Opinion
No. 06-297.
Filed January 2, 2007.
Respondents appeal from order entered 4 November 2005 by Judge Mark Powell in the District Court in Polk County. Heard in the Court of Appeals 18 October 2006.
Phillip R. Feagan, for petitioner-appellee Polk County Department of Social Services. M. Victoria Jayne, for respondent-appellant father. Renae S. Alt, for respondent-appellant guardians.
Polk County No. 03 J 23
In April 2005, the court awarded guardianship of minor child S.F. to her paternal grandparents and also ceased reunification efforts with respondent father. On 4 November 2005, the court terminated the guardianship of the grandparents and returned legal custody of S.F. to the Polk County Department of Social Services ("DSS"). The order did not change the status of respondent father. Respondent father and respondent guardians appeal. We affirm.
The record shows that in October 2003, S.F., then three years old, was adjudicated abused, neglected and dependent, based on findings that she had been physically abused by her mother's boyfriend while in her mother's home. At that time, respondent father had sporadic contact with S.F. and the court awarded legal custody of S.F. to DSS; respondent father entered into a service agreement to reunify with his daughter. In April 2004, the court found that respondent father had made substantial gains towards reunification and awarded him trial placement of S.F. In October 2004, at a permanency planning review hearing, the court found that respondent father had tested positive for controlled substances and faced some misdemeanor drug and concealed weapon offenses. S.F. was placed with her paternal grandparents. On 12 April 2005, the court awarded guardianship to respondent grandparents, ceased reunification efforts with both of S.F.'s parents, and ordered guardianship as the permanent plan for S.F. In August 2005, DSS filed a motion seeking review based on a substantial change in circumstances. DSS alleged that respondent grandmother had been allowing S.F. to have unsupervised visits with respondent father and his girlfriend, both of whom were using drugs, and that respondent grandmother had been told by DSS that S.F. could not stay unsupervised with respondent father until he no longer used drugs. At the review hearing on 13 September 2005, the court found that respondent guardians had neglected their duties and that it was no longer in S.F.'s best interests for them to have guardianship. The court terminated the guardianship and returned custody of S.F. to DSS.
Respondent father and respondent guardians argue that the trial court made "insufficient findings of fact and conclusions of law" as required by N.C. Gen. Stat. § 7B-907 (2004). However, respondents failed to assign error to specific findings of fact or conclusions or law. Instead, they each employed a single assignment of error to challenge the findings of fact and conclusions of law generally. The appellate rules provide that assignments of error which challenge that the evidence is legally or factually insufficient to support a particular issue or finding, and challenges directed against any conclusions of law of the trial court based upon such issues or findings, may be combined under a single assignment of error raising both contentions if the record references and the argument under the point sufficiently direct the court's attention to the nature of the question made regarding each such issue or finding or legal conclusion based thereon.
N.C. Rule App. P. 10(c)(3) (emphasis added). It is well-established that broadside assignments of error are inadequate to preserve an issue for appellate review. In re Beasley, 147 N.C. App. 399, 405, 555 S.E.2d 643, 647 (2001); Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678, 685, 340 S.E.2d 755, 760 (1986). Here, because this assignment of error does not sufficiently direct our attention to which findings of fact or conclusions of law respondents challenges, and on what basis, we dismiss this assignment of error as to all parties.
Before turning to respondents' other arguments, we note that although respondent father's and respondent guardians' briefs fail to make "reference to the assignments of error pertinent to the question, identified by their numbers," N.C. R. App. P. 28(b)(6), we are able to discern which arguments in the briefs correspond to respondents' assignments of error. Rule 2 of the rules of appellate of procedure allows this Court to review an appeal, despite technical rules violations. N.C. R. App. P. 2. We conclude that we may review respondents' further arguments pursuant to rule 2, as their "noncompliance with the [appellate] rules . . . is not substantive nor egregious enough to warrant dismissal of [the] appeal." Coley v. State, 173 N.C. App. 481, 483, 620 S.E.2d 25, 27 (2005). See also Davis v. Columbus County Schs., 175 N.C. App. 95, ___, 622 S.E.2d 671, 674 (2005).
In his second argument, respondent father argues that "the order was not entered for three months following the hearing which substantially affected the father's rights and said order should be vacated." The trial court heard this matter pursuant to N.C. Gen. Stat. § 7B-1000(a) (2004) which states that: Upon motion in the cause or petition, and after notice, the court may conduct a review hearing to determine whether the order of the court is in the best interests of the juvenile, and the court may modify or vacate the order in light of changes in circumstances or the needs of the juvenile. Notwithstanding the provision of this subsection, if a guardian of the person has been appointed for the juvenile and the court has also made findings in accordance with G.S. 7B-907 that guardianship is the permanent plan for the juvenile, the court shall proceed in accordance with G.S. 7B-600(b).
Id. (emphasis added). N.C. Gen. Stat. § 7B-906(d)(2004), which governs custody review hearings, requires that "[t]he order must be reduced to writing, signed, and entered within 30 days of the completion of the hearing." Id. Here, the court held the hearing on 13 September 2005 and the order was entered on 4 November 2005. However, this Court has repeatedly held that a trial court's failure to adhere to filing deadlines set forth in various portions of the juvenile code is not reversible error without a showing of prejudice. See, e.g., In re E.N.S., 164 N.C. App. 146, 153-54, 595 S.E.2d 167, 171-72, disc. review denied, 359 N.C. 189, 606 S.E.2d 903 (2004). Respondent father argues that the late entry of the trial court's order prejudiced him because the order did not provide for visitation or services. However, it is clear from the record that in its 12 April 2005 permanency planning review order, the court had already ordered that reunification efforts with respondent father cease and did not provide for visitation with respondent father. Respondent father did not object to or appeal from this order. We conclude that respondent was not prejudiced by the 22-day delay in the entry of the order here.
In their second argument, respondent guardians assert that the trial court lacked jurisdiction to enter the order terminating guardianship. We disagree. Respondents contend that the trial court lacked personal jurisdiction over them at the 13 September 2005 hearing because they were not parties in the original petition in this matter and had not been served pursuant to N.C. Gen. Stat. § 7B-406, as required by N.C. Gen. Stat. § 7B-200(b) (2004). There is no dispute, however, that respondents were properly noticed before the 13 September 2005 hearing and that respondent grandmother was present in court on the day of the hearing, but left before the matter was heard. It is well-established that Rule 12 of the North Carolina Rules of Civil Procedure requires that certain defenses must be raised by a pre-answer motion or in a responsive pleading. Failure to do so waives these defenses. Among the defenses that must be raised are jurisdiction over the person, insufficiency of process, and insufficiency of service of process. Our Supreme Court has held that a general appearance of a party in an action gives the court jurisdiction over the appearing party even though no service of a summons is shown.
In re Howell, 161 N.C. App. 650, 655, 589 S.E.2d 157, 160 (2003) (internal citations omitted). Here, respondents failed to object to lack of personal jurisdiction, respondent grandmother made a general appearance at the 12 April 2005 permanency planning review where respondents were granted permanent guardianship, and respondent grandmother appeared in court on 13 September 2005 after being properly noticed. We overrule this assignment of error.
Affirmed.
Judges HUNTER and CALABRIA concur.
The judges participated and submitted this opinion for filing prior to 1 January 2007.