In re: S.B.S.
Graham County
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.
WYNN, Judge.
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
defined as:
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 20[0]3 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.,
Graham County
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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