Opinion
No. 07-1058.
Filed January 15, 2008.
Gaston County No. 02 JT 25.
Appeal by respondent-father from an order entered 7 June 2007 by Judge John K. Greenlee in Gaston County District Court. Heard in the Court of Appeals 17 December 2007.
Geoffrey A. Planer for petitioner-appellee maternal grandmother. The Turrentine Group, PLLC, by Karlene Scott-Turrentine, for respondent-appellant father.
Respondent-father ("father") appeals the termination of his parental rights to the minor child, M.S.C. M.S.C. was born to respondent-mother ("mother") and father in 1996. Mother and father were never married. Approximately three weeks after the birth of the child, father was incarcerated in Indiana where he remained incarcerated as of the date of the hearing on the termination petition. In February 2000, mother gave physical custody of M.S.C. to his maternal grandmother ("grandmother") because mother was unable to care for M.S.C. On 24 January 2002, grandmother filed a petition to terminate the parental rights of mother and father. On 1 February 2002, the trial court granted guardianship to grandmother. The termination petition was subsequently amended on 15 April 2003 and again on 17 July 2003. On 12 August 2003, grandmother placed M.S.C. with maternal cousins in South Carolina where the child has remained.
On 8 May 2007, nearly four years following the filing of the final termination petition, the trial court conducted a hearing. At the onset of the hearing, the trial court noted the significant period of time that had passed and further noted that the file contained no order of continuance stating the reasons for the delay.
In its order on the termination petition filed 7 June 2007, the trial court dismissed the termination petition as to mother after concluding as a matter of law that "the passage of time between the filing of the latest Petition and the trial of the termination of parental rights issue has been so great as to be presumptively prejudicial to the Respondent-Mother, and that the Petition should be and is hereby dismissed as to her."
Despite presuming prejudice as a matter of law as to mother, the trial court nevertheless summarily concluded that father had not been prejudiced. Upon finding that father had failed to legitimate M.S.C. by any method specified by N.C. Gen. Stat. § 7B-1111(a)(5), the trial court terminated father's parental rights.
In his first assignment of error, father contends the trial court erred in failing to hold a timely hearing on the petition to terminate father's parental rights in violation of N.C. Gen. Stat. § 7B-1109(a) (2005). This statute requires that a hearing on the termination of parental rights be held no later than ninety days from the filing of the termination petition. We have consistently held that violations of "time limitations in the Juvenile Code . . . 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., K.T.R., A.M.R., E.A.R., 171 N.C. App. 438, 443, 615 S.E.2d 704, 707 (2005), affirmed; disc. review improvidently allowed, 360 N.C. 475, 628 S.E.2d 760 (2006). More recently, this Court has held that the aggrieved parent must show that but for the delay in holding the hearing, the result of the hearing on the petition to terminate parental rights would have been different. In re D.B., C.B., ___ N.C. App. ___, ___, 652 S.E.2d 56, 59, (2007).
While it is clear that prejudice in some form is required to reverse a termination due to a delay, this Court has further recognized that "the need to show prejudice diminishes as the delay . . . increases." In re T.W., L.W., E.H., 173 N.C. App. 153, 161, 617 S.E.2d 702, 707 (2005) (holding that a delay in entering an order following a termination hearing equaling "more than ten times the permissible time for entry of the order" diminished the need to show prejudice "exponentially"); see also In re C.J. B. M.G.B., 171 N.C. App. 132, 135, 614 S.E.2d 368, 370 (2005) (holding that "the need to show prejudice in order to warrant reversal is highest the fewer number of days the delay exists").
Applying these principles to this case, we conclude that the nearly four-year delay, combined with the fact that the record is completely devoid of justification or explanation for the delay, is such an egregious violation of the statutory time requirements that the level of prejudice necessary to warrant reversal is minimal at best. The inherent prejudice in the litigation of any cause following a delay of this length is the increasing unavailability of evidence to support or refute allegations made by a complainant. In this case, the termination petition refers only to those actions of father occurring on or before 17 July 2003, including correspondence and other forms of contact with M.S.C. Indeed, father asserts, and the trial court found, that father corresponded with grandmother until 2003 when she placed the child in South Carolina. We cannot say that father has not been prejudiced in his defense of the petition with so many intervening years since the occurrence of events that would have been highly relevant had the hearing been conducted in a timely manner. Consequently, we conclude that the length of the delay in this case is sufficient to warrant reversal. In light of this conclusion, we do not reach father's remaining assignments of error.
Reversed.
Judges McGEE and ARROWOOD concur.
Report per Rule 30(e).