holding that prejudice shown where there was a five month delay in entry of the written order terminating respondent's parental rights
How later courts described this case
- holding that prejudice shown where there was a five month delay in entry of the written order terminating respondent's parental rights
- finding respondent adequately articulated the prejudice arising from the delay in the entry of the order where records and transcripts were missing and irretrievable and the respondent's appellate counsel was unable to reconstruct the trial court proceedings
- This Court reversed the trial court's order because the trial court failed to enter its order until five months after the hearing.
- "A review of our recent cases on point exemplifies that the need to show prejudice in order to warrant reversal is highest the fewer number of days the delay exists. And the longer the delay in entry of the order beyond the ... deadline, the more likely prejudice will be readily apparent."
Written by the judges who cited it.
The opinion
WYNN, Judge concurring.
I concur in the majority's resolution of this matter and write separately to underscore that non-compliance with the thirty-day requirement for the trial court's entering a termination order is not per se prejudicial and that prejudice must be shown for delayed entry to constitute reversible error.
In the recent In re B.P., S.P., and R.T., ___ N.C.App. ___, 612 S.E.2d 328 (2005), the majority indicated that a violation of a thirty-day requirement for filing adjudication and dispositional orders required that the orders be vacated. I dissented from the majority to make clear that this Court had previously held that a thirty-day rule violation does not per se warrant the delayed *371 order to be vacated. Indeed, in In re J.L.K., 165 N.C.App. 311 , 598 S.E.2d 387 (2004), this Court stated that "[w]hile the trial court's [89-day] delay clearly violated the 30-day provision of N.C. Gen.Stat. § 7B-1109(e), we find no authority compelling that the TPR order be vacated as a result." Id. at 315, 598 S.E.2d at 390 .
As I underscored in my dissent, a party "must show that she was prejudiced by the delay in order to grant a new hearing." In re B.P., S.P., and R.T., ___ N.C.App. at ___, 612 S.E.2d at 334 (Wynn, J., concurring in part, dissenting in part) (citation omitted). In In re B.P., S.P., and R.T., the Clerk of Court lost the original order, and a new order was thus re-filed outside the thirty-day period. The respondent did not dispute the circumstances or object to the timeliness of the new order, the new order did not require anything different of respondent, and the filing of the new order did not impede respondent's ability to appeal. I therefore saw no prejudice. Id. at ___, 612 S.E.2d at 333 .
Here, in contrast, as the majority notes, prejudice by the five-month delay in entering the order has been shown: Records and transcripts are missing and unretrievable, and Respondent's appellate counsel is unable to reconstruct the trial court proceedings. The delayed order therefore must be vacated.