Appeal by respondent from amended judgments entered 30
December 2004 by Judge Mark Galloway in Caswell County District
Court. Heard in the Court of Appeals 8 February 2006.
Stuart N. Watlington for petitioner-appellee Caswell County
Department of Social Services
Winifred H. Dillon for respondent-appellant.
Respondent mother appeals from amended judgments filed 30
December 2004 terminating parental rights of her minor children,
(See footnote 1)
and R.V.P. and placing them in the custody of Caswell
County Department of Social Services (petitioner-DSS).
On 5 February 2001, the court adjudicated W.F.P. and R.V.P. to
be neglected and placed them in DSS custody. When the family moved
to Caswell County in April 2000, DSS was asked to provide
supportive services based on concerns over respondent's inability
to provide proper care and supervision of the children. The trial
court found the juveniles did not receive proper care from
respondent because of consistent complaints of inappropriate
hygiene; suspicious marks and bruises; and because the juvenileshad been allowed to play on a frozen pond over the Christmas
holidays. W.F.P. and R.V.P. were placed in foster care on 5
February 2001. Respondent was allowed bi-weekly visitation.
After a review hearing on 23 April 2001, the trial court
continued custody of W.F.P. and R.V.P. with petitioner pending a
review within sixty days and biweekly visitation was also
continued, on the condition respondent provided her own
transportation on alternate weeks. Respondent was ordered to
follow the case plan, to arrange adequate transportation, maintain
stability in her home and attend parenting classes regularly.
On 25 June 2001, the trial court reviewed the custody of
W.F.P. and R.V.P. and entered an order continuing their custody
with DSS. The trial court allowed some of respondent's weekly
visits with W.F.P. and R.V.P. to occur in her home in order to
observe her ability to parent when not prompted by DSS.
On 23 July 2001, the trial court ordered reunification efforts
between respondent and W.F.P. and R.V.P. to cease. The trial court
found respondent failed to remedy the deficiencies in the home
environment, and the home continues to be chaotic. Despite
ceasing reunification efforts, the trial court allowed monthly
visitation between respondent and the juveniles to continue.
On 20 August 2001, the case was reviewed at a permanency
planning hearing. At that time, respondent's mother requested
W.F.P. and R.V.P. be placed with her, despite DSS' recommendation
for adoption. Monthly visits between respondent and the children
were allowed to continue. At the permanency planning reviewhearing on 22 October 2001, the trial court changed the permanent
plan from reunification to adoption for W.F.P. and R.V.P. and
ordered that visitation with respondent cease. On 21 December
2001, termination of parental rights (TPR) petitions were filed,
On 3 June 2002, an initial hearing was held to adjudicate the
petitions. On 18 July 2002, the trial court terminated
respondent's parental rights as to W.F.P. and R.V.P. and directed
DSS to draft an order. The case came before the trial court again
on 3 February, 17 March, 7 April and 5 May 2003. Prior to the 7
April 2003 hearing, the parties were working on an order agreeable
to all. On 7 April, respondent was granted a continuance. On 6
May 2003, petitioner presented evidence that Rockingham County DSS
had substantiated two reports of neglect concerning respondent and
her children and that respondent had written checks on a closed
account. At the conclusion of the hearing, the trial court
ratified its previous decision to terminate respondent's parental
rights in the best interests of W.F.P. and R.V.P.
On 14 October 2004, respondent requested the case be reopened
and presented additional testimony. Social workers from Caswell
and Rockingham County DSS testified regarding a 13 July 2004
incident in which respondent was accused of shoplifting photos from
a grocery store. Respondent stated she had forgotten the
photographs were in her pocket book and that there was a
misunderstanding as to a discussion she had with a food stamp
worker regarding her eligibility to receive benefits. As a resultof that discussion, her benefits were suspended. At the conclusion
of this hearing, the trial court rendered a judgment in open court
to terminate respondent's parental rights. Written orders were
filed on 30 December 2004. From these orders, respondent appeals.
On appeal respondent argues: (I) the petitions terminating
respondent's parental rights were legally insufficient because they
failed to allege sufficient facts pursuant to N.C. Gen. Stat. § 7B-
1104(6) and failed to attach a custody order pursuant to N.C. Gen.
Stat. § 7B-1104(5); and (II) petitioner did not have the authority
to file petitions terminating respondent's parental rights because
at the time the petitions were filed no court order granting
custody of the juveniles had been entered.
Respondent first argues the termination of parental rights
petitions were legally insufficient because they failed to allege
sufficient facts pursuant to N.C.G.S. § 7B-1104(6) and failed to
attached a custody order pursuant to N.C.G.S. § 7B-1104(5). We
N.C.G.S. § 7B-1104(6) provides that any petition for
termination of parental rights shall state [f]acts that are
sufficient to warrant a determination that one or more of the
grounds for terminating parental rights exist. N.C.G.S. § 7B-
1104(6) (2005). While there is no requirement that the factual
allegations be exhaustive or extensive, they must put a party onnotice as to what acts, omissions or conditions are at issue. In
, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002).
[W]e find no authority that compelled
dismissal of the action solely because
petitioner failed to include this statement of
fact in the petition. While it is a better
practice to include the factual statement as
stated in the statute, under the facts in this
case we find that respondent has failed to
demonstrate that she was prejudiced as a
result of the omission.
In re Humphrey
, 156 N.C. App. 533, 539, 577 S.E.2d 421, 426 (2003).
Both petitions dated 21 December 2001 contained the following
provision setting forth the grounds to terminate the respondent's
That the Petitioner desires that the [c]ourt
enter an order terminating the parental rights
of [respondent]; and that the grounds for the
termination of her parental rights are as
(a) That the minor child had been neglected
pursuant to N.C.G.S. § 7B-101(15) and that
said minor child has previously been
adjudicated neglected in Caswell County
District Juvenile Court, pursuant to N.C. Gen.
Stat. § 7B-101(15); and
(b) Such other and further grounds as may
justify the termination of the parental rights
of the respondent herein.
The above language put respondent on notice that the termination of
her parental rights was based on the prior adjudication of neglect.
A court may terminate parental rights if a child is deemed to be
abused or neglected if the court finds the juvenile to be an abused
juvenile within the meaning of [N.C.]G.S. 7B-101 or a neglected
juvenile with the meaning of [N.C.]G.S. 7B-101. N.C. Gen. Stat.
§ 7B-1111(a)(1) (2005). The petitions in this case allegedsufficient facts pursuant to N.C.G.S. § 7B-1104(6) (2005). See In
, 117 N.C. App. 693, 696, 453 S.E.2d 220, 222 (1995)
(respondent must show any alleged error was prejudicial).
Where a trial court places custody of the juvenile in some
agency or person other than the parent, N.C. Gen. Stat. §
7B-1104(5) requires that a copy of the custody order be attached to
a subsequent petition to terminate parental rights.
. In the instant case, there is no indication
petitioner attached a copy of the custody order to the TPR
petition. However, there is also no indication that respondent was
unaware of the children's placement at any point during the case.
The petition noted that custody of [W.F.P. and R.V.P.] was given
by prior orders of the trial court, and it referenced the court
file wherein those orders were entered. In her answer, respondent
admitted that W.F.P. and R.V.P. were in the legal custody of the
Caswell County Department of Social Services. As detailed above,
counsel for respondent indicated at the termination hearing that
counsel had been involved in the case for some time and had
reviewed the trial court's orders prior to the hearing. Various
trial court orders in the record note respondent was present at
pre-termination hearings in which custody was granted to and
continued with petitioner as well as those hearings in which
visitation options were discussed and determined. Therefore, we
conclude respondent is unable to demonstrate any prejudice arising
from petitioner's failure to attach the pertinent custody order to
the petition. Accordingly, we overrule this argument.
Respondent next argues petitioner did not have authority to
file petitions terminating respondent's parental rights because the
trial court's order
(See footnote 2)
signed 5 February 2001 did not become final
until 3 June 2002 when it was filed with the clerk and therefore
petitioner lacked standing to petition to terminate respondent's
parental rights. We disagree.
(a) A petition or motion to terminate the
parental rights of either or both parents to
his, her, or their minor juvenile may only be
filed by one or more of the following:
. . .
(3) Any county department of social
services, consolidated county human
services agency, or licensed
child-placing agency to whom custody of
the juvenile has been given by a court of
N.C. Gen. Stat. § 7B-1103(a) (2005) (emphasis added). The plain
language of the statute does not require that a court order be
filed before one has standing to petition to terminate parental
rights. See In re Peirce
, 53 N.C. App. 373, 281 S.E.2d 198 (1981)
and In re Allen
, 58 N.C. App. 322, 293 S.E.2d 607 (1982) (noting
that basic rules of civil procedure while not ignored are not
superimposed upon TPR proceedings). Therefore, if a court has
given a petitioner custody of the juvenile, that petitioner may
file a termination of parental rights petition. See In re Manus
82 N.C. App. 340, 342-43, 346 S.E.2d 289, 291 (1986) (A countydepartment of social services, to whom custody of a child has been
given by court order, has standing to maintain such an action.);
but compare In re Miller
, 162 N.C. App. 355, 590 S.E.2d 864 (2004)
(trial court lacked jurisdiction to enter an order terminating a
mother's parental rights, because an agency no longer had custody
of the child when it brought the termination action, and therefore
lacked standing to bring the action pursuant to N.C.G.S. §
In the case sub judice
, the petitioner had been given custody
of W.F.P. and R.V.P. pursuant to the trial court's order of 5
February 2001. After the initial 5 February 2001 hearing, the
trial court conducted five additional review hearings (23 April
2001; 25 June 2001; 23 June 2001; 20 August 2001; and 22 October
2001), and entered orders acknowledging the children had previously
been adjudicated neglected on 5 February 2001 and the children were
placed in petitioner's custody. Notwithstanding respondent's
contention as to the effect of the 5 February 2001 order, the
language contained in each of the orders from the five subsequent
review hearings indicated petitioner, under N.C.G.S. §
7B-1103(a)(3), had been given custody. Therefore petitioner had
the requisite standing to petition for termination of respondent's
parental rights. This assignment of error is overruled.
Judges MCGEE and CALABRIA concur.
Report per Rule 30(e).