IN THE SUPREME COURT OF NORTH CAROLINA
2021-NCSC-24
No. 196A20
Filed 19 March 2021
IN THE MATTER OF: C.R.L., K.W.D.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 10
February 2020 by Judge Roy Wijewickrama in District Court, Jackson County. This
matter was calendared for argument in the Supreme Court on 11 February 2021 but
determined on the record and briefs without oral argument pursuant to Rule 30(f) of
the North Carolina Rules of Appellate Procedure.
Jane R. Thompson for petitioner-appellee Jackson County Department of Social Services.
Leah D’Aurora Richardson for appellee Guardian ad Litem.
Peter Wood for respondent-appellant father.
HUDSON, Justice. ¶1 Respondent-father appeals from the trial court’s order terminating his
parental rights to his minor children C.R.L. (Craig) and K.W.D. (Kent). 1 He argues
that the trial court committed reversible error by holding the termination hearing
more than ninety days after the Jackson County Department of Social Services (DSS)
filed its petitions to terminate his parental rights, in violation of N.C.G.S. § 7B-1109.
IN RE C.R.L., K.W.D.
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Opinion of the Court
After reviewing this claim, we conclude that the issue should have been addressed by
the filing of a petition for writ of mandamus while the termination petitions were still
pending; consequently, we affirm the termination order. ¶2 DSS became involved with this family after receiving a child protective services
(CPS) report that the children’s mother tested positive for both methamphetamine
and amphetamine in the weeks prior to and at the time of Kent’s birth. A DSS social
worker investigating the CPS report learned that the parents previously had their
parental rights to two older children terminated in New Jersey. The parents agreed
to place Craig and Kent in a kinship placement with family friends. Kent suffered
from multiple health problems as he went through withdrawal from the drugs to
which he was exposed. On 28 May 2015, the family friends informed DSS that they
would be unable to provide long-term kinship care for Craig and Kent. ¶3 On 8 June 2015, DSS filed juvenile petitions alleging that Craig was a
neglected juvenile and Kent was an abused and neglected juvenile. In addition to the
facts above, DSS alleged that both parents had recent positive drug screens, that they
were living in a camper with the children’s maternal grandparents, and that they
were currently unemployed. On 26 August 2015, the trial court entered a consent
adjudication order concluding that both children were neglected juveniles. On 26
October 2015, the trial court entered a disposition order which indicated that both
parents had entered case plans with DSS and they were addressing the issues
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Opinion of the Court
identified therein. Both parents were awarded supervised visitation three hours per
week. ¶4 On 18 January 2017, the trial court entered a permanency planning review
hearing order in which it found that respondent-father’s whereabouts were no longer
known to DSS and that DSS did not know how to reach him. The trial court
suspended visitation with respondent-father until he provided two consecutive
negative drug screens. Although respondent-father was located by the next
permanency planning review hearing, his visitation remained suspended as the
neglect case progressed because the trial court repeatedly concluded that continuing
the suspension was in the children’s best interests. ¶5 DSS filed termination petitions on 22 March 2017, alleging that respondent-
father’s parental rights to Craig and Kent were subject to termination on three
grounds: that respondent-father had neglected the children; that he willfully left the
children in foster care or a placement outside the home for more than twelve months
without making reasonable progress toward correcting the conditions that led to their
removal from the home; and that his parental rights with respect to another child
had been terminated involuntarily and he lacked the ability or willingness to
establish a safe home. See N.C.G.S. § 7B-1111(a)(1), (2), (9) (2019). After the petitions
were filed, the trial court ordered DSS to notice the case for hearing in orders entered
on 4 October 2017, 23 August 2018, 21 May 2019, and 25 July 2019. However, the
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Opinion of the Court
termination petitions were not heard until 9 and 10 December 2019, approximately
thirty-three months after they were filed. ¶6 On 10 February 2020, the trial court entered an order terminating respondent-
father’s parental rights.2 The order included a finding noting that the matter came
on for hearing more than ninety days after the filing of the petitions and attempting
to provide an explanation for the delay. The trial court concluded that all three
grounds for termination alleged by DSS existed and that termination was in Craig’s
and Kent’s best interests. Respondent-father appealed. ¶7 Respondent-father’s sole challenge to the termination order is that it was
entered after a termination hearing that was conducted thirty-three months after
DSS filed the termination petitions. He contends that this delay violated N.C.G.S.
§ 7B-1109, which sets out the following requirements for when a termination-of-
parental-rights adjudicatory hearing shall occur:
(a) The hearing on the termination of parental rights shall be conducted by the court sitting without a jury and shall be held in the district at such time and place as the chief district court judge shall designate, but no later than 90 days from the filing of the petition or motion unless the judge pursuant to subsection (d) of this section orders that it be held at a later time. Reporting of the hearing shall be as provided by G.S. 7A-198 for reporting civil trials.
....
IN RE C.R.L., K.W.D.
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Opinion of the Court
(d) The court may for good cause shown continue the hearing for up to 90 days from the date of the initial petition in order to receive additional evidence including any reports or assessments that the court has requested, to allow the parties to conduct expeditious discovery, or to receive any other information needed in the best interests of the juvenile. Continuances that extend beyond 90 days after the initial petition shall be granted only in extraordinary circumstances when necessary for the proper administration of justice, and the court shall issue a written order stating the grounds for granting the continuance.
N.C.G.S. § 7B-1109(a), (d). All of the parties agree that this statute was violated in
this case, since the termination hearing was held well beyond ninety days after DSS
filed the termination petitions and no continuances for extraordinary circumstances
were requested or granted to permit this delay.3 But, as this Court has previously
held, this statutory violation should have been remedied while it was occurring by
the filing of a petition for writ of mandamus. See In re T.H.T., 362 N.C. 446, 454
(2008) (“Mandamus is the proper remedy when the trial court fails to hold a hearing
or enter an order as required by statute.”). ¶8 In In re T.H.T., this Court emphasized the importance of swiftly resolving child
welfare cases, noting that “in almost all cases, delay is directly contrary to the best
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Opinion of the Court
interests of children, which is the ‘polar star’ of the North Carolina Juvenile Code.”
Id. at 450 (quoting In re Montgomery, 311 N.C. 101, 109 (1984)). The trial court in In
re T.H.T. had failed to enter adjudication and disposition orders before the statutory
deadlines, and this Court concluded that the respondent’s failure to file a petition for
writ of mandamus during the delay was fatal to her appeal:
We hold that in appeals from adjudicatory and dispositional orders in which the alleged error is the trial court’s failure to adhere to statutory deadlines, such error arises subsequent to the hearing and therefore does not affect the integrity of the hearing itself. Thus, a new hearing serves no legitimate purpose and does not remedy the error. Indeed, a new hearing only exacerbates the error and causes further delay. Instead, a party seeking recourse for such error should petition for writ of mandamus.
Id. at 456. While in this case the error occurred prior to, rather than after, the hearing
at issue, the reasoning underlying our holding in In re T.H.T. applies with equal force
here. In both situations, “the availability of the remedy of mandamus ensures that
the parties remain actively engaged in the district court process and do not ‘sit back’
and rely upon an appeal to cure all wrongs.” Id. at 455. Moreover, unlike “a lengthy
appeal” which “exacerbates the error and causes further delay[,]” “[m]andamus
provides relatively swift enforcement of a party’s already established legal rights.”
Id. at 455–56. ¶9 In this case, respondent-father failed to file a petition for writ of mandamus at
any point during the thirty-three months between the filing of the termination
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Opinion of the Court
petitions and the termination hearing, and he offers no explanation for this failure.
Instead, he sat on his rights and allowed the delay to continue without objection. At
this juncture, granting relief based only on this violation of the statutory deadline
would merely exacerbate the delay below. As we noted in In re T.H.T., “[w]hen the
integrity of the trial court’s decision is not in question, a new hearing serves no
purpose, but only ‘compounds the delay in obtaining permanence for the child.’ ” Id.
at 453 (quoting In re J.N.S., 180 N.C. App. 573, 580 (2006)). ¶ 10 Respondent-father argues that the violation of N.C.G.S. § 7B-1109 in this case
created a delay that was so egregious that it should be considered presumptively
prejudicial. He further argues that the significant delay necessarily diminished his
bond with his sons while at the same time strengthening their bond with their foster
family, which in turn impacted the trial court’s determination of Craig’s and Kent’s
best interests. In making these arguments, respondent-father fails to grapple with
both his own inaction while the alleged prejudice was occurring and this Court’s
decision in In re T.H.T.—a decision he does not acknowledge in his brief and thus
makes no attempt to distinguish from this case. But respondent-father’s disregard of
this Court’s precedent does not relieve us of our obligation to apply it: if respondent-
father believed he was being harmed by the trial court’s delay in violation of N.C.G.S.
§ 7B-1109, the proper recourse was a petition for writ of mandamus. See In re T.H.T.,
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Opinion of the Court
362 N.C. at 456. It is now too late to obtain relief from the statutory violation, and a
new hearing would be both futile and unfair. This argument is overruled. ¶ 11 “In cases such as the present one in which the trial court fails to adhere to
statutory time lines, mandamus is an appropriate and more timely alternative than
an appeal.” Id. at 455. Here, respondent-father did not file a petition for writ of
mandamus while the termination petitions were pending, and therefore, he missed
his opportunity to remedy the violation of N.C.G.S. § 7B-1109. Since respondent-
father raises no other exceptions to the trial court’s order, we affirm the order
terminating his parental rights.
AFFIRMED.
Footnotes
[1] Pseudonyms are used to protect the identities of the juveniles and for ease of reading.
[2] The order also terminated the parental rights of Craig and Kent’s mother. She is not a party to this appeal.
[3] In the termination order, the trial court made a finding of fact which attempted to explain why the hearing occurred more than ninety days after the petitions were filed. This finding is immaterial because it cannot cure the violation, which requires the issuance of written orders continuing the hearing during the period of delay, and no such orders were entered in this matter. See N.C.G.S. § 7B-1109(d) (2019).