In the Matter of H.S.F. Cleveland County
No. 04 J 007
Charles E. Wilson, Jr. for petitioner-appellee Cleveland
County Department of Social Services.
Rebekah W. Davis for respondent-father-appellee.
Susan P. Hall for respondent-mother-appellant.
Leslie C. Rawls for respondent-stepfather-appellant.
CALABRIA, Judge.
C.B. (“respondent-mother”) and D.B. (“respondent-stepfather”)
appeal from order of the trial court adjudicating H.S.F. (“the
minor child”) neglected and determining that J.F. (“respondent-
father”) and respondent-mother share joint legal custody of the
minor child with her primary physical custody with respondent-
father. We dismiss respondent-stepfather's appeal and affirm the
order of the trial court.
I. Facts
On 28 January 2004, the Cleveland County Department of Social
Services (“D.S.S.”) filed a juvenile petition in this case,alleging that the minor child was neglected in that she lived in an
environment injurious to her welfare. Specifically, the petition
alleged as a result of domestic violence between respondent-mother
and respondent-stepfather, both respondent-mother and respondent-
stepfather obtained protective orders against each other.
According to the petition, respondent-mother gave “several
different accounts of her injury and what happened that led to the
50B [protective order, all of which she later said occurred during
a diabetic incident] including stating that she fell and hit the
corner of a table, that she fell and hit a ceramic cat in the
living room floor, and that [respondent-stepfather] had pushed her
up against the refrigerator to give her [a] shot[.]” Respondent-
stepfather's protective order stated that respondent-mother “had
attempted to cause him bodily harm with a 22 rifle and a [baseball]
bat” and that respondent-mother was “using cocaine and sold his
tools.”
The petition further alleged that a communications assistance
report obtained by D.S.S. revealed 99 incidents that occurred from
17 March 1998 to 16 November 2003, which included “larceny reports,
diabetic problems, assault/rape, suicide/investigation, warrant
attempt service, domestic calls, overdose/ingestion/poisoning,
communicat[ing] threats, welfare checks, assault, [assistance by]
EMS, discharging firearms, [assistance by] DSS, transports,
vandalism, [a] 911 hang up, and custody order calls.” The petition
additionally stated that D.S.S. had received a phone call that
[respondent-stepfather] had “broken both of [respondent-mother's]arms and legs and given her numerous black eyes.” Subsequent to
the filing of the petition, the trial court entered an order for
non-secure custody of the minor child to D.S.S. and then entered
orders on need for continued non-secure custody.
On 16 April 2004, respondent-father filed a motion for
physical and legal custody of the minor child. The trial court
then conducted an adjudication and dispositional hearing. On 14
May 2004, the trial court held that the minor child was neglected,
granted legal custody to respondent-mother and respondent-father,
and granted physical custody to respondent-father with physical
placement of the minor child at the residence of the paternal
grandmother. Respondent-mother and respondent-stepfather appeal.
II. Dismissal of Respondent-Stepfather's Appeal
D.S.S. argues on appeal that “the trial court erred as a
matter of law in denying the petitioner's motion to dismiss the
appeal of [respondent-stepfather] in that the stepfather is not a
proper party for appeal pursuant to N.C. Gen. Stat. § 7B-1002
(2003).” We agree.
North Carolina General Statutes § 7B-1002 (2003)
(See footnote 1)
states, “An
appeal may be taken by the guardian ad litem or juvenile, the
juvenile's parent, guardian, or custodian, the State or county
agency.” Pursuant to N.C. Gen. Stat. § 7B-101(8) (2005) a
“custodian” is a person who “has been awarded legal custody of ajuvenile by a court or a person, other than parents or legal
guardian, who has assumed the status and obligation of a parent
without being awarded the legal custody of a juvenile by a court.”
On the other hand, a “caretaker” is defined as “[a]ny person other
than a parent, guardian, or custodian who has responsibility for
the health and welfare of a juvenile in a residential setting. . .
. ” N.C. Gen. Stat. § 7B-101(3) (2005). Moreover, “[a] person
responsible for a juvenile's health and welfare means [inter alia]
a stepparent[.]” Id.
In In re A.P., 165 N.C. App. 841, 600 S.E.2d 9 (2004), this
Court considered the respective meanings of the terms “custodian”
and “caretaker” and held that listing a respondent's name on a
petition fails to establish that he or she is a “custodian” within
the meaning of N.C. Gen. Stat. § 7B-101(8). Id., 165 N.C. App. at
844, 600 S.E.2d at 11. Rather, the distinction between a
“custodian” and a “caretaker” depends on whether respondent stands
in loco parentis. Id. On these facts, the petition stated that
respondent-stepfather had the relationship of “Step Father” to the
minor child, and there is no evidence in the record that
respondent-stepfather had been granted legal custody of the minor
child. Moreover, the minor child has two biological parents and
resided with her biological mother at the time of the petition.
Accordingly, respondent-stepfather is a “caretaker” under N.C. Gen.
Stat. § 7B-101(3), and the trial court erred in denying D.S.S.'s
motion to dismiss his appeal.
III. Subject Matter and Personal Jurisdiction Respondent-mother initially argues that the trial court lacked
subject matter and personal jurisdiction because a summons was not
issued and served upon her. We disagree.
North Carolina General Statutes § 7B-401 (2005) states, “The
pleading in an abuse, neglect, or dependency action is the
petition. The process in an abuse, neglect, or dependency action
is the summons.” Pursuant to N.C. Gen. Stat. § 7B-406 (2005),
(a) Immediately after a petition has been
filed alleging that a juvenile is abused,
neglected, or dependent, the clerk shall issue
a summons to the parent, guardian, custodian,
or caretaker requiring them to appear for a
hearing at the time and place stated in the
summons. . . . A copy of the petition shall
be attached to each summons. . . .
(Emphasis added). Respondent-mother argues that this provision is
mandatory, and in the absence of a summons, the trial court
“acquired jurisdiction over neither the persons nor the subject
matter of the action, and was without authority to enter [an] order
adjudicating a juvenile as neglected.” We agree that generally,
“process must be issued and served in the manner prescribed by
statute, and failure to do so makes the service invalid even though
a defendant had actual notice of the lawsuit.” Matter of Mitchell,
126 N.C. App. 432, 432, 485 S.E.2d 623, 624 (1997) (citations
omitted). However, in this case, respondent-mother waived proper
service of process by fully participating in the proceeding without
raising the issue of insufficiency of process. North Carolina
General Statutes § 1-75.7 (2005) provides:
A court of this State having jurisdiction of
the subject matter may, without serving a
summons upon him, exercise jurisdiction in anaction over a person:
(1) Who makes a general appearance in an
action; provided, that obtaining an extension
of time within which to answer or otherwise
plead shall not be considered a general
appearance[.] . . .
Moreover, our Supreme Court has noted that in determining whether
a general appearance has occurred, this section must be construed
along with N.C. Gen. Stat. § 1A-1, Rule 12. Lynch v. Lynch, 302
N.C. 189, 197, 274 S.E.2d 212, 219, modified on rehearing, 303 N.C.
367, 279 S.E.2d 840 (1981). North Carolina General Statutes § 1A-
1, Rule 12 (2005) states in pertinent part:
(h) Waiver or preservation of certain
defenses._
(1) A defense of lack of jurisdiction over the
person, . . . 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 or an amendment thereof permitted by
Rule 15(a) to be made as a matter of course.
In the case sub judice, respondent fully participated in the
proceedings without raising the issue of insufficiency of service
of process. We hold respondent's participation amounts to a
general appearance; therefore, she waived the issue. See Williams
v. Williams, 46 N.C. App. 787, 789-90, 266 S.E.2d 25, 28 (1980).
Accordingly, this assignment of error is without merit.
IV. Findings of Fact and Conclusions of Law
Respondent-mother next argues that clear, cogent, and
convincing evidence does not support findings of fact 12, 13, 22,
and 23. On appeal from the adjudication phase, we consider whether
the trial court's findings are supported by clear and convincing
evidence. N.C. Gen. Stat. § 7B-805 (2005). If the findings aresupported by clear and convincing evidence, we consider whether
they support the trial court's conclusions of law. In re M.J.G.,
168 N.C. App. 638, 643, 608 S.E.2d 813, 816 (2005). Because
respondent-mother has failed to challenge the conclusion of law
that the minor child is neglected, it would be futile to consider
her assignments of error regarding the findings of fact. In re
P.L.P., __ N.C. App. __, __, 618 S.E.2d 241, 246 (2005).
Accordingly, we do not reach these assignments of error.
V. Ceasing Efforts Toward Reunification
Respondent-mother argues that the trial court erred in its
findings of fact and conclusions of law that D.S.S. made reasonable
efforts toward reunification and is relieved of its duty to
continue efforts toward reunification of the minor child with her.
The trial court did not err in so finding and concluding because
the minor child's legal custody has been granted both to
respondent-mother and respondent-father with primary physical
custody granted to respondent-father. As such, D.S.S. has no
further duty in this case given that the minor child is no longer
in D.S.S.'s legal or physical custody. See N.C. Gen. Stat. § 7B-
507(b) (2003) (applying when the trial court ceases reunification
“in any order placing a juvenile in the custody or placement
responsibility of a county department of social services”)
(emphasis added).
VI. Dispositional Phase
Respondent-mother argues that the trial court abused its
discretion in the dispositional phase by determining that it was inthe best interests of the minor child for primary physical custody
to be granted to respondent-father. On review from the
dispositional phase, we consider whether the trial court abused its
discretion in determining the best interests of the minor child.
In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001).
An abuse of discretion results when a trial court's determination
is manifestly without reason. Sharp v. Sharp, 116 N.C. App. 513,
520, 449 S.E.2d 39, 43 (1994). Given respondent-mother's history
of substance abuse and the severe domestic violence to which the
minor child was exposed, we find no abuse of discretion in the
trial court's determination that primary physical custody should be
granted to respondent-father.
VII. North Carolina General Statutes § 7B-507(c) (2005)
Respondent-mother argues that the trial court erred in failing
to comply with N.C. Gen. Stat. § 7B-507(c), which states:
At any hearing at which the court finds that
reasonable efforts to eliminate the need for
the juvenile's placement are not required or
shall cease, the court shall direct that a
permanency planning hearing as required by
G.S. 7B-907 be held within 30 calendar days
after the date of the hearing and, if
practicable, shall set the date and time for
the permanency planning hearing. . . .
Respondent-mother specifically states a violation of this statute
occurred because, “In the case at hand, the next court date was
scheduled for an August 2004 session, a little over three months
from the date of the hearing in question.” We have held that
violation of the statutory timelines do not result in per se
reversal in the absence of a showing of prejudice resulting fromthe delay. In re C.J.B., __ N.C. App. __, __, 614 S.E.2d 368, 369-
70 (2005). In this case, respondent-mother has failed to argue any
prejudice, and we, therefore, hold this assignment of error is
without merit.
VIII. Failure to Appoint a Guardian ad Litem
In her last argument on appeal, respondent-mother argues “the
trial court erred in determining that one of the grounds for
neglect is that the respondent mother abused substances, as this
goes to dependency[,] [and] respondent mother should have been
appointed a guardian under [N.C. Gen. Stat. § 7B-602 (2003)].”
North Carolina General Statutes § 7B-602(b)
(See footnote 2)
, in pertinent
part, states:
a guardian ad litem shall be appointed in
accordance with the provisions of G.S. 1A-1,
Rule 17, to represent a parent in the
following cases:
(1) Where it is alleged that the juvenile is a
dependent juvenile within the meaning of G.S.
7B-101 in that the parent is incapable as a
result of substance abuse, mental retardation,
mental illness, organic brain syndrome, or any
other similar cause or condition of providing
for the proper care and supervision of the
juvenile[.]
In this case, the petition did not allege that the minor child was
a dependent juvenile but rather that she was neglected.
Nonetheless, an appointment of a guardian ad litem may be
necessary, although D.S.S. did not allege dependency, when the“issues that were present . . . were intertwined in such a way as
to obviate consideration of the . . . order without concurrent
consideration of the [dependency issues] that were present.” In
the Matter of L.W., __ N.C. App. __, __, __ S.E.2d __, __ (2006)
(requiring appointment of a guardian ad litem when a respondent's
mental issues were intertwined with her neglect of a minor child).
In the case sub judice, the trial court found, inter alia, that
“the juvenile is a neglected juvenile based upon the respondent
mother's history of prescribed substance abuse for more than ten
years” and that respondent-mother's use of prescription drugs
“could be substance abuse.” The trial court also found that “the
juvenile is a neglected juvenile based upon domestic violence, the
mother's health, and the mother's abuse of prescribed medication.”
Although the trial court listed the respondent-mother's abuse of
prescribed medication as one reason why the juvenile was a
neglected juvenile, the findings as a whole do not support the
contention that respondent-mother was incapable as a result of this
substance abuse of providing proper care and supervision for the
juvenile such that the juvenile was a “dependent juvenile.” See
N.C. Gen. Stat. § 7B-602; In the Matter of L.W., __ N.C. App. at
__, __ S.E.2d at __ (“it [is] the substance of the trial court's
reasoning, not specific citations to or allegations of dependency,
that control[] whether the appointment of a guardian ad litem . .
. was statutorily required [under the applicable, pre-amendment
version of § 7B-602]”). Accordingly, the trial court did not errin failing to appoint respondent a guardian ad litem. See In re
H.W., 163 N.C. App. 438, 447, 594 S.E.2d 211, 216 (2004).
Respondent-mother has failed to properly raise for our review
her remaining assignments of error, and we deem them abandoned.
N.C. R. App. P. 28(b)(6) (“Assignments of error not set out in the
appellant's brief, or in support of which no reason or argument or
authority cited, will be taken as abandoned”).
Affirmed.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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