               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
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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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      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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      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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             (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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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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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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