An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

                    NO. COA04-1070

NORTH CAROLINA COURT OF APPEALS


                    Filed: 18 October 2005

IN THE MATTER OF:                    Buncombe County
    C.M., J.M., Jr.,                No. 01 J 338A
    and J.M.

    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).

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