Opinion
No. COA05-932
Filed 21 March 2006 This case not for publication
Appeal by respondents from order entered 7 January 2005 by Judge David V. Byrd in Ashe County District Court. Heard in the Court of Appeals 8 February 2006.
Grier J. Hurley and Tracie M. Jordan for petitioner-appellee. Douglas L. Hall for respondent-mother-appellant. Carol Ann Bauer for respondent-father-appellant.
Ashe County No. 04 J 7.
Respondent-father ("Melvin S.") and respondent-mother ("Mary S."), collectively ("respondents"), appeal from an order of the trial court adjudicating the minor child ("K.D.S.") abused and neglected. We affirm.
The trial court made, inter alia, the following findings of fact:
9. During the beginning of December 2003, while [K.D.S.] and her father, [Melvin S.], were wrapping Christmas presents [K.D.S.] told her father about having had sex[.] . . . She told her father that she had gotten drunk and had intercourse. 10. At the end of December 2003 or the first part of January 2004, while in [K.D.S.'s] bedroom, the father, [Melvin S.], . . . reached over [K.D.S.'s] shoulder and put his hand in her pajama pants. His fingers were inserted in her vagina. She told him to stop, started screaming and kicking, and ran to the bathroom, locking the door. . . . 11. In January 2004, [K.D.S.] and her father were taking some things to the "old house." [K.D.S.] was driving the car[.] . . . [Melvin S.] put his hands on her leg and then tried to put his hands in her pants. [K.D.S.] told him to quit or she was going to call and tell her mother or the police. [Melvin S.] said "he'd stop" if she did not tell her mother. When they returned home [K.D.S.] told her mother to tell [Melvin S.] to keep his hands to himself. 12. The weekend after the above incident [K.D.S.] woke up and her father had his hands around her throat. She was gasping for breath. Her father said he was choking her "because she told her mom." 13. At the end of January 2004 or first part of February 2004 . . . [w]hile [K.D.S.] was in the bedroom [Melvin S.] . . . pushed her onto the bed, holding her down and said [that he wanted to perform cunnilingus on her]. Her father got [K.D.S.'s] shorts and underwear down and had his head down close to her vagina. [K.D.S.] told him to stop, cussing and yelling at him. She told her father that she was [menstruating]. The mother was not in the home on this occassion[.] 14. On February 12, 2004, . . . the father . . . found [K.D.S. and her boyfriend at "Uncle Jimmy's house."] . . . [Melvin S.] called [K.D.S. inappropriate names.] He asked her if she had had sex; she told him no. He said "let me check you" and stuck his fingers in [K.D.S.'s] vagina[.] . . . 16. On February 16, 2004 [K.D.S.] was in the bathroom preparing to take a bath. Her father came in and tried to show [K.D.S.] his penis. [K.D.S.] shoved his hand away; he left and then came back in the bathroom when she was naked. As he was unbuttoning his pants he asked [K.D.S. the size of her boyfriend's penis]. [K.D.S.] said she did not know and did not want to see [her father's penis]. He hit [K.D.S.] on her "butt" with his hand. [K.D.S.] stabbed her father's hand with tweezers; he left. 17. On February 19, 2004 [Melvin S.] told [Mary S.] that [K.D.S.] had sex with her boyfriend[.] . . . A physical altercation occurred. [Melvin S.] pulled [Mary S.] off of K.D.S. saying "you are going to kill her" or "kill one another." The mother, [Mary S.] asked [Melvin S.] "why didn't you let me beatthe [sh*t] out of her." K.D.S. had marks, scratches and bruises, on her arms and legs. [K.D.S.] kneed her father in the chin and gave [him] a black eye. . . . 20. [K.D.S.] told her mom about the improper acts that her father had committed against her while her mother was doing the laundry. Her mother slammed the dryer door and said that [K.D.S.] was "going to burn in hell for all these lies you're telling." The second time was when she told her mother to have her father keep his hands to himself.
On 20 February 2004, the Ashe County Department of Social Services ("D.S.S.") filed a petition alleging K.D.S. was abused and neglected. The trial court conducted an initial non-secure custody hearing on 27 February and awarded D.S.S. non-secure custody of K.D.S. Respondents waived subsequent non-secure custody hearings, and K.D.S. remained in the custody of D.S.S. On 22 September 2004, the trial court adjudicated K.D.S. abused and neglected, granted D.S.S. continued custody of K.D.S., and allowed Mary S. supervised visitation. The trial court further ordered that Melvin S. not have visitation. The trial court's order was subsequently entered on 7 January 2005. Respondents appeal.
Respondents both argue on appeal that the trial court erred by not entering its order within 30 days of the adjudication and dispositional hearing in violation of N.C. Gen. Stat. §§ 7B-807(b); 7B-905(a) (2003). The applicable version of N.C. Gen. Stat. § 7B-807(b) states, "The adjudicatory order shall be in writing and shall contain appropriate findings of fact and conclusions of law. The order shall be reduced to writing, signed, and entered no later than 30 days following the completion of the hearing." Similarly, N.C. Gen. Stat. § 7B-905(a) states, in pertinent part, "The dispositional order shall be in writing, signed, and entered no later than 30 days from the completion of the hearing, and shall contain appropriate findings of fact and conclusions of law." In construing these statutory timelines, this Court has held that a violation of the statutory timelines is not reversible per se; rather, respondent must show prejudice resulting from the delay. In re C.J.B., ___ N.C. App. ___, ___, 614 S.E.2d 368, 369 (2005).
Although this statute has recently been amended, the amended version is only applicable to petitions or actions filed on or after 1 October 2005. N.C. Gen. Stat. § 7B-806 (2005). Because the petition in the case sub judice was filed prior to that date, the revised version of the statute is inapplicable.
In the case sub judice, the adjudication and dispositional hearing ended on 22 September 2004; however, the order was not entered until 7 January 2005, approximately 107 days later. Since Mary S. has argued no prejudice resulting from the delay, we hold that her assignments of error relating to this matter are without merit. Melvin S. argues that he was prejudiced by the delay because "[h]e could not have the trial court review his progress toward reunification, nor could he begin the appellate process[.]" This Court has recently held,
Whether a party has adequately shown prejudice is always resolved on a case-by-case basis; however, determining prejudice is not a rubric by which this Court vacates or reverses an order when, in our opinion, the order is not in the child's best interest. Nor is prejudice, if clearly shown by a party, something to ignore solely because the remedy of reversal further exacerbates the delay. If we were to operate as such, we would either reduce the General Assembly's time lines to a nullity, or worse, escalate violations of them beyond the reason for their existence: the best interests of the child.
In re A.L.G., ___ N.C. App. ___, ___, 619 S.E.2d 561, 564 (2005) (internal quotations and citations omitted). While we note that it is important for trial courts to enter orders in a timely manner so the minor child can "settl[e] into a permanent family environment," In re L.E.B., 169 N.C. App. 375, 379, 610 S.E.2d 424, 427 (2005), in the instant case, we decline to vacate the order since prejudice has not been clearly shown and vacating the order is not in K.D.S.'s best interests. The trial court found, and we agree, that visits between K.D.S. and her father are not in her best interests given the nature of the acts committed against her and her wishes not to visit with him. Accordingly, on these facts, we decline to further exacerbate the delay, and this assignment of error is without merit.
We next address Mary S.'s argument that the trial court erred in determining that K.D.S. was neglected and abused with respect to Mary S. On appeal from an adjudication of abuse and neglect, this Court determines whether the trial court's findings are supported by clear, cogent, and convincing evidence and whether those findings support its conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000). Mary S. has not challenged any of the trial court's findings, and "in the absence of a specific assignment of error, a trial court's findings of fact are deemed to be supported by competent evidence and are conclusive on appeal." In re L.O.K., ___ N.C. App. ___, ___, 621 S.E.2d 236, 238 (2005).
North Carolina General Statutes § 7B-101 (15) defines a "neglected juvenile," in pertinent part, as "[a] juvenile . . . who lives in an environment injurious to the juvenile's welfare." An "abused juvenile," as defined in N.C. Gen. Stat. § 78-101(1), in pertinent part, is as follows:
Any juvenile less than 18 years of age whose parent . . . d. Commits, permits, or encourages the commission of a violation of the following laws by, with, or upon the juvenile . . . second degree sexual offense, as provided in G.S. 14-27.5 . . .
A second degree sexual offense occurs "if the person engages in a sexual act with another person: (1) By force and against the will of the other person[.]" N.C. Gen. Stat. § 14-27.5 (2005). A "sexual act" means "cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person's body[.] . . ." N.C. Gen. Stat. § 14-27.1 (4) (2005).
The trial court found that, on at least two occasions, K.D.S. told Mary S. of the sexual abuse inflicted upon her by Melvin S. Mary S. failed to take action to protect K.D.S. and stated that K.D.S. was "going to burn in hell for all these lies[.]" In doing so, Mary S. not only permitted the violation of N.C. Gen. Stat. § 14-27.1 (4) but also subjected K.D.S. to further abuse at the hands of Melvin S., placing her in an environment, as the trial court found, "contrary to the welfare of the juvenile." Accordingly, these findings were sufficient to establish that K.D.S. was abused and neglected by Mary S. See In re Cogdill, 137 N.C. App. 504, 528 S.E.2d 600 (2000).
Mary S.'s final argument on appeal is that the trial court abused its discretion by not placing K.D.S. with her. On appeal from the dispositional stage of a juvenile proceeding, we consider whether the trial court abused its discretion. In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001). After reviewing the evidence presented in the record, briefs, and transcripts, including Mary S.'s remaining in the family home along with Melvin S., her involvement in a physical altercation with K.D.S., and her failure to render aid when K.D.S. told her about the abuse she suffered, we hold that the trial court did not abuse its discretion by not placing K.D.S. with Mary S.
Mary S. has failed to argue her remaining assignment of error on appeal, and we deem it abandoned pursuant to N.C.R. App. P. 28(b)(6) (2005).
For the foregoing reasons, we affirm the order of the trial court.
Affirmed.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).