                 IN THE COURT OF APPEALS OF NORTH CAROLINA

                                         No. COA15-1270

                                        Filed: 3 May 2016

Randolph County, No. 14 JT 75

IN THE MATTER OF: S.Z.H.


      Appeal by respondent-father from order entered on 23 July 2015 by Judge

Jayrene R. Maness in District Court, Randolph County. Heard in the Court of

Appeals on 12 April 2016.


      Mark L. Hayes, for respondent-appellant.

      No brief filed for petitioner-appellee.


      STROUD, Judge.


      Respondent-father appeals from an order terminating his parental rights to

S.Z.H. (“Sally”).1 Respondent argues that the trial court erred in (1) concluding that

he had willfully abandoned Sally under N.C. Gen. Stat. § 7B-1111(a)(7) (2015); and

(2) concluding that terminating his parental rights was in Sally’s best interests

without making the requisite written findings of fact. We reverse the order because

the evidence was insufficient to support the challenged findings of fact and because

the remaining findings of fact cannot support a conclusion of law that respondent

abandoned the minor child during the relevant time period.



      1   We use this pseudonym to protect the juvenile’s identity.
                                       IN RE: S.Z.H.

                                   Opinion of the Court



                                  I.      Background

      This case arises from a private termination of parental rights action filed by

the child’s mother against the child’s legal and biological father. There were no

allegations of neglect, abuse, or dependency under N.C. Gen. Stat. § 7B-1111 and no

involvement by any Department of Social Services. On 1 February 2008, Sally was

born to petitioner-mother and respondent-father, who were unmarried and living

apart in North Carolina. For approximately one to two months, respondent helped

care for Sally by watching her during the day while petitioner worked.            After

respondent’s assistance became unreliable, petitioner made other childcare

arrangements for Sally during the day. Later in 2008, after petitioner was involved

in a car accident and lost access to reliable transportation, petitioner and Sally moved

to Virginia to live with petitioner’s uncle. In 2009, petitioner and Sally moved to

Arizona to help care for petitioner’s mother, who had been diagnosed with cancer.

      In approximately March 2013, petitioner and Sally moved back to North

Carolina, and petitioner arranged for respondent to visit with Sally for roughly two

hours. In April 2013, respondent tried to send a $50.00 money order to petitioner.

Respondent called Sally during the next several months.             In January 2014,

respondent asked petitioner if he could attend Sally’s birthday party in February

2014, but petitioner responded that Sally’s birthday party was “probably not the best

place for [respondent] to see [Sally] after not seeing her” since March 2013.



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                                        Opinion of the Court



Respondent and Sally have not communicated since January 2014. Sometime while

petitioner and Sally were in North Carolina, petitioner married a man.2

       On 12 May 2014, petitioner filed a petition for termination of respondent’s

parental rights alleging that “for more than three (3) years the Respondent has not

initiated contact with the minor child[.]”3 In approximately June 2014, petitioner,

her husband, and Sally moved to Arizona. On 26 January 2015, the trial court held

a hearing on the adjudication and disposition stages. At the conclusion of the hearing,

Sally’s guardian ad litem recommended that the trial court not terminate

respondent’s parental rights because petitioner and respondent’s dispute “essentially

boils down to a communication problem.” On 23 July 2015, the trial court entered an

order concluding that respondent had willfully abandoned Sally under N.C. Gen.

Stat. § 7B-1111(a)(7) and that it was in Sally’s best interests to terminate

respondent’s parental rights. On 25 August 2015, respondent gave untimely notice

of appeal.

                                 II.     Appellate Jurisdiction

       We first address whether we have jurisdiction over this appeal:

                     In civil actions, the notice of appeal must be filed
               “within thirty days after entry of the judgment if the party
               has been served with a copy of the judgment within the
               three day period” following entry of the judgment. N.C.R.

       2   The record does not indicate the date of their marriage or the husband’s name. He was
identified in the transcript of testimony only as “Garry (indiscernible) Junior” or “Junior.”
         3 The trial court correctly concluded that North Carolina was Sally’s home state at the time

petitioner commenced this action. See N.C. Gen. Stat. § 50A-201(a)(1) (2013).

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                                  Opinion of the Court



             App. P. 3(c)(1) (2013); N.C. Gen. Stat. § 1A-1, Rule 58
             (2013). The three day period excludes weekends and court
             holidays. N.C. Gen. Stat. § 1A-1, Rule 6(a) (2013). . . .
             Failure to file a timely notice of appeal is a jurisdictional
             flaw which requires dismissal.

Magazian v. Creagh, ___ N.C. App. ___, ___, 759 S.E.2d 130, 131 (2014). “[I]n the

absence of jurisdiction, the appellate courts lack authority to consider whether the

circumstances of a purported appeal justify application of [North Carolina Rule of

Appellate Procedure] 2.” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co.,

362 N.C. 191, 198, 657 S.E.2d 361, 365 (2008). But “[North Carolina Rule of Appellate

Procedure] 21(a)(1) gives an appellate court the authority to review the merits of an

appeal by certiorari even if the party has failed to file notice of appeal in a timely

manner.” Anderson v. Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997); see

also N.C.R. App. P. 21(a)(1) (“The writ of certiorari may be issued in appropriate

circumstances by either appellate court to permit review of the judgments and orders

of trial tribunals when the right to prosecute an appeal has been lost by failure to

take timely action[.]”).

      Here, the trial court filed and entered the termination order on Thursday, 23

July 2015. Petitioner served respondent a copy of the order on Tuesday, 28 July 2015.

Thus, respondent was served a copy of the termination order within the three-day

period, since we exclude the intervening Saturday and Sunday from the three-day

period. See Magazian, ___ N.C. App. at ___, 759 S.E.2d at 131; N.C. Gen. Stat. § 1A-



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                                      Opinion of the Court



1, Rule 6(a), Rule 58 (2015). Accordingly, the last day on which respondent could

have filed a timely notice of appeal was Monday, August 24, 2015. See Magazian, ___

N.C. App. at ___, 759 S.E.2d at 131; N.C.R. App. P. 3.1(a); N.C. Gen. Stat. §§ 1A-1,

Rule 6(a), Rule 58, 7B-1001(b) (2015). Because respondent did not file a notice of

appeal until Tuesday, August 25, 2015, respondent’s notice of appeal was untimely.

Accordingly, we treat respondent’s appeal as a petition for writ of certiorari and issue

a writ of certiorari to review the merits of respondent’s appeal. See Anderson, 345

N.C. at 482, 480 S.E.2d at 663; N.C.R. App. P. 21(a)(1).

                               III.     Termination Order

      Respondent argues that the trial court erred in (1) concluding that he had

abandoned Sally under N.C. Gen. Stat. § 7B-1111(a)(7); and (2) concluding that

terminating his parental rights was in Sally’s best interests without making the

requisite written findings of fact.

A.    Standard of Review

                    Termination of parental rights proceedings are
             conducted in two stages: adjudication and disposition. In
             the adjudication stage, the trial court must determine
             whether there exists one or more grounds for termination
             of parental rights under N.C. Gen. Stat. § 7B-1111(a). This
             Court reviews a trial court’s conclusion that grounds exist
             to terminate parental rights to determine whether clear,
             cogent, and convincing evidence exists to support the
             court’s findings of fact, and whether the findings of fact
             support the court’s conclusions of law. If the trial court’s
             findings of fact are supported by ample, competent
             evidence, they are binding on appeal, even though there


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                                   Opinion of the Court



             may be evidence to the contrary. However, the trial court’s
             conclusions of law are fully reviewable de novo by the
             appellate court.
                    If the trial court determines that at least one ground
             for termination exists, it then proceeds to the disposition
             stage where it must determine whether terminating the
             rights of the parent is in the best interest of the child, in
             accordance with N.C. Gen. Stat. § 7B-1110(a). The trial
             court’s determination of the child’s best interests is
             reviewed only for an abuse of discretion. Abuse of
             discretion results where the court’s ruling is manifestly
             unsupported by reason or is so arbitrary that it could not
             have been the result of a reasoned decision.

In re A.B., ___ N.C. App. ___, ___, 768 S.E.2d 573, 575-76 (2015) (citations, quotation

marks, and brackets omitted).

B.    Adjudication

      i.     Findings of Fact

      We preliminarily note that in the termination order, the trial court conflated

the separate stages of adjudication and disposition, which is most clearly seen in its

conclusion of law that “[i]t is in the best interests of the minor child that the parental

rights of the respondent-father . . . be terminated and statutory grounds exist which

justify this termination of the respondent’s parental rights.” A court’s decision to

terminate parental rights based solely on the child’s best interests violates a parent’s

constitutional right to custody of his child. See Adams v. Tessener, 354 N.C. 57, 62,

550 S.E.2d 499, 503 (2001) (“The Due Process Clause ensures that the government

cannot unconstitutionally infringe upon a parent’s paramount right to custody solely



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                                         Opinion of the Court



to obtain a better result for the child.”). It is imperative that courts conduct these

two inquiries separately although they may be conducted in the same hearing. See

In re Parker, 90 N.C. App. 423, 430, 368 S.E.2d 879, 884 (1988). We will thus focus

our analysis on the trial court’s findings of fact as to the grounds for termination of

parental rights without consideration of the many findings of fact regarding

petitioner’s relocation to Arizona and the child’s circumstances there.

       Respondent argues that clear, cogent, and convincing evidence does not

support the trial court’s Finding of Fact 15 and the underlined portion of Finding of

Fact 18:4

               15.    Since the petitioner’s return to North Carolina in
               early 2013, the respondent has not sought any overnight
               visitation with the minor child nor has he actually
               exercised any overnight visitation. At all relevant times,
               the respondent had had the ability and means to maintain
               communication with the minor child and to arrange or
               schedule such visitation.

               ....

               18.    The Court finds as a matter of law that statutory
               grounds do exist to terminate the parental rights of the
               respondent in that the respondent, specifically for a period
               of at least six (6) months preceding the commencement of
               the instant action and generally since April of 2013, has
               willfully abandoned the minor child. Since April of 2013,
               the respondent has failed to provide or attempt to provide
               any financial support for the welfare and benefit of the
               minor child; he has also failed to maintain communications
               to show his love, care or concern for the minor child.

       4  Finding of Fact 18 is actually a mixed finding of fact and conclusion of law. We will address
the challenged factual portion here and the remaining factual and legal portions below.

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                                  Opinion of the Court




(Emphasis added.) Because petitioner filed the petition on 12 May 2014, we examine

the six-month period from 12 November 2013 to 12 May 2014. See N.C. Gen. Stat. §

7B-1111(a)(7).

      Respondent argues that petitioner never testified that respondent did not

request to communicate or visit Sally during this period; rather, respondent argues

that the evidence shows the opposite, that respondent tried to call Sally “at least

every day or every other day” and asked petitioner if he could attend Sally’s birthday

party in February 2014.

      Petitioner testified to the following events: The last time that respondent had

visitation with Sally was in March 2013. Petitioner had never “active[ly] attempt[ed]”

to deny respondent visitation and had not made any efforts to deny him

communication with Sally. When petitioner and Sally moved back to North Carolina

in April 2013, petitioner gave respondent a post office box as her mailing address but

did not tell him her physical address. When petitioner changed her phone number in

approximately June 2013, she provided her new number to respondent, and

respondent called Sally on that number. Petitioner did not testify to how frequently

respondent called Sally. When Sally returned to school in 2013, respondent called

Sally and told her that he would pick her up to buy her a backpack and some shoes

but did not “follow through” on these phone calls. The last time respondent called

Sally was in January 2014. Respondent asked petitioner if he could attend Sally’s


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                                       Opinion of the Court



birthday party in February 2014, but petitioner responded that Sally’s birthday party

was “probably not the best place for [respondent] to see [Sally] after not seeing her”

since March 2013.         Petitioner expressed her frustration that “[i]t’s not that

[respondent] doesn’t want to put forth the effort, it’s just [sometimes there is] no

[follow-through] and for seven years [petitioner has] been following through.”

       Respondent testified to the following events:               Since March 2013 when

respondent last saw Sally, respondent called Sally “all the time” and tried to call Sally

“at least every day or every other day[.]” Sally was available to talk “[u]nless she was

at school or . . . asleep.” Petitioner told respondent that he could not visit Sally unless

he sent financial support. Respondent called Sally until January 2014, about a week

before Sally’s 1 February 2014 birthday, when respondent and petitioner “[f]ell out.”

Petitioner either refused to answer respondent’s calls and texts or would argue with

respondent. Respondent continued trying to contact Sally but stopped after about a

month of unsuccessful attempts.

       In addition, at the conclusion of the hearing, Sally’s guardian ad litem

recommended that the trial court not terminate respondent’s parental rights because

petitioner and respondent’s dispute “essentially boils down to a communication

problem.”5 He noted that “in the beginning” respondent “played a very active role in


       5 The record on appeal lacks the trial court’s order appointing Sally’s guardian ad litem
pursuant to N.C. Gen. Stat. § 7B-1108 (2013) and the guardian ad litem’s written report. The trial
court mentioned in its order that the guardian ad litem had been “duly appointed” and that the



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                                        Opinion of the Court



the child’s life” but then that petitioner had “moved around several times, no fault of

her own[.]” With petitioner and the child living in Arizona, he noted that “it’s hard

to say, now that [respondent] has [the] financial ability to see the child[.]” As both

petitioner and respondent testified that respondent called Sally during roughly half

of the relevant six-month period, from November 2013 to January 2014, and asked

petitioner if he could attend Sally’s birthday party in February 2014, we hold that

clear, cogent, and convincing evidence does not support the trial court’s finding that

respondent “failed to maintain communications” with Sally during the relevant time.

In addition, even during the last half of the six-month period, the evidence tended to

show that respondent attempted to communicate with Sally but petitioner stopped

allowing him to contact her. The guardian ad litem characterized the issue as a

“communication problem” based at least in part upon petitioner’s relocations and

ultimate move to Arizona. Thus, there is no clear, cogent, and convincing evidence to

support the challenged factual findings in Findings of Fact 15 and 18.

       ii.     Conclusion of Law

       Respondent challenges the trial court’s conclusion of law that he had willfully

abandoned Sally under N.C. Gen. Stat. § 7B-1111(a)(7). This conclusion of law is

found primarily in Finding of Fact 18, as noted above:

               18.     The Court finds as a matter of law that statutory

guardian ad litem had provided a written report to the court, “in addition to his oral summary of his
findings which were presented at the hearing.” Since we do not have the written report, we have
considered only the oral summary presented at the hearing.

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                                   Opinion of the Court



             grounds do exist to terminate the parental rights of the
             respondent in that the respondent, specifically for a period
             of at least six (6) months preceding the commencement of
             the instant action and generally since April of 2013, has
             willfully abandoned the minor child. . . .

      The only related conclusion of law which is denominated as such is Conclusion

of Law 4: “It is in the best interests of the minor child that the parental rights of the

respondent-father . . . be terminated and statutory grounds exist which justify this

termination of the respondent’s parental rights.”

      N.C. Gen. Stat. § 7B-1111(a)(7) provides that the trial court may terminate

parental rights upon concluding that the “parent has willfully abandoned the juvenile

for at least six consecutive months immediately preceding the filing of the petition or

motion[.]” N.C. Gen. Stat. § 7B-1111(a)(7) (emphasis added).

      We preliminarily note that the petition here failed to allege any particular

statutory basis upon which petitioner was seeking to terminate respondent’s parental

rights. Indeed, the petition did not mention the relevant statute, N.C. Gen. Stat. §

7B-1111, and did not even use any variation of the word “abandon.”            See In re

Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002) (“While there is no

requirement that the factual allegations be exhaustive or extensive, they must put a

party on notice as to what acts, omissions or conditions are at issue.”). In addition,

at the termination hearing, none of the parties nor the trial court ever mentioned the

ground of abandonment or even used the word “abandon” or other terms which would



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                                  Opinion of the Court



indicate a willful abandonment, such as “relinquish” or “surrender.” The first time

the ground of abandonment is mentioned in the record is in the termination order

itself. Nevertheless, we address whether the remaining findings of fact—other than

Finding of Fact 15 and the challenged factual portion of Finding of Fact 18, as

discussed above—support the conclusion of abandonment as the ground for

termination since respondent did not raise the failure of the petition to give adequate

notice of the grounds upon which termination was sought at trial or on appeal.

             Abandonment implies conduct on the part of the parent
             which manifests a willful determination to forego all
             parental duties and relinquish all parental claims to the
             child[.] Willfulness is more than an intention to do a thing;
             there must also be purpose and deliberation. Whether a
             biological parent has a willful intent to abandon his child
             is a question of fact to be determined from the evidence.
                    ....
             A judicial determination that a parent willfully abandoned
             her child, particularly when we are considering a relatively
             short six month period, needs to show more than a failure
             of the parent to live up to her obligations as a parent in an
             appropriate fashion; the findings must clearly show that the
             parent’s actions are wholly inconsistent with a desire to
             maintain custody of the child.

In re S.R.G., 195 N.C. App. 79, 84-87, 671 S.E.2d 47, 51-53 (2009) (emphasis added

and citations and quotation marks omitted). In S.R.G., this Court compared the

following cases in its discussion of the ground of abandonment:

             Compare [In re Adoption of Searle, 82 N.C. App. 273, 276-
             77, 346 S.E.2d 511, 514 (1986)] (finding that the
             respondent’s single $500.00 support payment during the
             relevant six-month period did not preclude a finding of


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               willful abandonment) and In re Apa, 59 N.C. App. 322, 324,
               296 S.E.2d 811, 813 (1982) (“except for an abandoned
               attempt to negotiate visitation and support, respondent
               ‘made no other significant attempts to establish a
               relationship with the child or obtain rights of visitation
               with the child’ ”) with Bost v. Van Nortwick, 117 N.C. App.
               1, 19, 449 S.E.2d 911, 921 (1994) (finding no willful
               abandonment where respondent, during relevant six-
               month period, visited children at Christmas, attended
               three soccer games and told mother he wanted to arrange
               support payments)[, appeal dismissed, 340 N.C. 109, 458
               S.E.2d 183 (1995)].

S.R.G., 195 N.C. App. at 85-86, 671 S.E.2d at 52 (brackets omitted). The respondent

in S.R.G. “visited [the child] eleven times during the relevant time period[,]” “brought

appropriate toys and clothes for [the child] to those visits[,]” and “participate[d] in

one of the trial proceedings during the relevant time period.” Id. at 86, 671 S.E.2d at

52. This Court held that although the respondent’s “conduct of continuing substance

abuse and her failure to follow through with her case plan represent[ed] poor

parenting,” “her actions during the relevant six month period d[id] not demonstrate

a purposeful, deliberative and manifest willful determination to forego all parental

duties and relinquish all parental claims to [the child] pursuant to N.C. Gen. Stat. §

7B-1111(a)(7).” Id. at 87-88, 671 S.E.2d at 53.

       As discussed above, some of the factual portions of Findings of Fact 15 and 18

were not supported by clear, cogent, and convincing evidence.6                       The remaining



       6  Finding of Fact 18 is a mixed finding of fact and conclusion of law; we will address one other
factual portion of Finding of Fact 18 which was not addressed above.

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findings of fact address identification of the parties and jurisdictional facts (FOF 1-

4); reasons for petitioner’s move to Arizona in 2014 (FOF 5-6); circumstances at the

child’s birth (FOF 7); petitioner’s automobile accident, move to Virginia, and move to

Arizona in 2009 (FOF 8-11); petitioner’s return to North Carolina and respondent’s

visit with the child in March 2013 (FOF 12-13); respondent’s attempt to send

petitioner a money order in April 2013 (FOF 14); and the child’s current family

relationships and circumstances in Arizona (FOF 19-22). None of these address

factual grounds which could support a conclusion of abandonment and some of them

address events outside the relevant six-month period preceding the filing of the

petition. The only other findings of fact which could potentially support a conclusion

of abandonment are the following:

             16.    The Court specifically notes that there have been no
             cards or gifts from the respondent to the minor child since
             early 2013.

             17.     The Court further notes that prior to the petitioner’s
             filing of the instant action, the respondent made no filings
             that were initiated by him in this jurisdiction, or any other
             jurisdiction, concerning the custody of the minor child.

             18.   . . . Since April of 2013, the respondent has failed to
             provide or attempt to provide any financial support for the
             welfare and benefit of the minor child[.] . . .

      Even if these findings are correct, these findings alone are not sufficient to

support a conclusion of willful abandonment. We hold that these findings do not

demonstrate that respondent had a “purposeful, deliberative and manifest willful


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determination to forego all parental duties and relinquish all parental claims” to

Sally. See id., 671 S.E.2d at 53. Following S.R.G., we hold that the trial court erred

in concluding that respondent had willfully abandoned Sally under N.C. Gen. Stat. §

7B-1111(a)(7). See id., 671 S.E.2d at 53. Because abandonment was the sole ground

for termination found by the trial court, we hold that the trial court erred in

terminating respondent’s parental rights, and we reverse the order.

C.    Disposition

      Respondent also argues that the trial court erred in concluding that

terminating his parental rights was in Sally’s best interests without making the

written findings of fact as required by N.C. Gen. Stat. § 7B-1110(a) (2015). See In re

J.L.H., 224 N.C. App. 52, 59-60, 741 S.E.2d 333, 338 (2012) (holding that the trial

court erred in failing to make written findings regarding relevant criteria under N.C.

Gen. Stat. § 7B-1110(a)). A relevant factor is one that has “an impact on the trial

court’s decision[.]” In re D.H., 232 N.C. App. 217, 221-222, 753 S.E.2d 732, 735 (2014).

But because we have already determined that the trial court erred in concluding that

there were grounds to adjudicate the termination of parental rights under N.C. Gen.

Stat. § 7B-1111(a)(7), we need not address respondent’s argument regarding the lack

of findings as to disposition.

D.    Delay in Entry of Order

      In addition, we note that the adjudicatory and dispositional hearing took place



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on 26 January 2015, but the trial court did not enter the termination order until 23

July 2015, roughly six months later.      N.C. Gen. Stat. § 7B-1109(e) provides in

pertinent part:

             The adjudicatory order shall be reduced to writing, signed,
             and entered no later than 30 days following the completion
             of the termination of parental rights hearing. If the order
             is not entered within 30 days following completion of the
             hearing, the clerk of court for juvenile matters shall
             schedule a subsequent hearing at the first session of court
             scheduled for the hearing of juvenile matters following the
             30-day period to determine and explain the reason for the
             delay and to obtain any needed clarification as to the
             contents of the order. The order shall be entered within 10
             days of the subsequent hearing required by this subsection.

N.C. Gen. Stat. § 7B-1109(e) (2015) (emphasis added). Regarding the dispositional

stage, N.C. Gen. Stat. § 7B-1110(a) similarly provides in pertinent part:

                    Any order shall be reduced to writing, signed, and
             entered no later than 30 days following the completion of
             the termination of parental rights hearing. If the order is
             not entered within 30 days following completion of the
             hearing, the clerk of court for juvenile matters shall
             schedule a subsequent hearing at the first session of court
             scheduled for the hearing of juvenile matters following the
             30-day period to determine and explain the reason for the
             delay and to obtain any needed clarification as to the
             contents of the order. The order shall be entered within 10
             days of the subsequent hearing required by this subsection.

N.C. Gen. Stat. § 7B-1110(a) (emphasis added). Our Supreme Court explained that

in the event that a trial court fails to comply with the procedure described above, a

party may petition this Court for a writ of mandamus. In re T.H.T., 362 N.C. 446,



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456, 665 S.E.2d 54, 60-61 (2008). “[I]n almost all cases, delay is directly contrary to

the best interests of children, which is the ‘polar star’ of the North Carolina Juvenile

Code.” Id. at 450, 665 S.E.2d at 57. We note that the trial court violated N.C. Gen.

Stat. § 7B-1109(e) and N.C. Gen. Stat. § 7B-1110(a) by entering its termination order

roughly six months after the adjudicatory and dispositional hearing.

                                  IV.     Conclusion

      For the foregoing reasons, we reverse the trial court’s order terminating

respondent’s parental rights.

      REVERSED.

      Judges BRYANT and DIETZ concur.




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