IN THE MATTER OF New Hanover County
C.I.B. Nos. 03 J 140
J.L.P. 03 J 141
L.H.P. 03 J 142
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New Hanover County Department of Social Services, by Dean W.
Hollandsworth, for petitioner-appellee.
Regina Floyd-Davis for Guardian ad Litem-Appellee.
Richard E. Jester for respondent-appellant.
CALABRIA, Judge.
Dena B. (“respondent”) appeals from an order terminating
parental rights to C.I.B., J.L.P., and L.H.P., collectively (the
“children”). We affirm.
In February 2001, the New Hanover County Department of Social
Services (“Social Services”) filed an initial juvenile petition.
At the time of the initial petition, the children were ages twelve,
ten, and nine, respectively, and respondent was a single-parent.
The initial petition included allegations of respondent's substance
abuse and improper supervision of the children. Specifically,
Social Services alleged respondent tested positive for cocaine,
left the children home alone while she went to work, and, on atleast one occasion, left the children unattended at midnight. At
one point when respondent left the children unsupervised, their
residence burned down.
By the time of the 12 April 2001 adjudicatory hearing on the
matter, however, respondent
appeared motivated to remain drug free and
provide a stable environment for her children.
She was employed full-time, coordinated
therapy appointments for her children,
maintained contact with their schools, and
enrolled in Coastal Horizons Substance Abuse
Treatment program [“Coastal Horizons”] and
continued to have random drug screens.
Accordingly, the trial court ordered that legal custody remain with
Social Services but placed the children with respondent. Soon
after Social Services returned the children to respondent, her
progress deteriorated. Social Services received reports that
respondent left the children with a nineteen-year-old male who
drank alcohol around the children, and respondent failed to correct
the situation even after agreeing with Social Services to find
someone more qualified. Subsequently, respondent's landlord
evicted respondent and the children from their residence because
respondent continued to associate with a known drug dealer.
After the eviction and prior to the first review hearing,
Social Services placed the children in foster care for the second
time on 6 June 2001. At the review hearing on 12 July 2001, the
court found respondent's attendance at Coastal Horizon became
inconsistent, random drug screens administered by Social Services
came back “diluted” twice, and a third screening came back positive
for cocaine usage. The court ordered Social Services to retaincustody of the children and required that respondent test negative
at two random drug screens before her visitation with the children
could resume. Respondent never fulfilled this requirement.
In its 17 January 2002 permanency planning order, the trial
court noted that “Social Services has exhausted all reasonable
efforts to reunify this family to no avail” and changed the
permanent plan for the children to adoption. Respondent
subsequently moved to Tennessee to live with her aunt in
“recognition of the severity of her addiction and need to change
her lifestyle.” Her move, however, prevented Social Services from
monitoring her progress. While in Tennessee, respondent remained
unemployed and failed to submit for a drug test when asked to do so
by Social Services. Additionally, both before and after
respondent's move to Tennessee “[s]he . . . visited the children on
an inconsistent and sporadic basis, with gaps as long as ten months
between visits on two occasions between September of 2001 until
July of 2002, then again from September of 2002 until July of
2003.”
At the termination of parental rights hearing that took place
on 15 September 2003 and 24 September 2003, the Honorable J. H.
Corpening, II of the New Hanover District Court determined that
statutory grounds existed for terminating respondent's parental
rights and that terminating respondent's rights was in the best
interests of the children. He entered an order terminating
respondent's parental rights to the children on the grounds that
the Respondent-Mother has neglected the
children . . . and that the probability ofrepetition of neglect is strong. That the
Respondent-Parents have willfully abandoned
their children and the Respondent-Mother has
willfully and not due solely to poverty, left
the children . . . in foster care for more
than twelve months without showing to the
satisfaction of the Court that reasonable
progress under the circumstances has been made
to correct the conditions that led to the
children's removal.
Respondent appeals.
I. Service of Process
As a preliminary matter, respondent argues that the trial
court lacked jurisdiction because the summons and petition to
terminate parental rights were not properly served upon the
respondent, proof of delivery with an affidavit was not filed, and
the return receipt in the case file is not dated and the postmark
is unreadable. Rule 12(h) of the North Carolina Rules of Civil
Procedure states, “A defense of lack of jurisdiction over the
person, improper venue, insufficiency of process, or insufficiency
of service of process is waived . . . (ii) if it is neither made by
motion under this rule nor included in a responsive pleading[.]”
N.C. Gen. Stat. § 1A-1, Rule 12 (2003). See also In re Howell, 161
N.C. App. 650, 656, 589 S.E.2d 157, 160 (2003) (stating, “[T]he
filing of an answer is equivalent to a general appearance, and a
general appearance waives all defects and irregularities in the
process and gives the court jurisdiction of the answering party
even though there may have been no service of summons.”)
By filing an answer and fully participating in the hearing
without raising the issue of lack of personal jurisdiction or
improper service of process, respondent waived this defense, andtherefore, we do not address the merits of this argument.
Additionally, although the heading in her brief suggests that
respondent also argues ineffective assistance of counsel, she made
no argument and cited no authority supporting this assignment of
error in her brief, and we deem it abandoned under N.C. R. App. P.
28(b)(6) (2005).
We note that respondent has submitted a reply brief to this
Court that argues her assignment of error regarding ineffective
assistance of counsel. As a matter of judicial economy, we reject
respondent's attempt to get a second chance to more effectively
argue this issue. North Carolina Rule of Appellate Procedure
28(h)(3) states, in pertinent part,
If the parties are notified under Rule 30(f)
that the case will be submitted without oral
argument on the record and briefs, an
appellant may, within 14 days after service of
such notification, file and serve a reply
brief limited to a concise rebuttal to
arguments set out in the brief of the appellee
which were not addressed in the appellant's
principal brief or in a reply brief filed
pursuant to Rule 28(h)(2).
Respondent's reply brief raised a new argument as opposed to a
concise rebuttal, and as such, we do not consider respondent's
ineffective assistance of counsel argument.
II. Challenges to Adjudicatory and Dispositional Phases:
Respondent next argues that the trial court erred in its
findings of fact and conclusions of law in that the trial court
based its findings on insufficient evidence and considered past
rather than present conditions. Moreover, respondent argues that
“it was not in the best interest of the children to terminateparental rights.” Termination of parental rights is a two step
process with an adjudicatory stage and a dispositional stage. In
re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).
In the adjudicatory stage, the burden is on the petitioner to prove
by clear, cogent, and convincing evidence that one of the grounds
for termination of parental rights set forth in N.C. Gen. Stat. §
7B-1111(a) exists. Id. On appeal from the adjudicatory stage, we
consider whether the trial court's findings of fact are supported
by clear, cogent, and convincing evidence and whether those
findings of fact support its conclusions of law. In re Huff, 140
N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000). “Clear, cogent,
and convincing describes an evidentiary standard stricter than a
preponderance of the evidence, but less stringent than proof beyond
a reasonable doubt.” North Carolina State Bar v. Sheffield, 73
N.C. App. 349, 354, 326 S.E.2d 320, 323 (1985) (citation omitted).
If the petitioner meets its burden of proving at least one ground
for termination of parental rights exists under N.C. Gen. Stat. §
7B-1111(a), the court proceeds to the dispositional phase and
considers whether termination of parental rights is in the child's
best interests. On appeal from the dispositional stage, we
consider whether the trial court abused its discretion in
terminating parental rights. In re Nesbitt, 147 N.C. App. 349,
352, 555 S.E.2d 659, 662 (2001).
In this case, the trial court proffered three statutory
grounds for terminating respondent's parental rights: respondent
“neglected the juvenile,” “willfully left the juvenile in fostercare . . . for more than 12 months[,]” and “willfully abandoned the
juvenile[.]” See N.C. Gen. Stat. §§ 7B-1111(a)(1),(2),(7) (2003).
If any of these three grounds on which the trial court based its
order terminating parental rights was based upon findings of fact
supported by clear, cogent, and convincing evidence, the order
appealed from should be affirmed. In re Swisher, 74 N.C. App. 239,
240, 328 S.E.2d 33, 35 (1985). Because we hold that the trial
court properly made findings, supported by clear, cogent, and
convincing evidence, that respondent neglected the children and
that the trial court did not abuse its discretion in determining
that terminating respondent's rights was in the best interests of
the children, we need not address the alternative statutory grounds
for terminating respondent's rights.
A. Neglect
“Where, as here, a child has not been in the custody of the
parent for a significant period of time prior to the termination
hearing, the trial court must employ a different kind of analysis
to determine whether the evidence supports a finding of neglect.”
In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003).
In the absence of such a modified analysis, Social Services would
never be able to show by clear, cogent, and convincing evidence
that a child is currently neglected by the parent, and termination
of parental rights for neglect would be impossible. In re Ballard,
311 N.C. 708, 714, 319 S.E.2d 227, 232 (1984). The determinative
factors remain the best interests of the child and the fitness of
the parent to care for the child at the time of the terminationproceeding, id., 311 N.C. at 715, 319 S.E.2d at 232, and “although
prior adjudications of neglect may be . . . considered by the trial
court, they will rarely be sufficient, standing alone, to support
a termination of parental rights, since the petition must establish
that neglect exists at the time of hearing.” In re Shermer, 156
N.C. App. at 286, 576 S.E.2d at 407. Accordingly, in analyzing a
child's best interests and the fitness of the parent in cases where
the child has not been in the parent's custody, the trial court
must “consider evidence of changed conditions in light of the
history of neglect by the parent and the probability of a
repetition of neglect.” Id. In addition, visitation by the parent
is a relevant factor in such cases. In re Pierce, 146 N.C. App.
641, 651, 554 S.E.2d 25, 31 (2001).
In regard to neglect, the trial court made the following
pertinent finding:
8. The children in this matter were found to
be neglected in that adjudication order
of the Honorable J.H. Corpening, II dated
April 21, 2001 by way of lack of proper
care, supervision or discipline and by
environment injurious to their welfare
due to the Respondent-Mother's history of
substance abuse and supervision issues
since March of 2000, including leaving
her children unsupervised late at night
and on one occasion when left
unsupervised, their residence caught on
fire and burned down. The mother tested
positive for cocaine on February 22,
2001, such drug usage interferes with her
ability to parent in significant ways,
including endangerment of her children by
leaving them alone in the residence. She
has been deceptive in admitting to her
drug usage, specifically by signing a
protection plan denying such activity on
February 21, 2001, one day before testingpositive for cocaine. Since the date of
adjudication, she has not addressed her
drug usage in a substantial and
meaningful manner. She initially
enrolled in the Coastal Horizons
Substance Abuse Treatment Program,
complied at first, then began missing
sessions and turning up diluted on drug
screens before testing positive for
cocaine on June 27, 2001. She entered an
inpatient program on July 31, 2001, was
discharged successfully on August 21,
2001 but was not compliant with an after
care program and tested positive for
cocaine on September 12 and 26, 2001 and
October 2, 2001. She represented that
she had enrolled in the New Visions
program in court on January 17, 2002,
however she moved to Tennessee in June of
2002, which effectively ended the
petitioner's ability to monitor the case
in a fashion suitable to the severity of
her problem. The social worker, Ms.
Brooks, was unable to request random drug
screens of the mother and when she
attempted to do so in December of 2002,
the mother failed to submit on that date.
The history of failure in addressing her
drug problem and lack of compliance with
random screens, coupled with the
impossibility of proper monitoring of her
treatment progress and sporadic and
infrequent visitations lead the Court to
find that the likelihood and probability
of repetition of neglect is strong in
this matter.
(Emphasis added.)
After reviewing the record, briefs, and transcripts, we hold
this finding is supported by clear, cogent, and convincing
evidence, and we reject respondent's argument that the trial court
considered her past rather than present conditions. This Court has
specifically held “parental rights may . . . be terminated if there
is a showing of a past adjudication of neglect and the trial court
finds by clear and convincing evidence a probability of repetitionof neglect if the juvenile [was] returned to [his] parents.” In re
Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000) (emphasis
added). We further hold, the trial court appropriately considered
past adjudications of neglect in light of the probability of
repetition of neglect at the time of the termination proceeding and
that this finding supports the court's conclusion that “grounds to
terminate parental rights of [respondent] . . . have been
established by clear, cogent, and convincing evidence [including
that respondent] has neglected the children . . . and that the
probability of repetition of neglect is strong.”
Furthermore, given respondent's failure to remedy her
substance abuse problems, her failure to properly supervise the
children, her infrequent visitations with the children, and her
failure to maintain employment, along with the trial court's
determination that the likelihood of repetition of neglect is
strong, the trial court did not abuse its discretion in determining
that terminating respondent's parental rights is in the children's
best interests. As such, we reject respondent's arguments.
III. North Carolina General Statutes § 7B-1109(e) (2003)
Finally, respondent argues that the trial court erred in
failing to comply with the time requirement set forth in N.C. Gen.
Stat. § 7B-1109(e), which states:
The court shall take evidence, find the facts,
and shall adjudicate the existence or
nonexistence of any of the circumstances set
forth in G.S. 7B-1111 which authorize the
termination of parental rights of the
respondent. The adjudicatory order shall be
reduced to writing, signed, and entered nolater than 30 days following the completion of
the termination of parental rights hearing.
In this case, the termination of parental rights hearing ended
on 24 September 2003; however, the adjudicatory order was not
entered until 8 June 2004, approximately 250 days later. This
Court has recently reaffirmed our holdings that there is no per se
reversal for violation of the statutory time lines; rather, the
respondent must show prejudice resulting from the delay. In re
C.J.B., __ N.C. App. __, __, 614 S.E.2d 368, 369 (2005).
Furthermore, “whether a party has adequately shown prejudice is
always resolved on a case-by-case basis.” In re A.L.G., ___ N.C.
App. ___, ___, 619 S.E.2d 561, 564 (2005). This Court has said,
[D]etermining prejudice is not a rubric by
which this Court vacates or reverses an order
when, in our opinion, the order is not in the
child's best interest. Nor is prejudice, if
clearly shown by a party, something to ignore
solely because the remedy of reversal further
exacerbates the delay. If we were to operate
as such, we would either reduce the General
Assembly time lines to a nullity, or worse,
escalate violations of them beyond the reason
for their existence: the best interests of the
child.
Id. (internal quotations and citations omitted).
While this Court has recognized that “the longer the delay in
entry of the order beyond the thirty-day deadline, the more likely
prejudice will be readily apparent,” In re C.J.B., ___ N.C. App. at
___, 614 S.E.2d at 370, we have also said that even in the face of
a lengthy delay “the party asserting prejudice must actually bear
its burden of persuasion.” In re A.L.G., ___ N.C. App. at ___, 619
S.E.2d at 564. Respondent argues that “her appellate counsel hadnot been appointed because her appeal could not be filed until the
order was entered” and she was “prejudiced by not being allowed to
talk to or see her children, or send them presents or letters”
because of the delays in entering orders. While we reiterate that
it is important for orders to be entered in a timely manner so that
the children can “settl[e] into a permanent family environment,” In
re L.E.B., 169 N.C. App. 375, 427, 610 S.E.2d 424, 426-27 (2005),
on these facts, we hold that respondent has not shown prejudice by
the delay in entry of the order and further delaying the
termination of respondent's parental rights is not in the best
interests of the children.
In regard to her visitation with the children, respondent has
shown no prejudice since even if the order had been entered in a
timely manner she would have been unable to see her children during
the time period at issue because our review indicates her rights
were properly terminated. Further, we find it noteworthy that even
when respondent had an opportunity to see her children prior to the
order at issue she failed to do so as shown in the trial court's
findings, supported by clear, cogent, and convincing evidence, that
respondent “visited the children on an inconsistent and sporadic
basis, with gaps as long as ten months between visits on two
occasions,” “removed herself from meaningful and frequent contact
with [the children] by relocating to Tennessee and not complying
with the court order to the ends that her visits were suspended,”
and “has been unavailable to them emotionally.” Regarding
respondent's argument that her appellate counsel could not beappointed until entry of the order, we hold that the delay in
appointment of appellate counsel has not prejudiced respondent
given that she can point to no specific harm the delay caused,
especially in light of our determination that her parental rights
were properly terminated. Additionally, upon consideration of the
facts of this case, we hold that further delaying the termination
of respondent's parental rights because of the untimely order would
not be in the best interests of the children.
Accordingly, since respondent cannot show prejudice and
further delaying the termination of respondent's parental rights is
not in the best interests of the children, we reject this
assignment of error.
Affirmed.
Judges ELMORE and GEER concur.
Report per Rule 30(e).
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