{ "id": 5313441, "name": "IN RE: ANGELA LYNN TYNER", "name_abbreviation": "In re Tyner", "decision_date": "1992-06-16", "docket_number": "No. 9119DC506", "first_page": "480", "last_page": "484", "citations": [ { "type": "official", "cite": "106 N.C. App. 480" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "240 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "372", "parenthetical": "legislative intent controls whether particular word in statute is mandatory or directory" } ], "opinion_index": 0 }, { "cite": "294 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570942 ], "year": 1978, "pin_cites": [ { "page": "97", "parenthetical": "legislative intent controls whether particular word in statute is mandatory or directory" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0090-01" ] }, { "cite": "410 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "919", "parenthetical": "Termination of Parental Rights Act does not provide summary proceeding to terminate parental rights" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 625", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523371 ], "year": 1991, "pin_cites": [ { "page": "627-28", "parenthetical": "Termination of Parental Rights Act does not provide summary proceeding to terminate parental rights" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0625-01" ] }, { "cite": "221 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "352", "parenthetical": "appellate courts ordinarily will not consider matters discussed in briefs which are outside the record" } ], "opinion_index": 0 }, { "cite": "289 N.C. 232", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567721 ], "year": 1976, "pin_cites": [ { "page": "234-35", "parenthetical": "appellate courts ordinarily will not consider matters discussed in briefs which are outside the record" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0232-01" ] }, { "cite": "298 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "645" } ], "opinion_index": 0 }, { "cite": "307 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562282 ], "year": 1983, "pin_cites": [ { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0321-01" ] } ], "analysis": { "cardinality": 415, "char_count": 9453, "ocr_confidence": 0.782, "pagerank": { "raw": 2.2189241734722304e-07, "percentile": 0.7774024663213955 }, "sha256": "fb9ee435b6f67b76c48a50107d6eea235f6a4f20ad398042dede26d4425d3020", "simhash": "1:2f6eec4e360691da", "word_count": 1526 }, "last_updated": "2023-07-14T19:35:11.401464+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Cozort concur." ], "parties": [ "IN RE: ANGELA LYNN TYNER" ], "opinions": [ { "text": "GREENE, Judge.\nThe respondent appeals from an order entered 15 March 1991 terminating the respondent\u2019s parental rights with regard to Angela Lynn Tyner.\nThe facts necessary to a resolution of the issue in this case are as follows: Angela Lynn Tyner (child) was born 9 August 1978 to Lynn Rayl (respondent) and Linda Lou Janice O\u2019Neil (O\u2019Neil). On 6 February 1985, O\u2019Neil placed the child with William and Shirley Tyner (petitioners). The petitioners have had actual physical custody of the child since that date. On 6 March 1985, the petitioners filed a petition to adopt the child, and on 11 July 1986, the petitioners were granted custody, care, and control of the child. O\u2019Neil consented to the adoption of the child by the petitioners.\nOn 3 October .1990, the petitioners filed a petition to terminate the respondent\u2019s parental rights with regard to the child. The petitioners alleged that the respondent\u2019s parental rights should be terminated for, among other things, the respondent\u2019s willful abandonment of the child for at least six consecutive months immediately preceding the filing of the petition. At the time of the petition, the respondent was incarcerated in a federal prison in Missouri. In early November, 1990, the respondent requested that an attorney be appointed for him, and on 16 November 1990, the trial court appointed James D. Foster as the respondent\u2019s attorney.\nOn 15 March 1991, the petition came on for hearing at the Juvenile Session of the District Court for Cabarrus County, North Carolina. Because of his continued incarceration, the respondent did not attend the hearing. At some time either before or after the hearing, the respondent\u2019s attorney filed with the trial court a letter dated 28 January 1991 from the respondent to Mr. Foster. The trial court did not appoint a guardian ad litem for the child. After the hearing, the trial court found and concluded that the respondent had willfully abandoned the child for at least six consecutive months immediately preceding the filing of the petition and that the best interests of the child required that the respondent\u2019s parental rights be terminated. The trial court then terminated the respondent\u2019s parental rights.\nThe issue is whether the respondent\u2019s letter addressed to his attorney which the attorney filed with the trial court at sometime on the day of the hearing constituted an answer to the petition.\nThe respondent argues that the trial court erred in not appointing a guardian ad litem for the child when the respondent\u2019s attorney filed the respondent\u2019s letter with the trial court which allegedly denied material allegations of the petition. We disagree.\nAssuming that the respondent\u2019s letter meets the requirements of N.C.G.S. \u00a7 7A-289.29(a) (1989 & Supp. 1991), the record does not indicate when the respondent\u2019s attorney filed the letter with the court nor does it indicate for what purpose the attorney filed the letter. According to the respondent\u2019s brief, his attorney filed the letter \u201cimmediately prior to the hearing on March 15, 1991\u201d and filed the letter as an answer. To the contrary, the petitioners state in their brief that the trial court allowed the respondent\u2019s attorney to file the letter after the hearing on 15 March 1991 and only as evidence for the respondent, not as an answer. If the letter was filed after the hearing or was presented as evidence during or after the hearing, the letter was not an answer. N.C.G.S. \u00a7 7A-289.29(b) (1989 & Supp. 1991). Without engaging in raw speculation, it cannot be determined from this incomplete record when and for what purpose the respondent\u2019s attorney submitted the letter to the trial court. Therefore, because appellate courts should not assume trial court error when no error appears in the record, this Court cannot assume that the letter was an answer. See State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 645 (1983); State v. Hedrick, 289 N.C. 232, 234-35, 221 S.E.2d 350, 352 (1976) (appellate courts ordinarily will not consider matters discussed in briefs which are outside the record). On this record, because the respondent\u2019s letter cannot be regarded as an answer, the trial court was not required to appoint a guardian ad litem for the child. N.C.G.S. \u00a7 7A-289.29(c) (Supp. 1991) (trial court not required to appoint guardian ad litem for child unless answer is filed denying material allegation of petition). Any other construction of the procedural history of this case would impermissibly assume trial court error.\nThe absence of an answer denying any of the material allegations of the petition, however, does not authorize the trial court to enter a \u201cdefault type\u201d order terminating the respondent\u2019s parental rights. Cf. In re Curtis v. Curtis, 104 N.C. App. 625, 627-28, 410 S.E.2d 917, 919 (1991) (Termination of Parental Rights Act does not provide summary proceeding to terminate parental rights). This is so because N.C.G.S. \u00a7 7A-289.28 (1989) requires the trial court to conduct a hearing on the petition to terminate the respondent\u2019s parental rights. The trial court must conduct this adjudicatory hearing pursuant to N.C.G.S. \u00a7 7A-289.30 (1989) which requires, among other things, the trial court to take evidence, find the facts based upon clear, cogent, and convincing evidence, and adjudicate \u201cthe existence or nonexistence of any of the circumstances set forth in G.S. 7A-289.32 which authorize the termination of parental rights of the respondent.\u201d N.C.G.S. \u00a7 7A-289.30(d), (e) (1989). If \u201ccircumstances authorizing termination of parental rights\u201d are not found to exist, the trial court must dismiss the petition. N.C.G.S. \u00a7 7A-289.31(c) (1989). To construe N.C.G.S. \u00a7 7A-289.28 so as to allow a \u201cdefault type\u201d order terminating parental rights would require termination even when the facts do not support termination and thereby permit termination inconsistent with the best interests of the child. N.C.G.S. \u00a7 7A-289.22(2) (1989). Accordingly, the language of N.C.G.S. \u00a7 7A-289.28 which provides that the trial \u201ccourt shall issue an order terminating all parental and custodial rights of the respondent\u201d when a respondent does not file a written answer to a petition or does file a written answer but in an untimely fashion must be construed to mean that in such situations, the trial court \u201cmay\u201d terminate the respondent\u2019s parental and custodial rights but only if one or more grounds for terminating his or her rights under N.C.G.S. \u00a7 7A-289.32 (1989) exist. See In re Hardy, 294 N.C. 90, 97, 240 S.E.2d 367, 372 (1978) (legislative intent controls whether particular word in statute is mandatory or directory). This construction of N.C.G.S. \u00a7 7A-289.28 will protect the best interests of the child without violence to the statute, will give effect to all portions of the statute without creating mere surplusage, and will ensure that trial courts do not engage in summary determinations in termination of parental rights cases.\nIn this case, the trial court fully complied with the above procedure. Despite the fact that the respondent did not file a written answer to the petition, the trial court, nonetheless heard evidence, made findings of fact, and adjudicated the existence of a ground for terminating the respondent\u2019s parental rights. The respondent does not contest these findings and conclusions. Furthermore, we do not address the merits of the respondent\u2019s arguments concerning the trial court\u2019s alleged error in denying the respondent\u2019s motion for a continuance because the record does not indicate, whether such motion was made or ruled upon. Accordingly, the trial court\u2019s order terminating the respondent\u2019s parental rights is\nAffirmed.\nJudges Johnson and Cozort concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Jeffrey D. Jones for petitioner-appellees.", "James D. Foster for respondent-appellant." ], "corrections": "", "head_matter": "IN RE: ANGELA LYNN TYNER\nNo. 9119DC506\n(Filed 16 June 1992)\n1. Parent and Child \u00a7 1.5 (NCI3d)\u2014 termination of parental rights \u2014letter from respondent \u2014not an answer\nAn order terminating parental rights was affirmed where respondent, incarcerated in Missouri, sent his attorney a letter denying the allegations of the petition which the attorney filed with the court. It could not be determined from the record when and for what purpose the letter was submitted to the court, and, because the appellate courts should not assume trial court error, the Court of Appeals could not assume that the letter was an answer.\nAm Jur 2d, Pleading \u00a7 125.\n2. Parent and Child \u00a7 1.5 (NCI3d)\u2014 termination of parental rights \u2014no answer \u2014procedure\nAn order terminating parental rights was affirmed where, despite the fact that respondent did not file a written answer to the petition, the trial court heard evidence, made findings of fact, and adjudicated the existence of a ground for terminating the respondent\u2019s parental rights. The language of N.C.G.S. \u00a7 7A-289.28, which provides that the trial court shall issue an order terminating all parental and custodial rights of the respondent when a respondent does not file a written answer to a petition or does file a written answer but in an untimely fashion, must be construed to mean that in such situations the trial court may terminate the respondent\u2019s parental and custodial rights only if one or more grounds under N.C.G.S. \u00a7 7A-289.32 exist.\nAm Jur 2d, Parent and Child \u00a7 7.\nAppeal by respondent from order entered 15 March 1991 in CABARRUS County District Court by Judge Adam C. Grant, Jr. Heard in the Court of Appeals 17 March 1992.\nJeffrey D. Jones for petitioner-appellees.\nJames D. Foster for respondent-appellant." }, "file_name": "0480-01", "first_page_order": 510, "last_page_order": 514 }