In re J.Z.M.

BRYANT, Judge.

STEELMAN, Judge, dissenting.

I must respectfully dissent from the majority opinion. In these matters, petitions to terminate parental rights were filed on 11 January 2005, and served upon respondent-mother on 17 January 2005. Because the fathers could not be located, they were served by publication, commencing on 8 April 2005 and 26 August 2005. (R p. 121) No hearing could proceed until the fathers of the children were served. These matters were scheduled for hearing on 27 October 2005 by notice of hearing dated 16 September 2005. (R p. 116) This hearing was continued based upon two factors. First, due to other matters on the docket, there was not time to hear the case; and second, attorney for one of the fathers moved to continue the case. The matter was set for hearing on 27 January 2006. It was again rescheduled because the social worker involved with the case gave birth to a child on 21 January 2006 and was unavailable for trial. The case was rescheduled and heard on 7 March 2006.

The hearing was thus outside of the ninety (90) day time period prescribed by North Carolina General Statute §7B-1109. The majority correctly recites the law of this State that a violation of the statutoryPage 479time limits in a juvenile case is not reversible errorper se.However, it goes on to find prejudice in this case based solely upon the length of the delay, with no analysis of the prejudice asserted by respondent-mother. I submit that such an analysis amounts to the adoption of aper seprejudice rule. It should be noted that the case relied upon by the majority,In re D.M.M. K.G.M.,179 N.C. App. 383,633 S.E.2d 715(2006), there was a detailed analysis of the appellant's assertions of prejudice, apart from the discussion of the length of the delay.179 N.C. App. at 389,633 S.E.2d at 717-18. It is ultimately the nature of the prejudice shown, not the length of the delay which must control in these cases.

This appeal must be decided upon whether respondent-mother has shown sufficient prejudice suffered as a result of the delay to merit reversal. I would hold that she has not. Respondent-mother argues:

Because the children were not allowed to visit with their mother, they necessarily became more comfortable with their foster parents during this extending time period prior to the termination hearing. The children were deprived of the company of their mother, their siblings and other family members. The foster parents were not able to pursue adoption, if that became appropriate. Despite the clear legislative intent, these children were deprived from the timely implementation of a permanent plan for them.

Respondent-mother's argument ignores several crucial matters. The reason for the intervention by DSS was substance abuse and domestic violence. A plan was adopted to assist respondent-mother in rectifying these problems. The trial court found:

25. The respondent mother has not complied with the case plan or resolved any of the issues which led to placement of these children in custody. The respondent mother has not demonstrated the ability to provide consistent care and supervision for any of her children. After the respondent mother was discharged from the NOVA program, she contacted them and they consistently told her to go to individual therapy. She did not do that.

This finding of fact is not challenged on appeal, and thus is binding upon this Court.Schloss v. Jamison,258 N.C. 271,275,128 S.E.2d 590,593(1962) ("Where no exceptions have been taken to the findings of fact, such findings are presumed to be supported by competentPage 480evidence and are binding on appeal."). This finding supports the trial court's conclusion of law that a basis for termination existed under North Carolina General Statute §7B-1111(a)(2).

Respondent-mother's asserted prejudice in no manner negates this finding and conclusion. She merely asserts that she was deprived of the right to visit with the children. No assertion is made that had she been allowed visitation that she would have been able to demonstrate that she had rectified her substance abuse and domestic violence issues. The evidence presented was clearly to the contrary. Although respondent-mother had the benefit of additional time to correct the problems that led to the removal of the children, she failed to take advantage of this opportunity. (SeeIn re CM., V.K., Q.K., 183 N.C. App. ___, ___, ___S.E.2d ___, ___ (2007) (finding no prejudice when delay in violation of N.C. Gen. Stat. §7B-1109(a) inured to respondent's benefit).

The majority opinion confuses personal prejudice with legal prejudice and cannot show that the delay in any manner affected the outcome of her case.

Respondent-mother has not showed prejudice that would support reversal in this matter. The order of the trial court should be affirmed.

LEVINSON, Judge concurring in the result in a separate opinion.

LEVINSON, Judge concurring.

I only agree to reverse the order on appeal because I am compelled to do so.See In the Matter of Appeal from Civil Penalty,324 N.C. 373,379 S.E.2d 30(1989). In the following discussion, I refer to the opinion by Judge Wanda Bryant as the "lead" opinion and Judge Steelman's opinion as the "dissent."

I have previously expressed my disagreement with this Court's "prejudice" line of authorities that resolve assignments of error made to failures of our trial courts to adhere to Juvenile Code deadlines.See,e.g., In re B.M., 183 N.C. App. ___, ___, ___ S.E.2d ___, ___ (2007);Inre J.N.S.,180 N.C. App. 573,637 S.E.2d 914(2006). Like the orders inB.M.andJ.N.S., it is my view that we should of whether the order on appeal should be reversed because of legal error, or affirmed because of the absence of legal error. Nonetheless, I am compelled to agree with the lead opinion that, based upon the application of the "standard" this Court utilizesPage 481to examine "prejudice" for delays, respondent has articulated sufficient prejudice to warrant reversal.

I respectfully disagree with the lead opinion to the extent it concludes this Court "must" reverse the order on appeal because of the passage of time; the opinion apparently concludes we "must" reverse the order without examining prejudice as an essential part of the analysis. This Court is not, as a matter of law, required to reverse the subject order merely because of the failure of the trial court to adhere to time standards in the Juvenile Code. I also disagree with the lead opinion to the extent it states that the delay here constituted a "defactotermination of parental rights." And I disagree with the lead opinion to the extent it assigns "sole" responsibility for the delays on the petitioner and the trial court. On the contrary, as expressed in the dissent, there are reasons unassociated with either petitioner or the trial court for the delays.