In re C.D.M. and J.A.F.D.
Buncombe County
No. 03 J 27-28
John C. Adams for petitioner-appellee.
Michael N. Tousey for guardian ad litem-appellee.
Hall & Hall Attorneys at Law, P.C., by Susan P. Hall for
respondent mother-appellant.
M. Victoria Jayne for respondent father-appellant.
WYNN, Judge.
This appeal arises from a 12 August 2003 order of the Buncombe
County District Court terminating the parental rights of
respondent-mother with respect to C.D.M. and J.A.F.D. and
respondent-father with respect to C.D.M. For the reasons stated
herein, we affirm the trial court's order.
J.A.F.D. was born 21 June 1989. C.D.M. was born 11 April
1993. Respondent-mother is the natural mother of both children and
respondent-father is the natural father of C.D.M. J.A.F.D.'s
father voluntarily relinquished his rights. At the time of the
termination the respondents were married. Evidence tended to show that both parents had a long history
of drug abuse. The father had a significant history of criminal
activity related to drugs and the mother had received in-patient
treatment for depression. Beginning in 1998, the Buncombe County
Department of Social Services (“DSS”) began receiving child
protective service reports on the family. In February 2001, DSS
received additional reports of drug abuse in the home, one
involving the mother smoking marijuana with the minors' older
sister. Reports also indicated that the sister was the primary
caretaker as the parents were often out all night.
Domestic abuse occurred in the home, with physical fights
between the parents in the presence of the minors. The older
sister reportedly abused J.A.F.D.
On 11 May 2001, the parents agreed with DSS to place the
minors with a relative. This placement lasted only six days due to
the father's harassment of the providers. The minors were moved to
another relative's care. However, this placement lasted only two
weeks due to the father's harassment. On 31 May 2001 the minors
were then placed with a family friend. From that point on neither
parent had contact with the minors.
On 25 September 2001 the trial court issued an order finding
the minors neglected and in the protective care of DSS. The court
issued several requirements for the parents to meet to regain
custody of the minors, including: (1) provide financial support to
placement providers; (2) provide three negative drug screens and
begin substance abuse treatment prior to beginning supervisedvisits with the minors; (3) follow all treatment recommendations of
Broughton Hospital (the mother); (4) complete a substance abuse
assessment and follow all recommendations (the father); (5) obtain
psychological evaluations; and (6) cooperate with DSS. In a 14
December 2001 review order, the court found that the parents had
failed to comply with several of the conditions of the previous
order including providing no drug tests or psychological
evaluations. Neither parent attended the 16 November 2001 hearing;
the father had been arrested for possession of cocaine and the
mother's whereabouts were unknown.
The parents also failed to attend the next review hearing on
7 March 2002. On 11 April 2002 the court ordered that all previous
orders remain in effect and “[t]hat there shall be no contact
between [the parents] and the minor children.”
On 14 June 2002 the court held a permanency planning and
review hearing. Both parents were then in jail and attended it.
At this point the minors were moved to live at Presbyterian Home,
and the trial court changed the permanent plan from reunification
to guardianship or adoption.
DSS had no contact with the mother until she called from Swain
Recovery, a drug treatment center, in January 2003, stating that
she wanted her children back. DSS had no contact with the father
until the termination of parental rights hearing, held 2 July 2003.
At the time of the 2 July 2003 hearing, the mother had been
out of jail for approximately four months. She testified that she
had not done drugs for the past year, had attended narcoticsanonymous meetings three to five time a week, had lived in her own
home, and had worked part-time. The father was incarcerated on a
five-year sentence.
After a review of the evidence the court found that
respondents neglected the minors when the minors were placed in the
custody of DSS on 7 March 2002, and continued to neglect the minors
in failing to provide love, comfort, or support for the minors
pursuant to section 7B-1111(a)(1) of the North Carolina General
Statutes. The court found that pursuant to section 7B-1111(a)(2)
of the North Carolina General Statutes respondents had willfully
left the minors in a placement outside the home for more than
twelve months without showing any reasonable progress to correct
the conditions which led to the removal of the minors. The court
also found that pursuant to section 7B-1111(a)(3) of the North
Carolina General Statutes respondents had willfully failed to pay
a reasonable portion of the cost of care for the minors although
physically and financially able to do so. The court ordered
termination of both respondents' parental rights. Respondents
appealed.
___________________________________________
On appeal, the mother argues that: (1) the trial court lacked
personal jurisdiction over her; (2) the trial court lacked subject-
matter jurisdiction over J.A.F.D.; (3) the trial court failed to
properly conduct a hearing as required by section 7B-1108(b) of the
North Carolina General Statutes; (4) the trial court committedplain error in excessively questioning her; and (5) the trial court
erred in denying her motion to dismiss.
First, the mother argues that the trial court lacked personal
jurisdiction over her as there was no return of service of the
summons and petition upon her. We disagree.
At trial, the mother failed to object to service of process or
the return of service. She also never raised the issue of
jurisdiction over her person. Rule 12(h) of the North Carolina
Rules of Civil Procedure requires that an objection to jurisdiction
over the person must be made in open court before proceeding, or at
the earliest possible motion or pleading opportunity, or be deemed
waived. N.C. Gen. Stat. § 1A-1, Rule 12(h)(1) (2003). As the
mother made no such objection, this defense is deemed waived.
The mother next argues that the trial court lacked subject-
matter jurisdiction over J.A.F.D. because service of the summons
and petition was not completed upon the minor as required by
section 7B-1106(a) of the North Carolina General Statutes. We
disagree.
Section 7B-1101 of the North Carolina General Statutes grants
subject-matter jurisdiction to the district courts.
The court shall have exclusive original
jurisdiction to hear and determine any
petition or motion relating to termination of
parental rights to any juvenile who resides
in, is found in, or is in the legal or actual
custody of a county department of social
services or licensed child-placing agency in
the district at the time of filing of the
petition or motion.
N.C. Gen. Stat. § 7B-1101 (2003). As DSS has custody of both minor
children, the court had subject-matter jurisdiction.
Next, the mother argues that the trial court failed to
properly conduct a hearing as required by section 7B-1108(b) of the
North Carolina General Statutes. We disagree.
“The court shall conduct a special hearing after notice . . .
given by the petitioner or movant to the respondent who answered or
responded, and the guardian ad litem for the juvenile to determine
the issues raised by the petition and answer or motion and
response.” N.C. Gen. Stat. § 7B-1108(b) (2003). The trial court
held the hearing on 2 July 2003 immediately proceeding the
termination of parental rights hearing. The trial court determined
that respondents denied most of the complaint and the issues could
not be narrowed. As the trial court properly held the required
hearing, we find no error.
Next, the mother argues that the judge committed plain and
prejudicial error in excessively questioning her. We disagree.
At trial, the mother did not object to the questioning by the
court. “In order to preserve a question for appellate review, a
party must have presented to the trial court a timely request,
objection or motion.” N.C. R. App. P. 10(b)(1). The mother
asserts plain error, however plain error is only applicable in
criminal cases. N.C. R. App. P. 10(c)(4). Therefore, this issue
is not properly before this Court.
The mother lastly argues that the trial court erred in denying
her motion to dismiss and in concluding that grounds existed toterminate her parental rights when DSS based its case on prior
neglect and termination was not in the best interest of the minors.
We disagree.
There are two stages involving a petition to terminate
parental rights: adjudication and disposition. At the adjudication
stage, the petitioner has the burden of proving by clear, cogent
and convincing evidence that at least one statutory ground for
termination exists. In re McMillon, 143 N.C. App. 402, 408, 546
S.E.2d 169, 173-74 (2001); see N.C. Gen. Stat. § 7B-1109(f) (2003)
(requiring findings of fact to be based on clear, cogent, and
convincing evidence). A finding of one statutory ground is
sufficient to support the termination of parental rights. In re
Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984). Upon so
finding, the trial court proceeds to the disposition stage, where
it determines whether termination of parental rights is in the best
interest of the child. McMillon, 143 N.C. App. at 408, 546 S.E.2d
at 174. On appeal, this Court reviews whether the trial court's
findings of fact are supported by clear, cogent and convincing
evidence, and whether those findings support the trial court's
conclusions of law. Id. at 408, 546 S.E.2d at 174. If the
decision is supported by such evidence, the trial court's findings
are binding on appeal, even if there is evidence to the contrary.
In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320
(1988).
The petitioner alleged three grounds for termination: (1)
neglect; (2) leaving the minor children in foster care for twelvemonths without a showing of progress; and (3) failure to pay child
support while the minor children were in foster care. The mother
argues that there were insufficient grounds for a finding of
neglect, a probability of continuation of neglect, and that she had
not showed reasonable progress in correcting the conditions,
because all of petitioner's evidence occurred prior to the
petition.
[I]n ruling upon a petition for termination of
parental rights for neglect, the trial court
may consider neglect of the child by its
parents which occurred before the entry of a
previous order taking custody from them. This
is so even though the parents have not had
custody of the child from the time of the
prior custody order until the time of the
termination proceeding. Therefore, a prior
adjudication of neglect may be admitted and
considered by the trial court in ruling upon a
later petition to terminate parental rights on
the ground of neglect.
In re Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984).
However, “[t]ermination of parental rights for neglect may not be
based solely on past conditions which no longer exist.” In re
Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997). A neglected
minor is defined as, “[a] juvenile who does not receive proper
care, supervision, or discipline from the juvenile's parent.” N.C.
Gen. Stat. § 7B-101(15) (2003).
The mother asserted that she had been drug free for one year,
had completed a drug treatment program, had attended narcotics
anonymous meetings, and had lived in a well-kept home, as evidence
that neglect would not continue. However, she had been out of jail
for only approximately four months and had no attendance logs ofher narcotics anonymous meetings. Additionally, she did not stop
using drugs until she went to jail, where she then took advantage
of a treatment program. Countering the mother's assertions, the
petitioner presented a long history of drug abuse and multiple
criminal convictions. Although the mother had been drug and jail
free for four months, there was clear, cogent, and convincing
evidence that her drug abuse could relapse and she would continue
not to provide proper care and supervision of the minors. See
Williamson, 91 N.C. App. at 674, 373 S.E.2d at 320. Therefore, the
trial court's findings of fact support a conclusion of neglect as
a grounds for termination of parental rights pursuant to section
7B-1111(a)(1) of the North Carolina General Statutes. Also, the
mother had not submitted the three negative drug tests or obtained
the psychological evaluation as required by a previous court order.
Clearly she had not corrected all the conditions that led to
removal and, thus, termination was proper pursuant to section 7B-
1111(a)(2) of the North Carolina General Statutes. Consequently,
we find no error by the trial court.
The mother next contends that the trial court erred in finding
sufficient grounds for termination based on failing to pay child
support for the preceding six months pursuant to section 7B-
1111(a)(3) of the North Carolina General Statutes. We disagree.
First, we note that the mother made no argument for this
ground in her brief. The court may terminate the parental rights
if,
[t]he juvenile has been placed i