In re: Willie Reggie Harris , 265 N.C. App. 194 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1026
Filed: 7 May 2019
Mecklenburg County, No. 17 JRI 29
IN THE MATTER OF: WILLIE REGGIE HARRIS, Petitioner
Appeal by respondent from order entered 25 April 2018 by Judge Louis A.
Trosch in Mecklenburg County District Court. Heard in the Court of Appeals 9 April
2019.
No brief for petitioner-appellee.
Mecklenburg County Department of Social Services Senior Associate Attorney
Kathleen Arundell Jackson, for respondent-appellant Mecklenburg County
Department of Social Services, Youth and Family Services.
TYSON, Judge.
Mecklenburg County Department of Social Services (“Respondent”) appeals
from the trial court’s order, which determined Respondent had failed to provide
Petitioner with timely notice and prevented Petitioner’s name from being included on
the Responsible Individuals List. We affirm.
I. Background
Mecklenburg County Child Protective Services completed an investigative
assessment and substantiated a report alleging abuse. Petitioner was identified as
IN RE HARRIS
Opinion of the Court
the individual responsible on 13 December 2013. Criminal charges arising from the
incident were dismissed.
Nearly four years later, Respondent mailed a letter to notify Petitioner of its
intent to place him on the Responsible Individuals List (“RIL”) on 18 August 2017.
Petitioner filed a petition for judicial review on 7 September 2017.
At the hearing on 27 February 2018, Respondent presented testimony of the
purported incident, which had occurred between 10 December 2013 and 13 December
2013. A.D., the alleged victim, testified that Petitioner was a family friend, who was
living with her and her mother when A.D. was thirteen years old. On the day in
question, Petitioner took the trash outside and upon his return, called out to A.D. to
come “warm him up.” A.D. hugged him, and they went into her mother’s bedroom.
A.D. told Petitioner her shoulders were hurting. Petitioner gave her a massage.
While lying together on the bed, Petitioner placed his hand on A.D.’s back,
under her clothes, and placed her hand on his genitals and told her to “squeeze.” He
then requested she get on top of him. A.D. left the bedroom, went upstairs, and
dressed for school. Petitioner told her not to tell her mother.
A.D. called her mother once she returned home from school and told her what
had happened. A.D.’s mother made Petitioner move out and obtained a domestic
violence protective order. The incident was reported to the police and charges were
taken out against Petitioner, but were ultimately dismissed.
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Opinion of the Court
After the close of Respondent’s evidence, Petitioner’s counsel argued
Respondent providing notice “[t]hree-and-a-half years later . . . is substantially too
late for [Petitioner] to adequately prepare a defense . . . with the preponderance of
the evidence standard. It makes it very difficult for him to present a defense at this
late date.”
Respondent argued N.C. Gen. Stat. § 7B-320 contained no consequences for its
failure to provide the statutorily required notice to an identified Responsible
Individual within five days of the completion of the investigation. When questioned
by the trial court to explain why it took so long for Petitioner to be noticed,
Respondent acknowledged the State had “determined that Mecklenburg County did
not properly handle a whole group of RIL cases, and they were all pulled at one time
. . . the State of North Carolina directed Mecklenburg [County] that [it] needed to
provide notice to all the individuals and schedule any hearings requested.”
The trial court filed a written order concluding Petitioner’s name should not be
included on the RIL due to Respondent’s multi-year failure to comply with the
requirements of N.C. Gen. Stat. § 7B-320. Respondent appeals.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. §§ 7B-323(f) and 7A-
27(b)(2) (2017).
III. Issue
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Opinion of the Court
Respondent argues the trial court erred in concluding Petitioner’s name should
not be added to the RIL, due to Respondent’s failure to comply with the statute and
serve notice within five days.
IV. Standard of Review
On appeal from a non-jury trial, this Court reviews a trial court’s order to
determine “whether there is competent evidence to support the trial court’s findings
of fact.” Sessler v. Marsh, 144 N.C App. 623, 628, 551 S.E.2d 160, 163 (2001) (citation
omitted). “Findings of fact are binding on appeal if there is competent evidence to
support them.” Id. This Court reviews a trial court’s conclusions of law de novo.
Lagies v. Myers, 142 N.C. App. 239, 247, 542 S.E.2d 336, 341 (2001).
V. Analysis
This Court concluded that being listed on an RIL “deprives an individual of the
liberty interests guaranteed under our State Constitution.” In re W.B.M., 202 N.C.
App. 606, 617, 690 S.E.2d 41, 49 (2010). In order to guarantee an individual the right
to due process, “an individual has a right to notice and an opportunity to be heard
before being placed on the RIL.” Id. at 621, 690 S.E.2d at 52.
Our General Statutes require that:
(a) Within five working days after the completion of an
investigative assessment response that results in a
determination of abuse or serious neglect and the
identification of a responsible individual, the director shall
personally deliver written notice of the determination to the
identified individual.
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Opinion of the Court
(b) If personal written notice is not made within 15 days of
the determination and the director has made diligent
efforts to locate the identified individual, the director shall
send the notice to the individual by registered or certified
mail, return receipt requested, and addressed to the
individual at the individual’s last known address.
N.C. Gen. Stat. § 7B-320 (2017) (emphasis supplied).
This statute sets forth the specific time limits within which the DSS director
must comply to initiate inclusion of an individual’s name on the list. Petitioner’s
notice was not provided within either of the statutory timelines nor within the statute
of limitations for a misdemeanor crime. See N.C. Gen. Stat. § 15-1 (2017) (two-year
statute of limitations). While no appellate case involving this issue has been brought
previously, we review other cases under Chapter 7B involving jurisdiction.
This Court considered statutory timelines concerning a petition to terminate
parental rights. In re B.M., 168 N.C. App. 350, 607 S.E.2d 698 (2005). The parents
argued the trial court lacked jurisdiction, because DSS had failed to file the petition
seeking termination within the time specified by statute. Id. at 353, 607 S.E.2d 700.
The statute mandated that DSS:
shall file a petition to terminate parental rights within 60
calendar days from the date of the permanency planning
hearing unless the court makes written findings why the
petition cannot be filed within 60 days. If the court makes
findings to the contrary, the court shall specify the time
frame in which any needed petition to terminate parental
rights shall be filed.
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Opinion of the Court
Id. at 353, 607 S.E.2d at 701 (citing N.C. Gen. Stat. § 7B-907(e) (2004)) (emphasis
supplied). DSS did not file its petition in the case of In re B.M. until almost eleven
months after the permanency planning hearing, and the trial court made no written
findings. Id. at 354, 607 S.E.2d at 701. This Court held:
Mandatory provisions are jurisdictional, while directory
provisions are not. Whether the time provision of N.C.
Gen. Stat. § 7B-907(e) is jurisdictional in nature depends
on whether the legislature intended the language of that
provision to be mandatory or directory. Generally,
statutory time periods are . . . considered to be directory
rather than mandatory unless the legislature expresses a
consequence for failure to comply within the time period.
Here, none of the statutes in Chapter 7B address the
consequences that would flow from the untimely filing of a
petition to terminate parental rights. Significantly, N.C.
Gen. Stat. § 7B-907(e) fails to provide a consequence for
DSS’s failure to comply with the sixty-day filing period. As
a result, we conclude that the time limitation specified in
N.C. Gen. Stat. § 7B-907(e) is directory rather than
mandatory and thus, not jurisdictional.
Id. (citations omitted).
Subsequently, our Supreme Court applied this Court’s holding in In re B.M. to
a case concerning the statutory timelines for filing a petition for juvenile delinquency.
In re D.S., 364 N.C. 184, 187, 694 S.E.2d 758, 760 (2010). The statute at issue
provided:
The juvenile court counselor shall complete evaluation of a
complaint within 15 days of receipt of the complaint, with
an extension for a maximum of 15 additional days at the
discretion of the chief court counselor. The juvenile court
counselor shall decide within this time period whether a
complaint shall be filed as a juvenile petition.
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Opinion of the Court
Id. (citing N.C. Gen. Stat. § 7B-1703(a) (2007)). In addition to holding the juvenile
court counselor complied with the statute, id. at 188, 694 S.E.2d at 760, the Supreme
Court “conclude[d] that our legislature did not intend the timing requirements of
section 7B-1703 to be jurisdictional.” Id. at 193, 694 S.E.2d at 763.
Here, the Petitioner did not argue nor did the trial court find or conclude that
DSS’ multi- year delay resulted in a lack of jurisdiction under the statute. This Court
previously concluded that being listed on an RIL deprives an individual of a protected
liberty interest. In re W.B.M., 202 N.C. App. at 617, 690 S.E.2d at 49. The multi- year
delay by DSS, even well beyond the statute of limitations to prosecute for a
misdemeanor criminal charge, deprived Petitioner of his ability to mount a defense
to preserve his protected liberty interest. See id. Here, the delay was nearly four
years. Petitioner’s arguments are overruled.
VI. Conclusion
Petitioner correctly argued the Respondent’s multi-year delay was prejudicial
and made “it very difficult for him to present a defense.” It is unnecessary on the
facts before us to decide whether the timelines required in section 7B-320 are
jurisdictional. The trial court correctly concluded Petitioner’s name could not be
added to the RIL, due to the prejudice to Petitioner’s protected liberty interest from
Respondent’s long, multi-year delay and failure to timely comply with the specific
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mandates placed in the statute by the General Assembly. The trial court’s order is
affirmed. It is so ordered.
AFFIRMED.
Chief Judge McGEE and Judge BERGER concur.
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