Opinion
No. 06-1512.
Filed July 3, 2007.
Rutherford County No. 04 J 67-69.
Appeal by respondent mother from orders entered 1 February 2006 by Judge J. Thomas Davis in Rutherford County District Court. Heard in the Court of Appeals 11 June 2007.
King Law Offices, PLLC, by Brian W. King, for petitioner-appellee Rutherford County Department of Social Services. M. Victoria Jayne for respondent-appellant.
Respondent mother appeals the orders terminating her parental rights as to her three minor children. For the reasons stated herein, we affirm the trial court's orders.
The Rutherford County Department of Social Services (DSS) filed juvenile petitions in May of 2004 alleging that the minor children were neglected and dependent. On 14 July 2005, the trial court adjudicated the minor children dependent based upon the parents' stipulation that "the mother is incarcerated and the fathers have had no contact with [DSS]. They further stipulate and agree that it is in the best interest of the named juveniles that their custody be awarded to [DSS] with authority to make any lawful placement."
On 17 August 2005, DSS filed motions to terminate the parental rights of respondent mother to her three minor children. DSS alleged that grounds existed to terminate respondent mother's parental rights under N.C.G.S. § 7B-1111 (a)(2) (willfully left the child in foster care or placement outside the home); and N.C.G.S. § 7B-1111 (a)(3) (willfully failed to pay a reasonable portion of the cost of care for the child). By judgments entered 1 February 2006, the trial court terminated respondent mother's parental rights based on the two grounds alleged in the motions. In support of its conclusion that respondent mother failed to make progress, the trial court made the following pertinent findings of fact as to M.B.P. and K.E.D.W.:
The Rutherford County Department of Social Services assumed legal custody of the named juvenile on May 26, 2004 and has since retained custody. The child was subsequently placed in foster care in Polk County, North Carolina where she continues to reside. There have been efforts by the Rutherford County Department of Social Services to reunify the child with her mother. Family services case plans were developed for the mother. The mother has not made any significant or reasonable efforts to comply with her family services case plan.
Substance abuse by the mother was a critical issue at the time Rutherford County Department of Social Services assumed custody of this child and remains a critical issue as of the date of hearing. The mother has not completed the substance abuse treatment contemplated by her family services case plan. Domestic violence awareness and treatment seeking to alleviate domestic violence between the mother and her current partner was another goal of the family services case plan. The mother has not completed domestic violence counseling required by the family services case plan. The mother was required to complete parenting classes. She has not done so. The Court finds that the mother made some effort to complete her family services case plan, mostly while incarcerated, but that those efforts have not been significant or reasonable under the circumstances in correcting those conditions that led to removal of this child from her custody at the outset.
The mother had very few visits with her child between July 2004 and January 2005. Granted, during much of this time she was incarcerated, but nonetheless she failed to schedule and/or attend visits that might have been allowed. The mother missed at least twelve opportunities to visit her child between January 5, 2005 and May 3, 2005. On May 13, 2005 the Rutherford County Department of Social Services was relieved of reunification efforts with the parents by order of this Court and no subsequent visitation has been scheduled or allowed for the mother. After being aware that Rutherford County Department of Social Services was seeking termination of her parental rights, the mother has not made any significant effort to obtain a job, appropriate housing, substance abuse assessment and treatment or to obtain appropriate parenting skills.
Since her child was placed in the legal custody of the Rutherford County Department of Social Services the mother has continued to engage in illegal activities, which have resulted in her incarceration. The mother testified that one of her offenses was financial card fraud. Based on this and other reasons the court does not find the testimony of the mother that she has in fact been diligent in her efforts to comply with her family services case plan to be persuasive or credible.
In the judgment regarding T.M.W., the court made the same findings set out above, but included the father of T.M.W. along with respondent mother in its findings. From the judgments terminating her parental rights, respondent mother appeals.
Termination of parental rights involves a two-stage process. In re Brim, 139 N.C. App. 733, 741, 535 S.E.2d 367, 371 (2000). At the adjudicatory stage, the petitioner must establish by clear, cogent, and convincing evidence that sufficient grounds exist to terminate parental rights. In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997). "If one or more of the grounds listed in [the statute allowing termination of parental rights] are shown, then the court moves to the dispositional stage to determine whether it is in the best interest of the child to terminate the parental rights." In re Brim, 139 N.C. App. at 741, 535 S.E.2d at 371 (quoting In re Young, 346 N.C. at 247, 485 S.E.2d at 615). On appeal, this Court reviews the trial court's findings of fact to determine whether the findings are supported by clear, cogent, and convincing evidence and whether the findings support the trial court's conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000).
In respondent mother's three assignments of error, she contends the poor quality of the audio recording of the termination proceedings violated her constitutional rights and violated N.C.G.S. § 7B-806. Respondent mother contends that the absence of an accurate and complete transcript denies her meaningful appellate review in that "it is impossible to determine if clear, cogent and convincing evidence was presented as to either enumerated ground for termination pursuant to NCGS 7B-111[1]." N.C.G.S. § 7B-806 requires that all juvenile "adjudicatory and dispositional hearings shall be recorded by stenographic notes or by electronic or mechanical means." N.C. Gen. Stat. § 7B-806 (2006). An appellant who raises the issue of an inadequately recorded proceeding must show that the failure to properly record the evidence resulted in prejudice. In re Clark, 159 N.C. App. 75, 80, 582 S.E.2d 657, 660 (2003).
General allegations of prejudice are insufficient to show reversible error resulting from gaps in the recording. Id. In Clark, this Court stated, "[w]here a verbatim transcript of the proceedings is unavailable, there are `means . . . available for [a party] to compile a narration of the evidence, i.e., reconstructing the testimony with the assistance of those persons present at the hearing.'" Id. (quoting Miller v. Miller, 92 N.C. App. 351, 354, 374 S.E.2d 467, 469 (1988)). Any disputes among the parties regarding the content of testimony, objections, or rulings can be resolved by the trial judge in settling the record on appeal. Id.; see also N.C. R. App. P. 9(c)(1) (providing for narration of the evidence in the record on appeal and, if necessary, settlement of the record by the trial court); In re Wright, 64 N.C. App. 135, 137-38, 306 S.E.2d 825, 827 (1983) (rejecting respondent's argument requesting a new trial where there was no showing of prejudice and no allegation of what transcript would have contained); In re Peirce, 53 N.C. App. 373, 382, 281 S.E.2d 198, 204 (1981) (finding no prejudice shown where party failed to allege or describe the contents of the lost testimony). Respondent mother directs this Court to the Reporting Service's letter which states that the "quality of the tapes was such that a coherent, usable transcript could not be produced" and that the tapes made by a portable handheld recording device were "not of a good enough quality to be transcribed either." She alleges that "nothing further can be undertaken . . . to correct or reconstruct the record in question."
This Court held in Coppley that
[W]here the appellant has done all that she can . . . do [to reconstruct the transcript], but those efforts fail because of some error on the part of our trial courts, it would be inequitable to simply conclude that the mere absence of the recordings indicates the failure of appellant to fulfill that responsibility.
Coppley v. Coppley, 128 N.C. App. 658, 663, 496 S.E.2d 611, 616 (1998).
While respondent mother's appellate counsel presents documentation that no audible recording of the hearing testimony exists, the record contains no indication that any attempt was made to reconstruct the missing material under N.C. R. App. P. 9(c). Counsel fails to show any attempt to follow up with petitioner's attorney or witnesses to obtain a summary of hearing testimony. More importantly, counsel does not purport to have sought assistance from respondent mother or respondent mother's trial counsel to assemble a narrative of the evidence adduced at the termination of parental rights hearing.
Contrary to respondent mother's assertion, the orders terminating her parental rights do refer to "specific testimonies or witness[es]." The trial court made the specific finding that it "does not find the testimony of the mother that she has in fact been diligent in her efforts to comply with her family services case plan to be persuasive or credible." As to T.M.W., the trial court further found that "the mother also failed to avail herself of opportunities to visit with the child, providing excuses such as lack of transportation or job conflicts that the Court does not find credible."
Without a showing that she made any attempt to reconstruct the testimony or that she was in any way unable to do so, respondent mother has failed to demonstrate prejudice from the flawed recording. Clark, 159 N.C. App. at 83, 582 S.E.2d at 662. "Moreover," as in Clark, "the trial court's extensive findings indicate a careful evaluation of all the evidence." Id. Accordingly, we overrule her assignments of error.
Affirmed.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).