Appeal by respondent from order entered 10 January 2002 by
Judge Lawrence C. McSwain in Guilford County District Court. Heard
in the Court of Appeals 29 March 2004.
No brief filed by petitioner-appellee.
No brief filed by Guardian Ad Litem-appellee.
Elizabeth A. Hansen for respondent-appellant.
TIMMONS-GOODSON, Judge.
T.J. (“respondent”) appeals the trial court order terminating
her parental rights to her minor son, Alex.
(See footnote 1)
For the reasons
discussed herein, we affirm the trial court's order.
The facts and procedural history pertinent to the instant
appeal are as follows: On 3 April 2001, the Guilford County
Guardian Ad Litem Program (“petitioner”) filed a petition to
terminate the parental rights (“the petition”) of both respondent
and Alex's father. The petition contained the following
allegations:
6. Grounds exist to terminate parental rights
of [respondent] . . . as follows:
(A) Pursuant to G.S. §7B-111(a)(1),
[respondent has] neglected [Alex]; that
[Alex's] great grandparents . . . were granted
custody of the child on July 17, 1992 because
[respondent] was incarcerated, became unable
to provide for his care and supervision . . .
due to his “...extremely disruptive behavior”
and requested that he be placed in the custody
of DSS on or about November 10, 1998; that
[respondent's] first response was to inform
DSS about a maternal relative in Danville,
Virginia, and although that relative placement
was properly deemed inappropriate by DSS, due
to the maternal aunt's criminal history,
[respondent] maintains her position that she
wants [Alex] placed with that relative; that
[respondent] was projected to be released from
jail at least twice since [Alex] has been in
custody, but during October 2000, DSS was
informed that due to a new crime [respondent]
committed while incarcerated her release date
is now projected to be in early 2002; that
[respondent] wrote a letter to [Alex] during
November 2000 stating that she hoped [Alex]
would stay with the great grandparents and
that she thinks she has two more years of
incarceration; that [respondent's]
correspondence has been sporadic in that she
allows two to four months to pass by before
she writes another letter to [Alex], that she
reported to DSS in August 2000 that she did
not write consistently because she needed a
break[.]
(B) Pursuant to G.S. §7B-1111(a)(2) that both
parents have willfully left the child in
foster care and outside the home for more than
twelve (12) months without showing to the
satisfaction of the court that reasonable
progress has been made within twelve (12)
months in correcting those conditions which
led to the removal of the child; that
[respondent] has been in contact with DSS and
is aware that the plan to reunify the child
with the great grandparents has not been
successful; that although [respondent] has
known since the homestudy of the maternal aunt
that DSS does not consider that an acceptable
placement, [respondent] still desires that the
child remain with the grandparents or be
placed with the maternal aunt[.]
. . . .
(D) Pursuant to G.S. §7B-1111(a)(7) the
parents have willfully abandoned the child for
at least six consecutive months immediately
preceding the filing of the petition; that
[respondent] was aware that the plan to
reunify the child with the great grandparents
was becoming very difficult to accomplish and
appearing to no longer be a viable option;
that during this same time [respondent]
committed a new crime which lengthened her
incarceration time for at least another
year[.]
Respondent was incarcerated in Virginia at the time the
petition was filed. The petition was served upon respondent by
certified mail. Respondent requested and received court-appointed
counsel. On 7 June 2001, a Notice of Hearing was mailed to
respondent and a copy was filed with the Guilford County District
Court. The date of the hearing was subsequently rescheduled, and
a second Notice of Hearing was mailed to respondent and filed with
the Guilford County District Court on 30 August 2001. Respondent
filed an Answer to the petition on 30 October 2001.
On 30 October 2001, the trial court held a hearing on the
petition. Respondent was not present at the hearing but was
represented by her court-appointed counsel. After hearing
testimony from the parties and receiving evidence, the trial court
determined that sufficient grounds existed to terminate
respondent's parental rights pursuant to N.C. Gen. Stat. §§ 7B-
1111(a)(1), 7B-1111(a)(2), and 7B-1111(a)(7). The trial court also
determined that it was in Alex's best interests to terminate
respondent's parental rights. On 10 January 2002, the trial court
filed an order terminating respondent's parental rights andrequiring that custody of Alex remain with the Guilford County
Department of Social Services (“DSS”). Respondent appeals.
The issues on appeal are whether: (I) respondent's due process
rights were violated because no summons was included in the
petition; (II) the trial court erred by determining that sufficient
grounds existed to terminate respondent's parental rights; and
(III) the trial court abused its discretion by determining that it
was in Alex's best interests to terminate respondent's parental
rights.
Respondent first argues that the trial court erred by failing
to cause a summons to be issued with the petition. Respondent
asserts that because no summons was included in the petition, her
due process rights were violated and the trial court did not have
jurisdiction over the termination proceeding. We disagree.
Upon a filing of a petition to terminate parental rights, N.C.
Gen. Stat. § 7B-1106(a) (2003) requires that the trial court issue
a summons to the parents of the juvenile. Subsection (b) states
that the summons shall include:
(1) The name of the minor juvenile;
(2) Notice that a written answer to the
petition must be filed with the clerk who
signed the petition within 30 days after
service of the summons and a copy of the
petition, or the parent's rights may be
terminated;
(3) Notice that if they are indigent, the
parents are entitled to appointed counsel; the
parents may contact the clerk immediately to
request counsel;
(4) Notice that this is a new case. Any
attorney appointed previously will not
represent the parents in this proceeding
unless ordered by the court;
(5) Notice that the date, time, and place of
the hearing will be mailed by the clerk upon
filing of the answer or 30 days from the date
of service if no answer is filed; and
(6) Notice of the purpose of the hearing and
notice that the parents may attend the
termination hearing.
N.C. Gen. Stat. § 7B-1106(b) (2003). However, this Court has
recently held that where a respondent fails to except to a due
process error and makes a general appearance in a termination of
parental rights hearing, the respondent waives the right to assert
the defenses of insufficiency of process and lack of jurisdiction.
In re Howell, ___ N.C. App. ___, ___, 589 S.E.2d 157, 160 (2003);
but see In re Alexander, 158 N.C. App. 522, 525, 581 S.E.2d 466,
468 (2003) (“[T]he General Assembly's use of the word 'shall'
establishes a mandate, and failure to comply with the statutory
mandate is reversible error.”).
In
Howell, the respondent argued that the trial court had no
jurisdiction over her or the hearing to terminate her parental
rights because no summons was issued with the petition to terminate
her parental rights. We noted that, according to N.C. Gen. Stat.
§ 1A-1, Rule 12(h), “certain defenses must be raised by a pre-
answer motion or in a responsive pleading[,] . . . [including]
jurisdiction over the person, insufficiency of process, and
insufficiency of service of process.”
Howell, ___ N.C. App. at
___, 589 S.E.2d at 160. We further noted that, although therespondent
was not properly issued a summons or petition, the
respondent had failed to object to 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.”
Id.
at ___, 589
S.E.2d at 160. Thus, we concluded respondent had waived the
defenses she asserted on appeal, and we held that the trial court
properly exercised its jurisdiction in the case.
Id. at ___, 589
S.E.2d at 160.
In the instant case, respondent was timely served with the
petition to terminate her parental rights. Respondent was also
timely notified of the original and rescheduled dates of the
hearings regarding termination of her parental rights. Prior to
the hearing, respondent requested and received a court-appointed
attorney who appeared on her behalf at both the adjudicatory and
dispositional stages of the hearing. Respondent filed an Answer
with the trial court denying the allegations contained in the
petition. From these facts, we conclude respondent was supplied
with the information and aid necessary to protect her interests
during the proceedings.
See In re Nolen, 117 N.C. App. 693, 696,
453 S.E.2d 220, 222 (1995) (even if respondent shows a statute was
violated, respondent must also show any error was prejudicial).
Furthermore, we note that at no time prior to or during the hearing
did respondent except to the trial court's jurisdiction over her or
the petition to terminate her parental rights. As we recognized in
Howell, “[o]ur Supreme Court has held that a general appearance of
a party in an action gives the court jurisdiction over theappearing party even though no service of a summons is shown.” ___
N.C. App. at ___, 589 S.E.2d at 160 (citing
Harmon v. Harmon, 245
N.C. 83, 86, 95 S.E.2d 355, 359 (1956) (“[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.”)). Thus, we conclude that
respondent was not prejudiced by the absence of the summons, and we
also conclude that respondent has waived her right to assert on
appeal the defenses of insufficiency of service and lack of
jurisdiction. Therefore, we hold that the trial court did not err
in exercising jurisdiction over respondent and the petition to
terminate her parental rights.
Respondent next argues that the trial court erred in
concluding that sufficient grounds existed to terminate
respondent's parental rights. Apart from the general statement
that “the trial court erred when it found there were sufficient
grounds to terminate the parental rights of the
respondent/appellant mother,” respondent failed to assign error to
any particular finding of fact entered by the trial court. “A
single assignment [of error] generally challenging the sufficiency
of the evidence to support numerous findings of fact, as here, is
broadside and ineffective.”
Wade v. Wade, 72 N.C. App. 372,
375-76, 325 S.E.2d 260, 266,
disc. review denied, 313 N.C. 612, 330
S.E.2d 616 (1985). Thus, the trial court's findings of fact are
deemed to be supported by competent evidence, and they areconclusive on appeal.
Koufman v. Koufman, 330 N.C. 93, 97, 408
S.E.2d 729, 731 (1991).
Respondent nevertheless asserts that the trial court's order
should be reversed because the trial court's findings merely recite
allegations contained with in the petition as well as the
requirements of N.C. Gen. Stat. § 7B-1111(a)(2) (2003). We
disagree.
Finding of fact number seven contains the following pertinent
statements:
7. That sufficient grounds exist for
termination of parental rights of the
respondent mother, pursuant to N.C.G.S. § 7B-
1111(a)(1) in that she has neglected [Alex].
Specifically, [Alex's] great-
grandparents . . . who were granted custody of
[Alex] on July 17, 1992 because the mother was
incarcerated, became unable to provide for the
care and supervision of [Alex] due to his
“...extremely disruptive behavior” and
requested that he be placed in DSS custody on
or about November 10, 1998. . . .
Finding of fact number nine contains the following pertinent
statements:
9. That sufficient grounds exist for
termination of parental rights of the
respondent mother, pursuant to N.C.G.S. § 7B-
1111(a)(2) in that she willfully left [Alex]
in foster care and outside the home for more
than twelve (12) months without showing to the
satisfaction of the court that reasonable
progress has been made within twelve (12)
months in correcting those conditions which
led to the removal of [Alex]. Specifically,
that the mother reported to DSS that [Alex]
was placed in the great-grandparents [sic]
custody in 1992 through the Virginia court
system because [respondent] was being
incarcerated for an extensive period of time;
that [respondent's] intention was for [Alex]
to remain with the great-grandparents untilshe was released from prison; that when [Alex]
first came into custody in November 1998, the
mother informed DSS that she had a pending
release date in November 2001 and once free
would attempt to reunify with [Alex] and that
until then she wanted [Alex] to be placed with
the great-grandparents or [her aunt]. . . .
In all actions tried upon the facts and without a jury, N.C.
Gen. Stat. § 1A-1, Rule 52(a)(1) (2003) requires that the trial
court “find the facts specially and state separately its
conclusions of law thereon and direct the entry of the appropriate
judgment.” It is well-established that in an order terminating a
respondent's parental rights, the trial court's factual findings
must be more than mere recitations of the allegations contained in
the petition.
In re Anderson, 151 N.C. App. 94, 96-97, 564 S.E.2d
599, 602 (2002). Instead, the findings of fact “must be the
'specific ultimate facts . . . sufficient for the appellate court
to determine that the judgment is adequately supported by competent
evidence.'”
Id. at 97, 564 S.E.2d at 602 (quoting
Montgomery v.
Montgomery, 32 N.C. App. 154, 156-57, 231 S.E.2d 26, 28 (1977)).
In the instant case, although the trial court's “findings of
fact” are mixed findings of fact and conclusions of law, it is
clear which portions of the trial court's “findings of fact” are
actually findings of fact and which portions are actually
conclusions of law. Furthermore, although portions of the findings
of fact recite allegations contained in the petition and the
statute, it is clear from the findings of fact that the trial court
determined that the allegations were true and that the statutory
grounds for termination were met. The trial court's detailedfindings of fact are not ambiguous, and they allow this Court to
clearly examine the “final resulting effect reached by [the trial
court's] processes of logical reasoning from the evidentiary
facts.”
Appalachian Poster Advertising Co. v. Harrington, 89 N.C.
App. 476, 479, 366 S.E.2d 705, 707 (1988). Thus, we conclude that
the trial court's order satisfies the requirements of Rule 52(a)
and
Anderson.
Respondent maintains that the trial court's order should be
reversed because the order contains no findings of fact to support
the determination that “sufficient grounds exist for termination of
parental rights . . . pursuant to N.C.G.S. 7B-1111(a)(7).”
However, as detailed below, we conclude that the trial court's
decision to terminate parental rights pursuant to N.C. Gen. Stat.
§ 7B-1111(a)(1) was supported by sufficient findings of fact.
Thus, we need not consider the trial court's decision nor its
findings of fact regarding termination of respondent's parental
rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(7).
In re Shepard,
___ N.C. App. ___, ___, 591 S.E.2d 1, 8 (2004).
Termination of parental rights involves a two-stage process.
In re Locklear, 151 N.C. App. 573, 575, 566 S.E.2d 165, 166 (2002).
The petitioner must first establish by clear, cogent, and
convincing evidence that grounds exist to terminate parental
rights.
In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614
(1997). A determination that any one of those grounds listed in
N.C. Gen. Stat. § 7B-1111 exists is sufficient to support
termination of parental rights.
In re Williamson, 91 N.C. App.668, 678, 373 S.E.2d 317, 322-23 (1988).
N.C. Gen. Stat. § 7B-1111(a)(1) authorizes the trial court to
terminate a respondent's parental rights upon finding that the
respondent “has abused or neglected the juvenile.” N.C. Gen. Stat.
§ 7B-101(15) (2003) defines a “neglected juvenile” as follows:
A juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; or
who has been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of law.
“In determining whether a child is neglected, the
determinative factors are the circumstances and conditions
surrounding the child, not the fault or culpability of the parent.”
In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 252 (1984).
However, because “[n]eglect may be manifested in ways less tangible
than failure to provide physical necessities[,] . . . the trial
judge may consider . . . a parent's complete failure to provide the
personal contact, love, and affection that inheres in the parental
relationship.”
In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811,
813 (1982).
Nevertheless, “the fact that the parent loves or is
concerned about [the] child will not necessarily prevent the court
from making a determination that the child is neglected.”
Montgomery, 311 N.C. at 109, 316 S.E.2d at 252.
In the instant case, the trial court found that respondent
continued to request that DSS place Alex in the home ofrespondent's aunt, Dana
(See footnote 2)
, despite the fact that DSS had previously
informed respondent that placement of Alex in Dana's home would not
be allowed because Dana had been previously convicted of murder.
The trial court also found that although DSS initially allowed Alex
to visit Dana, DSS determined that Dana's home was not suitable for
visits by Alex upon learning that Dana's son, who had previously
been convicted of a sex offense, had been allowed to move back into
Dana's home. When DSS notified respondent of this information,
respondent nevertheless continued to request that DSS place Alex in
Dana's home. The trial court further found that respondent wrote
to DSS on two separate occasions and stated that she was concerned
about the “negative influence” that Alex's great-grandparents were
having on Alex during their visits with Alex. Although the great-
grandparents had previously been given custody of Alex, they
subsequently requested that Alex be placed in DSS custody on 10
November 1998 due to his “extremely disruptive behavior.” Despite
respondent's belief that Alex's great-grandparents were negative
influences and were encouraging Alex to be “violent” towards his
foster parents, respondent continued to recommend placement of Alex
in either Dana's home or the great-grandparents' home, even after
notifying DSS of her concerns about Alex's great-grandparents.
Finally, the trial court found that although respondent had written
letters to Alex “sporadically the first two years and almost
monthly during the current year,” respondent “rarely” saw Alex from1992 through 1998, had not seen Alex since he entered DSS custody,
and “never acknowledged his birthday or sent him a gift.”
Respondent's sporadic writing to Alex and her failure to
acknowledge Alex's birthdays or send him gifts evidences a lack of
the “personal contact, love, and affection that [ordinarily exists]
in the parental relationship.”
Apa, 59 N.C. App. at 324, 296
S.E.2d at 813 (1982);
see In re Yocum,
158 N.C. App. 198, 204, 580
S.E.2d 399, 403 (2003) (evidence that respondent “did not send the
minor child any gift or other type of acknowledgment on her
birthday” and “had limited contact with the minor child since her
birth” supported determination of neglect). Furthermore,
respondent's continued attempts to place Alex in homes and
situations considered dangerous and undesirable by DSS evidences a
lack of concern for Alex's welfare. “An individual's 'lack of
parental concern for [their] child' is simply an alternate way of
stating that the individual has failed to exercise proper care,
supervision, and discipline as to that child.”
Williamson, 91 N.C.
App. at 675, 373 S.E.2d at 320. We conclude that the trial court's
findings of fact support its determination that respondent
neglected Alex. Therefore, we hold that the trial court did not
err in concluding that sufficient grounds exist to terminate
respondent's parental rights.
Respondent's final argument is that the trial court erred in
determining that it was in Alex's best interests to terminate
respondent's parental rights. We disagree.
When the petitioner succeeds in establishing the existence ofany one of the statutory grounds listed in N.C. Gen. Stat. §
7B-1111, the trial court moves to the disposition stage, where the
trial court must determine “whether it is in the best interests of
the child to terminate the parental rights.”
Young, 346 N.C. at
247, 485 S.E.2d at 615. Because the trial court directly observes
the evidence as it is presented and the demeanor and
characteristics of the witnesses, this Court reviews the trial
court's decision under an abuse of discretion standard.
In re
Allred, 122 N.C. App. 561, 569, 471 S.E.2d 84, 88 (1996). Based
upon the record in the instant case, we conclude that the trial
court did not abuse its discretion in determining that it was in
Alex's best interests to terminate respondent's parental rights.
Therefore, we hold that the trial court did not err in ordering
termination of respondent's parental rights.
Affirmed.
Judges LEVINSON and THORNBURG concur.
Report per Rule 30(e).
Footnote: 1