Appeal by respondent-father from judgment entered 7 April 2004
by Judge Marvin P. Pope in Buncombe County District Court, Juvenile
Division. Heard in the Court of Appeals 14 April 2005.
Charlotte W. Nallan for Buncombe County Department of Social
Services-appellee.
Michael N. Tousey for Guardian ad Litem-appellee.
Nancy R. Gaines for respondent-father-appellant.
CALABRIA, Judge.
Respondent-father appeals a judgment terminating his parental
rights to the minor children C.M., J.M., Jr., and J.M.
(collectively “the minor children”) We affirm.
Respondent-father and the mother, A.M., who is not a party to
this action, (collectively “the parents”) are the parents of J.M.
and J.M., Jr. J.M. was born 8 January 1996, and J.M., Jr. was born
7 March 1997. Respondent-father is also the father of C.M., born
29 November 1987.
In June 2001, the Buncombe County Department of Social
Services (“DSS”) received a report of possible neglect regarding
the parents and K.W., the minor child of A.M. Based on thisreport, DSS began an initial investigation, which involved
examination and questioning of the minor children. During the
investigation, J.M., then five-years old, revealed to a social
worker that respondent-father touched her “private parts” while she
was sleeping. When asked if she had seen respondent-father's
“private parts,” J.M. responded affirmatively and pointed to the
area beneath their trailer. A medical exam of C.M. revealed she
also had suffered a recent trauma or penetrating injury. C.M.
stated something had happened to her “private parts” but, at that
time, did not disclose respondent-father sexually abused her.
J.M., Jr., then four-years old, stated that when his parents argued
respondent-father “beats up mommy,” striking her with his open
hands and fists “everywhere.”
As a result of the investigation, DSS filed juvenile petitions
alleging the parents neglected the minor children and sexually
abused J.M. and C.M. On 27 November 2001, the trial court entered
non-secure custody orders placing the minor children in the custody
of DSS. On 18 February 2002, the trial court adjudicated the minor
children neglected and entered a disposition maintaining their
custody with DSS and directing reasonable efforts be made at
reunification with the parents. The trial court's disposition
ordered the parents to: (1) obtain psychological evaluations, (2)
comply with all treatment recommendations, (3) participate in
parenting classes, and (4) have supervised visitation with the
minor children at DSS. The trial court also ordered respondent-
father to participate in anger management classes and A.M. toparticipate in classes addressing domestic violence. In the first
permanency planning review order, the trial court maintained
reunification as the permanent plan and directed the parents to
comply with substantially the same orders as the original
disposition. Additionally, on 28 May 2002, DSS established a court
ordered child support obligation for respondent-father of $32.33
per month.
At the 14 August 2002 permanency planning review hearing, the
trial court received into evidence a DSS report stating the minor
children had disclosed sexual and physical abuse during counseling
sessions. The trial court also received a psychological evaluation
of respondent-father, indicating he resisted revealing information
about himself and recommending respondent-father undergo a “Sexual
Offender Specific Evaluation” to gain greater insight into the
sexual abuse concerns. The trial court's 14 August 2002 permanency
planning review order (the “14 August 2002 order”) maintained
reunification as the permanent plan and ordered the parents to
obtain stable housing and “follow the recommendations of their
respective psychological evaluations.” Respondent-father appealed
the trial court's order to follow the psychological evaluation's
recommendations, specifically the recommendation that he undergo a
“Sexual Offender Specific Evaluation.”
In re C.M., 163 N.C. App.
610, 594 S.E.2d 257 (2004) (an unpublished opinion) (“
C.M. I”).
This Court affirmed the trial court's order in an opinion filed 6
April 2004.
Id. In its 18 November 2002 permanency planning review order (the
“18 November 2002 order”), the trial court directed the parents to
comply with its orders to obtain stable housing, follow the
recommendations of their respective psychological evaluations, and
directed respondent-father to complete anger management classes.
Additionally, the trial court changed the permanent plan for the
minor children from reunification to “guardianship with a relative
with an alternate plan of adoption.”
In late January 2003, the minor children's therapist reported
J.M. and J.M., Jr. had engaged in sexualized behavior with one
another and peers at their foster home, and in January, J.M.
disclosed to the therapist that respondent-father had sexually
abused her by touching her “private parts” with his fingers. J.M.
stated she told A.M., but respondent-father's sexual abuse did not
stop. Subsequently, in April 2003, J.M., Jr. disclosed to the
therapist that respondent-father sometimes laid down on the bed,
placed J.M., Jr. on top of himself, and rubbed J.M., Jr. against
himself until respondent-father became aroused. J.M., Jr. further
disclosed he had witnessed respondent-father sexually abuse J.M.
and witnessed acts of domestic violence between his parents,
including respondent-father physically assaulting A.M. C.M. also
disclosed to the therapist that on one occasion, approximately
three months prior to DSS's initial investigation, respondent-
father woke her by rubbing her vaginal area with his hand and
fingers. The trial court's 21 April 2003 permanency planning review
order made findings concerning J.M.'s and J.M., Jr.'s sexualized
behavior and the minor children's disclosures of sexual abuse by
respondent-father. The trial court indefinitely suspended all
visitation between the parents and the minor children, maintained
“guardianship with a relative with the alternate plan of
termination of parental rights and adoption” as the permanent plan,
and ordered the parents to comply with all court orders. In its
24 July 2003 permanency planning review order, the trial court
made findings that DSS had substantiated the minor children's
reports of sexual abuse, the plan of guardianship with a relative
was not feasible, and since the investigation regarding sexual
abuse began, the parents had neither complied with the court's
orders nor contacted DSS. The trial court changed the permanent
plan to adoption and directed DSS to file a petition within sixty
days to terminate the parents' parental rights. In its 20 October
2003 permanency planning review order, the trial court again found
the parents had neither contacted DSS nor complied with the court's
orders, and it, therefore, maintained termination of parental
rights and adoption as the permanent plan. On 22 October 2003, DSS
moved to terminate respondent-father's parental rights.
At the termination of parental rights hearing held 28 and 29
January 2004, the trial court received evidence and made findings
of fact regarding: (1) respondent father's sexual abuse; (2)
domestic violence between the parents; (3) the parents' failure to
comply with court orders, including obtaining a stable home andmaintaining contact with DSS regarding the minor children; and (4)
respondent-father's failure to make a single child support payment,
resulting in an arrearage of $614.27. In its 7 April 2004 amended
judgment, the trial court concluded grounds existed for the
termination of parental rights under N.C. Gen. Stat. § 7B-1111
(2003) due to the parents': (1) neglecting the minor children (N.C.
Gen. Stat. § 7B-1111(a)(1)); (2) willfully leaving the minor
children in placement outside the home for twelve months (N.C. Gen.
Stat. § 7B-1111(a)(2)); (3) failing to pay a reasonable portion of
the cost of care for the minor children (N.C. Gen. Stat. § 7B-
1111(a)(3)); and (4) willfully abandoning the minor children for
six months preceding the filing of the petition for termination
(N.C. Gen. Stat. § 7B-1111(a)(7)). The trial court then ordered
that is was in the best interests of the minor children to
terminate the parents' parental rights to J.M. and J.M., Jr. and to
terminate respondent-father's parental rights to C.M. Respondent-
father appeals.
I. Notice
Respondent-father first argues the trial court erred by
proceeding with the termination hearing regarding C.M. because she
was thirteen at the time the petition for termination was filed and
was not personally served with notice. The notice required in
juvenile custody matters is set forth in N.C. Gen. Stat. § 7B-
1106.1(a) (2003), which provides in pertinent part:
Upon the filing of a motion pursuant to G.S.
7B-1102, the movant shall prepare a notice
directed to each of the following persons or
agency, not otherwise a movant: . . .
(6) The juvenile, if the juvenile is 12 years
of age or older at the time the motion is
filed.
Under N.C. Gen. Stat. § 7B-1102(b) (2003), this notice “shall be
served in accordance with [N.C. Gen. Stat. §] 1A-1, Rule 5(b)
[(2003)][.]” N.C. Gen. Stat. § 1A-1, Rule 5(b), states “[a]
pleading setting forth a counterclaim or cross claim shall be filed
with the court and a copy thereof shall be served on the party
against whom it is asserted
or on the party's attorney of record.”
(Emphasis added).
Respondent-father argues that service to C.M.'s attorney was
insufficient under the Juvenile Code because C.M. was not a party
to the action as that term is used under N.C. Gen. Stat. § 1A-1,
Rule 5(b) (2003). “The intent of the legislature controls the
interpretation of a statute[.] When the language of a statute is
clear and unambiguous, there is no room for judicial construction
and the courts must give the statute its plain and definite
meaning[.]”
In re Banks, 295 N.C. 236, 239, 244 S.E.2d 386, 388
(1978). By stating in N.C. Gen. Stat. § 7B-1102(b) that service on
the parties and agencies under N.C. Gen. Stat. § 7B-1106.1(a) be
made pursuant to N.C. Gen. Stat. § 1A-1, Rule 5(b), the General
Assembly clearly intended that the term “party” under N.C. Gen.
Stat. § 1A-1, Rule 5(b) include those persons and agencies listed
in N.C. Gen. Stat. § 7B-1106.1(a). The record reflects that notice
was served upon Judy Rudolph, the attorney advocate for the three
minor children. Accordingly, we hold C.M. was properly served
under N.C. Gen. Stat. §§ 7B-1102(b) and 1106.1(a).II. Subject Matter Jurisdiction
Respondent-father next argues that the trial court lacked
subject matter jurisdiction to enter an order terminating his
parental rights due to his then pending appeal of the trial court's
14 August 2004 order in
C.M. I. Our Supreme Court has recently
held that “a trial court retains jurisdiction to terminate parental
rights during the pendency of a custody order appeal in the same
case.”
In re R.T.W., 359 N.C. 539, 553, 614 S.E.2d 489, 498
(2005). Accordingly, we reject this assignment of error.
III. Findings of Fact
Finally, respondent-father argues the trial court failed to
make specific findings of ultimate facts and, therefore, the
findings of fact are insufficient to support its conclusion of law
that grounds for terminating his parental rights existed.
North Carolina General Statutes § 1A-1, Rule 52(a)(1)(2003)
requires that “[i]n all actions tried upon the facts without a
jury[,] . . . the court shall find the facts specially and state
separately its conclusions of law thereon[.]” “[W]hile Rule 52(a)
does not require a recitation of the evidentiary and subsidiary
facts required to prove the ultimate facts, it does require
specific findings of the ultimate facts established by the
evidence, admissions, and stipulations which are determinative of
the questions involved in the action and essential to support the
conclusions of law reached.”
Quick v. Quick, 305 N.C. 446, 452,
290 S.E.2d 653, 658 (1982). Respondent-father specifically cites
In re Harton, 156 N.C.
App. 655, 577 S.E.2d 334 (2003) for the proposition that
“When a trial court is required to make
findings of fact, it must make the findings
specially[.] The trial court may not simply
recite allegations, but must through processes
of logical reasoning from the evidentiary
facts” find the ultimate facts essential to
support the conclusions of law.
Id., 156 N.C. App. 655 at 660, 577 S.E.2d at 337 (internal
quotation marks and citations omitted). Respondent-father argues
that “[t]he initial findings of fact in the order in the present
action echo verbatim the allegations of the complaint.” We hold
that the trial court did not err in its findings of fact. Although
the trial court did copy verbatim many findings of fact, it added
numerous original factual findings and made the ultimate finding
that
the Respondent Father . . . neglected the
minor children when the minor children were
placed in the custody of the Buncombe County
Department of Social Services on November 27,
2001, and continue[s] to neglect the minor
children in that [he has] abandoned the minor
children, [he has] failed to provide any love,
nurturance, or support for the minor children;
[he has] failed to provide the personal
contact, love, and affection that inheres in
the parental relationship; and, [he has]
failed to provide a stable living environment
for the children. There is a reasonable
probability of continuing neglect from the
Respondent Father[.]
This finding constitutes a specific ultimate finding of fact that
supports the trial court's conclusion of law that respondent-father
neglected the minor children within the meaning of N.C. Gen. Stat.
§ 7B-1111 (a)(1). Thus, we reject respondent-father's argument. Respondent-father failed to argue his remaining assignments of
error on appeal; therefore, they are abandoned pursuant to N.C. R.
App. P. 28(b)(6) (2005).
Affirmed.
Judges TIMMONS-GOODSON and GEER concur.
Report per Rule 30(e).