An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-346

NORTH CAROLINA COURT OF APPEALS

Filed: 3 February 2004

IN RE: ALESCIA ELIZABETH BROWN,        
     AMANDA L. BROWN,                Davie County
     CHRISTIAN J. BROWN,            Nos. 99 J 3
     DAMIAN V. POWELL and                   00 J 56    
     ASHLEY L. BRADSHAW,                  00 J 58    
                                 00 J 59                      Minor Children.             00 J 60         
                                     

    Appeal by respondent-parents from order entered 27 February 2002 by Judge Martin J. Gottholm in Davie County District Court. Heard in the Court of Appeals 8 October 2003.

    Martin & Van Hoy, L.L.P., by Sally W. Smith, for petitioner- appellee Davie County Department of Social Services.

    Hosford & Hosford, P.L.L.C., by Sofie W. Hosford for respondent-appellant, father.

    Hall & Hall, P.C., by Susan P. Hall, for respondent-appellant, mother.


    Lori Hamilton-Dewitt as Guardian Ad Litem.

    ELMORE, Judge.

    Lisa Brown (respondent-mother) and Dennis Powell (respondent- father) (collectively, respondents) separately appeal from a review order which, inter alia, removed their son Damian V. Powell (Damian) from respondents' home, granted physical custody of Damian to petitioner Davie County Department of Social Services (DSS), and established a permanent care plan for Damian of reunification with respondent-parents with a concurrent plan of termination ofparental rights and adoption. For the reasons discussed herein, we affirm the trial court's order.
Background
    Prior to 3 January 2001, respondent-mother and her boyfriend, respondent-father, maintained a household which included their son Damian, born 7 November 1995, as well as respondent-mother's four other children: Ashley L. Bradshaw (Ashley), born 8 August 1986; Alescia E. Brown (Alescia), born 11 December 1989; Christian J. Brown (C.J.), born 30 August 1992; and Amanda L. Brown (Amanda), born 16 November 1993. Of these five juveniles, respondent-father was only the biological father of Damian. The family moved to Davie County in 1997 and DSS began a long history of intensive involvement with them the following year.
    On 22 September 2000, following an incident in which respondent-mother told a social worker that she wanted Alescia out of the house because she despised Alescia, could not stand to look at her, and feared that she might kill Alescia, DSS filed a juvenile petition alleging that Alescia was neglected and dependent. DSS thereafter received non-secured custody of Alescia. On 26 September 2000, DSS filed juvenile petitions alleging that Ashley, C.J., Amanda, and Damian were each similarly neglected and dependent. On 6 October 2000, DSS filed amended juvenile petitions with respect to all five juveniles, adding additional allegations that respondent-father: (1) resides in the home and is a primary care-giver; (2) uses inappropriate discipline, particularly on the younger children; and (3) screams and curses at the juvenilesoften. Each amended petition also alleged that respondent-mother's brother was allowed to stay in the home around the juveniles, “despite allegations and/or suspicions that he sexually molested the respondent mother and/or one or more of the children.”     By order filed on or about 24 January 2001, the trial court adjudicated all five juveniles neglected. Neighbors testified at the adjudication hearing that they had witnessed the juveniles being kicked, slapped, and beaten with sticks by respondent-father. Further testimony indicated that respondents had subjected the juveniles to other inappropriate forms of discipline, including depriving the juveniles of drinks on hot summer days, locking them out of the house, and excessive corporal punishment. DSS presented evidence that the juveniles have a variety of special needs, including attention deficit hyperactive disorder (ADHD) and depression, which were not being adequately addressed by respondents. Following a disposition hearing on 21 February 2001, legal custody of all five juveniles was continued in DSS, with DSS also receiving physical custody and placement authority of Alescia and Damian, and respondents were ordered to fully cooperate with DSS and make progress with the Family Services Case Plan. DSS thereafter allowed Damian to remain in respondents' home with Ashley, C.J., and Amanda, while Alescia remained in foster care.
    In a review order entered 29 August 2001, the trial court found that respondents' home had recently burned down, and the family had since been living at a motel. Ashley had been placed at Nazareth Children's Home since asking in June 2001 to be removedfrom respondents' home. C.J. had been placed at Nazareth at respondents' request in May 2001, and Amanda was removed from respondents' home and placed at Nazareth by the 29 August 2001 review order, leaving Damian as the only juvenile still residing with respondents. Damian had been hospitalized at Amos Cottage in April 2001 for therapeutic analysis and was returned to respondents' home in June 2001. The 29 August 2001 review order found that Damian had repeatedly been acting out at school by pushing, spitting on, throwing food at, and pretending to choke his classmates, and that Damian had several past instances of sexual acting out. By its 29 August 2001 order, the trial court also found that respondent-mother had been diagnosed as suffering from severe depression and post-traumatic stress disorder, and that she had failed to follow through on her court-ordered therapy. The primary plan for each juvenile continued to be reunification with respondents.
    At a further review hearing on 17 October 2001, evidence was presented that respondent-father had violated prior court orders by failing to have contact with DSS since the previous review hearing, failing to enter into a new Family Services Case Plan, and changing Damian's school without notifying DSS. Damian continued to act out at his new school, and the DSS case worker stated that Damian told her that respondent-father had threatened to whip him if Damian talked to her. In its order following the 17 October 2001 review hearing, the trial court found respondents to be under severe financial distress. The trial court further found that respondentshave acknowledged subjecting the juveniles to improper discipline in the past, but that respondents had completed parenting classes and now had better insight into appropriate discipline methods. At this time the trial court ordered the permanent plan with respect to Ashley and Alescia changed to adoption or legal custody with a relative. By order entered 24 December 2001, the permanent plan for Ashley and Alescia was changed to custody with a relative or court-approved caretaker, with a secondary plan of adoption.
    On 27 February 2002, following a review hearing held on 13 February 2002, the trial court entered the review order (order) from which respondents now appeal. At the time of the hearing, Damian was the only one of the five juveniles still residing in respondents' home. The order, which incorporated by reference comprehensive summaries prepared for the review hearing by both DSS and the guardian ad litem, contained the following pertinent findings of fact:
    4.    The record is replete of [sic] instances demonstrating the respondent parents' failure to comply with the orders of this court and the Family Services Case Plan.

    5.    The respondent parents continue today to accept no responsibility for the psychological and physical harm that has been inflicted by them upon the children.

    . . . .

    9.    [DSS] has made reasonable efforts towards reuniting . . . Damian with his respondent parents as are set forth in the court summary. . . .

    10.    Continued placement of Damian in the home is contrary to his welfare and best interest.

    . . . .
The order also contained the following pertinent conclusion of law:
    5.    The best interest of Damian would be served by his being placed immediately in foster care. The permanent plan of care for Damian should be reunification with his respondent parents with termination of parental rights and adoption as a concurrent plan.
    . . . .

Finally, based upon the foregoing findings of fact and conclusions of law, the trial court ordered as follows:
    2.    [DSS] shall immediately take custody of Damian and he shall be placed in foster care.

    3.    The permanent plan of care for Ashley . . . shall be placement with a relative or other court approved caretaker with a secondary plan of adoption. The permanent plan of care for Alescia . . . shall continue to be custody with a relative or court approved caretaker with a secondary plan of adoption. The permanent plan of care for Amanda . . . shall be termination of parental rights and adoption with a secondary plan of custody with a relative or court approved caretaker. The permanent plan of care for [C.J.] shall be custody with a relative with a concurrent plan of termination of parental rights and adoption.

    5 [sic].    The permanent plan of care for Damian . . . shall be, at this time, reunification with the respondent parents with a concurrent plan of termination of parental rights and adoption.

    . . . .

    From this order, respondent-mother and respondent-father timely filed separate notices of appeal. Thereafter, during the pendency of this appeal, respondent-mother voluntarily relinquished all of her rights with respect to Ashley, Alescia, C.J., and Amanda by executing separate “Relinquishment of Minor for Adoption by Parent or Guardian” documents for each child on 13 December 2002. However, neither respondent-mother nor respondent-father has relinquished Damian for adoption.
Respondent-Mother's Appeal
    Respondent-mother's relinquishment of her rights to Ashley, Alescia, C.J., and Amanda during the pendency of her appeal has rendered the issues she raised regarding these four juveniles moot, leaving for our review only those portions of the order removing Damian from respondents' home and entering a permanent plan for Damian of reunification with respondents with a concurrent plan of termination of parental rights and adoption. We therefore address the issues raised by respondent-mother's contentions only as they relate to Damian.
    By her first assignment of error, respondent-mother contends the transcript of the 13 February 2002 review hearing, which was derived solely from transcription of an audiotape of the hearing, was of such poor quality as to materially compromise her constitutional and due process rights to pursue her appeal. Respondent-mother specifically argues the transcript was so “riddled with misspelled words, incomplete sentences, and unintelligible phrases” that meaningful appellate review was impossible. We disagree.
    First, we note that N.C. Gen. Stat. § 7B-806 requires only that “[a]ll adjudicatory and dispositional hearings shall be recorded by stenographic notes or by electronic or mechanical means. . . . The court may order that other hearings be recorded.” N.C. Gen. Stat. § 7B-806 (2003) (emphasis added). The 13 February2002 hearing was neither an adjudicatory nor dispositional hearing, and there is no indication in the record that the trial court ordered the hearing to be recorded. Thus, the hearing was recorded by audiotape even though it was not required by law to be; had it not been recorded, our review would have proceeded upon the record and briefs alone. Because the transcript here merely supplemented the record, we conclude that it could not and did not violate or prejudice respondent-mother's right to pursue her appeal. Moreover, after reviewing the portions of the transcript cited in respondent-mother's brief as being “unintelligible,” we conclude that these imperfections do not render the transcript so inaccurate as to preclude meaningful review by this Court. In re Hartsock, __ N.C. App. __, __, 580 S.E.2d 395, 399 (2003). This assignment of error is without merit.
    By her second assignment of error, respondent-mother argues that because Damian's court file contained no evidence that a summons was issued or that either the original or amended juvenile petitions alleging Damian to be neglected and dependent had been served upon her, the trial court failed to obtain subject matter or personal jurisdiction over her in the juvenile proceedings regarding Damian. We do not agree.
    Our Juvenile Code vests the district courts of North Carolina with “exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent.” N.C. Gen. Stat. § 7B-200(a) (2003). The court obtains jurisdiction through the issuance and service of process. In re Mitchell, 126N.C. App. 432, 433, 485 S.E.2d 623, 624 (1997); see also N.C. Gen. Stat. § 7B-401 (2003). Where no summons is issued the court acquires jurisdiction over neither the parties to, nor the subject matter of, the action. Id.
    In the present case, DSS concedes that Damian's juvenile court file at the Davie County Clerk of Superior Court's office does not contain the original summons showing proof of service of the juvenile petition upon respondent-mother. However, the record on appeal does contain a summons issued 26 September 2000, the date the original juvenile petition concerning Damian was filed, along with an accompanying return of service indicating the summons and juvenile petition concerning Damian were personally served upon respondent-father on 27 September 2000. Our appellate courts have previously held that in order to have a child declared dependent, it is not necessary to serve the petition on both parents, but only on one of them. In re Yow, 40 N.C. App. 688, 691, 253 S.E.2d 647, 649, disc. review denied, 297 N.C. 610, 257 S.E.2d 223 (1979); In the Matter of Arends, 88 N.C. App. 550, 554-55, 364 S.E.2d 169, 172 (1988) (holding the court acquired jurisdiction over the subject matter, determination of neglect and dependency, when the summons was served only upon the mother and not the father). Because the record indicates respondent-father was served with the summons and juvenile petition alleging that Damian was neglected and dependent, we hold that the trial court here properly obtained subject matter jurisdiction. We further conclude that the trial court obtained personal jurisdiction over respondent-mother when she appeared incourt on 3 January 2001 at the adjudication hearing.   (See footnote 1)  In re Poole, 357 N.C. 151, 579 S.E.2d 248 (2003) (per curiam).
    Although we conclude that the trial court here obtained jurisdiction over the subject matter as well as personal jurisdiction over respondent-mother, we have previously held that “the giving of notice in cases involving child custody is subject to due process requirements.” Yow, 40 N.C. App. at 692, 253 S.E.2d at 650. To determine whether the apparent failure to serve respondent-mother with the juvenile petition alleging Damian to be neglected and dependent unreasonably deprived respondent-mother of her due process rights, we must balance respondent-mother's right to custody of her child with the State's interest in the welfare of children, as well as Damian's right to be protected by the State from abuse or neglect. Arends, 88 N.C. App. at 555, 364 S.E.2d at 172. Following the adjudication hearing, the trial court found by clear, cogent, and convincing evidence that Damian and his four half-siblings had been subjected to inappropriate discipline and extensive corporal punishment by respondents, and that the juveniles had special needs, including Damian's hyperactivity, for which respondents had failed to procure physician-recommended medication and therapy. The trial court also found that respondent-mother told the DSS social worker that she couldn'tstand Alescia and was afraid she would get upset and kill Alescia. The trial court adjudicated Damian and his four half-siblings neglected, and at the subsequent dispositional hearing ordered legal custody of all five juveniles continued in DSS, with DSS also receiving physical custody and placement authority of Alescia and Damian, although DSS thereafter allowed Damian to remain in respondents' home with Ashley, C.J., and Amanda, while Alescia remained in foster care. The custody determinations with regards to Damian and his four half-siblings were regularly reviewed by the trial court pursuant to N.C. Gen. Stat. § 7B-906 (2003), with Damian remaining in respondents' home at all times, except while hospitalized at Amos Cottage from April 2001 through June 2001, until the 27 February 2002 order giving rise to this appeal.
    Balancing the interest of the State in Damian's welfare with that of the respondent-mother's right that she not be arbitrarily deprived of custody of her child, and considering Damian's right of protection from neglect, in conjunction with the potential for Damian's legal and physical custody to be returned to respondent- mother after appropriate review by the trial court, we conclude that respondent-mother's due process rights were adequately protected. See Arends, 88 N.C. App. at 555-56, 364 S.E.2d at 172; Yow, 40 N.C. App. at 692, 253 S.E.2d at 650. This assignment of error is overruled.
    By her final assignment of error, respondent-mother contends the trial court lacked jurisdiction over Damian and respondent- mother because the amended petition alleging Damian to be aneglected and dependent juvenile was executed by the attorney for DSS and was not verified. We disagree.
    Section 7B-403 of our General Statutes states that a petition alleging a juvenile to be abused, neglected, or dependent “shall be drawn by the director [of DSS], verified before an official authorized to administer oaths, and filed by the clerk, recording the date of filing.” N.C. Gen. Stat. § 7B-403(a) (2003). In the alternative, the chief district court judge may authorize a magistrate to draw, verify, and issue a juvenile petition in “emergency situations when a petition is required in order to obtain a nonsecure custody order . . . .” N.C. Gen. Stat. § 7B- 404(b) (2003). An action to adjudicate a juvenile as abused, neglected, or dependent “is commenced by the filing of a petition in the clerk's office when that office is open or by the issuance of a juvenile petition by a magistrate when the clerk's office is closed . . . .” N.C. Gen. Stat. § 7B-405 (2003). The trial court may allow amendment of a juvenile petition “when the amendment does not change the nature of the conditions upon which the petition is based.” N.C. Gen. Stat. § 7B-800 (2003).
    In the present case, a juvenile petition alleging Damian to be neglected and dependent, verified by DSS social worker Gail McCuiston, was filed on 26 September 2000. The petition's allegations of neglect were based on respondent-mother's statements to a social worker that she despised Damian's half-sister Alescia, could not stand to look at her, and feared that she would kill Alescia. We conclude that the filing of this petition commencedthe proceeding in which Damian was adjudicated to be neglected and ultimately ordered removed from respondents' home. See In re Mitchell, 126 N.C. App. at 433, 485 S.E.2d at 624 (1997) (“A juvenile action, including a proceeding in which a juvenile is alleged to be abused or neglected, is commenced by the filing of a petition.”) The amended petition, which was filed on 6 October 2000, merely contained some additional factual averments supporting the original petition's allegations of neglect and dependency; it neither added any additional charges, such as abuse or delinquency, to those set forth in the original petition, nor changed the nature of the allegations previously set forth therein. Significantly, our review of the record indicates that respondents had notice of, and were given ample opportunity to address, the various factual averments contained in both the original and amended petitions supporting the allegations of neglect and dependency of Damian. Accordingly, we hold that on these facts, execution of an amended juvenile petition by the attorney for DSS and filing of same without verification did not constitute reversible error. Respondent-mother's third and final assignment of error is overruled.
Respondent-Father's Appeal
    By his first assignment of error, respondent-father contends the trial court's 27 February 2002 order removing Damian, the only one of the five juveniles of whom respondent-father was the biological father, from respondents' home and placing him in foster care violated the purposes and policies of the Juvenile Code byconstituting an “unnecessary and inappropriate separation of [Damian] from [his] parents.” We disagree.
    Our legislature has enumerated the purposes and policies of the Juvenile Code in pertinent part as follows:
    (1) To provide procedures for the hearing of juvenile cases that assure fairness and equity and that protect the constitutional rights of juveniles and parents;

    (2) To develop a disposition in each juvenile case that reflects consideration of the facts, the needs and limitations of the juvenile, and the strengths and weaknesses of the family.

    (3) To provide for services for the protection of juveniles by means that respect both the right to family autonomy and the juveniles' needs for safety, continuity, and permanence; and

    (4) To provide standards for the removal, when necessary, of juveniles from their homes and for the return of juveniles to their homes consistent with preventing the unnecessary or inappropriate separation of juveniles from their parents.

    . . .

N.C. Gen. Stat. § 7B-100 (2003). We are mindful that family relationships are to be afforded constitutional protection. In re Eckard, 148 N.C. App. 541, 547, 559 S.E.2d 233, 236, disc. review denied, 356 N.C. 163, 568 S.E.2d 192-93 (2002). However, after a careful review of the record, we conclude that the 27 February 2002 order removing Damian from respondents' home, placing him in foster care, and establishing a permanent care plan of reunification with respondents with a concurrent plan of termination of parental rights and adoption did not violate the Juvenile Code's purposes and policies.     Our review of the record indicates intensive involvement by DSS with this family over the four-year period prior to February 2002. During this time, DSS provided many services to respondents and the five juveniles, including medical and psychological evaluation and treatment, assessment and treatment of the juveniles' various special needs, parenting and anger management classes, and foster care. Nevertheless, by the time of the 13 February 2002 review hearing, only Damian was still residing in respondents' home, the other four juveniles having previously been placed in the physical custody of third parties either by court order, at the request of respondents, or at the request of the juvenile. In its 27 February 2002 order, the trial court found the record showed numerous instances of respondents' noncompliance with court orders and the Family Services Case Plan. The trial court also found that respondents had inflicted psychological and physical harm upon Damian and the other juveniles, for which respondents continued to deny responsibility. The trial court then concluded that Damian's best interests would be served by his immediate removal from respondents' home and placement in foster care.
    We note that the evidence presented at the 13 February 2002 review hearing supported the trial court's findings, which are therefore binding on appeal. In re Weiler, __ N.C. App. __, __, 581 S.E.2d 134, 137 (2003) (trial court's findings are binding on appeal if supported by competent evidence). At every review hearing, the trial court is required to consider information from,in addition to the parent and juvenile, “the custodian or agency with custody, the guardian ad litem, and any other person or agency which will aid in its review.” See N.C. Gen. Stat. § 7B-906(c) (2003). Following the 21 February 2001 disposition hearing and each subsequent review hearing, respondent-mother was ordered to follow through with therapy based on the results of her psychological evaluation, which found her to be suffering from severe depression and post-traumatic stress disorder. However, the DSS summary prepared for the 13 February 2002 review hearing states that respondent-mother attended only eight counseling sessions in the past year and failed to provide any documentation regarding her counseling or medical treatment, and that she is physically unwell and suffers from incidents of crying, anger, erratic behavior, and severe physical shaking. The DSS summary also states respondents failed to bring Damian to therapy, as had been recommended by DSS, and that respondents are resistant to Damian receiving medication or therapy, despite Damian's ADHD diagnosis and substantial evidence of behavioral problems. There is also evidence that respondent-father repeatedly violated the trial court's orders by failing to communicate with DSS, by moving Damian to a new school in the fall of 2001 without notifying DSS, by refusing to enter into a new Family Services Case Plan after January 2001, and by having “all but isolated himself, Damian, and [respondent-mother].”      Moreover, respondent-mother testified at the 13 February 2002 review hearing that the juveniles were not telling the truth about the discipline measures employed by respondents or the conditionsin their home, and that respondent-father had never used inappropriate corporal punishment with the juveniles. Similarly, respondent-father testified at the hearing that he never punished the juveniles out of anger and never forced them to eat spoiled food as punishment, contrary to the juveniles' assertions contained in the DSS summary that respondents, particularly respondent- father, regularly yelled and cursed at juveniles, inflicted excessive corporal punishment, and alternately withheld food or forced the juveniles to eat large quantities of food as punishment.     We conclude that the trial court's findings of fact, which were supported by competent evidence, in turn support its conclusion that Damian's best interests would be served by his immediate placement in foster care. We hold that removal of Damian from respondents' home, with a permanent care plan of reunification with respondents along with a concurrent plan of termination of parental rights and adoption, did not constitute an “unnecessary and inappropriate separation” of Damian from respondents, and therefore did not violate the purposes and policies of the Juvenile Code. This assignment of error is without merit.
    By his second and final assignment of error, respondent-father argues the trial court erred by determining that it would be in Damian's best interest to be removed from respondents' home and placed in foster care. Our Supreme Court has stated that “the fundamental principle underlying North Carolina's approach to controversies involving child neglect and custody . . . [is] that the best interest of the child is the polar star.” In reMontgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 251 (1984). Moreover, a different panel of this Court has previously “noted that a substantive difference exists between the quantum of proof of neglect and dependency necessary for purposes of termination and for purposes of removal,” and that DSS may obtain temporary custody of a juvenile when there is a risk of future neglect. In re Krauss, 102 N.C. App. 112, 116, 401 S.E.2d 123, 125-26 (1991). Following a review hearing, the trial court “after making findings of fact, may . . . make any disposition authorized by G.S. 7B-903 . . . . The court may enter an order continuing the placement under review or providing for a different placement as is deemed to be in the best interests of the juvenile.” See N.C. Gen. Stat. § 7B- 906(d) (2003). Based on our thorough review of the record, as discussed above, we conclude that the trial court did not err by determining that removal from respondents' home and placement in foster care, with a permanent care plan of reunification with respondents along with a concurrent plan of termination of parental rights and adoption, was in Damian's best interests.
    Affirmed.
    Judges TIMMONS-GOODSON and HUDSON concur.
    Report per Rule 30(e).    


Footnote: 1
    The record on appeal indicates respondent-mother also appeared in court at the dispositional hearing held 21 March 2001, as well as at review hearings held on 23 May 2001, 22 August 2001, 17 October 2001, the permanency planning hearing held 14 November 2001, and the review hearing held 13 February 2002 which gave rise to the instant appeal.

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