1. Jurisdiction_defense_not raised in answer_waived
The respondent in a termination of parental rights action waived the defense of no
personal jurisdiction by not raising it in her response and answers.
2. Termination of Parental Rights_diligent efforts requirement_deleted
The trial court did not err by determining that respondent's parental rights should be
terminated without finding that petitioner DSS made diligent efforts to reunite the family.
N.C.G.S. § 7A-289.32(3), on which respondent relies, has been replaced by N.C.G.S. § 7B-
1111(a)(2), which deleted the diligent efforts requirement.
Deane, Williams and Deane, by Jason T. Deane, for petitioner-
appellee.
M. Victoria Jayne for respondent-appellant.
McGEE, Judge.
The Richmond County Department of Social Services (petitioner)
filed petitions on 24 August 2000 alleging that J.W.J., T.L.J., and
D.M.J. (collectively, the children) were abused and neglected by
their paternal grandparents, who were the children's caretakers.
Petitioner assumed immediate physical custody of the children on 24
August 2000. The trial court stated in an order entered 8 January
2001 that the paternal "grandparents/caretakers/[r]espondents and
the Department of Social Services [had] reached a settlement and
compromise of the issues involving neglect and abuse between them,"
which the trial court found to be "fair and adequate to protect theinterests of the minor children." The
grandparents/caretakers/respondents relinquished their custodial
rights to the children that had been previously granted to them by
the trial court on 13 May 1996, and the allegations of abuse and
neglect as to the respondents were dismissed with prejudice. The
children's natural father stipulated the children were presently
dependent juveniles as defined in N.C. Gen. Stat. § 7B-101(9), in
that the minor children were in need of assistance and placement
because they had no parent, guardian or custodian able to provide
for their proper care and supervision because of their special
needs at that time. The trial court held it was "contrary to the
welfare of the minor children" that their legal custody be returned
to their parents or grandparents and the trial court awarded
temporary legal custody of the children to petitioner.
The legal custody of the children was ordered to remain with
petitioner "with full placement and medical authority" in an order
dated 19 September 2001. In orders dated 11 January 2002 and 22
February 2002, legal and physical custody of the children was
ordered to remain with petitioner.
Petitioner filed petitions on 12 March 2002 for the
termination of the parental rights of C.J.P. (respondent) with
respect to the children. Subsequent to these petitions, in an
order filed 21 May 2002, the trial court noted that the petitions
to terminate respondent's parental rights had been filed and
ordered that legal and physical custody of the children remain with
petitioner. In an order dated 25 July 2002, the trial court again
ordered that legal custody of the children remain with petitioner. Respondent filed answers to the petitions for termination of
parental rights on 29 August 2002. In an order filed 5 September
2002, the trial court again ordered that legal custody of the
children remain with petitioner. A hearing was held on 26
November 2002 and the trial court terminated respondent's parental
rights to the children. Respondent appeals.
The evidence presented to the trial court tended to show that
J.W.J. was born on 30 July 1986, T.L.J. was born on 14 February
1989, and D.M.J. was born on 9 September 1992 to respondent and
E.J. D.M.J. was placed with his paternal grandparents at birth and
has never lived with respondent. Respondent testified that she
took J.W.J. and T.L.J. to California when they were about ages four
and two, respectively. Respondent further testified that she,
J.W.J., and T.L.J. returned to North Carolina after being in
California for about eight years. Respondent also testified that
she subsequently returned to California without the children
because she was told by the Sheriff's Department and a social
worker that she could not take the children with her.
[1] Respondent first argues that her constitutional and due
process rights were violated by lack of notice and lack of
jurisdiction over her in this case. Respondent asserts that prior
to the November 2002 hearing for the termination of her parental
rights, she had last been in North Carolina in 1997. Prior to
coming to North Carolina in 1997, respondent testified that she
lived in California with her two older children. As stated above,
respondent testified that at some point around 1997, she came to
North Carolina but that she returned to California because she wastold by the Sheriff's Department and a social worker that she had
to leave North Carolina. Respondent testified she was told she
could not take her children with her to California. She testified
that although she wanted to take the children with her, she
returned to California alone.
Respondent stresses in her argument that she suffers from
schizophrenia and that petitioner made no effort to contact her and
made no effort to assess if she was capable of caring for her
children. Respondent further asserts that petitioner failed to
provide her with notice of any of the review hearings prior to the
termination hearing. Upon receipt of the petition to terminate her
parental rights, respondent wrote to the Richmond County Clerk of
Court in an attempt to explain her situation. She provided her
contact information and expressed her desire to see her children
again and to not "lose all contact" with them.
Respondent cites several cases where this Court has found
contacts to be insufficient to support the exercise of personal
jurisdiction in a termination of parental rights case. See In re
Finnican, 104 N.C. App. 157, 408 S.E.2d 742 (1991), disc. review
denied and cert. denied, 330 N.C. 612, 413 S.E.2d 800, overruled in
part on other grounds by Bryson v. Sullivan, 330 N.C. 644, 663, 412
S.E.2d 327, 337 (1992); In re Trueman, 99 N.C. App. 579, 393 S.E.2d
569 (1990). While respondent is correct in her assertion that
minimum contacts must exist in order for a trial court to exercise
jurisdiction, respondent's argument fails nonetheless.
Under Rule 12(h)(1) of the North Carolina Rules of Civil
Procedure, the "defense of lack of jurisdiction over the person. . . is waived . . . if it is neither made by motion under this
rule nor included in a responsive pleading or an amendment thereof
permitted by Rule 15(a) to be made as a matter of course." N.C.
Gen. Stat. § 1A-1, Rule 12(h)(1) (2003). In this case, respondent
mailed a handwritten response to the petitions to terminate her
parental rights to the Richmond County Clerk of Court. Further,
she filed formal answers to the petitions on 29 August 2002. In
her response and answers, respondent failed to raise the defense
that the trial court lacked personal jurisdiction over her.
Accordingly, respondent has waived this defense pursuant to Rule
12(h)(1). See Jackson Co. v. Swayney, 75 N.C. App. 629, 630, 331
S.E.2d 145, 146 (1985) ("Defendant waived his right to contest lack
of personal jurisdiction when he filed his answer without raising
this defense."), aff'd in part and rev'd in part on other grounds,
319 N.C. 52, 352 S.E.2d 413, cert. denied, 484 U.S. 826, 98 L. Ed.
2d 54 (1987). See also Stern v. Stern, 89 N.C. App. 689, 693, 367
S.E.2d 7, 9 (1988) (holding that because the defendant filed his
answer without contesting personal jurisdiction, he waived his
right to challenge the trial court's exercise of personal
jurisdiction over him); Shores v. Shores, 91 N.C. App. 435, 437,
371 S.E.2d 747, 749 (1988) (holding that the defendant waived his
right to raise lack of personal jurisdiction as a defense "because
he failed to raise it in his answer or motions but presents it for
the first time on appeal"). Accordingly, we find respondent's
first argument to be without merit.
[2] Respondent next argues that the trial court erred in
determining that the best interests of the children would be servedby terminating her parental rights. Respondent asserts that the
trial court erred in finding that termination was in the best
interests of the children without making any findings or
conclusions of law that petitioner made any diligent efforts to
work with respondent or to reunite the family before recommending
termination. For the reasons stated below, we find this argument
unpersuasive.
"There is a two-step process in a termination of parental
rights proceeding." In re Blackburn, 142 N.C. App. 607, 610, 543
S.E.2d 906, 908 (2001). "At the adjudicatory stage, the petitioner
has the burden of establishing by clear and convincing evidence
that at least one of the statutory grounds listed in N.C. Gen.
Stat. § 7B-1111 exists." In re Faircloth, 153 N.C. App. 565, 575,
571 S.E.2d 65, 72 (2002). If a ground for termination is
established, the trial court must then hold a dispositional hearing
to consider the best interests of the child. Id. "Unless the
trial court determines that the best interests of the child require
otherwise, the termination order shall be issued." Id.
In the case before our Court, respondent admits that the trial
court found grounds for termination under N.C. Gen. Stat. § 7B-1111
(2003). However, respondent disputes the trial court's decision
that it was in the best interests of the children to terminate her
parental rights. Respondent relies on In re Harris, 87 N.C. App.
179, 360 S.E.2d 485 (1987) for her argument concerning the trial
court's failure to make findings or conclusions that petitioner
made diligent efforts to work with respondent or to reunite the
family. We note that "G.S. 7A-289.32(3) [1995], the applicabletermination statute when Harris was decided, included a requirement
that DSS undertake 'diligent efforts' to 'encourage the parent to
strengthen the parental relationship to the child or to make and
follow through with constructive planning for the future of the
child.'" In re Frasher, 147 N.C. App. 513, 516-17, 555 S.E.2d 379,
382 (2001) (quoting N.C. Gen. Stat. § 7A-289.32(3)). However, this
statute was replaced by N.C. Gen. Stat. § 7B-1111(a)(2), effective
1 July 1999, which "deleted the 'diligent efforts' requirement,
indicating an intent by the legislature to eliminate the
requirement that DSS provide services to a parent before a
termination of parental rights can occur." Frasher, 147 N.C. App.
at 517, 555 S.E.2d at 382. See also In re Pierce, 146 N.C. App.
641, 643-44, 554 S.E.2d 25, 27 (2001) (rejecting the respondent's
argument that DSS was required "to prove that it made diligent
efforts to encourage respondent to strengthen her parental
relationship[.]" Our Court rejected this argument because it was
based on the statutory provision, N.C. Gen. Stat. § 7A-289.32(3),
which was no longer applicable.), aff'd, 356 N.C. 68, 565 S.E.2d 81
(2002). Similarly, we overrule respondent's argument based on the
holding in Frasher that "a determination that DSS made diligent
efforts to provide services to a parent is no longer a condition
precedent to terminating parental rights." Frasher, 147 N.C. App.
at 517, 555 S.E.2d at 382.
Affirmed.
Judges McCULLOUGH and ELMORE concur.
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