In re C.D.M. and J.A.F.D.
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.
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