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  "name": "IN THE MATTER OF: C.M., V.K., Q.K.",
  "name_abbreviation": "In re C.M.",
  "decision_date": "2007-06-05",
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  "provenance": {
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    "judges": [
      "Judges GEER and LEVINSON concur."
    ],
    "parties": [
      "IN THE MATTER OF: C.M., V.K., Q.K."
    ],
    "opinions": [
      {
        "text": "STEELMAN, Judge.\nThere is no prejudice resulting from the trial court\u2019s noncompliance with N.C. Gen. Stat. \u00a7 7B-1109(a) (2005), when the delay inures to respondent\u2019s benefit, affording respondent every possible opportunity to be reunited with her 'children.\nOn 11 May 2004, the Mecklenburg County Department of Social Services (DSS) filed a juvenile petition which alleged that C.M., V.K., Q.K., and D.B. were neglected and dependent. Pursuant to a non-secure custody order entered that same day, D.B. was placed with his grandmother and the three remaining children were placed in foster care. In an adjudicatory and dispositional order entered on 22 June 2004, the children were adjudicated to be neglected and dependent as to their mother, Shanna M. (respondent).\nThe trial court adopted a mediated case plan entered into on 2 June 2004 and a written case plan dated 6 June 2004. Under the mediated case plan, respondent\nwould obtain a F.I.R.S.T. assessment, attend parenting classes, obtain domestic violence counseling, have sufficient income to meet the children\u2019s needs, have safe and appropriate housing, maintain contact with the social worker, receive a bus pass, attend visitation, cooperate with a parenting capacities evaluation, and attend and participate in appointments to meet the children\u2019s medical, dental, developmental and educational needs.\nFollowing a review hearing on 15 September 2004, the trial court ordered that respondent \u201cmust be able to demonstrate her ability to parent properly by implementing what she has been taught in the various programs.\u201d At the time of a review hearing on 18 March 2005, respondent \u201chad not made sufficient progress to have the children returned to her custody.\u201d The trial court\u2019s findings of fact from a review hearing on 26 April 2005 stated that \u201ca psychological evaluation . . . indicated that the [respondent] will not be able to effectively parent her children without long term support from a helping agency\u201d and that she \u201ccannot effectively meet the safety needs of [C.M.] and can only marginally meet the safety needs of the other children and further that her parenting deficit will be extremely resistant to treatment.\u201d\nOn 23 June 2005, DSS filed petitions to terminate the parental rights of respondent and of the respective fathers as to C.M., V.K., and Q.K. The petitions contained allegations of neglect (7B-llll(a)(l)), leaving the children in foster care for more than twelve months (7B-llll(a)(2)) without reasonable progress, and failure to pay a reasonable portion of the cost of care (7B-llll(a)(3)). The plan as to D.B., the oldest child, remained reunification.\nAt the 4 October 2005 review hearing, the trial court found that respondent \u201chad made some progress on some case plan goals, [but] she had not yet demonstrated that she was able to meet the children\u2019s minimal needs.\u201d At the 30 January 2006 review hearing, the trial \u201c[c]ourt found that [respondent] was still not able to meet the significant needs of her children or provide for their day to day care.\u201d The trial court found after the 8 May 2006 review hearing \u201cthat [respondent] was still not able to parent her children without ongoing intervention.\u201d\nIn its termination order entered after the hearing on 25 July 2006 and 28 July 2006, the trial court found that \u201cthe children have not resided with [respondent] in over two and one-half years and she has not parented them during the time that they have been out of the home\u201d and that petitioner \u201chas proven by clear, cogent and convincing evidence that grounds exist to terminate the parental rights of [respondent] to [Q.K.], [V.K.] and [C.M.].\u201d Respondent \u201chas neglected all three juveniles by failing to show that she has the ability to meet their needs if they were to be returned to her home. She has availed herself of numerous services offered by or through the [petitioner].\u201d\nAfter concluding that respondent had neglected the three children (N.C. Gen. Stat. \u00a7 7B-llll(a)(l)), left them in foster care for more than twelve months (N.C. Gen. Stat. \u00a7 7B-llll(a)(2)) without reasonable progress, and had failed to pay a reasonable portion of the cost of their care (N.C. Gen. Stat. \u00a7 7B-llll(a)(3)), the trial court further concluded \u201c[t]hat the best interests of the above-named juveniles would be served by the termination of the parental rights of both respondent parents with respect to these juveniles.\u201d The trial court then ordered that respondent\u2019s parental rights be terminated as to C.M., Q.K. and V.K.\nIn her first argument, respondent contends the trial court erred by failing to hold the termination hearing within ninety days after the petition was filed and by failing to timely enter the termination order. She specifically argues she was unable to question the psychologist who had assessed her parenting capacities in 2005 because he had moved out of state by the time of the termination hearing. Respondent complains her case plan was put on a \u201cholding pattern\u201d pending the hearing. She also claims she was prejudiced because she' was entitled to a speedy resolution of the termination petition and to a speedy appeal of the order terminating her parental rights. We disagree.\nDSS filed the petitions to terminate respondent\u2019s parental rights on 23 June 2005. However, the trial court conducted the hearing on 25 and 28 July 2006, more than one year later, and entered an order terminating respondent\u2019s parental rights on 19 October 2006. The trial court clearly did not adhere to the time limit found in N.C. Gen. Stat. \u00a7 7B-1109(a) (2005), which requires that an adjudicatory hearing be held \u201cno later than 90 days from the filing of the petition\u201d for termination. However, \u201cthis Court has held that time limitations in the Juvenile Code are not jurisdictional in cases such as this one and do not require reversal of orders in the absence of a showing by the appellant of prejudice resulting from the time delay.\u201d In re G.L.C., 171 N.C. App. 438, 443, 615 S.E.2d 704, 707 (2005), off d per curiam and disc. review improvidently allowed, 360 N.C. 475, 628 S.E.2d 760 (2006).\nRespondent\u2019s contentions of prejudice due to the delay are not persuasive given the trial court\u2019s requirement that she \u201cmust be able to demonstrate her ability to parent properly by implementing what she had been taught in the various programs.\u201d The trial court found after review hearings in October and December of 2005, and in January and March of 2006, that respondent had made \u201csome progress on some case plan goals\u201d but had not demonstrated sufficient ability to parent the children without ongoing intervention, and that she was unable to meet the children\u2019s minimal needs. The court noted that \u201c[respondent] has housing[,] [and] [t]he visits that have been observed by the parenting educator from the Family Center . . . have gone well.\u201d\nThe trial court found in the termination order that it advised respondent \u201cthat it needed to see if [respondent] was able to meet [D.B.\u2019s] needs alone before considering returning the other children to her care.\u201d On 14 July 2005, the trial court entered a permanency planning order, stating that \u201csome progress has been made by [respondent.]\u201d The trial court further stated that \u201c[i]t is possible for [D.B.] to be returned home . . . within [six] months[;] therefore reunification with [respondent] . . . remains the goal if [respondent] continues to make progress[.]\u201d In an effort to reunify D.B. with respondent, \u201c[a] very detailed plan was developed [on 29 March 2006] to give [respondent] the opportunity to demonstrate that she could parent [D.B.]\u201d After the 8 May 2006 review hearing, however, the trial court found \u201cthat [respondent] was still not able to parent her children without ongoing intervention.\u201d The trial court stated:\n[Respondent] was to take [D.B.] to all his medical appointments. She failed to do this. She was to obtain [D.B.\u2019s] Medicaid card. She failed to do this as well. She failed to determine when [D.B.\u2019s] last medical and dental appointments were. She failed to return him to his grandmother\u2019s home on a regular and timely basis.\nOn 8 May 2006, the court adopted the plan of granting guardianship of [D.B.] to his grandmother.\nD.B.\u2019s detailed plan demonstrates that the delay in conducting the termination hearing was due to the extraordinary efforts by the court to allow respondent an opportunity to demonstrate her ability to parent the three younger children by monitoring respondent\u2019s performance in parenting the older child, D.B. Rather than prejudicing respondent, these efforts inured to her benefit, affording respondent every possible opportunity to be reunited with her children.\nRespondent specifically argues that she was prejudiced by the delay, because the psychologist, Dr. Duthie, who assessed her parenting capacities in 2005, was absent from the hearing. He had moved out of state. Respondent contends that her inability to question Dr. Duthie about her compliance with his recommendations prejudiced her. We find this argument unconvincing.\nRespondent points out that although the court did not allow Dr. Duthie\u2019s evaluation to be admitted as evidence at the termination hearing, the court made findings of fact in its termination order based on Dr. Duthie\u2019s evaluation:\n9. Per Court Order, [respondent] submitted to a Parenting Capacity Evaluation. The evaluation indicated that [respondent] could benefit from intensive psychotherapy and participation in the Nurturing Parenting group.\n10. . . . [The court, ordered that respondent] follow through with the recommendations from the parenting capacities evaluation. ...\n14. The Permanency Planning hearing was held on April 26, 2005. The Court\u2019s Findings of Fact included: \u201c. . . a psychological evaluation completed by Dr. Bruce Duthie indicated that the mother will not be able to effectively parent her children without long term support from a helping agency. Further, the evaluation suggests that the mother cannot effectively meet the safety needs of C.M. and can only marginally meet the safety needs of the other children and that her parenting deficit will be extremely resistant to treatment. . . .\n22: [Respondent] completed the parenting capacities evaluation. Subsequently, she began psychotherapy with [C.L.]. She continues to attend sessions with [C.L.] every other week.\nThese findings, however, specifically address neither Dr. Duthie\u2019s recommendations, nor respondent\u2019s compliance with Dr. Duthie\u2019s recommendations, which respondent argues is the basis for prejudice to her. Further, the findings were not vital to the court\u2019s decision to terminate respondent\u2019s parental rights. Dr. Duthie evaluated respondent in the summer of 2004, two years prior to the termination hearing. Plenary other evidence subsequent to Dr. Duthie\u2019s evaluation substantiated the trial court\u2019s findings of fact, which supported the termination order entered 19 October 2006. Many of the findings pertained to the period of time between the filing of the petitions to terminate respondent\u2019s parental rights and the hearing on termination, during which time respondent failed to care for her oldest child, D.B. Moreover, the trial court noted that finding of fact fourteen listed above was also made in the 26 April 2005 prior permanency planning order, which the court received into evidence at the termination hearing. See In re J.W., K.W., 173 N.C. App. 450, 455-56, 619 S.E.2d 534, 539-40 (2005), aff'd by 360 N.C. 361, 625 S.E.2d 780 (2006) (stating that a court \u201cmay take judicial notice of earlier proceedings in the same cause[,] . . . [and] prior [orders] are admissible, although not determinative in a parental rights proceeding\u201d).\nBecause the trial court excluded the entire evaluation of Dr. Duthie at the termination hearing, this Court is unable to review the recommendations of Dr. Duthie. The evaluation was not made available in the record on appeal. At the hearing, counsel for respondent, Mr. Lucey, objected to the admission of the evaluation into evidence, and the trial court honored respondent\u2019s request:\nThe court: I think Mr. Lucey\u2019s point [is] that even [if the DSS worker] testifies] that [Dr. Duthie made] recommendations and that those recommendations weren\u2019t followed \u2014 without being able to cross-examine [Dr. Duthie] on what the recommendations were and how they weren\u2019t followed, . . . that would open the door to the entire evaluation, [and] if he can\u2019t cross on that then it leaves the testimony at, she didn\u2019t do it or that there wasn\u2019t full compliance[.] . . .\nMr. Lucey: Can I withdraw the question that brought this whole mess forward and just limit it to . . . the witness . .. has complied [with the case plan in that she] submitted herself [to the evaluation by Dr. Duthie] . . . and signed the necessary releases and has done the parenting capacity evaluation and let me move on?\nThe court: That\u2019s fine.\nMr. Lucey: And can we strike the testimony beyond that?\nThe court: Yes, she complied with submitting to [Dr. Duthie\u2019s] evaluation. That\u2019s where you want to limit it?\nMr. Lucey: That\u2019s correct.\nThe court: I\u2019ll allow that testimony to stand. Otherwise the question is withdrawn and the testimony is striken.\nOn appeal, respondent attempts to engage this Court in speculation as to the nature of Dr. Duthie\u2019s recommendations, and respondent\u2019s compliance or noncompliance with his recommendations, in an evaluation that was not admitted as evidence as a result of respondent\u2019s own objection, and determine, on mere conjecture, whether respondent\u2019s inability to cross examine Dr. Duthie might have prejudiced her. This, we decline to do. Respondent does not provide a specific argument as to why her inability to cross-examine Dr. Duthie prejudiced her. See In re C.L.C., 171 N.C. App. at 443, 615 S.E.2d at 707 (holding that the respondent\u2019s general argument was insufficient to show prejudice because respondent does not \u201cexplain in what manner the delay prejudiced her\u201d). While respondent may have lost the opportunity to question the psychologist because of the delay, we conclude that due to the lack of specificity as to how she was prejudiced, and plenary other evidence of record supporting the trial court\u2019s findings, respondent was not prejudiced by the delay in this regard.\nRespondent also contends that her case plan was put on a \u201cholding pattern[,]\u201d and that she was prejudiced because she was entitled to a speedy resolution of the termination petition and to a speedy appeal of the order terminating her parental rights. We find this argument unconvincing. In the opinion of In re C.L.C., this Court held that the respondent\u2019s general argument that \u201cDSS ceased reunification but waited many months to initiate termination proceedings [,]\u201d does not \u201cexplain in what manner the delay prejudiced her in light of the fact she chose not to take advantage of the opportunities]\u201d provided by the court for respondent to show progress. Id., 171 N.C. App. at 445, 615 S.E.2d at 708. In re C.L.C. is persuasive authority as to respondent\u2019s general argument that the case plan was put on a \u201cholding pattem[.]\u201d Respondent here has failed to explain why the \u201cholding pattern\u201d prejudiced her, and the evidence tends to show the contrary: (1) that the delay was necessary for the court to determine whether respondent\u2019s parental rights should be terminated, and (2) that the delay was provided to enable respondent to demonstrate her fitness to parent. We also note that respondent did not, at any point, object to the delay. See In re W.L.M., 181 N.C. App. 518, 522-23, 640 S.E.2d 439, 442-43 (2007) (holding that the delayed hearing on termination of respondent\u2019s parental rights was not prejudicial even though held one hundred and sixty-nine days after DSS filed the petition to terminate, because \u201c[e]ach continuance granted by the trial court was necessaryf,]\u201d and \u201c[a]t no time did respondent object to any delay or continuance\u201d). In light of In re C.L.C. and In re W.L.M., we conclude that respondent has failed to explain in this argument how the delay prejudiced her, and it is without merit.\nWe further conclude that the time delay and respondent\u2019s lost opportunity to question the psychologist did not prejudice respondent. This assignment of error is overruled.\nIn her second argument, respondent contends that the trial court erred and abused its discretion by terminating her parental rights because its order was not properly supported by the findings of fact and conclusions of law. She argues the trial court failed to consider the likelihood of adoption (N.C. Gen. Stat. \u00a7 7B-1110(a)(2)) or that termination would aid in the accomplishment of the permanent plan for the juvenile. (N.C. Gen. Stat. \u00a7 7B-1110(a)(3)). We disagree.\nRespondent\u2019s argument relies upon the current version of N.C. Gen. Stat. \u00a7 7B-llI0(a) (2005), which is not applicable in this case. The 2005 amendments which added subdivisions (a)(1) through (a)(6) to the statute were effective 1 October 2005 and applicable to petitions or actions filed on or after that date. Because DSS filed the petition to terminate respondent\u2019s parental rights on 23 June 2005, the relevant version of the statute required that:\nShould the court determine that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent with respect to the juvenile unless the court shall further determine that the best interests of the juvenile require that the parental rights of the parent not be terminated.\nN.C. Gen. Stat. \u00a7 7B-1110(a) (2003); see also 2005 N.C. Sess. Laws ch. 398, \u00a7 17.\nIf a trial court finds that at least one of the statutory grounds exists, it has discretion at the dispositional stage to terminate parental rights upon a finding that termination would be in the child\u2019s best interests. In re Blackburn, 142 N.C. App. 607, 613, 543 S.E.2d 906, 910 (2001). Its decision to terminate parental rights is then reviewed under an abuse of discretion standard. In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001). Ample evidence in the record supports the three statutory grounds for termination found by the trial court. The trial court made multiple findings of fact regarding respondent\u2019s failure over a period of more than a year to demonstrate her ability to properly parent the children by implementing what she had been taught in the various programs which she had attended. Accordingly, we find no abuse of discretion by the trial court in its conclusion that termination of respondent\u2019s parental rights was in the best interests of the children and affirm its order terminating respondent\u2019s parental rights.\nRespondent has failed to argue her remaining assignments of error in her brief, and they are deemed abandoned. N.C. R. App. P. 28(b)(6).\nAFFIRMED.\nJudges GEER and LEVINSON concur.",
        "type": "majority",
        "author": "STEELMAN, Judge."
      }
    ],
    "attorneys": [
      "Tyrone C. Wade for 'petitioner-appellee Mecklenburg County Department of Social Services.",
      "Mary McCullers Reece for respondent-appellant-mother.",
      "Poyner & Spruill LLP, by Michelle G. Hunt, for Guardian ad Litem-appellee."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF: C.M., V.K., Q.K.\nNo. COA07-16\n(Filed 5 June 2007)\n1. Termination of Parental Rights\u2014 failure to hold hearing within ninety days \u2014 delay inured to respondent\u2019s benefit\nThe trial court did not abuse its discretion by concluding that termination of respondent\u2019s parental rights was in the best interests of the children even though the trial court failed to hold the termination hearing within ninety days as required by N.C.G.S. \u00a7 7B-1109(a), because: (1) time limitations in the Juvenile Code are not jurisdiction in cases such as this one and do not require reversal of orders in the absence of a showing by the appellant of prejudice resulting from the time delay; (2) the older child\u2019s detailed plan demonstrated the delay in conducting the termination hearing was due to the extraordinary efforts by the court to allow respondent an opportunity to demonstrate her ability to parent the three younger children by monitoring respondent\u2019s performance in parenting the older child; (3) the delay inured to respondent\u2019s benefit, affording respondent every possible opportunity to be reunited with her children; (4) respondent does not provide a specific argument as to why her inability to cross-examine Dr. Duthie prejudiced her, and there was plenary other evidence of record supporting the trial court\u2019s findings; (5) respondent failed to explain why putting her case in a \u201cholding pattern\u201d prejudiced her, and the evidence tended to show the contrary; and (6) respondent did not, at any point, object to the delay.\n2. Termination of Parental Rights\u2014 findings of fact \u2014 conclusions of law \u2014 sufficiency of evidence\nThe trial court did not err or abuse its discretion by terminating respondent\u2019s parental rights even though respondent contends the order was not properly supported by the findings of fact and conclusions of law, because: (1) respondent\u2019s argument relies upon the 2005 version of N.C.G.S. \u00a7 7B-1110(a), which is not applicable in this case; (2) ample evidence in the record supported the three statutory grounds for termination found by the trial court; and (3) the trial court made multiple findings of fact regarding respondent\u2019s failure over a period of more than a year to demonstrate her ability to properly parent the children by implementing what she had been taught in the various programs which she had attended.\n3. Appeal and Error\u2014 preservation of issues \u2014 failure to argue\nThe remaining assignments of error that respondent failed to argue in her brief are deemed abandoned under N.C. R. App. P. 28(b)(6).\nAppeal by respondent from order entered 19 October 2006 by Judge Lisa C. Bell in Mecklenburg County District Court. Heard in the Court of Appeals 23 April 2007.\nTyrone C. Wade for 'petitioner-appellee Mecklenburg County Department of Social Services.\nMary McCullers Reece for respondent-appellant-mother.\nPoyner & Spruill LLP, by Michelle G. Hunt, for Guardian ad Litem-appellee."
  },
  "file_name": "0398-01",
  "first_page_order": 430,
  "last_page_order": 439
}
