In re: S.B.S.
No. 03 J 9
Sybil G. Mann, for petitioner-appellee.
Nancy R. Gaines, for respondent-appellant-father.
Robert W. Ewing, for respondent-appellant-mother.
Hunton & Williams, by Jason S. Thomas, for Guardian ad Litem.
Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and if the requirements of this rule are not complied with, the appeal must be dismissed. (See footnote 1) Here, Respondent- Mother failed to file her notice of appeal within the time allowed by Rule 3(b); moreover, Respondent-Father assigned error to an order that was not designated in his notice of appeal in violation of Rule 3(a). However, we grant certiorari and reach the merits oftheir appeals (See footnote 2) whereupon we affirm the order terminating their parental rights.
The Respondents are the natural parents of a child removed from their home in March 2002 by the Graham County Department of Social Services. The child, one-year-old at the time of removal, was adjudicated (by order entered 3 June 2002) to be a dependent and neglected juvenile as defined by sections 7B-101(9) and (15) of the North Carolina General Statutes. On 7 April 2003, DSS filed a Petition to terminate the parental rights of Respondents regarding this child. By order filed 28 March 2004, the trial court adjudicated that there was sufficient evidence to support the Petition for termination of parental rights and continued the dispositional hearing to a later date. Following the dispositional hearing the trial court by order entered 2 September 2004, terminated Respondents' parental rights. Respondent-Mother and Respondent-Father, individually, appeal from the 2 September 2004 order.
N.C. Gen. Stat. § 7B-1111(a)(1) (2005). A neglected juvenile is
A juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15) (2005). The trial court made the following pertinent findings of fact regarding Respondent-Mother's neglect which are binding on this Court on appeal:
28 March 2004 Order:
9.A. The juvenile  was adjudicated a neglected and dependent juvenile by an order entered May 16, 2002, and subsequent order on disposition entered August 19, 2002, . . ..
B. Both parents have admitted to a history of drug abuse prior to and after the birth of [the child]. At the time of the taking of that juvenile into custody, Respondent Mother was taking oxyxodine, oxycontin, amytriptolene and tested positive for the presence of THC from marijuana and amphetamines. . . .
C. Respondent Mother failed to attend and participate on three separate attempts toenroll her in the Alcohol Drug Abuse Treatment Center. These three missed admissions were without excuse or good cause shown. Respondent Mother was admitted on the fourth attempt to the Treatment Center on November 11, 2002. She completed the program on December 2, 2002.
D. On October 18, 2002, a substance abuse panel was preformed by Quest Diagnostics on a specimen from Respondent Mother, which indicated a positive result for the presence of methamphetamines and amphetamines.
E. On November 9, 2002, a substance abuse panel was performed on a specimen from Respondent Mother, which indicated a positive result for the presence of methamphetamines.
G. While a patient at Murphy Medical Center giving birth to the juvenile's brother . . . Respondent Mother participated in a screening for drugs. The test results were positive for methamphetamines. A drug test was performed on a sample from the baby's meconium, on March 8, 2003, which tested positive for amphetamines and methamphetamines.
H. The result of a drug screen test performed on Respondent Mother on April 8, 2003, was positive for the presence of opiates and methamphetamines.
I. Respondent Mother was incarcerated in the North Carolina Department of Corrections from May 203 until November 12, 2003.
K. Respondent Mother is not seeing a counselor, psychologist or social worker.
2 September 2004 Order:
17. From November, 2003, to the date of this hearing Respondent Parents have not (a) given any support or other money for juvenile; (b) given any gifts for the child to the Department; (c) given the Department any letters or cards for the juvenile; (d) given any photos or other items to the Department for the child; (e) given the Department anywritten requests to have contact with the juvenile; (f) given the Department any information concerning hair or drug tests; and (g) given the Department any documentation regarding their current employment.
28. The juvenile has atypical development. Most children, who were her age at the time when she came to the current foster care placement, have a vocabulary of about 100 words; [the child] did not. She had less than half that number. She used tears, screaming, and bodily manipulation to express her needs. Lack of consistent parenting by the Respondent Parents, who left her with various relatives during the time she was in their custody, and by the relative placement contributed to her language development problems.
48. In utero drug abuse by the Respondent Mother created an unhealthy environment for the juvenile before she was born. Continued neglect by the Respondent Mother after birth reinforced this unhealthy environment. Maltreatment at an early age can lead children to believe that their predicament or life situation is their fault. . . .
51. The effects of the juvenile's maltreatment are still evident and in some ways will affect her for the rest of her life. She will always live with some fear of abandonment and will likely struggle with intimacy for some time. The foster patents are highly motivated to continue getting the juvenile the treatment and support needed to facilitate her ongoing healing.
53. Respondent Parents are not healthy candidates to take on the care of a child with Reactive Attachment Disorder due to their drug abuse, chaotic home and family dysfunction.
Where termination of parental rights is sought upon allegations of neglect, the court may consider evidence of neglect occurring before custody has been taken from the parents, but termination may not be based solely on conditions of neglect which may have previously existed, but no longer exist. In re Ballard, 311 N.C. 708, 716, 319 S.E.2d 227, 232-33 (1984). The court must also consider evidence of any change in condition up to the time of the hearing, but this evidence is to be considered in light of the evidence of prior neglect and the probability of repetition of neglect. Id. In determining whether a child is neglected, the determinative factors are the circumstances and conditions surrounding the child, not the fault or culpability of the parent. Therefore, the fact that the parent loves or is concerned about his child will not necessarily prevent the court from making a determination that the child is neglected. In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 252 (1984).
The trial court's findings of fact support its conclusion of law that the child is neglected and that there are sufficient grounds to terminate Respondent-Mother's parental rights under section 7B-1111(a)(1). The trial court found that Respondent- Mother has a long history of drug abuse, gave no financial assistance for the child, and sent no letters, gifts, or photographs to the child. Also, the trial court found that Respondent-Mother's early neglect and abandonment of the child have caused lasting psychological problems for the child. Accordingly, there were sufficient findings of fact to support the trial court'sconclusion of law that Respondent-Mother neglected the child to support the trial court's termination of Respondent-Mother's parental rights.
As finding of one statutory ground is sufficient to support the termination of parental rights, we need not address whether the trial court erred in concluding grounds existed to terminate Respondent-Mother's parental rights pursuant to section 7B- 1111(a)(2). In re Pierce, 67 N.C. App. at 261, 312 S.E.2d at 903.
In re: S.B.S.,
No. 03 J 9
JACKSON, Judge concurring in part, dissenting in part.
For the reasons stated below, I must respectfully dissent from
the majority's decision to address respondent-father's appeal. I
concur, however, with the majority's decision to grant
certiorari to respondent-mother's appeal, and I further concur with
the majority's conclusion that there were sufficient findings of
fact to support the trial court's conclusion of law that
respondent-mother neglected the child, and thus the trial court's
termination of her parental rights was proper.
I disagree, however, with the majority's decision to treat respondent-father's appeal as a petition for writ of certiorari. I believe this is improper and contrary to our Rules of Appellate Procedure and caselaw. Rule 21 of our Rules of Appellate Procedure provides that a writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action . . . . N.C. R. App. P. 21(a)(1) (2005). Our rules further specify that a petition for writ of certiorari to this Court must be filed withthe clerk of the Court of Appeals, and the petition must contain the following:
a statement of the facts necessary to an understanding of the issues presented by the application; a statement of the reasons why the writ should issue; and certified copies of the judgment, order or opinion or parts of the record which may be essential to an understanding of the matters set forth in the petition.
N.C. R. App. P. 21(c) (2005). In the instant case, respondent- mother filed a petition for a writ of certiorari on 7 February 2006 which satisfied the requirements of Rule 21, however respondent- father did not join in the petition nor did he file a separate petition for writ of certiorari. As such, I do not believe that we may treat his appeal as a petition for writ of certiorari as it does not conform to the requirements of Rule 21.
As stated by the majority, Rule 3 of our Rules of Appellate Procedure is jurisdictional, and the fact that respondent-father gave notice of appeal only from the 2 September 2004 order, and not the 28 March 2004 order, means that this Court does not have jurisdiction to hear his appeal regarding the 28 March 2004 order. See Finley Forest Condo. Ass'n v. Perry, 163 N.C. App. 735, 741, 594 S.E.2d 227, 231 (2004) (quoting Bromhal v. Stott, 116 N.C. App. 250, 253, 447 S.E.2d 481, 483 (1994), aff'd, 341 N.C. 702, 462 S.E.2d 219 (1995)) ('Without proper notice of appeal, the appellate court acquires no jurisdiction and neither the court nor the parties may waive the jurisdictional requirements even for good cause shown under Rule 2.'). Accordingly, I would grant appellee's motion to dismiss respondent-father's appeal, as he has failed to give notice of appeal from the 28 March 2004 order and he failed to properly petition this Court for a writ of certiorari.
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