In Re: S.M.S. & E.M.S., (05-137) 01/17/2006

Appeal by respondent from judgments entered 20 January 2004 by Judge Mark E. Powell in Rutherford County District Court. Heard in the Court of Appeals 9 January 2006.

    No brief for petitioner-appellee Rutherford County Department of Social Services.

    Hunton & Williams, LLP, by K. Stacie Corbett, for Guardian ad Litem-appellee.

    Robert W. Ewing for respondent-appellant.

HUNTER, Judge.

    Respondent appeals from judgments terminating her parental rights to SMS and EMS entered 20 January 2004. For the reasons stated hereon, we affirm the trial court's order.
    Respondent is the mother of SMS and EMS. By orders for nonsecure custody, the children were removed from her home and placed in foster care on 10 June 2002. The children were adjudicated as neglected juveniles on 5 August 2002. They were returned to respondent's home for a trial period from 24 September 2002 to 4 November 2002, when the children were ordered returned tofoster care. Motions in the cause to terminate respondent's parental rights were filed on 16 June 2003. Hearings on the petitions to terminate rights were conducted on 30 September 2003 and 6 November 2003. Judgments terminating her rights to the children were entered on 20 January 2004 and notice of appeal was filed by respondent on 15 September 2004. The court terminated her parental rights on the ground she willfully left the child in foster care for more than twelve months without making reasonable progress under the circumstances in correcting the conditions which led to the removal of the child. See N.C. Gen. Stat. § 7B- 1111(a)(2) (2003).
    Respondent contends (1) the court's finding that respondent left the children in foster care for more than twelve months is not supported by clear, cogent, and convincing evidence, and (2) the court's findings of fact do not support the conclusion of law that she left the children in foster care for more than twelve months. She argues that the evidence fails to show that the children were left in foster care for more than twelve months “next preceding the filing of the petition[s]” to terminate her parental rights. As authority for the proposition that the relevant period is the twelve months next preceding the filing of the petition to terminate rights, she cites In re Pierce, 356 N.C. 68, 75, 565 S.E.2d 81, 86 (2002).
    Respondent's reliance upon Pierce is misplaced. In that case, the Supreme Court interpreted a predecessor version of the current statute, N.C. Gen. Stat. § 7B-1111(a)(2). Effective to petitionsfiled on or after 1 January 2002, the current statute provides for termination of parental rights if:
        The parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile.

N.C. Gen. Stat. § 7B-1111(a)(2); 2001 N.C. Sess. Laws ch. 208, § 6. The statute interpreted by the Court, N.C. Gen. Stat. § 7A-289.32, provided for termination of parent rights if:
        (3)    The parent has willfully left the child in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made within 12 months in correcting those conditions which led to the removal of the child.

N.C. Gen. Stat. § 7A-289.32 (Cum. Supp. 1998) (repealed effective l July 1999 and recodified in N.C. Gen. Stat. ch. 7B, art. 11). The Court interpreted the phrase “within 12 months in correcting those conditions which led to the removal of the child” to mean the twelve-month period next preceding the filing of the petition to terminate parental rights. Pierce, 356 N.C. at 75, 565 S.E.2d at 86. In a footnote, the Court expressly noted the subsequent amendment of the statute by the General Assembly to delete the “'within 12 months'” limitation and that, thus, “under current law, there is no specified time frame” that limits the admission of evidence relative to a parent's reasonable progress or lack thereof. Pierce, 356 N.C. at 75 n.1, 565 S.E.2d at 86 n.1.    The current statute simply states as a ground for termination of rights that the parent willfully left the child in foster care or placement outside the home “for more than 12 months.” It does not limit the twelve months to a continuous or uninterrupted period of time. If the General Assembly had intended such limitation, it could have used language such as “for a continuous period” as used in N.C. Gen. Stat. § 7B-1111(a)(3). In this case, the children were in foster care or placement outside the home for a total of more than twelve months. The court's finding and conclusion is supported by evidence and is therefore upheld.
    By her remaining contention, respondent argues petitioner failed to give the statutory notice required by N.C. Gen. Stat. § 7B-1106.l because the notice lacks all of the elements listed in N.C. Gen. Stat. § 7B-1106.1(b), specifically items(b)(2) through (b)(6). However, respondent attended the hearing in the court below and did not raise any objection to the notice. She therefore waived any challenge to the notice. See In re B.M., ___ N.C. App. ___, ___, 607 S.E.2d 698, 702 (2005).
    The judgments are
    Affirmed.
    Chief Judge MARTIN and Judge STEELMAN concur.
    Report per Rule 30(e).

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