court's decision to terminate parental rights for abuse of discretion.” In re Anderson, 151 N.C.App. 94, 98, 564 S.E.2d 599, 602 (2002) (citation omitted).
Here, respondent contends that the trial court relied on stale evidence for the majority of its findings related to best interest. Specifically, petitioner notes that the guardian ad litem's report, which is cited by the trial court in its dispositional order, was seventeen months old on the date of the dispositional hearing. However, petitioner makes only broadside exceptions to the trial court's dispositional findings, and does not argue that any specific finding is not supported by competent evidence. See In re Beasley, 147 N.C.App. 399, 405, 555 S.E.2d 643, 647 (2001) (holding that a “broadside exception ... does not present for review the sufficiency of the evidence to support the entire body of the findings of fact”). We also note that the guardian ad litem's report was admitted into evidence without objection, and the guardian ad litem testified that in her opinion respondent's parental rights should be terminated. SeeN.C.R.App. P. 10(a)(1) (2012) (“In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion”). Moreover, petitioner testified at the hearing that she was able to provide for the juvenile, that they lived in a three-bedroom brick home with water and electricity, and that she was willing to continue providing for the juvenile's care. Petitioner also testified that the juvenile was doing well in school, and had won integrity and good conduct awards. The trial court also found as fact that “the minor child states she does not know Respondent[,]” and when asked, “would you like to live with [Respondent][,] ... the minor child said clearly, ‘No.’ “ Respondent does not dispute these findings of fact. Based on the foregoing, we conclude that the trial court did not abuse its discretion by determining that it was in the juvenile's best interest that respondent's parental rights be terminated. Accordingly, we affirm.
AFFIRMED. Judges ELMORE and GEER concur.
Report per Rule 30(e).