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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN RE: BARBARA MARIE DESIREE HOWELL, DOB: 6-30-1995, A Minor
Filed: 16 December 2003
1. Trials--poor quality of audio recording--motion for new trial
Respondent mother is not entitled to a new trial in a termination of parental rights case
based on the poor quality of the audio recording of portions of the termination hearing, because
respondent failed to demonstrate any specific affirmative showing that error was committed in
the unintelligible portions of the recording in order to overcome the presumption of regularity in
2. Appeal and Error--preservation of issues--failure to object--waiver
Although respondent mother contends the trial court did not have jurisdiction over her
since she alleges that no summons was issued to or served on her in regard to the petition to
terminate her parental rights as required by N.C.G.S. §§ 7B-1106 and 7B-1102, this assignment
of error is waived because: (1) respondent failed to object, by motion or otherwise, under
N.C.G.S. § 1A-1, Rule 12 to either lack of personal jurisdiction over her or insufficiency of
process or service of process at any point prior to or during the termination hearing;(2)
respondent made a general appearance at the adjudicatory hearing and at the dispositional
hearing; (3) there was no evidence that respondent raised these defenses in her answer or pre-
answer motion; and (4) respondent agreed at the termination hearing that service of process was
3. Termination of Parental Rights--best interests of child--abuse of discretion standard
The trial court did not abuse its discretion in a termination of parental rights case by
determining that the minor child's best interests would be served by terminating respondent
mother's parental rights and allowing the minor child to be adopted by the foster parents who had
cared for her since three weeks after her birth, because: (1) respondent willfully left the minor
child in foster care for more than twelve months without showing that reasonable progress had
been made in correcting the conditions which led to the child's removal; (2) respondent failed to
provide any verification of required substance abuse treatment; (3) respondent failed to fulfill the
requirements of gaining employment and submitting to random alcohol and drug screens; (4)
respondent failed to maintain independent and stable housing and failed to assist in determining
the child's paternity; (5) respondent was provided with forty-one visitation opportunities and
only visited thirteen times where she often arrived late, left early, and failed to engage in
activities with the child; (6) respondent never provided proof that she attended required anger
management treatment; (7) respondent never provided any financial support during the entire six
years that the child remained in foster care; and (8) respondent continued to consume alcohol
until nearly five weeks prior to the termination proceeding and consumed alcohol between court
sessions during the termination proceeding.
Appeal by respondent from judgment entered 13 June 2002 by
Judge James A. Jackson in Gaston County District Court. Heard in
the Court of Appeals 12 November 2003.
David A. Perez, for petitioner-appellee Gaston County
Department of Social Services.
Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for
respondent-appellant Kimberly Nicole Howell Jackson.
Kimberly Nicole Howell Jackson (respondent) appeals from a
judgment that terminated her parental rights. We affirm.
On 25 July 1995, the Gaston County Department of Social
Services (GCDSS) filed a juvenile petition alleging that
respondent's minor child, Barbara Marie Desiree Howell (Barbara),
was a neglected child. GCDSS assumed legal custody of Barbara. An
adjudication hearing was held on 25 September 1995. In its
adjudication order, the trial court found Barbara to be neglected
within the meaning of N.C. Gen. Stat. § 7A-517(21), in that Barbara
did not receive proper care, supervision, or discipline from
respondent. The trial court further found that Barbara tested
positive for cocaine at birth and that respondent was homeless, a
substance abuser, and exhibited incoherent and bizarre behavior.
The trial court found respondent had a history of mental health
treatments. On its own motion, the court also found Barbara to be
dependent within the meaning of N.C. Gen. Stat. § 7A-517(13).
A dispositional hearing was held on 6 November 1995.
Respondent was ordered to complete certain requirements to regain
custody of Barbara. These requirements included: (1) obtaining a
substance abuse evaluation, (2) receiving anger managementtreatment, (3) providing proper care and supervision for Barbara,
and (4) cooperating in establishing paternity of Barbara.
Barbara remained in the legal and physical custody of GCDSS
for over six years until the judgment terminating respondent's
parental rights was filed on 13 June 2002. Respondent testified
that she no longer used illegal drugs, that she continued to drink,
but that her drinking was not a problem even though she was a
Prior to the termination hearing, respondent had never
provided GCDSS with any proof that she had participated in a
substance abuse treatment program or an anger management program as
ordered. Respondent was able to work and married to a man who had
earned income of up to $5,000.00 per month, but never provided any
financial assistance to Barbara during her six years in foster
From 8 April 1999 until visitation was ceased on 28 November
2000, respondent was afforded forty-one visitation opportunities
with Barbara. Respondent attended only thirteen of these visits.
Respondent arrived late and left early during some of these visits
and involved herself in one activity while Barbara was involved in
another. Respondent attributes her failure to attend more
visitations and leaving early to having more than six social
workers assigned to her case. Lack of transportation from her home
in Cleveland County to Gaston County also caused communication
difficulties and problems scheduling visitation.
Respondent's son, Barbara's half-brother, was twice-removed
from but returned to respondent's care. Her son was removed inAugust of 2000 after a report was filed with the Cleveland County
Department of Social Services (CCDSS) that respondent and her son
were riding in a vehicle where the driver was charged with DWI and
where respondent was also very intoxicated. Respondent's son was
again removed from her care after CCDSS received a report that
respondent had threatened a farm worker with a knife after
CCDSS, however, also reported that respondent had maintained
her supervised visitation schedule with her son and that she had
enrolled and completed a forty-hour intermediate outpatient
treatment program. CCDSS also reported that respondent completed
an anger management program and that alcohol was never detected in
over ninety in-home contacts.
On 21 October 1999, a psychological evaluation of respondent
was ordered. Dr. William H. Varley (Dr. Varley) concluded that
Barbara had been under the foster mother's care since she was
three-weeks-old. Dr. Varley testified that Barbara had attached
and bonded to her foster mother. Dr. Varley also testified
respondent's long-term instability and substance abuse had
compromised her parenting capacity. The trial court found it to be
in Barbara's best interests to terminate respondent's parental
rights. Respondent appeals.
The issues are whether: (1) respondent should be granted a
new trial due to the poor quality of the audio recording of
portions of the termination hearing; (2) the trial court had
jurisdiction over respondent or the termination hearing because nosummons was issued to respondent in regards to the petition to
terminate her parental rights as required by N.C. Gen. Stat. § 7B-
1106; (3) the trial court had jurisdiction over respondent or the
termination hearing as respondent was not served with the petition
to terminate her parental rights pursuant to N.C. Gen. Stat. § 7B-
1102; and (4) the trial court abused its discretion in determining
that Barbara's best interests would be served by terminating
respondent's parental rights.
III. Quality of Audio Recording
 Respondent contends that she should be granted a new trial
due to the poor quality of portions of the audio recordings at the
termination hearing. We disagree.
There is a presumption of regularity in a trial. State v.
Sanders, 280 N.C. 67, 72, 185 S.E.2d 137, 140 (1971). In order to
overcome this presumption, it is necessary that matters which
constitute material and reversible error appear in the record on
Before a new trial should be ordered,
certainly enough ought to be alleged to show
that error was probably committed. If defense
counsel even suspect[s] [sic] error in the
charge, they should set out in the record what
the error is. If the solicitor does not
object, theirs becomes the case on appeal. If
he does object, the court could then settle
the dispute. The appellate court would then
have something tangible upon which to
predicate a judgment. The material parts of a
record proper do not include either the
testimony of the witnesses or the charge of
In State v. Neely, this Court considered an assignment of
error in which a complete stenographic trial transcript waslacking. 26 N.C. App. 707, 708, 217 S.E.2d 94, 96 (1975). A
partial transcript was prepared. Id. The direct examination of at
least two witnesses, in addition to defendant's testimony, were not
transcribed. Id. The defendant appealed and alleged errors which
may have been committed in portions of the lost testimony. Id.
This Court emphasized the presumption of regularity in a trial and
indicated that specific error should have been set forth by the
defendant in the record. Id. We concluded that mere allegations
that error may have occurred was not sufficient for a reversal.
Id. at 709, 217 S.E.2d at 97. We stated that [a]bsent some
specific, affirmative showing by the defendant that error was
committed, we will uphold the conviction because of the presumption
of regularity in a trial. Id.
Respondent sets out numerous portions of the transcript of the
termination hearing that are unintelligible, but cites no specific
instances of alleged reversible error committed by the trial court
in these omitted portions. Respondent argues these portions are
unintelligible and that a new trial should be granted. Respondent
has failed to demonstrate any specific, affirmative showing that
error was committed in the unintelligible portions of the
transcript to overcome the presumption of regularity. Id.
Respondent's assignment of error is overruled.
IV. Failure to Issue Summons and Serve Petition
 Respondent contends that the trial court had no
jurisdiction over her or the termination hearing. She asserts no
summons was issued in the petition to terminate her parental rights
and she was not served with the petition to terminate parentalrights. As issues three and four are similar, we address them
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. N.C. Gen. Stat. § 1A-1, Rule
12(h) (2001). Failure to do so waives these defenses. Id. Among
the defenses that must be raised are jurisdiction over the person,
insufficiency of process, and insufficiency of service of process.
Id. 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. Harmon v.
Harmon, 245 N.C. 83, 86, 95 S.E.2d 355, 358-359 (1956).
Respondent failed to object, by motion or otherwise under Rule
12 of the North Carolina Rules of Civil Procedure, to either a lack
of personal jurisdiction over her or insufficiency of process or
service of process at any point prior to or during the termination
hearing. Respondent made a general appearance at the adjudicatory
hearing and at the dispositional hearing. Respondent waived these
issues as defenses. The trial court gained jurisdiction through
respondent's waiver. Respondent appeared in court on 28 August
1995, signed an affidavit of indigency, and requested that counsel
be appointed to her. Respondent was represented by counsel at the
adjudicatory hearing on 25 September 1995. Both respondent and her
counsel were present at the dispositional hearing on 6 November
Respondent filed and served upon petitioner in the
dispositional hearing an Answer to Petition to Terminate ParentalRights, which was verified by respondent. Respondent failed to
assert the defenses of lack of personal jurisdiction and
insufficiency of process or service of process. There is no
evidence that respondent raised these defenses in a pre-answer
motion. These issues were raised for the first time by
respondent's counsel on appeal. In Harmon, our Supreme Court
stated that [t]he filing of an answer is equivalent to a general
appearance, and a general appearance waives all defects and
irregularities in the process and gives the court jurisdiction of
the answering party even though there may have been no service of
summons. Id. at 86, 95 S.E.2d at 359.
Respondent agreed at the termination hearing that service of
process was proper. Based on this agreement, the trial court
entered a ruling that the parties agree that service was properly
executed pursuant to that petition [to terminate parental rights]
. . . .
Respondent failed to raise the defenses of lack of personal
jurisdiction, insufficiency of process, and insufficiency of
service of process in either her answer or in a pre-answer motion
in the termination proceeding and waived these defenses. N.C. Gen.
Stat. § 1A-1, Rule 12(h) (2001). Respondent made a general
appearance in the termination hearing and prior hearings and filed
an answer to the termination petition. The trial court properly
exercised jurisdiction over respondent. Harmon, 245 N.C. at 86, 95
S.E.2d at 359. Respondent's assignments of error are overruled.
V. Abuse of Discretion in Determining Best Interests
 Respondent contends that the trial court abused its
discretion in determining at the dispositional stage that Barbara's
best interests would be served by terminating respondent's parental
rights. We disagree.
A termination of parental rights proceeding is a two-stage
process. At the adjudication stage, the trial court determines
whether grounds exist to warrant a termination of parental rights.
N.C. Gen. Stat. § 7B-1111 sets forth the grounds upon which
parental rights can be terminated. A finding of any one of the
separately enumerated grounds under N.C. Gen. Stat. § 7B-1111 that
is supported by clear, cogent, and convincing evidence is
sufficient to terminate. In re Taylor, 97 N.C. App. 57, 64, 387
S.E.2d 230, 233-234 (1990). Once the court determines that one
statutory ground exists, it moves to the dispositional stage. At
the dispositional stage, the court is given discretion to terminate
parental rights consistent with the best interests of the child.
In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984).
After review of all the evidence, the trial court decided that
it was in Barbara's best interests to terminate respondent's
parental rights. Barbara had been in the custody of GCDSS and in
foster care since she was three weeks and five days old and had
remained there over six years. The trial court concluded that
respondent had willfully left Barbara in foster care for more than
twelve months without respondent showing to the satisfaction of the
court that reasonable progress had been made in correcting the
conditions which led to Barbara's removal. Respondent was required
to obtain substance abuse treatment, but failed to provide GCDSSwith any verification of treatment. Respondent was required to be
employed and to submit to random alcohol and drug screens, but
failed to fulfill these requirements. Respondent also failed to
maintain independent and stable housing and failed to assist in
determining the paternity of Barbara.
On 13 May 1997, an order amended the long-term goal of
reunification to adoption based on respondent's failure to fulfill
the requirements for return of Barbara to her custody. GCDSS
continued to deliver services to respondent with the purpose of
reunifying respondent and Barbara. Respondent was provided forty-
one visitation opportunities and only visited thirteen times, where
she often arrived late, left early, and failed to engage in
activities with Barbara. Respondent never provided GCDSS with
proof that she attended required anger management treatment or
substance abuse treatment. Respondent never provided any financial
assistance during the entire six years that Barbara remained in
foster care. Respondent continued to consume alcohol until nearly
five weeks prior to the termination proceeding and consumed alcohol
between court sessions during the termination proceeding.
This Court, in In re Tate, stated,
[t]he decision to terminate parental rights is
often a heart-wrenching one for the court. On
one hand, the court considers the interests of
the parents who, despite shortcomings, have
often formed a bond with his or her child. On
the other hand, the court must consider the
best interests of the child.
67 N.C. App. 89, 96, 312 S.E.2d 535, 540 (1984). Any one of the
above grounds found by the trial court is supported by clear,
cogent, and convincing evidence and is sufficient to terminate parental rights. The trial court did not abuse its discretion in
deciding Barbara's best interests would be served by terminating
respondent's parental rights and allowing Barbara to be adopted by
the foster parents who had cared for her since three weeks after
her birth. In re Taylor, 97 N.C. App. at 64, 387 S.E.2d at 233-
234. Respondent's assignment of error is overruled.
Respondent failed to show that reversible error was committed
by the trial court in the unintelligible portions of the audio
recording of the dispositional hearing. Respondent waived her
right to assert the defenses of lack of personal jurisdiction,
insufficiency of process, and insufficiency of service of process.
Respondent failed to show that the trial court abused its
discretion in determining that Barbara's best interests would be
served by terminating respondent's parental rights. The order of
the trial court is affirmed.
Judges MCCULLOUGH and BRYANT concur.
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