IN THE MATTER OF:
Johnston County
D.D.T.G., No. 01 J 50
Minor Child
Jennifer S. O'Connor, for petitioner-appellee Johnston County
Department of Social Services.
James D. Johnson, Jr. for Guardian ad Litem.
Antoan Whidbee for appellee Keith Tyrell Graham.
Susan J. Hall for respondent-appellant Gwendolyn McCain.
HUNTER, Judge.
On 19 April 2002 the Johnston County Department of Social
Services (“petitioner”) filed a petition to terminate the parental
rights of G.M. (“respondent”) to her son, D.D.T.G. (“the
juvenile”). Respondent filed an answer on 9 September 2002 and
appeared with counsel at the hearing on 27 November 2002.
The juvenile was born out of wedlock on 25 December 2000 to
respondent and K.G., who relinquished his parental rights to the
juvenile. On 13 February 2001, petitioner received a report that
the juvenile was not receiving proper care, was residing in a home
that was filthy and unfit for human occupation, and was not gaining
weight. The juvenile was hospitalized for a nutritional andmedical assessment as to why the juvenile was not gaining weight.
Immediately upon hospitalization and with consistent feedings, the
juvenile began to gain weight. Despite repeated instruction,
neither respondent nor an alternate caregiver were able to
demonstrate appropriate techniques for care of the child. The
juvenile was returned to respondent's home, where he again failed
to gain weight. Respondent continued to demonstrate an inability
to care properly for the child. During the last home contact by a
home health nurse, respondent could not identify to the nurse the
last time the child had been fed. Consequently, petitioner took
the juvenile into its custody on 6 March 2001. Thereafter,
although respondent attended parenting classes, she was unable to
demonstrate that she learned or understood anything from those
classes. She failed to complete the adult basic education program
and she failed to regularly attend scheduled visitations with the
child. She missed twenty-two of forty-four scheduled visits with
the juvenile, including a seven-week period of time from August
2001 to October 2001 when she did not visit the juvenile at all.
During visitations, she was given instruction as to how to hold and
feed the child. Within fifteen minutes after the lesson,
respondent could not demonstrate any understanding or retention of
what she had been taught. It was determined that in order for
respondent to retain custody and care of the child, she would
require another adult person to stay in the home to assist her with
caring for the child. A person was located to stay with respondentbut the arrangement did not last because of respondent's lack of
cooperation.
At the conclusion of the hearing, the court found that the
following grounds for termination of respondent's parental rights
were supported by clear, cogent and convincing evidence: (1) the
child is neglected; (2) respondent willfully left the juvenile in
foster care for more than twelve months without showing to the
satisfaction of the court that reasonable progress has been made in
correcting the conditions which led to the removal of the juvenile
from the home; and (3) respondent is incapable of providing proper
care and supervision of the juvenile such that the juvenile is
dependent within the meaning of N.C. Gen. Stat. § 7B-101 and that
it is reasonably probable that such incapability will continue for
the foreseeable future. The court further found that it is in the
best interest of the juvenile that respondent's parental rights be
terminated. From this order respondent appeals.
Respondent brings forward three assignments of error. First,
respondent contends the court lacked subject matter jurisdiction
because the petition failed to allege as required by N.C. Gen.
Stat. § 7B-1104(7) (2003) that the petition had not been filed to
circumvent the provisions of Article 2 of Chapter 50A of the
General Statutes, the Uniform Child-Custody Jurisdiction and
Enforcement Act. We disagree. Dismissal of a petition is not
compelled merely because the petition does not contain such
allegation. In re Humphrey, 156 N.C. App. 533, 538-39, 577 S.E.2d
421, 426 (2003). The respondent must show that she was prejudicedas a result of the omission. Id. Here, respondent cannot show
prejudice. The petition alleges that “this petition has not been
filed to circumvent the provisions of G.S. Chapter 50A, the Uniform
Child Custody Jurisdiction Act, and the Court would have
jurisdiction to make a child custody determination, pursuant to the
provisions of G.S. 50A-3.” The petition therefore directs the
respondent to Chapter 50A of the General Statutes, which is
entitled “Uniform Child-Custody Jurisdiction and Enforcement Act.”
We conclude that this allegation substantially complies with the
requirement of N.C. Gen. Stat. § 7B-1104. Therefore, this
assignment of error is overruled.
By her next assignment of error, respondent contends that the
court did not have subject matter jurisdiction because petitioner
failed to file an affidavit required by N.C. Gen. Stat. § 50A-209.
This statute requires each party in a child custody proceeding “in
its first pleading or in an attached affidavit” to give information
as to the child's present address or whereabouts and where the
child has resided within the previous five years. N.C. Gen. Stat.
§ 50A-209(a) (2003). The purpose of this information is to assist
the trial court in determining whether it has jurisdiction. In re
Clark, 159 N.C. App. 75, 79, 582 S.E.2d 657, 660 (2003). The
statute expressly provides two alternative methods for furnishing
the information, either in the first pleading or in an affidavit.
Here, the petition to terminate parental rights states that the
child was born in Johnston County on 25 December 2000; that the
child was taken into the custody of petitioner and was placed infoster care on 6 March 2001; that legal custody of the child was
awarded to petitioner on 24 October 2001 by order of the Johnston
County District Court; and that the child was in foster care in the
custody of petitioner when the petition was filed. Based upon the
allegations of this pleading, the court could determine that it had
jurisdiction. This assignment of error is also overruled.
Respondent's final assignment of error contends that the court
abused its discretion by concluding that respondent willfully left
the child in foster care for more than twelve months without
showing to the satisfaction of the court that reasonable progress
had been made in correcting the conditions which led to the removal
of the minor child. We note that although respondent also assigned
as error the court's finding of the two other grounds supporting
termination of parental rights, respondent failed to bring forward
and argue those assignments of error in her brief. Consequently,
these assignments of error are deemed abandoned and the findings
will not be disturbed. N.C.R. App. P. 28(b)(6); In re Leftwich,
135 N.C. App. 67, 70, 518 S.E.2d 799, 802 (1999). Since a finding
of only one ground is required to terminate one's parental rights,
In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990),
it is not necessary that we consider respondent's challenge to the
third ground found by the court. This contention is dismissed.
Accordingly, we affirm the order terminating respondent's
parental rights.
Affirmed.
Judges WYNN and McCULLOUGH concur.
Report per Rule 30(e).
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